New EU Trade Policy

The EU builds on its Green Deal and Digital Strategy in mapping out how to remake its trade policies.

The European Commission (EC) has released a detailed update of its trade policy, that includes a complex set of interlocking near-term and medium-term actions to place the European Union on better footing visa vis other nations and areas of the world. This policy statement fits into the EC’s new direction under the leadership of EC President Ursula von der Leyen, particularly her focus on a European Green Deal and a bloc-wide sea change in digital policy and regulation in its European Digital Strategy. The EC is trying to take a longer view in setting course and policy and is projecting where the EU would like to be in 2030 and the policy changes needed now to get there.

In “Trade Policy Review: An Open, Sustainable and Assertive Trade Policy,” the EC is folding recovery from the COVID-19 pandemic into its Green Deal and Digital Strategy aspirations with an eye towards achieving sustainable growth that positively affects the EU and the world. This is an ambitious goal, to say the least, especially given all the unknown unknowns yet to be known (I figure a bit of Secretary of Defense Donald Rumsfeld helps all proceedings from an epistemological perspective.) Nonetheless, the EC asserted

Making the right policy choices in designing a trade policy for the world of 2030 means taking into account recent political, economic technological, environmental and social shifts and the global trends emerging from them.

These are fairly obvious ground for making policy, one would hope. Additionally, the EC’s call for multilateralism and international cooperation are standard fare from Brussels. The EC goes on to condemn unilateralism, possibly a shot at both the United States (U.S.) (at least under former President Donald Trump) and People’s Republic of China’s (PRC) foreign policy approaches, but then diagnoses the causes of such unilateralism. As our focus is on technology policy, politics, and law, I will only excerpt those that are immediately and directly relevant:

  • First, globalisation, technological evolutions and the build-up of global value chains have had a dichotomous impact on economies and societies. On the one hand, they have created massive efficiency gains, fuelling (sic) sustained, trade-led economic growth in many parts of the world. This has helped to lift millions of people out of poverty. On the other hand, these developments sometimes have had a strong disruptive effect leading to growing inequalities and leaving some individuals and communities behind. What were expected to be transitory adjustment costs have sometimes turned into permanent losses in living standards, employment opportunities or wages and other working conditions. In many cases, governments are perceived to have been insufficiently responsive to economic adjustments and mitigating their negative impacts. This has led to calls for de-globalisation and to the rise of inward- looking and isolationist reactions.
  • Second, the rapid rise of China, demonstrating global ambitions and pursuing a distinct state- capitalist model, has fundamentally changed the global economic and political order. This poses increasing challenges for the established global economic governance system and affects a level playing field for European companies competing globally and at home.
  • Fourth, the digital transformation is another key enabler of sustainable development, but also a space of competition and inadequate multilateral governance. As it embarks on its Digital Decade, supporting Europe’s digital transformation is a priority both in internal and external policies including trade policy and instruments. At the same time, the nature of trade will continue to evolve. It will become more innovation-driven, supported by intellectual property (IP) protection, with an increasing role of services trade compared to goods. Services not only contribute directly to the value chain (financial services, telecommunication, IT, transport and logistics) but – often even more importantly – they contribute by being incorporated in manufacturing products. The servicification (sic) of the economy and the rise of digital technologies have created well-paid and high quality jobs and have fuelled (sic) economic growth.

The EC then detailed “A Trade Policy That Supports The EU’s Open Strategic Autonomy” and started by stressing the need for “Open strategic autonomy,” a path aside and apart from the U.S., PRC and other nations, that “emphasises the EU’s ability to make its own choices and shape the world around it through leadership and engagement, reflecting its strategic interests and values.” The EC added:

Open strategic autonomy is a policy choice, but also a mind-set for decision makers. It builds on the importance of openness, recalling the EU’s commitment to open and fair trade with well-functioning, diversified and sustainable global value chains. It encompasses:

  • resilience and competitiveness to strengthen the EU’s economy;
  • sustainability and fairness, reflecting the need for responsible and fair EU action;
  • assertiveness and rules-based cooperation to showcase the EU’s preference for international cooperation and dialogue, but also its readiness to combat unfair practices and use autonomous tools to pursue its interests where needed.

The EC stated “[t]he EU is built on openness, both internally and externally” and:

Openness and engagement are a strategic choice that also cater for the European Union’s well-understood self-interest. Openness brings prosperity, competitiveness and dynamism. At the same time, an open economy needs to be combined with decisive action to mitigate and adapt to climate change, protect the environment and strong social and labour policies, responding to the expectations of EU citizens. Only this will allow us to spread the benefits of openness fairly and facilitates adjustment to the transformations of the global economy so that no one is left behind.

The EC noted the next element of its updated trade policy: “[s]trengthening the resilience and sustainability of the EU economy, and its supply chains is a pillar of the European Union’s drive towards open strategic autonomy.” The EC added that “[c]lose cooperation with partners will be important in supporting multilateralism and the rules-based international order.”

The EC detailed the “[t]hree core objectives of trade policy for the medium term:”

  • First, supporting the recovery and fundamental transformation of the EU economy in line with its green and digital objectives.
    • In the context of recovery efforts, EU trade policy should continue to perform its core function of facilitating the exchange of goods and services in a manner that creates opportunities and economic welfare. The focus must be on benefits for citizens, workers and business. At the same time, EU trade policy should help transform the EU’s economy in line with the green and digital transitions. It should unequivocally support the Green Deal in all its dimensions, including the ambition to achieve climate neutrality by 2050. At the same time, the EU’s long-term competitiveness, prosperity and global position will depend on its ability to embrace and harness the digital transformation. The green and the digital transitions should therefore be a key priority for multilateral and bilateral trade policy. For the EU to retain and enhance its influence in shaping the rules necessary in this respect, it needs to develop a more strategic approach to international regulatory cooperation. This calls for closer policy integration between trade policies and internal EU policies.
  • Second, shaping global rules for a more sustainable and fairer globalisation.
    • Global trade rules are in urgent need of being updated to reflect today’s economic environment and the challenges the global community faces. Making globalisation more sustainable and fairer should be the underlying driver of trade policy, delivering on the expectations of Europeans and other people around the world. EU trade policy should use all the tools at its disposal to support social fairness and environmental sustainability.
    • Leading efforts to reform the World Trade Organization and improving the effectiveness of the multilateral framework for trade governance should be the key priority for the EU to achieve this objective. Strengthening stability and rules-based trade will be the central pillar of the EU’s actions, as it is only in such an environment that trade can thrive and international cooperation can develop in the interest of a global sustainable future. At the same time, there is a need to ensure that the rules respond to current economic realities and are well equipped to respond to competitive distortions and ensure a level playing field.
  • Third, increasing the EU’s capacity to pursue its interests and enforce its rights, including autonomously where needed.
    • Negotiating trade agreements has been an important tool to create economic opportunities and promote sustainability; implementing those agreements and enforcing the rights and obligations contained in them will be much more significant. This will include ensuring that the EU has the right tools at its disposal to protect workers and businesses from unfair practices. It also implies a greater effort to ensure the effective implementation and enforcement of sustainable development chapters in EU trade agreements, to level-up social, labour and environmental standards globally. By strengthening the implementation and enforcement of its agreements, the EU’s trade policy creates the conditions for businesses to develop, grow and innovate; and secure high-quality jobs in Europe and beyond. Supporting multilateralism and being open for cooperation is not in contradiction with the EU being ready to act assertively in defending its interests and enforcing its rights. The EU should strengthen its toolbox as necessary to defend itself against unfair trading practices or other hostile acts while acting in accordance with its international commitments.

The EC explained “[t]o deliver the three objectives outlined above, the Commission will focus on six areas…[and] [f]or each of these areas a number of headline actions to be accomplished during the Commission’s current mandate:

  • Reform the World Trade Organization (WTO)
  • Support the green transition and promote responsible and sustainable value chains
  • Support the digital transition and trade in services
  • Strengthen the EU’s regulatory impact
  • Strengthen the EU’s partnerships with neighbouring, enlargement countries and Africa
  • Strengthen the EU’s focus on implementation and enforcement of trade agreements, and ensure a level playing field

Regarding the third point above on the “digital transition and trade in services,” the EC provided much more in the way of detail:

  • Supporting Europe’s digital agenda is a priority for EU trade policy. The objective is to ensure a leading position for the EU in digital trade and in the area of technology, most importantly by promoting innovation. The EU should continue to lead the way in digital standards and regulatory approaches, in particular as regards data protection, where the EU’s General Data Protection Regulation is often seen as a source of inspiration. To achieve this, the WTO needs to set the rules for digital trade and the EU needs to play a central role in creating them. Once they have been agreed, the EU should support further plurilateral WTO negotiations to liberalise trade in services in sectors going beyond e-commerce.
  • The EU will also need to step up bilateral engagement and explore stronger frameworks for cooperation on trade-related digital issues with like-minded partners. It will seek to deepen its regulatory dialogues with like-minded partners.
  • The question of data will be essential for the EU’s future. With regard to cross-border data transfers and the prohibition of data localisation requirements, the Commission will follow an open but assertive approach, based on European values and interests. The Commission will work towards ensuring that its businesses can benefit from the international free flow of data in full compliance with EU data protection rules and other public policy objectives, including public security and public order. In particular, the EU will continue to address unjustified obstacles to data flows while preserving its regulatory autonomy in the area of data protection and privacy. To better assess the size and value of cross-border data flows the Commission will create a European analytical framework for measuring data flows.

This suggests the EU sees the WTO as a mechanism by which its view on the regulation of the digital world may become even more influential. The next point regarding bilateral engagement and trade agreements probably refers to the current efforts to finalize the EU’s trade deal with the United Kingdom (UK), which includes an adequacy decision to continue the flow of EU personal data to the UK. But, it is likely also a reference to the state of data flows between the U.S. and EU, which are inhibited by the Court of Justice for the European Union having struck down the adequacy agreement in Schrems II. Not surprisingly, the EU opposes data localization and will look to ensure that international data flows will not disadvantage EU businesses.

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Further Reading, Other Developments, and Coming Events (26, 27, and 28 January 2021)

Further Reading

  • President Biden’s Tech To-Do List” By Shira Ovide — The New York Times. Another survey of the pressing tech issues President Joe Biden and his Administration will grapple with.
  • Trying to improve remote learning? A refugee camp offers some surprising lessons” By Javeria Salman — The Hechinger Report. An organization that is helping refugee children advises that digital literacy is the necessary first step in helping all children have positive online learning experiences (assuming of course they have devices and internet access). This means more than being adept with Instagram, TikTok, and Snapchat. They also suggest that children work on projects as opposed to busy work.
  • Silicon Valley Takes the Battlespace” By Jonathan Guyer — The American Prospect. A company funded, in part, by former Google CEO Eric Schmidt, Rebellion Defense, landed two members on then President-elect Joe Biden’s official transition team, causing some to wonder about the group. This starts up writes artificial intelligence (AI) with defense industry applications, among other products. Schmidt chairs the National Security Commission on Artificial Intelligence and is widely seen as a bridge between Washington and Silicon Valley. Some see the rise of this company as the classic inside the Beltway tale of blurring interests and capitalizing on connections and know how.
  • The fight to make Netflix and Hulu pay cable fees” By Adi Robertson — The Verge. Municipalities are suing platforms like Netflix, Hulu, Dish Network, DirecTV and others, claiming they are not paying the franchise fees and quarterly fees traditional cable companies have been subject to for the use of the localities’ rights of way and broadband service. The companies are, of course, arguing they are not subject to these laws because they are not cable companies. There have been a host of such suits filed throughout the United States (U.S.) and bear watching.
  • Twitter’s misinformation problem is much bigger than Trump. The crowd may help solve it.” By Elizabeth Dwoskin — The Washington Post. Sounds like Twitter is going the route of Wikipedia with a pilot in which volunteers would fact check and provide context to problematic content. Perhaps this helps address the problems posed by social media platforms.
  • Biden’s clean up of Silicon Valley poses a problem for Scott Morrison” By Harley Dennett — The Canberra Times. The concern down under is that the Biden Administration will press the Morrison government into weakening the “Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2020” that “establishes a mandatory code of conduct to help support the sustainability of the Australian news media sector by addressing bargaining power imbalances between digital platforms and Australian news businesses” according to the Explanatory Memorandum. Doing so would please Google, Facebook, and others, supposedly making them more amenable to the coming policy changes Democrats want to unleash on tech companies. It remains to be seen what the Biden Administration would get in return.
  • China turbocharges bid to discredit Western vaccines, spread virus conspiracy theories” By Gerry Shih — The Washington Post. In light of more effective vaccines developed by United States (U.S.) companies and a World Health Organization (WHO) team in Wuhan investigating, the People’s Republic of China (PRC) has kicked its propaganda campaign into high gear. All sorts of unsubstantiated claims are being made about the safety and effectiveness of the U.S. vaccines and the source of COVID-19 (allegedly from the U.S.)
  • A Chinese hacking group is stealing airline passenger details” By Catalin Cimpanu — ZDNet.  Hackers associated with the People’s Republic of China (PRC) apparently hacked into one of the companies that generates Passenger Name Records (PNR) that details who flies where and when. There are many uses for these data, including identifying likely foreign intelligence operatives such as Central Intelligence Agency (CIA) agents stationed abroad.
  • Biden Has a Peloton Bike. That Raises Issues at the White House.” By Sheryl Gay Stolberg — The New York Times. This is the level of coverage of the new President. His predecessor used an insecure iPhone that other nations’ intelligence agencies were likely tapping and was famously careless with classified information. And yet, President Joe Biden’s Peloton worries cybersecurity experts. Buried inside the story are the revelations that during the Digital Age, Presidents present cybersecurity challenges and tailored solutions are found.
  • Ministry of Electronics asks Whatsapp to withdraw changes to privacy policy, disclose data sharing practice” By Bismah Malik — The New Indian Express. India’s Ministry of Electronics and Information Technology (MeitY) is asking WhatsApp to scrap plans to roll out an already delayed change to privacy policies. India is the company’s largest market and has already flexed its muscle against other foreign apps it claimed posed dangers to its people like TikTok. WhatsApp would likely be blocked under a proposed Indian law from moving ahead with its plan to make data people share with WhatsApp business accounts available to Facebook and for advertising. The Data Protection Bill is expected to pass the Parliament his year.
  • WhatsApp Fueled A Global Misinformation Crisis. Now, It’s Stuck In One.” By Pranav Dixit — BuzzFeed News. A nice overview of how WhatsApp and Facebook’s missteps and limited credibility with people resulted in a widely believed misrepresentation about the changes to WhatsApp’s Terms of Service announced earlier this year.
  • Amazon, Facebook, other tech giants spent roughly $65 million to lobby Washington last year” By Tony Romm — The Washington Post. While Amazon and Facebook increased their federal lobbying, Google cut back. It bears note these totals are only for the lobbying these entities are doing directly to the federal government and does not include what they spend on firms and lobbyists in Washington (which is plenty) or their contributions to organizations like the Information Technology Industry Council or the Center for Democracy and Technology (which, again, is a lot.) Let’s also not forget political contributions or fundraising by the leadership and senior employees of these companies and political action committees (PAC). Finally, these totals exclude funds spent in state capitals, and I expect tech companies dropped a ton of cash in places like Sacramento and Olympia last year as major privacy legislation was under consideration. Moreover, this article does not take in whatever the companies are spending in Brussels and other capitals around the world.
  • Google won’t donate to members of Congress who voted against election results” By Ashley Gold — Axios. Speaking of using money to influence the political process, Google has joined other tech companies in pausing donations to Members who voted against certifying President Joe Biden’s victory in the Electoral College (i.e., Senators Ted Cruz (R-TX) and Josh Hawley (R-MO), to name two). We’ll see how long this lasts.
  • FCC’S acting chair says agency reviewing reports of U.S. East Coast internet outages” By Staff — Reuters; “Big Internet outages hit the East Coast, causing issues for Verizon, Zoom, Slack, Gmail” By Rachel Lerman — The Washington Post. On 26 January, there were widespread internet outages on the east coast of the United States (U.S.) that the Federal Communications Commission (FCC) is vowing to investigate. Acting FCC Chair Jessica Rosenworcel tweeted:
    • We have seen reports of internet-related outages on the East Coast, making it difficult for people to work remotely and go to school online. The @FCC Public Safety and Homeland Security Bureau is working to get to the bottom of what is going on.
    • It is not clear where and why the roughly hour long outage occurred, but early fingers are being pointed at Verizon FIOS.
  • Police Say They Can Use Facial Recognition, Despite Bans” By Alfred Ng — The Markup. No one should be surprised that many police departments are reading bans on using facial recognition technology as narrowly as possible. Nevertheless, legislators and advocates are fighting over the interpretations of these recently passed statutes, almost all of which have been put in place by municipalities. Jurisdictions in the United States may also soon choose to address the use of facial recognition technology by businesses.
  • Why Are Moscow and Beijing Happy to Host the U.S. Far-Right Online?” By Fergus Ryan — Foreign Policy. The enemy of my enemy is my friend, supposedly. Hence, extremist right-wingers, white supremacists, and others are making common cause with the companies of the People’s Republic of China and the Russian Federation by moving their websites and materials to those jurisdictions after getting banned by western companies. Given how closely Beijing and Moscow monitor their nations’ internet, this is surely done with the tacit permission of those governments and quite possibly to the same end as their disinformation campaigns: to disrupt the United States and neutralize it as a rival.
  • After Huawei, Europe’s telcos want ‘open’ 5G networks “ By Laurens Cerulus — Politico EU. Europe’s major telecommunications companies, Deutsche Telekom, Telefónica, Vodafone and Orange, have banded together to support and buy Open RAN technology to roll out 5G instead of buying from Ericsson or Nokia who are promising to do it all. The Open RAN would allow for smaller companies to build pieces of 5G networks that would be interchangeable since everyone is working from the same standards. Huawei, of course, has been shut out of many European nations and see the development as more evidence that western nations are ganging up on it.

Other Developments

  • White House Press Secretary Jen Psaki confirmed that President Joe Biden has directed the United Intelligence Community (IC) to investigate and report to him on the SolarWinds breach perpetrated by the Russian Federation’s foreign intelligence service, Sluzhba vneshney razvedki Rossiyskoy Federatsii (SVR). Thus far, it appears that many United States (U.S.) agencies and private sector entities were quietly breached in early 2020 and then surveilled for months until FireEye, a private sector cybersecurity company, divulged it had been breached. Given former President Donald Trump’s aversion to acknowledging the malicious acts of Russia, it seemed likely the Biden Administration would start the U.S. response. Interestingly, the Biden Administration is extending two nuclear weapons control treaties at the same time it seeks to undertake this assessment of Russian hacking. And, whatever the results of the assessment, experts are in agreement that the Biden Administration would seem to have few good options to retaliate and deter future action.
    • At a 21 January press briefing, Psaki stated
      • I can confirm that the United States intends to seek a five-year extension of New START, as the treaty permits.  The President has long been clear that the New START Treaty is in the national security interests of the United States.  And this extension makes even more sense when the relationship with Russia is adversarial, as it is at this time.
      • New START is the only remaining treaty constraining Russian nuclear forces and is an anchor of strategic stability between our two countries.
      • And to the other part of your question: Even as we work with Russia to advance U.S. interests, so too we work to hold Russia to account for its reckless and adversarial actions.  And to this end, the President is also issuing a tasking to the intelligence community for its full assessment of the SolarWinds cyber breach, Russian interference in the 2020 election, its use of chemical weapons against opposition leader Alexei Navalny, and the alleged bounties on U.S. soldiers in Afghanistan.
  • A group of 40 organizations urged President Joe Biden “to avoid appointing to key antitrust enforcement positions individuals who have served as lawyers, lobbyists, or consultants for Amazon, Apple, Facebook, and Google” in a letter sent before his inauguration. Instead, they encouraged him “to appoint experienced litigators or public servants who have recognized the dangers of, rather than helped to exacerbate, these corporations’ market power.” They closed the letter with this paragraph:
    • With your historic election, and the groundbreaking mandate Americans have entrusted you with, you face the challenge of not only rebuilding the country, but also rebuilding trust in government. We believe that appointing antitrust enforcers with no ties to dominant corporations in the industries they will be tasked with overseeing –particularly in regard to the technology sector –willhelp re-establish public trust in government at a critically important moment in our country’s history. We look forward to working with your administration to ensure powerful technology corporations are held accountable for wrongdoing in the months of years ahead.
    • The signatories include:
      • Public Citizen
      • American Economic Liberties Project
      • Open Markets Institute
      • Revolving Door Project
  • The National Security Agency (NSA) issued an advisory “Adopting Encrypted DNS in Enterprise Environments,” “explaining the benefits and risks of adopting the encrypted domain name system (DNS) protocol, DNS over HTTPs (DoH), in enterprise environments.” This advisory is entirely voluntary and does not bind any class of entities. Moreover, it is the latest in a series of public advisories that has seen the heretofore secretive NSA seek to rival the Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) in advising the owners and operators of cyber infrastructure. The NSA explained:
    • Use of the Internet relies on translating domain names (like “nsa.gov”) to Internet Protocol addresses. This is the job of the Domain Name System (DNS). In the past, DNS lookups were generally unencrypted, since they have to be handled by the network to direct traffic to the right locations. DNS over Hypertext Transfer Protocol over Transport Layer Security (HTTPS), often referred to as DNS over HTTPS (DoH), encrypts DNS requests by using HTTPS to provide privacy, integrity, and “last mile” source authentication with a client’s DNS resolver. Itis useful to prevent eavesdropping and manipulation of DNS traffic.While DoH can help protect the privacy of DNS requests and the integrity of responses, enterprises that use DoH will lose some of the control needed to govern DNS usage within their networks unless they allow only their chosen DoH resolver to be used. Enterprise DNS controls can prevent numerous threat techniques used by cyber threat actors for initial access, command and control, and exfiltration.
    • Using DoH with external resolvers can be good for home or mobile users and networks that do not use DNS security controls. For enterprise networks, however, NSA recommends using only designated enterprise DNS resolvers in order to properly leverage essential enterprise cybersecurity defenses, facilitate access to local network resources, and protect internal network information. The enterprise DNS resolver may be either an enterprise-operated DNS server or an externally hosted service. Either way, the enterprise resolver should support encrypted DNS requests, such as DoH, for local privacy and integrity protections, but all other encrypted DNS resolvers should be disabled and blocked. However, if the enterprise DNS resolver does not support DoH, the enterprise DNS resolver should still be used and all encrypted DNS should be disabled and blocked until encrypted DNS capabilities can be fully integrated into the enterprise DNS infrastructure.
  • The United States (U.S.) Government Accountability Office (GAO) has sent a report to the chair of the House Oversight Committee on its own initiative that “examines: (1) the Department of Defense’s (DOD) efforts to revise the process for identifying and protecting its critical technologies, and (2) opportunities for DOD’s revised process to inform U.S. government protection programs.” The GAO stated:
    • DOD’s critical technologies—including those associated with an acquisition program throughout its lifecycle or those still early in development—are DOD funded efforts that provide new or improved capabilities necessary to maintain the U.S. technological advantage. For the purposes of this report, we refer to these as critical acquisition programs and technologies. Also for the purposes of this report, U.S. government protection programs are those GAO previously identified across the federal government that are designed to protect critical technologies such as the Arms Export Control System, National Industrial Security Program, and the Committee on Foreign Investment in the U.S
    • Critical technologies are pivotal to maintaining the U.S. military advantage and, as such, are a frequent target for unauthorized access by adversaries such as through theft, espionage, illegal export, and reverse engineering. DOD has long recognized the need to effectively identify and ensure the consistent protection of these technologies from adversaries, but past efforts have not been fully successful. Recent efforts to revise its process for identifying and protecting its critical acquisition programs and technologies—led by DOD’s Protecting Critical Technology Task Force— offer some improvements.
    • However, DOD can further strengthen its revised process by determining the approach for completing key steps. These steps include ensuring its critical acquisition programs and technologies list is formally communicated to all relevant internal entities and other federal agencies, such as the Department of the Treasury as chair of the Committee on Foreign Investment in the United States, to promote a consistent understanding of what DOD deems critical to protect. They also include developing appropriate metrics that DOD program offices as well as organizations—such as the military departments and Under Secretary of Defense level offices—can use to assess the implementation and sufficiency of the assigned protection measures. Finally, DOD has not yet designated an organization to oversee critical technology protection efforts beyond 2020. As DOD works to develop a policy for its revised process, addressing these issues will not only help improve and ensure continuity in DOD’s protection efforts, but also help ensure government- wide protection efforts are better coordinated as called for in the 2020 National Strategy for Critical and Emerging Technologies.
    • The GAO made three recommendations to the DOD:
      • The Secretary of Defense should direct the Deputy Secretary of Defense in conjunction with the Protecting Critical Technology Task Force to determine a process for formally communicating future critical acquisition programs and technologies lists to all relevant DOD organizations and federal agencies. (Recommendation 1)
      • The Secretary of Defense should direct the Deputy Secretary of Defense in conjunction with the Protecting Critical Technology Task Force to identify, develop, and periodically review appropriate metrics to assess the implementation and sufficiency of the assigned protection measures. (Recommendation 2)
      • The Secretary of Defense should direct the Deputy Secretary of Defense in conjunction with the Protecting Critical Technology Task Force to finalize the decision as to which DOD organization will oversee protection efforts beyond 2020. (Recommendation 3)
  • The National Telecommunications and Information Administration (NTIA) “under sponsorship of and in collaboration with the Department of Defense (DOD) 5G Initiative” “issued a Notice of Inquiry (NOI)…to explore a “5G Challenge” aiming to accelerate the development of an open source 5G ecosystem that can support DOD missions.” The NTIA explained:
    • A key innovation in 5G that is becoming more pervasive in the larger 5G ecosystem is the trend toward “open 5G” architectures that emphasize open interfaces in the network stack. NTIA, under sponsorship of and in collaboration with the DOD 5G Initiative, is seeking comments and recommendations from all interested stakeholders to explore the creation of a 5G Challenge that would accelerate the development of the open 5G stack ecosystem in support of DOD missions.
    • For the purposes of this Notice, NTIA has organized these questions into three broad categories: (1) Challenge structure and goals; (2) incentives and scope; and (3) timeframe and infrastructure support. NTIA seeks public input on any and/or all of these three categories.
  • The Court of Justice for the European Union’s (CJEU) Advocate General has released his opinion in a case on whether a different data protection authority (DPA) from the lead agency in a case may also bring actions in its court system. The General Data Protection Regulation (GDPR) has a mechanism that organizes the regulation of data protection in that one agency, often the first to act, becomes the lead supervisory authority (LSA) and other DPAs must follow its lead. Most famously, Ireland’s Data Protection Commission (DPC) has been the LSA for the action Maximillian Schrems brought against Facebook that led to the demise of two adequacy agreements between the United States (U.S.) and the European Union (EU). In each case, the DPC was the LSA. The CJEU is not obligated to follow the Advocate General’s opinions, but they frequently prove persuasive. In any event, the Advocate General found DPAs may, under some circumstances, bring cases for cross border infringement even if another DPA is LSA. Advocate General Michal Bobek summarized the facts of the case:
    • In September 2015, the Belgian data protection authority commenced proceedings before the Belgian courts against several companies belonging to the Facebook group (Facebook), namely Facebook INC, Facebook Ireland Ltd, which is the group’s main establishment in the EU, and Facebook Belgium BVBA (Facebook Belgium). In those proceedings, the data protection authority requested that Facebook be ordered to cease, with respect to any internet user established in Belgium, to place, without their consent, certain cookies on the device those individuals use when they browse a web page in the Facebook.com domain or when they end up on a third party’s website, as well as to collect data by means of social plugins and pixels on third party websites in an excessive manner. In addition, it requested the destruction of all personal data obtained by means of cookies and social plugins, about each internet user established in Belgium.
    • The proceedings at issue are at present in progress before the Hof van beroep te Brussel (Court of Appeal, Brussels, Belgium) with however their scope being limited to Facebook Belgium, as that court previously established that it had no jurisdiction with regard to the actions against Facebook INC and Facebook Ireland Ltd. In this context, Facebook Belgium asserts that, as of thed ate on which the General Data Protection Regulation (GDPR)1has become applicable,the Belgian data protection authority has lost competence to continue the judicial proceedings at issue against Facebook. It contends that, under the GDPR, only the data protection authority of the State of Facebook’s main establishment in the EU (the so-called ‘lead’ data protection authority in the EU for Facebook), namely the Irish Data Protection Commission, is empowered to engage in judicial proceedings against Facebook for infringements of the GDPR in relation to cross-border data processing.
    • Bobek summed up the legal questions presented to the CJEU:
      • Does the GDPR permit a supervisory authority of a Member State to bring proceedings before a court of that State for an alleged infringement of that regulation with respect to cross-border data processing, where that authority is not the lead supervisory authority with regard to that processing?
      • Or does the new ‘one-stop-shop’ mechanism, heralded as one of the major innovations brought about by the GDPR, prevent such a situation from happening? If a controller were called upon to defend itself against a legal challenge concerning cross-border data processing brought by a supervisory authority in a court outside the place of the controller’s main establishment, would that be ‘one-stop-too-many’ and therefore incompatible with the new GDPR mechanism?
    • Bobek made the following findings:
      • [F]irst, that it transpires from the wording of the GDPR that the lead data protection authority has a general competence over cross-border data processing, including the commencement of judicial proceedings for the breach of the GDPR, and, by implication, the other data protection authorities concerned enjoy a more limited power to act in that regard.
      • Second, the Advocate General recalls that the very reason for the introduction of the one-stop-shop mechanism enshrined in the GDPR, whereby a significant role has been given to the lead data protection authority and cooperation mechanisms have been set up to involve other data protection authorities, was to address certain shortcomings resulting from the former legislation. Indeed, economic operators used to be required to comply with the various sets of national rules implementing that legislation, and to liaise, at the same time, with all the national data protection authorities, which proved to be costly, burdensome and time-consuming for those operators, and an inevitable source of uncertainty and conflicts for them and their customers.
      • Third, the Advocate General stresses that the lead data protection authority cannot be deemed as the sole enforcer of the GDPR in cross-border situations and must, in compliance with the relevant rules and time limits provided for by the GDPR, closely cooperate with the other data protection authorities concerned, the input of which is crucial in this area.
  • The United States (U.S.) Department of Defense added more companies from the People’s Republic of China (PRC) to the list of those associated with or controlled by the Chinese Communist Party or the People’s Liberation Army (PLA) “in accordance with the statutory requirement of Section 1237 of the National Defense Authorization Act for Fiscal Year 1999.” The previous lists were released last year (here, here and here.) This designation will almost certainly make doing business in the United States (U.S.) and elsewhere more difficult.
    • The first part of Section 1237 grants the President authority to “exercise International Emergency Economic Powers Act (IEEPA) authorities (other than authorities relating to importation) without regard to section 202 of the IEEPA (50 U.S.C. 1701) in the case of any commercial activity in the United States by a person that is on the list.” IEEPA grants the President sweeping powers to prohibit transactions and block property and property interests for nations and other groups subject to an IEEPA national emergency declaration. Consequently, those companies identified by the DOD on a list per Section 1237 could be blocked and prohibited from doing business with U.S. entities and others and those that do business with such Chinese companies could be subject to enforcement actions by the U.S. government.
    • The statute defines a “Communist Chinese military company” as “any person identified in the Defense Intelligence Agency publication numbered VP-1920-271-90, dated September 1990, or PC-1921-57-95, dated October 1995, and any update of those publications for the purposes of this section; and any other person that is owned or controlled by the People’s Liberation Army; and is engaged in providing commercial services, manufacturing, producing, or exporting.” Considering that the terms “owned” and “controlled” are not spelled out in this section, the executive branch may have very wide latitude in deeming a non-Chinese company as owned or controlled and therefore subject to the President’s use of IEEPA powers. Moreover, since the President already has the authority to declare an emergency and then use IEEPA powers, this language would seem to allow the President to bypass any such declaration and immediately use such powers, except those regarding importation, against any Chinese entities identified on this list by the Pentagon.
  • A group of 13 House Democrats wrote Attorney General designate Merrick Garland asking that the Biden Administration “to withdraw from the United States (U.S.) federal government’s lawsuit against the State of California over its net neutrality law as one of the first actions after inauguration.” The Trump Administration had sued California after a measure became law in 2018, mandating net neutrality there in the wake of the Federal Communications Commission’s (FCC) rollback of federal net neutrality. The Members argued:
    • In September 2018, then-Governor Jerry Brown signed into law SB 822, the strongest net neutrality law in the country. The Trump Department of Justice (DOJ) sued to overturn California’s law hours later, and associations of telecommunications providers sued within days. Parties to the case agreed to put the case on hold until Mozilla v. FCC was resolved. In that case, the Court of Appeals for the D.C. Circuit vacated the part of the Federal Communications Commission (FCC)’s 2018 Restoring Internet Order (RIF) that preempted state net neutrality laws.
    • The arguments of the Trump DOJ and telecommunications associations in U.S. v. California extend further than even the FCC’s RIF and have implications on the ability of California and other states to regulate many communications and technology policy issues.
    • The Eastern District of California has scheduled a hearing in U.S. v. California for a request for an injunction on January 26, 2021. It is for these reasons, we ask that the federal DOJ withdraw from U.S. v. California shortly after President-elect Biden is inaugurated.
  • On its first day in power, the Biden Administration issued its “National Strategy for the COVID-19 Response and Pandemic Preparedness.” In the cover letter, President Joe Biden stated:
    • For the past year, we could not turn to the federal government for a national plan to answer prayers with action — until today. In the following pages, you will find my Administration’s national strategy to beat the COVID-19 pandemic. It is a comprehensive plan that starts with restoring public trust and mounting an aggressive, safe, and effective vaccination campaign. It continues with the steps we know that stop the spread liked expanded masking, testing, and social distancing. It’s a plan where the federal government works with states, cities, Tribal communities, and private industry to increase supply and administer testing and the vaccines that will help reopen schools and businesses safely. Equity will also be central to our strategy so that the communities and people being disproportionately infected and killed by the pandemic receive the care they need and deserve.
    • Given the numerous cyber-attacks and intrusions throughout the pandemic and growing risks to the entire vaccine supply chain, the President asked the Director of National Intelligence Avril Haines to “lead an assessment of ongoing cyber threats and foreign interference campaigns targeting COVID-19 vaccines and related public health efforts” in order to “counter any threat to the vaccination program.” The Administration stated “[t]he U.S. Government will take steps to address cyber threats to the fight against COVID-19, including cyber attacks on COVID-19 research, vaccination efforts, the health care systems and the public health infrastructure.”
    • Specifically, the strategy requires the following:
      • To assist in the Federal Government’s efforts to provide warning of pandemics, protect our biotechnology infrastructure from cyber attacks and intellectual property theft, identify and monitor biological threats from states and non-state actors, provide validation of foreign data and response efforts, and assess strategic challenges and opportunities from emerging biotechnologies, the Director of National Intelligence shall:
        • (i) Review the collection and reporting capabilities in the United States Intelligence Community (IC) related to pandemics and the full range of high-consequence biological threats and develop a plan for how the IC may strengthen and prioritize such capabilities, including through organizational changes or the creation of National Intelligence Manager and National Intelligence Officer positions focused on biological threats, global public health, and biotechnology;
        • (ii) Develop and submit to the President, through the Assistant to the President for National Security Affairs (APNSA) and the COVID-19 Response Coordinator, a National Intelligence Estimate on
          • (A) the impact of COVID-19 on national and economic security; and
          • (B) current, emerging, reemerging, potential, and future biological risks to national and economic security; and
        • (iii)  In coordination with the Secretary of State, the Secretary of Defense, the Secretary of Health and Human Services (HHS), the Director of the Centers for Disease Control and Prevention (CDC), the Administrator of United States Agency for International Development (USAID), the Director of the Office of Science and Technology Policy, and the heads of other relevant agencies, promptly develop and submit to the APNSA an analysis of the security implications of biological threats that can be incorporated into modeling, simulation, course of action analysis, and other analyses.
  • Before the end of the Trump Administration, the Departments of State and Treasury imposed sanctions on a group of Russians for taking part in “a Russia-linked foreign influence network associated with Andrii Derkach, who was designated on September 10, 2020, pursuant to Executive Order (E.O.) 13848 for his attempt to influence the 2020 U.S. Presidential election” according to the Trump Administration Department of State press release. These sanctions emanate from a narrative pushed by Derkach, a likely Russian agent, that the Biden family were engaged in corrupt dealings in Ukraine. Allies of the Trump Campaign pushed this narrative, too, until it failed to gain traction in the public sphere. It is little wonder the last administration waited until the tail end of the Trump presidency to levy such sanctions. State went on to explain:
    • Former Ukraine Government officials Konstantin Kulyk, Oleksandr Onyshchenko, Andriy Telizhenko, and current member of the Ukrainian parliament Oleksandr Dubinsky, have publicly appeared with or affiliated themselves with Derkach through the coordinated dissemination and promotion of fraudulent or unsubstantiated allegations involving a U.S. political candidate.  They have made repeated public statements advancing malicious narratives that U.S. Government officials have engaged in corrupt dealings in Ukraine.  These efforts and narratives are consistent with or in support of Derkach’s objectives to influence the 2020 U.S. presidential election.  As such, these individuals have been designated pursuant to E.O. 13848 for having directly or indirectly engaged in, sponsored, concealed, or otherwise been complicit in foreign influence in an attempt to undermine the 2020 U.S. elections.
    • NabuLeaks, Era-Media, Only News, and Skeptik TOV are media front companies in Ukraine that disseminate false narratives at the behest of Derkach’s and his associates.  They are being designated pursuant to E.O. 13848 for being owned or controlled by Derkach or his media team.  Today’s action also includes the designation of Petro Zhuravel, Dmytro Kovalchuk, and Anton Simonenko for having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, Derkach.
    • Additionally, the Department of the Treasury’s Office of Foreign Assets Control (OFAC) “took additional action against seven individuals and four entities that are part of a Russia-linked foreign influence network associated with Andrii Derkach” according to the agency’s press release. OFAC stated “[a]s a result of today’s designations, all property and interests in property of these targets that are subject to U.S. jurisdiction are blocked, and U.S. persons are generally prohibited from engaging in transactions with them. Additionally, any entities 50 percent or more owned by one or more designated persons are also blocked.”
  • The United States (U.S.) Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) published “a draft of the Trusted Internet Connections (TIC) 3.0 Remote User Use Case and the draft National Cybersecurity Protection System (NCPS) Cloud Interface Reference Architecture (NCIRA): Volume 2.” The agency remarked in its press release:
    • The TIC initiative was launched under former President George W. Bush to limit the access points to the wider internet federal agencies used based on the logic of physical defense. And so, fewer entry and exit points made for a safer compound. However, over time, this proved problematic, especially as new technology came into use. Consequently, in the aforementioned OMB memorandum, the Trump Administration began a revamp from which these documents flow:
      • To continue to promote a consistent baseline of security capabilities, the Department of Homeland Security (DHS) will define TIC initiative requirements in documentation called TIC Use Cases (refer to Appendix A). TIC Use Case documentation will outline which alternative security controls, such as endpoint and user-based protections, must be in place for specific scenarios in which traffic may not be required to flow through a physical TIC access point. To promote flexibility while maintaining a focus on security outcomes, the capabilities used to meet TIC Use Case requirements may be separate from an agency’s existing network boundary solutions provided by a Trusted Internet Connection Access Provider (TICAP) or Managed Trusted Internet Protocol Services (MTIPS). Given the diversity of platforms and implementations across the Federal Government, TIC Use Cases will highlight proven, secure scenarios, where agencies have met requirements for government-wide intrusion detection and prevention efforts, such as the National Cybersecurity Protection System (including the EINSTEIN suite), without being required to route traffic through a TICAP/MTIPS solution.
    • In the Remote User Use Case, it is explained that
      • The TIC 3.0 Remote User Use Case (Remote User Use Case) defines how network and multi-boundary security should be applied when an agency permits remote users on their network. A remote user is an agency user that performs sanctioned business functions outside of a physical agency premises. The remote user scenario has two distinguishing characteristics:
        • 1. Remote user devices are not directly connected to network infrastructure that is managed and maintained by the agency.
        • 2. Remote user devices are intended for individual use (i.e., not a server).
      • In contrast, when remote user devices are directly connected to local area networks and other devices that are managed and maintained by the agency, it would be considered either an agency campus or a branch office scenario. TIC architectures for agency campus and branch office scenarios are enumerated in the TIC 3.0 Traditional TIC Use Case and the TIC 3.0 Branch Office Use Case respectively.
    • In NCIRA, it is stated:
      • The NCPS Cloud Interface Reference Architecture is being released as two individual volumes. The first volume provides an overview of changes to NCPS to accommodate the collection of relevant data from agencies’ cloud environments and provides general reporting patterns for sending cloud telemetry to CISA. This second volume builds upon the concepts presented in NCPS Cloud Interface Reference Architecture: Volume One and provides an index of common cloud telemetry reporting patterns and characteristics for how agencies can send cloud-specific data to the NCPS cloud-based architecture. Individual cloud service providers (CSPs) can refer to the reporting patterns in this volume to offer guidance on their solutions that allow agencies to send cloud telemetry to CISA in fulfillment of NCPS requirements.
  • The Congressional-Executive Commission on China (CECC) published its “2020 Annual Report” “on human rights and the rule of law in China.” The CECC found that:
    • the Chinese government and Communist Party have taken unprecedented steps to extend their repressive policies through censorship, intimidation, and the detention of people in China for exercising their fundamental human rights. Nowhere is this more evident than in the Xinjiang Uyghur Autonomous Region (XUAR) where new evidence emerged that crimes against humanity—and possibly genocide—are occurring, and in Hong Kong, where the ‘‘one country, two systems’’ frame-work has been effectively dismantled.
    • These policies are in direct violation of China’s Constitution, which guarantees ‘‘freedom of speech, of the press, of assembly, of association, of procession and of demonstration,’’ as well as ‘‘freedom of religious belief.’’ The actions of the Chinese government also contravene both the letter and the spirit of the Universal Declaration of Human Rights; violate its obligations under the Inter-national Covenant on Civil and Political Rights, which the Chinese government has signed but not ratified; and violate the Inter-national Covenant on Economic, Social, and Cultural Rights, ratified in 2001. Further, the Chinese government has abandoned any pretense of adhering to the legally binding commitments it made to the international community when it signed the 1984 Sino-British Joint Declaration on the future of Hong Kong.
    • President and Party General Secretary Xi Jinping has tightened his grip over China’s one-party authoritarian system, and the Party has further absorbed key government functions while also enhancing its control over universities and businesses. Authorities promoted the official ideology of ‘‘Xi Jinping Thought’’ on social media and required Party members, government officials, journalists, and students to study it, making the ideology both pervasive, and for much of the country, mandatory.
    • Regarding freedom of expression, the CECC recommended:
      • Give greater public expression, including at the highest levels of the U.S. Government, to the issue of press freedom in China, condemning: the harassment and detention of both domestic and foreign journalists; the denial, threat of denial, or delay of visas for foreign journalists; and the censorship of foreign media websites. Consistently link press freedom to U.S. interests, noting that censorship and restrictions on journalists and media websites prevent the free flow of information on issues of public concern, including public health and environ-mental crises, food safety problems, and corruption, and act as trade barriers for foreign companies attempting to access the Chinese market. Assess the extent to which China’s treatment of foreign journalists contravenes its World Trade Organization commitments and other obligations.
      • Sustain, and where appropriate, expand, programs that develop and widely distribute technologies that will assist Chinese human rights advocates and civil society organizations in circumventing internet restrictions, in order to access and share content protected under international human rights standards. Continue to maintain internet freedom programs for China at the U.S. Department of State and the United States Agency for Global Media to provide digital security training and capacity-building efforts for bloggers, journalists, civil society organizations, and human rights and internet freedom advocates in China.
      • Raise with Chinese officials, during all appropriate bilateral discussions, the cost to U.S.-China relations and to the Chinese public’s confidence in government institutions that is incurred when the Chinese government restricts political debate, advocacy for democracy or human rights, and other forms of peaceful  political  expression.  Emphasize  that  such  restrictions  violate  international  standards  for  free  expression,  particularly  those  contained  in  Article  19  of  the  International  Covenant  on  Civil  and  Political  Rights  and  Article  19  of  the  Universal  Declaration of Human Rights.
  • The Center for Democracy and Technology (CDT) issued its “Recommendations to the Biden Administration and 117th Congress to Advance Civil Rights & Civil Liberties in the Digital Age” that called for reform to content moderation, election law, privacy, big data, and other policy areas.
  • A United States (U.S.) federal court denied Parler’s request for a preliminary injunction against Amazon Web Services (AWS) after the latter shut down the former’s website for repeated violations of their contract, including the use of the conservative tilting platform during the 6 January 2021 insurrection at the United States Capitol. Parler was essentially asking the court to force AWS to once again host its website while its litigation was pending. The court reviewed Parler’s claims and clarified the scope of the case:
    • In its Complaint, Parler asserts three claims: (1) for conspiracy in restraint of trade, in violation of the Sherman Act, 15 U.S.C. § 1; (2) for breach of contract; and (3) for tortious interference with business expectancy. AWS disputes all three claims, asserting that it is Parler, not AWS, that has violated the terms of the parties’ Agreement, and in particular AWS’s Acceptable Use Policy, which prohibits the “illegal, harmful, or offensive” use of AWS services.
    • It is important to note what this case is not about. Parler is not asserting a violation of any First Amendment rights, which exist only against a governmental entity, and not against a private company like AWS. And indeed, Parler has not disputed that at least some of the abusive and violent posts that gave rise to the issues in this case violate AWS’s Acceptable Use Policy. This motion also does not ask the Court to make a final ruling on the merits of Parler’s claims. As a motion for a preliminary injunction, before any discovery has been conducted, Parler seeks only to have the Court determine the likelihood that Parler will ultimately prevail on its claims, and to order AWS to restore service to Parler pending a full and fair litigation of the issues raised in the Complaint.
    • However, the court ruled against Parler:
      • Parler has failed to meet the standard set by Ninth Circuit and U.S. Supreme Court precedent for issuance of a preliminary injunction. To be clear, the Court is not dismissing Parler’s substantive underlying claims at this time. Parler has fallen far short, however, of demonstrating, as it must, that it has raised serious questions going to the merits of its claims, or that the balance of hardships tips sharply in its favor. It has also failed to demonstrate that it is likely to prevail on the merits of any of its three claims; that the balance of equities tips in its favor, let alone strongly so; or that the public interests lie in granting the injunction.
  • The United States (U.S.) Department of Commerce’s National Telecommunications and Information Administration (NTIA) issued a statutorily required “National Strategy to Secure 5G Implementation Plan” and Appendices. The NTIA explained:
    • In accordance with the Secure 5G and Beyond Act of 2020, the Executive Branch has developed a comprehensive implementation plan. This implementation will be managed under the leadership of the National Security Council and the National Economic Council, supported by the National Telecommunications and Information Administration (NTIA), and with contributions from and coordination among a wide range of departments and agencies. The implementation plan took into account the 69 substantive comments in response to NTIA’s Request for Comments received from companies, industry associations, and think tanks representing a range of interests and aspects of the telecommunications ecosystem. Consistent with the National Strategy to Secure 5G, the implementation plan encompasses four lines of effort:
      • Line of Effort One: Facilitate Domestic 5G Rollout: The first line of effort establishes a new research and development initiative to develop advanced communications and networking capabilities to achieve security, resilience, safety, privacy, and coverage of 5G and beyond at an affordable cost. Advancement of United States leadership in Secure 5G and beyond systems and applications will be accomplished by enhancing centers of research and development and manufacturing. These efforts will leverage public-private partnerships spanning government, industry, academia, national laboratories, and international allies. This line of effort also intends to identify incentives and options to leverage trusted international suppliers, both to facilitate secure and competitive 5G buildouts, and to ensure the global competitiveness of United States manufacturers and suppliers.
      • Line of Effort Two: Assess Risks to & Identify Core Security Principles of 5G Infrastructure: The second line of effort is oriented toward identifying and assessing risks and vulnerabilities to 5G infrastructure, building on existing capabilities in assessing and managing supply chain risk. This work will also involve the development of criteria for trusted suppliers and the application of a vendor supply chain risk management template to enable security-conscious acquisition decision-making. Several agencies have responsibilities for assessing threats as the United States’ manages risks associated with the global and regional adoption of 5G network technology as well as developing mitigation strategies to combat any identified threats. These threat assessments take into account, as appropriate, requirements from entities such as the Committee on Foreign Investment in the United States (CFIUS), the Executive Order (E.O.) on Establishing the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector (Team Telecom), and the Federal Acquisition Security Council (FASC). In addition, this line of effort will identify security gaps in United States and international supply chains and an assessment of the global competitiveness and economic vulnerabilities of United States manufacturers and suppliers. Finally, this set of activities will include working closely with the private sector and other stakeholders to identify, develop, and apply core security principles for 5G infrastructure. These efforts will include leveraging the Enduring Security Framework (ESF), a working group under the Critical Infrastructure Partnership Advisory Council (CIPAC). These emerging security principles will be synchronized with or complementary to other 5G security principles, such as the “Prague Proposals” from the Prague 5G Security Conference held in May 2019.
      • Line of Effort Three: Address Risks to United States Economic and National Security during Development and Deployment of 5G Infrastructure Worldwide: The third line of effort involves addressing the risks to United States economic and national security during the development and deployment of 5G infrastructure worldwide. As a part of this effort, the United States will identify the incentives and policies necessary to close identified security gaps in close coordination with the private sector and through the continuous evaluation of commercial, security, and technological developments in 5G networks. A related activity is the identification of policies that can ensure the economic viability of the United States domestic industrial base, in coordination with the private sector through listening sessions and reviews of best practices. An equally important activity relates to the identification and assessment of “high risk” vendors in United States5G infrastructure, through efforts such as the Implementation of E.O. 13873, on “Securing the Information and Communications Technology and Services Supply Chain.” These efforts will build on the work of the CFIUS, the FASC, and Team Telecom reviews of certain Federal Communications Commission (FCC) licenses involving foreign ownership. This element of the implementation plan will also involve more intense engagement with the owners and operators of private sector communications infrastructure, systems equipment developers, and other critical infrastructure owners and operators. The engagements will involve sharing information on 5G and future generation wireless communications systems and infrastructure equipment. Such work will be conducted through the Network Security Information Exchange, the IT and Communications Sector and Government Coordinating Councils, the National Security Telecommunications Advisory Committee, and NTIA’s Communications Supply Chain Risk Information Partnership (C-SCRIP).
      • Line of Effort Four: Promote Responsible Global Development and Deployment of 5G: The fourth line of effort addresses the responsible global development and deployment of 5G technology. A key component of this line of effort is diplomatic outreach and engagement to advocate for the adoption and implementation of 5G security measures that prohibit the use of untrusted vendors in all parts of 5G networks. A related component involves the provision of technical assistance to mutual defense treaty allies and strategic partners of the United States to maximize the security oftheir5G and future generations of wireless communications systems and infrastructure. The goal of providing financing support and technical assistance is to help enable countries and private companies to develop secure and trusted next generation networks that are free of untrusted vendors and that increase global connectivity. A key part of 5G deployment involves international standards development, thus the implementation plan outlines several steps in support of the goal of strengthening and expanding United States leadership in international standards bodies and voluntary consensus-based standards organizations, including strengthening coordination with and among the private sector. This line of effort will also include collaboration with allies and partners with regard to testing programs to ensure secure 5G and future wireless communications systems and infrastructure equipment, including spectrum-related testing. To successfully execute this work, continued close coordination between the United States Government, private sector, academic, and international government partners is required to ensure adoption of policies, standards, guidelines, and procurement strategies that reinforce 5G vendor diversity and foster market competition. The overarching goals of this line of effort are to promote United States-led or linked technology solutions in the global market; remove and reduce regulatory and trade barriers that harm United States competitiveness; provide support for trusted vendors; and advocate for policies and laws that promote open, competitive markets for United States technology companies. This will also be supported through close collaboration with partners on options to advance the development and deployment of open interfaced, standards-based, and interoperable 5G networks.
  • The Federal Communications Commission (FCC) issued its annual “Broadband Deployment Report,” one of the last reports on FCC policy under the stewardship of former Chair Ajit Pai. In the agency’s press release, Pai claimed “[i]n just three years, the number of American consumers living in areas without access to fixed broadband at 25/3 Mbps has been nearly cut in half.” He added:
    • These successes resulted from forward-thinking policies that removed barriers to infrastructure investment and promoted competition and innovation.  I look forward to seeing the Commission continue its efforts to ensure that all Americans have broadband access.  Especially with the success of last year’s Rural Digital Opportunity Fund Phase I auction, I have no doubt that these figures will continue to improve as auction winners deploy networks in the areas for which they got FCC funding.
    • In relevant part, the FCC claimed:
      • Moreover, more than three-quarters of those in newly served areas, nearly 3.7 million, are located in rural areas, bringing the number of rural Americans in areas served by at least 25/3 Mbps to nearly 83%. Since 2016, the number of Americans living in rural areas lacking access to 25/3 Mbps service has fallen more than 46%.  As a result, the rural–urban divide is rapidly closing; the gap between the percentage of urban Americans and the percentage of rural Americans with access to 25/3 Mbps fixed broadband has been nearly halved, falling from 30 points at the end of 2016 to just 16 points at the end of 2019.
      • With regard to mobile broadband, since 2018, the number of Americans lacking access to 4G LTE mobile broadband with a median speed of 10/3 Mbps was reduced by more than 57%, including a nearly 54% decrease among rural Americans.  As of the end of 2019, the vast majority of Americans, 94% had access to both 25/3 Mbps fixed broadband service and mobile broadband service with a median speed of 10/3 Mbps. Also as of the end of 2019, mobile providers now provide access to 5G capability to approximately 60% of Americans. These strides in mobile broadband deployment were fueled by more than $29 billion of capital expenditures in 2019 (roughly 18% of global mobile capital spending), the largest mobile broadband investment since 2015.
      • .  With this Report, the Commission fulfills the Congressional directive to report each year on the progress made in deploying broadband to all Americans. Despite this finding, our work to close the digital divide is not complete.  The Commission will continue its efforts to ensure that all Americans have the ability to access broadband.
  • The chair of the House Oversight and Reform Committee wrote a letter asking Federal Bureau of Investigation (FBI) Director Christopher Wray to conduct “a comprehensive investigation into the role that the social media site Parler played in the assault on the Capitol on January 6.” Chair Carolyn Maloney (D-NY) indicated her committee is also investigating the events of 6 January, suggesting there could be hearings soon on the matter. In the letter, Maloney asserted:
    • It is clear that Parler houses additional evidence critical to investigations of the attack on the Capitol. One commentator has already used geolocation data associated with Parler to track 1,200 videos that were uploaded in Washington, D.C. on January 6.
    • Questions have also been raised about Parler’s financing and its ties to Russia, which the Intelligence Community has warned is continuing to use social media and other measures to sow discord in the United States and interfere with our democracy. For example, posters on Parler have reportedly been traced back to Russian disinformation campaigns. The company was founded by John Matze shortly after he traveled in Russia with his wife, who is Russian and whose family reportedly has ties to the Russian government. Concerns about the company’s connections to Russia have grown since the company re-emerged on a Russian hosting service, DDos-Guard, after being denied services by Amazon Web Services. DDos-Guard has ties to the Russian government and hosts the websites of other far-right extremist groups, as well as the terrorist group Hamas.According to another recent report, “DDoS-Guard’s other clients include the Russian ministry of defence, as well as media organisations in Moscow.”
    • Given these concerns, we ask that the FBI undertake a robust review of the role played by Parler in the January 6 attacks, including (1) as a potential facilitator of planning and incitement related to the attacks, (2) as a repository of key evidence posted by users on its site, and (3) as potential conduit for foreign governments who may be financing civil unrest in the United States.
  • Microsoft released further detailed, technical findings from its investigation into the wide-ranging SolarWinds hack. Last month, Microsoft revealed that its source code had been accessed as part of the Russian hack and stressed that source code for its products had not been changed or tampered with. In its update on its SolarWinds investigation, Microsoft explained:
    • As we continue to gain deeper understanding of the Solorigate attack, we get a clearer picture of the skill level of the attackers and the extent of planning they put into pulling off one of the most sophisticated attacks in recent history. The combination of a complex attack chain and a protracted operation means that defensive solutions need to have comprehensive cross-domain visibility into attacker activity and provide months of historical data with powerful hunting tools to investigate as far back as necessary.
    • More than a month into the discovery of Solorigate, investigations continue to unearth new details that prove it is one of the most sophisticated and protracted intrusion attacks of the decade. Our continued analysis of threat data shows that the attackers behind Solorigate are skilled campaign operators who carefully planned and executed the attack, remaining elusive while maintaining persistence. These attackers appear to be knowledgeable about operations security and performing malicious activity with minimal footprint. In this blog, we’ll share new information to help better understand how the attack transpired. Our goal is to continue empowering the defender community by helping to increase their ability to hunt for the earliest artifacts of compromise and protect their networks from this threat.
    • As mentioned, in a 31 December 2020 blog posting, Microsoft revealed:
      • Our investigation has, however, revealed attempted activities beyond just the presence of malicious SolarWinds code in our environment. This activity has not put at risk the security of our services or any customer data, but we want to be transparent and share what we’re learning as we combat what we believe is a very sophisticated nation-state actor.
      • We detected unusual activity with a small number of internal accounts and upon review, we discovered one account had been used to view source code in a number of source code repositories. The account did not have permissions to modify any code or engineering systems and our investigation further confirmed no changes were made. These accounts were investigated and remediated.
  • The Trump Administration’s United States Trade Representative (USTR) weighed in on Australia’s proposed law to make Google, Facebook, and other technology companies pay for using Australian media content. The USTR reiterated the United States (U.S.) position that forcing U.S. firms to pay for content, as proposed, in unacceptable. It is likely the view of a Biden Administration is not likely to change. The Australian Senate committee considering the “Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2020” had asked for input. In relevant part, the USTR argued:
    • the U.S. Government is concerned that an attempt, through legislation, to regulate the competitive positions of specific players in a fast-evolving digital market, to the clear detriment of two U.S. firms, may result in harmful outcomes. There may also be long-lasting negative consequences for U.S. and Australian firms, as well as Australian consumers. While the revised draft has partially addressed some U.S. concerns—including an effort to move towards a more balanced evaluation of the value news businesses and platforms offer each other in the context of mandatory arbitration—significant issues remain.
  • Plaintiffs have filed suit in California state court against WeChat and Tencent by Plaintiff Citizen Power Initiatives for China (CPIFC) and six unnamed California residents who use WeChat. They argue that the government of the People’s Republic of China (PRC) controls WeChat and forces it and its parent, Tencent, to turn over user data to the PRC in violation of California law. They make other allegations of unlawful conduct, including denying users in California the right to access funds though the app in the PRC. They are seeking class action status in order to bring a larger action against the PRC company. The plaintiffs claimed:
    • This case arises from Tencent’s practices of profiting from politically motivated, pro-Chinese Communist Party (“CCP”) censorship and surveillance of California WeChat users (“challenged practices”), which includes the practice of turning over private user data and communications to the government of the People’s Republic of China (“PRC government,” and, together with the CCP, the “Party-state”), and which inflicts an array of harms. Specifically, the challenged practices include Tencent’s practices of: (i) turning over private California WeChat user data and communications to the Party-state; (ii) profiting by using California WeChat user data and communications to improve Tencent’s censorship and surveillance algorithms; (iii) censoring and surveilling California WeChat user communications for content perceived as critical of the Party-state; (iv) suspending, blocking, or deleting California WeChat user accounts and/or data over such content; and (v) prohibiting California WeChat users from withdrawing funds stored in their WeChat accounts when those users do not possess an account with a PRC financial institution subject to monitoring by the Party-state.
    • This action also challenges provisions in Tencent’s terms of service and privacy policy  which,  taken  together,  are  oppressive,  obfuscatory,  and  incoherent  (“challenged provisions”). The challenged provisions include privacy-related terms that are deliberately vague and ambiguous with respect to whether the challenged practices are permitted or prohibited (“vague and ambiguous privacy provisions”), which in turn benefits Tencent by reserving to it the right to adopt self-interested interpretations. However, California WeChat users are entitled to clear, unambiguous, and testable language with respect to the nature and scope of their privacy on WeChat—in other words, to honesty and transparency.
    • Yet, even if the challenged practices were unambiguously prohibited under the challenged provisions, the challenged provisions include terms that make it practically impossible for California WeChat users to seek meaningful redress for the harms caused by those practices (“remedy-limiting provisions”). 
    • Finally, the challenged provisions include terms that impermissibly discriminate against California WeChat users who happen to be citizens of the PRC (“long-arm provisions”).
  • Representatives Anna Eshoo (D-CA) and Tom Malinowski (D-NJ) wrote the CEOs of Facebook, Twitter, and YouTube “urging the companies to address the fundamental design features of their social networks that facilitate the spread of extreme, radicalizing content to their users” per their press release. Last fall, Eshoo and Malinowski introduced the “Protecting Americans from Dangerous Algorithms Act” (H.R.8636) that would subject platforms like Facebook, Twitter, and YouTube to civil suits on the basis of the algorithms used to amplify content that violates the civil rights of others or results in international terrorism. They asserted:
    • The lawmakers note that the rioters who attacked the Capitol earlier this month were radicalized in part in digital echo chambers that these platforms designed, built, and maintained, and that the platforms are partially responsible for undermining our shared sense of objective reality, for intensifying fringe political beliefs, for facilitating connections between extremists, leading some of them to commit real-world, physical violence.
  • The United States (U.S.) Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) announced “[u]sing enterprise risk management best practices will be a focus for CISA in 2021, and today the National Risk Management Center (NRMC) is launching a Systemic Cyber Risk Reduction Venture to organize our work to reduce shared risk to the Nation’s security and economic security.” CISA explained that “[w]e anticipate three overarching lines of effort:
    • Build the Underlying Architecture for Cyber Risk Analysis to Critical Infrastructure. The critical infrastructure community is underpinned by a dependent web of hardware, software, services, and other connected componentry.
    • Cyber Risk Metric Development. Supporting efforts to better understand the impact of cyber risk across the critical infrastructure community will require developing usable metrics to quantify cyber risk in terms of functional loss. There’s no need to get bogged down with Greek equations with decimal place-level specificity. Metrics that provide even directional or comparative indicators are enormously helpful.
    • Promoting Tools to Address Concentrated Sources of Cyber Risk. Central to our venture to reduce systemic cyber risk is finding concentrated sources of risk that, if mitigated, provide heightened risk management bang for the buck if addressed.
  • The President’s Council of Advisors on Science and Technology (PCAST) issued its first assessment of a government program to fund research and development of advanced information technology for the first time since 2015. PCAST explained:
    • As required by statute, PCAST is tasked with periodically reviewing the Networking and Information Technology Research and Development (NITRD) Program, the Nation’s primary source of federally funded research and development in advanced information technologies such as computing, networking, and software. This report examines the NITRD Program’s progress since the last review was conducted in 2015, explores emerging areas of interest relevant to the NITRD Program, and presents PCAST’s findings and recommendations.
    • PCAST made the following recommendations:
      • Recommendation 1: The current NITRD Program model and its approach to coordinating foundational research in NIT fields across participating agencies should continue as constituted, with the following modifications:
        • NITRD groups should continue to review the PCAs regularly using a fast track action committee (FTAC) and adjust as needed (with a frequency of perhaps every 3 years rather than every 5–6 years, as had been recommended in the 2015 NITRD Review). It should also continue to review IWGs periodically, as recommended in the 2015 NITRD Review.
        • The NITRD Program should continue to pursue incremental modifications of existing structures (e.g., IWGs, PCAs) rather than engage in wholesale reorganizations at this time.
        • When launching wholly new IWGs and PCAs (e.g., such as the AI IWG and AI PCA), the NITRD Program should consider showing clearly in the annual NITRD Supplement to the President’s Budget which lines of effort derive from previous structures and which are wholly new programmatic areas and funding lines. This will be especially important should NITRD groups increase the frequency with which they review and modify PCAs.
      • Recommendation 2: The NITRD Program should examine current structures and operations to identify opportunities for greater multi-sector engagement in its activities. Opportunities include the following:
        • Amplify multi-sector outreach and engagement efforts. While the NITRD Program notifies the public about its convening activities, it could augment its outreach.
        • Expand the NITRD Program’s efforts to track non-U.S. coordinated NIT efforts and collaborate with international efforts where appropriate. This should be done in coordination with the NSTC International S&T Coordination Subcommittee to avoid duplicating efforts.
      • Recommendation 3: The NITRD Program should examine current structures and operations to identify opportunities for improving coordination in IotF areas related to the program. Opportunities could include:
        • AI—continue coordination efforts within the NITRD Program and between NITRD IWGs and the NSTC Select Committee on AI and the Machine Learning and Artificial Intelligence (MLAI) Subcommittee.
        • Advanced communications networks—continue coordination efforts within the NITRD Program through the Subcommittee and the LSN and WSRD IWGs.
        • QIS—increase coordination with the NQCO and the NSTC QIS Subcommittee, particularly on topics such as post-quantum cryptography R&D and other implications of the development of quantum technologies on the NIT landscape with advances in QIS.
        • Biotechnology—coordinate with NSTC bodies working in biosciences-related areas such as the Biodefense R&D (BDRD) Subcommittee and the Biological Sciences Subcommittee (BSSC).
        • Advanced manufacturing—coordinate with the NSTC Subcommittee on Advanced
        • Manufacturing and large-scale manufacturing R&D efforts such as the Manufacturing USA Institutes.
      • Recommendation 4: The NITRD Program should incorporate microelectronics R&D explicitly into its programmatic activities.
        • Could take the form of a separate IWG or incorporating hardware/components R&D into existing IWGs.
        • Should be stronger NNI-NITRD coordination to ensure alignment of R&D strategies and programmatic activities.
      • Recommendation 5: The NITRD Program should further examine ways it can coordinate its participating agencies—such as through an IWG or other multiagency bodies—to ensure they support and emphasize the following:
        • STEM education, including PhD fellowships, in NIT.
        • Programs at the intersection and convergence of computational science and other fields (CS + X) at 2-year and 4-year educational institutions.
        • Retraining and upskilling the non-technical workforce to participate in the cyber-ready workforce.
        • A diverse and inclusive NIT workforce across all levels of technical staff, engineers, and scientists.
        • Strengthen efforts to attract and retain international students, scientists, and engineers who wish to contribute to NIT R&D in the United States. These efforts should be informed by conducting studies of the role that international talent plays in the U.S. NIT workforce and any factors affecting recent changes in recruitment and retention.

Coming Events

  • The Commerce, Science, and Transportation Committee will hold a hearing on the nomination of Gina Raimondo to be the Secretary of Commerce on 26 January.
  • On 17 February, the Federal Communications Commission (FCC) will hold an open meeting, its first under acting Chair Jessica Rosenworcel, with this tentative agenda:
    • Presentation on the Emergency Broadband Benefit Program. The Commission will hear a presentation on the creation of an Emergency Broadband Benefit Program. Congress charged the FCC with developing a new $3.2 billion program to help Americans who are struggling to pay for internet service during the pandemic.
    • Presentation on COVID-19 Telehealth Program. The Commission will hear a presentation about the next steps for the agency’s COVID-19 Telehealth program. Congress recently provided an additional $249.95 million to support the FCC’s efforts to expand connected care throughout the country and help more patients receive health care safely.
    • Presentation on Improving Broadband Mapping Data. The Commission will hear a presentation on the work the agency is doing to improve its broadband maps. Congress directly appropriated $65 million to help the agency develop better data for improved maps.
    • Addressing 911 Fee Diversion. The Commission will consider a Notice of Proposed Rulemaking that would implement section 902 of the Don’t Break Up the T-Band Act of 2020, which requires the Commission to take action to help address the diversion of 911 fees by states and other jurisdictions for purposes unrelated to 911. (PS Docket Nos. 20-291, 09-14)
    • Implementing the Secure and Trusted Communications Networks Act. The Commission will consider a Third Further Notice of Proposed Rulemaking that proposes to modify FCC rules consistent with changes that were made to the Secure and Trusted Communications Networks Act in the Consolidated Appropriations Act, 2021. (WC Docket No. 18-89)
  • On 27 July 2021, the Federal Trade Commission (FTC) will hold PrivacyCon 2021.

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2021. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Michael Kans, Michael Kans Blog, and michaelkans.blog with appropriate and specific direction to the original content.

Photo by Photoholgic on Unsplash

Further Reading, Other Developments, and Coming Events (5 January 2021)

Further Reading

  • China Used Stolen Data To Expose CIA Operatives In Africa And Europe;” “Beijing Ransacked Data as U.S. Sources Went Dark in China;” “Tech Giants Are Giving China A Vital Edge In Espionage” By Zach Dorfman — Foreign Policy. This terrifying trio of articles lays bare the 180 degree change in espionage advantage the People’s Republic of China (PRC) seems to hold over the United States (U.S.). Hacking, big data, processing, algorithms, and other technological issues play prominent roles in the PRC’s seeming advantage. It remains to be seen how the U.S. responds to the new status quo.
  • Singapore police can access COVID-19 contact tracing data for criminal investigations” By Eileen Yu — ZDNet. During questioning in Singapore’s Parliament, it was revealed the police can use existing authority to access the data on a person’s smartphone collected by the nation’s TraceTogether app. Technically, this would entail a person being asked by the police to upload their data, which is stored on devices and encrypted. Nonetheless, this is the very scenario privacy advocates have been saying is all but inevitable with COVID-19 tracing apps on phones.
  • As Understanding of Russian Hacking Grows, So Does Alarm” By David Sanger, Nicole Perlroth, and Julian Barnes — The New York Times. Like a detonated bomb, the Russian hack of United States (U.S.) public and private systems keeps getting worse in terms of damage and fallout. The scope continues to widen as it may come to pass that thousands of U.S. entities have been compromised in ways that leave them vulnerable to future attacks. Incidentally, the massive hack has tarnished somewhat the triumph of the U.S. intelligence agencies in fending off interference with the 2020 election.
  • Google workers launch unconventional union with help of Communications Workers of America” By Nitasha Tiku — The Washington Post. A new union formed in Google stopped short of seeking certification by the National Labor Relations Board (NLRB), which will block it from collective bargaining. Nonetheless, the new union will collect dues and have a board of directors. This may lead to additional unionizing efforts in union-averse Silicon Valley and throughout the tech world.
  • ‘Break up the groupthink’: Democrats press Biden to diversify his tech picks” By Cristiano Lima — Politico. Key Democratic groups in the House are pushing the Biden team to appoint people of color for key technology positions at agencies such as the Federal Trade Commission (FTC), Federal Communications Commission (FCC), the Office of Science and Technology Policy (OSTP).

Other Developments

  • The Congress overrode President Donald Trump’s veto of the FY 2021 National Defense Authorization Act (NDAA), thus enacting the annual defense and national security policy bill, which includes a number of technology provisions that will have effects in the public and private sectors. (See here and here for analysis of these provisions in the “William M. “Mac” Thornberry National Defense Authorization Act for Fiscal Year 2021” (H.R.6395).
  • A federal court dismissed a lawsuit brought by a civil liberties and privacy advocacy group to stop implementation of President Donald Trump’s executive order aimed at social media companies and their liability protection under 47 USC 230 (aka Section 230). In June, the Center for Democracy and Technology (CDT), filed suit in federal court to block enforcement of the “Executive Order (EO) on Preventing Online Censorship.” However, the United States District Court of the District of Columbia ruled that CDT is not injured by the executive order (EO) and any such lawsuit is premature. The court dismissed the lawsuit for lack of jurisdiction.
    • In its complaint, CDT argued the EO “violates the First Amendment in two fundamental respects:
      • First, the Order is plainly retaliatory: it attacks a private company, Twitter, for exercising its First Amendment right to comment on the President’s statements.
      • Second, and more fundamentally, the Order seeks to curtail and chill the constitutionally protected speech of all online platforms and individuals— by demonstrating the willingness to use government authority to retaliate against those who criticize the government.”
  • The Federal Trade Commission (FTC) reached a settlement with a company that sells emergency travel and medical services for failing “to take reasonable steps to secure sensitive consumer information such as health records,” including having a unsecured cloud database a security researcher stumbled upon with the sensitive data of more than 130,000 people. Moreover, the company claimed a certification of compliance with the Health Insurance Portability and Accountability Act (HIPAA), which turned out to be untrue. In the complaint, the FTC alleged that these and other practices “constitute unfair and/or deceptive acts or practices, in or affecting commerce in violation of Section 5(a) of the Federal Trade Commission Act.” The FTC and the company reached agreement on a consent order that will require the company’s compliance for at least 20 years.
    • In the complaint, the FTC stated that SkyMed “advertises, offers for sale, and sells nationwide a wide array of emergency travel membership plans that cover up to eighteen different emergency travel and medical evacuation services for members who sustain serious illnesses or injuries during travel in certain geographic areas.”
    • The FTC asserted a security researcher discovered SkyMed’s “database, which could be located and accessed by anyone on the internet, contained approximately 130,000 membership records with consumers’ personal information stored in plain text, including information populated in certain fields for names, dates of birth, gender, home addresses, email addresses, phone numbers, membership information and account numbers, and health information.”
    • The FTC noted the company told affected customers that it had investigated and “[t]here was no medical or payment-related information visible and no indication that the information has been misused.” This turns out to be completely false, and the company’s “investigation did not determine that consumers’ health information was neither stored on the cloud database, nor improperly accessed by an unauthorized third party.”
    • The FTC summarized the terms of the consent order and SkyMed’s obligations:
      • Under the proposed settlement, SkyMed is prohibited from misrepresenting how it secures personal data, the circumstances of and response to a data breach, and whether the company has been endorsed by or participates in any government-sponsored privacy or security program. The company also will be required to send a notice to affected consumers detailing the data that was exposed by the data breach.
      • As part of the mandated information security program, the company must identify and document potential internal and external risks and design, implement, and maintain safeguards to protect personal information it collects from those risks. In addition, SkyMed must obtain biennial assessments of its information security program by a third party, which the FTC has authority to approve, to examine the effectiveness of SkyMed’s information security program, identify any gaps or weaknesses, and monitor efforts to address these problems. The settlement also requires a senior SkyMed executive to certify annually that the company is complying with the requirements of the settlement.
  • The European Commission (EC) has communicated its vision for a new cybersecurity strategy to the European Parliament and European Council “to ensure a global and open Internet with strong guardrails to address the risks to the security and fundamental rights and freedoms of people in Europe.” The EC spelled out its dramatic plan to remake how the bloc regulates, invests in, and structures policies around cybersecurity. The EC claimed “[a]s a key component of Shaping Europe’s Digital Future, the Recovery Plan for Europe  and the EU Security Union Strategy, the Strategy will bolster Europe’s collective resilience against cyber threats and help to ensure that all citizens and businesses can fully benefit from trustworthy and reliable services and digital tools.” If the European Union (EU) follows through, this strategy may have significant effects in the EU and around the world. The EC further explained:
    • Following the progress achieved under the previous strategies, it contains concrete proposals for deploying three principal instruments –regulatory, investment and policy instruments – to address three areas of EU action – (1) resilience, technological sovereignty and leadership, (2) building operational capacity to prevent, deter and respond, and (3) advancing a global and open cyberspace. The EU is committed to supporting this strategy through an unprecedented level of investment in the EU’s digital transition over the next seven years – potentially quadrupling previous levels – as part of new technological and industrial policies and the recovery agenda
    • Cybersecurity must be integrated into all these digital investments, particularly key technologies like Artificial Intelligence (AI), encryption and quantum computing, using incentives, obligations and benchmarks. This can stimulate the growth of the European cybersecurity industry and provide the certainty needed to ease the phasing out of legacy systems. The European Defence Fund (EDF) will support European cyber defence solutions, as part of the European defence technological and industrial base. Cybersecurity is included in external financial instruments to support our partners, notably the Neighbourhood, Development and International Cooperation Instrument. Preventing the misuse of technologies, protecting critical infrastructure and ensuring the integrity of supply chains also enables the EU’s adherence to the UN norms, rules and principles of responsible state behavior.
    • With respect to actions that might be taken, the EC stated that “[t]he EU should ensure:
      • Adoption of revised NIS Directive;
      • Regulatory measures for an Internet of Secure Things
      • Through the CCCN investment in cybersecurity (notably through the Digital Europe Programme, Horizon Europe and recovery facility) to reach up to €4.5 billion in public and private investments over 2021-2027;
      • An EU network of AI-enabled Security Operation Centres and an ultra-secure communication infrastructure harnessing quantum technologies;
      • Widespread adoption of cybersecurity technologies through dedicated support to SMEs under the Digital Innovation Hubs;
      • Development of an EU DNS resolver service as a safe and open alternative for EU citizens, businesses and public administration to access the Internet; and
      • Completion of the implementation of the 5G Toolbox by the second quarter of 2021
      • Complete the European cybersecurity crisis management framework and determine the process, milestones and timeline for establishing the Joint Cyber Unit;
      •  Continue implementation of cybercrime agenda under the Security Union Strategy;
      • Encourage and facilitate the establishment of a Member States’ cyber intelligence working group residing within the EU INTCEN;
      • Advance the EU’s cyber deterrence posture to prevent, discourage, deter and respond to malicious cyber activities;
      • Review the Cyber Defence Policy Framework;
      • Facilitate the development of an EU “Military Vision and Strategy on Cyberspace as a Domain of Operations” for CSDP military missions and operations;
      • Support synergies between civil, defence and space industries; and
      • Reinforce cybersecurity of critical space infrastructures under the Space Programme.
      • Define a set of objectives in international standardisation processes, and promote these at international level;
      • Advance international security and stability in cyberspace, notably through the proposal by the EU and its Member States for a Programme of Action to Advance Responsible State Behaviour in Cyberspace (PoA) in the United Nations;
      • Offer practical guidance on the application of human rights and fundamental freedoms in cyberspace;
      • Better protect children against child sexual abuse and exploitation, as well as a Strategy on the Rights of the Child;
      • Strengthen and promote the Budapest Convention on Cybercrime, including through the work on the Second Additional Protocol to the Budapest Convention;
      • Expand EU cyber dialogue with third countries, regional and international organisations, including through an informal EU Cyber Diplomacy Network;
      • Reinforce the exchanges with the multi-stakeholder community, notably by regular and structured exchanges with the private sector, academia and civil society; and
      • Propose an EU External Cyber Capacity Building Agenda and an EU Cyber Capacity Building Board.
  • The U.S.-China  Economic  and  Security  Review  Commission released its annual report on the People’s Republic of China (PRC) per its “mandate “to monitor, investigate, and report to Congress on the national security implications of the bilateral trade and economic relationship between the United States and the People’s Republic of China.” The Commission argued:
    • Left unchecked, the PRC will continue building a new global order anathema to the interests and values that have underpinned unprecedented economic growth and stability among nations in the post-Cold War era. The past 20 years are littered with the Chinese  Communist  Party’s (CCP) broken promises. In China’s intended new order, there is little reason to believe CCP promises of “win-win” solutions, mutual respect, and peaceful coexistence. A clear understanding of the CCP’s adversarial national security and economic ambitions is essential as U.S. and allied leaders develop the policies and programs that will define the conditions of global freedom and shape our future.
    • The Commission made ten “Key Recommendations:”
      • Congress adopt the principle of reciprocity as foundational in all legislation bearing on U.S.-China relations.
      • Congress expand the authority of the Federal Trade Commission (FTC) to monitor and take foreign government subsidies into account in premerger notification processes.
      • Congress direct the U.S. Department of State to produce an annual report detailing China’s actions in the United Nations and its subordinate agencies that subvert the principles and purposes of the United Nations
      • Congress hold hearings to consider the creation of an interagency executive Committee on Technical Standards that would be responsible for coordinating U.S. government policy and priorities on international standards.
      • Congress consider establishing a “Manhattan Project”-like effort to ensure that the American public has access to safe and secure supplies of critical lifesaving and life-sustaining drugs and medical equipment, and to ensure that these supplies are available from domestic sources or, where necessary, trusted allies.
      • Congress enact legislation establishing a China Economic Data Coordination Center (CEDCC) at the Bureau of Economic Analysis at the U.S. Department of Commerce.
      • Congress direct the Administration, when sanctioning an entity in the People’s Republic of China for actions contrary to the economic and national security interests of the United States or for violations of human rights, to also sanction the parent entity.
      • Congress consider enacting legislation to make the Director of the American Institute in Taiwan a presidential nomination subject to the advice and consent of the United States Senate.
      • Congress amend the Immigration and Nationality Act to clarify that association with a foreign government’s technology transfer programs may be considered grounds to deny a nonimmigrant visa if the foreign government in question is deemed a strategic competitor of the United States, or if the applicant has engaged in violations of U.S. laws relating to espionage, sabotage, or export controls.
      • Congress direct the Administration to identify and remove barriers to receiving United States visas for Hong Kong residents attempting to exit Hong Kong for fear of political persecution.
  • The Electronic Privacy Information Center, the Center for Digital Democracy, the Campaign for a Commercial-Free Childhood, the Parent Coalition for Student Privacy, and Consumer Federation of America asked the Federal Trade Commission (FTC) “to recommend specific changes to the proposed Consent Order to safeguard the privacy interests of Zoom users” in their comments submitted regarding the FTC’s settlement with Zoom. In November, the FTC split along party lines to approve a settlement with Zoom to resolve allegations that the video messaging platform violated the FTC Act’s ban on unfair and deceptive practices in commerce. Zoom agreed to a consent order mandating a new information security program, third party assessment, prompt reporting of covered incidents and other requirements over a period of 20 years. The two Democratic Commissioners voted against the settlement and dissented because they argued it did not punish the abundant wrongdoing and will not dissuade future offenders. Commissioners Rohit Chopra and Rebecca Kelly Slaughter dissented for a variety of reasons that may be summed up: the FTC let Zoom off with a slap on the wrist. Kelly Slaughter focused on the majority’s choice to ignore the privacy implications of Zoom’s misdeeds, especially by not including any requirements that Zoom improve its faulty privacy practices.
    • The groups “recommend that the FTC modify the proposed Consent Order and require Zoom to(1) implement a comprehensive privacy program; (2) obtain regular independent privacy assessments and make those assessments available to the public; (3) provide meaningful redress for victims of Zoom’s unfair and deceptive trade practices; and (4) ensure the adequate protection and limits on the collection of children’s data.”

Coming Events

  • On 13 January, the Federal Communications Commission (FCC) will hold its monthly open meeting, and the agency has placed the following items on its tentative agenda “Bureau, Office, and Task Force leaders will summarize the work their teams have done over the last four years in a series of presentations:
    • Panel One. The Commission will hear presentations from the Wireless Telecommunications Bureau, International Bureau, Office of Engineering and Technology, and Office of Economics and Analytics.
    • Panel Two. The Commission will hear presentations from the Wireline Competition Bureau and the Rural Broadband Auctions Task Force.
    • Panel Three. The Commission will hear presentations from the Media Bureau and the Incentive Auction Task Force.
    • Panel Four. The Commission will hear presentations from the Consumer and Governmental Affairs Bureau, Enforcement Bureau, and Public Safety and Homeland Security Bureau.
    • Panel Five. The Commission will hear presentations from the Office of Communications Business Opportunities, Office of Managing Director, and Office of General Counsel.
  • On 27 July, the Federal Trade Commission (FTC) will hold PrivacyCon 2021.

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2021. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Michael Kans, Michael Kans Blog, and michaelkans.blog with appropriate and specific direction to the original content.

Image by Free-Photos from Pixabay

Further Reading, Other Development, and Coming Events (4 January 2021)

Further Reading

  • Microsoft Says Russian Hackers Viewed Some of Its Source Code” By Nicole Perlroth — The New York Times. The Sluzhba vneshney razvedki Rossiyskoy Federatsii’s (SVR) hack keeps growing and growing with Microsoft admitting its source code was viewed through an employee account. It may be that authorized Microsoft resellers were one of the vectors by which the SVR accessed SolarWinds, FireEye, and ultimately a number of United States (U.S.) government agencies. Expect more revelations to come about the scope and breadth of entities and systems the SVR compromised.
  • In 2020, we reached peak Internet. Here’s what worked — and what flopped.” By Geoffrey Fowler — The Washington Post. The newspaper’s tech columnist reviews the technology used during the pandemic and what is likely to stay with us when life returns to some semblance of normal.
  • Facebook Says It’s Standing Up Against Apple For Small Businesses. Some Of Its Employees Don’t Believe It.” By Craig Silverman and Ryan Mac — BuzzFeed News. Again, two of the best-sourced journalists when it comes to Facebook have exposed employee dissent within the social media and advertising giant, and this time over the company’s advertising blitz positioning it as the champion of small businesses that allegedly stand to be hurt when Apple rolls out iOS 14 that will allow users to block the type of tracking across apps and the internet Facebook thrives on. The company’s PR campaign stands in contrast to the anecdotal stories about errors that harmed and impeded small companies in using Facebook to advertise and sell products and services to cusstomers.
  • SolarWinds hack spotlights a thorny legal problem: Who to blame for espionage?” By Tim Starks — cyberscoop. This piece previews possible and likely inevitable litigation to follow from the SolarWinds hack, including possible securities action on the basis of fishy dumps of stock by executive, breach of contract, and negligence for failing to patch and address vulnerabilities in a timely fashion. Federal and state regulators will probably get on the field, too. But this will probably take years to play out as Home Depot settled claims arising from its 2014 breach with state attorneys general in November 2020.
  • The Tech Policies the Trump Administration Leaves Behind” By Aaron Boyd — Nextgov. A look back at the good, the bad, and the ugly of the Trump Administration’s technology policies, some of which will live on in the Biden Administration.

Other Developments

  • In response to the SolarWinds hack, the Federal Bureau of Investigation (FBI), the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA), and the Office of the Director of National Intelligence (ODNI) issued a joint statement indicating that the process established in Pursuant to Presidential Policy Directive (PPD) 41, an Obama Administration policy has been activated and a Cyber Unified Coordination Group (UCG) has been formed “to coordinate a whole-of-government response to this significant cyber incident.” The agencies explained “[t]he UCG is intended to unify the individual efforts of these agencies as they focus on their separate responsibilities.”
    • In PPD-41 it is explained that a UCG “shall serve as the primary method for coordinating between and among Federal agencies in response to a significant cyber incident as well as for integrating private sector partners into incident response efforts, as appropriate.” Moreover, “[t]he Cyber UCG is intended to result in unity of effort and not to alter agency authorities or leadership, oversight, or command responsibilities.”
  • Following the completion of its “in-depth” investigation, the European Commission (EC) cleared Google’s acquisition of Fitbit with certain conditions, removing a significant hurdle for the American multinational in buying the wearable fitness tracker company. In its press release, the EC explained that after its investigation, “the Commission had concerns that the transaction, as initially notified, would have harmed competition in several markets.” To address and allay concerns, Google bound itself for ten years to a set of commitments that can be unilaterally extended by the EC and will be enforced, in part, by the appointment of a trustee to oversee compliance.
    • The EC was particularly concerned about:
      • Advertising: By acquiring Fitbit, Google would acquire (i) the database maintained by Fitbit about its users’ health and fitness; and (ii) the technology to develop a database similar to that of Fitbit. By increasing the already vast amount of data that Google could use for the personalisation of ads, it would be more difficult for rivals to match Google’s services in the markets for online search advertising, online display advertising, and the entire “ad tech” ecosystem. The transaction would therefore raise barriers to entry and expansion for Google’s competitors for these services to the detriment of advertisers, who would ultimately face higher prices and have less choice.
      • Access to Web Application Programming Interface (‘API’) in the market for digital healthcare: A number of players in this market currently access health and fitness data provided by Fitbit through a Web API, in order to provide services to Fitbit users and obtain their data in return. The Commission found that following the transaction, Google might restrict competitors’ access to the Fitbit Web API. Such a strategy would come especially at the detriment of start-ups in the nascent European digital healthcare space.
      • Wrist-worn wearable devices: The Commission is concerned that following the transaction, Google could put competing manufacturers of wrist-worn wearable devices at a disadvantage by degrading their interoperability with Android smartphones.
    • As noted, Google made a number of commitments to address competition concerns:
      • Ads Commitment:
        • Google will not use for Google Ads the health and wellness data collected from wrist-worn wearable devices and other Fitbit devices of users in the EEA, including search advertising, display advertising, and advertising intermediation products. This refers also to data collected via sensors (including GPS) as well as manually inserted data.
        • Google will maintain a technical separation of the relevant Fitbit’s user data. The data will be stored in a “data silo” which will be separate from any other Google data that is used for advertising.
        • Google will ensure that European Economic Area (‘EEA’) users will have an effective choice to grant or deny the use of health and wellness data stored in their Google Account or Fitbit Account by other Google services (such as Google Search, Google Maps, Google Assistant, and YouTube).
      • Web API Access Commitment:
        • Google will maintain access to users’ health and fitness data to software applications through the Fitbit Web API, without charging for access and subject to user consent.
      • Android APIs Commitment:
        • Google will continue to license for free to Android original equipment manufacturers (OEMs) those public APIs covering all current core functionalities that wrist-worn devices need to interoperate with an Android smartphone. Such core functionalities include but are not limited to, connecting via Bluetooth to an Android smartphone, accessing the smartphone’s camera or its GPS. To ensure that this commitment is future-proof, any improvements of those functionalities and relevant updates are also covered.
        • It is not possible for Google to circumvent the Android API commitment by duplicating the core interoperability APIs outside the Android Open Source Project (AOSP). This is because, according to the commitments, Google has to keep the functionalities afforded by the core interoperability APIs, including any improvements related to the functionalities, in open-source code in the future. Any improvements to the functionalities of these core interoperability APIs (including if ever they were made available to Fitbit via a private API) also need to be developed in AOSP and offered in open-source code to Fitbit’s competitors.
        • To ensure that wearable device OEMs have also access to future functionalities, Google will grant these OEMs access to all Android APIs that it will make available to Android smartphone app developers including those APIs that are part of Google Mobile Services (GMS), a collection of proprietary Google apps that is not a part of the Android Open Source Project.
        • Google also will not circumvent the Android API commitment by degrading users experience with third party wrist-worn devices through the display of warnings, error messages or permission requests in a discriminatory way or by imposing on wrist-worn devices OEMs discriminatory conditions on the access of their companion app to the Google Play Store.
  • The United States (U.S.) Department of Health and Human Services’ (HHS) Office of Civil Rights (OCR) has proposed a major rewrite of the regulations governing medical privacy in the U.S. As the U.S. lacks a unified privacy regime, the proposed changes would affect on those entities in the medical sector subject to the regime, which is admittedly many such entities. Nevertheless, it is almost certain the Biden Administration will pause this rulemaking and quite possibly withdraw it should it prove crosswise with the new White House’s policy goals.
    • HHS issued a notice of proposed rulemaking “to modify the Standards for the Privacy of Individually Identifiable Health Information (Privacy Rule) under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH Act).”
      • HHS continued:
        • The Privacy Rule is one of several rules, collectively known as the HIPAA Rules, that protect the privacy and security of individuals’ medical records and other protected health information (PHI), i.e., individually identifiable health information maintained or transmitted by or on behalf of HIPAA covered entities (i.e., health care providers who conduct covered health care transactions electronically, health plans, and health care clearinghouses).
        • The proposals in this NPRM support the Department’s Regulatory Sprint to Coordinated Care (Regulatory Sprint), described in detail below. Specifically, the proposals in this NPRM would amend provisions of the Privacy Rule that could present barriers to coordinated care and case management –or impose other regulatory burdens without sufficiently compensating for, or offsetting, such burdens through privacy protections. These regulatory barriers may impede the transformation of the health care system from a system that pays for procedures and services to a system of value-based health care that pays for quality care.
    • In a press release, OCR asserted:
      • The proposed changes to the HIPAA Privacy Rule include strengthening individuals’ rights to access their own health information, including electronic information; improving information sharing for care coordination and case management for individuals; facilitating greater family and caregiver involvement in the care of individuals experiencing emergencies or health crises; enhancing flexibilities for disclosures in emergency or threatening circumstances, such as the Opioid and COVID-19 public health emergencies; and reducing administrative burdens on HIPAA covered health care providers and health plans, while continuing to protect individuals’ health information privacy interests.
  • The Federal Trade Commission (FTC) has used its powers to compel selected regulated entities to provide requested information in asking that “nine social media and video streaming companies…provide data on how they collect, use, and present personal information, their advertising and user engagement practices, and how their practices affect children and teens.” The TFTC is using its Section 6(b) authority to compel the information from Amazon.com, Inc., ByteDance Ltd., which operates the short video service TikTok, Discord Inc., Facebook, Inc., Reddit, Inc., Snap Inc., Twitter, Inc., WhatsApp Inc., and YouTube LLC. Failure to respond can result in the FTC fining a non-compliant entity.
    • The FTC claimed in its press release it “is seeking information specifically related to:
      • how social media and video streaming services collect, use, track, estimate, or derive personal and demographic information;
      • how they determine which ads and other content are shown to consumers;
      • whether they apply algorithms or data analytics to personal information;
      • how they measure, promote, and research user engagement; and
      • how their practices affect children and teens.
    • The FTC explained in its sample order:
      • The Commission is seeking information concerning the privacy policies, procedures, and practices of Social Media and Video Streaming Service providers, Including the method and manner in which they collect, use, store, and disclose Personal Information about consumers and their devices. The Special Report will assist the Commission in conducting a study of such policies, practices, and procedures.
  • The United States (U.S.) Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) supplemented its Emergency Directive 21-01 to federal civilian agencies in response to the Sluzhba vneshney razvedki Rossiyskoy Federatsii’s (SVR) hack via SolarWinds. In an 18 December update, CISA explained:
    • This section provides additional guidance on the implementation of CISA Emergency Directive (ED) 21-01, to include an update on affected versions, guidance for agencies using third-party service providers, and additional clarity on required actions.
    •  In a 30 December update, CISA stated:
      • Specifically, all federal agencies operating versions of the SolarWinds Orion platform other than those identified as “affected versions” below are required to use at least SolarWinds Orion Platform version 2020.2.1HF2. The National Security Agency (NSA) has examined this version and verified that it eliminates the previously identified malicious code. Given the number and nature of disclosed and undisclosed vulnerabilities in SolarWinds Orion, all instances that remain connected to federal networks must be updated to 2020.2.1 HF2 by COB December 31, 2020. CISA will follow up with additional supplemental guidance, to include further clarifications and hardening requirements.
  • Australia’s Attorney-General’s Department published an unclassified version of the four volumes of the “Report of the Comprehensive Review of the Legal Framework of the National Intelligence Community,” an “examination of the legislative framework underpinning the National Intelligence Community (NIC)…the first and largest since the Hope Royal Commissions considered the Australian Intelligence Community (AIC) in the 1970s and 1980s.” Ultimately, the authors of the report concluded:
    • We do not consider the introduction of a common legislative framework, in the form of a single Act governing all or some NIC agencies, to be a practical, pragmatic or proportionate reform. It would be unlikely that the intended benefits of streamlining and simplifying NIC legislation could be achieved due to the diversity of NIC agency functions—from intelligence to law enforcement, regulatory and policy—and the need to maintain differences in powers, immunities and authorising frameworks. The Review estimates that reform of this scale would cost over $200million and take up to 10years to complete. This would be an impractical and disproportionate undertaking for no substantial gain. In our view, the significant costs and risks of moving to a single, consolidated Act clearly outweigh the limited potential benefits.
    • While not recommending a common legislative framework for the entire NIC, some areas of NIC legislation would benefit from simplification and modernisation. We recommend the repeal of the TIA Act, Surveillance Devices Act 2004(SD Act) and parts of the Australian Security Intelligence Organisation Act 1979 (ASIO Act), and their replacement with a single new Act governing the use of electronic surveillance powers—telecommunications interception, covert access to stored communications, computers and telecommunications data, and the use of optical, listening and tracking devices—under Commonwealth law.
  • The National Institute of Standards and Technology (NIST) released additional materials to supplement a major rewrite of a foundational security guidance document. NIST explained “[n]ew supplemental materials for NIST Special Publication (SP) 800-53 Revision 5, Security and Privacy Controls for Information Systems and Organizations, are available for download to support the December 10, 2020 errata release of SP 800-53 and SP 800-53B, Control Baselines for Information Systems and Organizations.” These supplemental materials include:
    • A comparison of the NIST SP 800-53 Revision 5 controls and control enhancements to Revision 4. The spreadsheet describes the changes to each control and control enhancement, provides a brief summary of the changes, and includes an assessment of the significance of the changes.  Note that this comparison was authored by The MITRE Corporation for the Director of National Intelligence (DNI) and is being shared with permission by DNI.
    • Mapping of the Appendix J Privacy Controls (Revision 4) to Revision 5. The spreadsheet supports organizations using the privacy controls in Appendix J of SP 800-53 Revision 4 that are transitioning to the integrated control catalog in Revision 5.
    • Mappings between NIST SP 800-53 and other frameworks and standards. The mappings provide organizations a general indication of SP 800-53 control coverage with respect to other frameworks and standards. When leveraging the mappings, it is important to consider the intended scope of each publication and how each publication is used; organizations should not assume equivalency based solely on the mapping tables because mappings are not always one-to-one and there is a degree of subjectivity in the mapping analysis.
  • Via a final rule, the Department of Defense (DOD) codified “the National Industrial Security Program Operating Manual (NISPOM) in regulation…[that] establishes requirements for the protection of classified information disclosed to or developed by contractors, licensees, grantees, or certificate holders (hereinafter referred to as contractors) to prevent unauthorized disclosure.” The DOD stated “[i]n addition to adding the NISPOM to the Code of Federal Regulations (CFR), this rule incorporates the requirements of Security Executive Agent Directive (SEAD) 3, “Reporting Requirements for Personnel with Access to Classified Information or Who Hold a Sensitive Position.” The DOD stated “SEAD 3 requires reporting by all contractor cleared personnel who have been granted eligibility for access to classified information.”
    • The DOD added “[t]his NISPOM rule provides for a single nation-wide implementation plan which will, with this rule, include SEAD 3 reporting by all contractor cleared personnel to report specific activities that may adversely impact their continued national security eligibility, such as reporting of foreign travel and foreign contacts.”
    • The DOD explained “NISP Cognizant Security Agencies (CSAs) shall conduct an analysis of such reported activities to determine whether they pose a potential threat to national security and take appropriate action.”
    • The DOD added that “the rule also implements the provisions of Section 842 of Public Law 115-232, which removes the requirement for a covered National Technology and Industrial Base (NTIB) entity operating under a special security agreement pursuant to the NISP to obtain a national interest determination as a condition for access to proscribed information.”
  • An advisory committee housed at the United States (U.S.) Department of Homeland Security (DHS) is calling for the White House to quickly “operationalize intelligence in a classified space with senior executives and cyber experts from most critical entities in the energy, financial services, and communications sectors working directly with intelligence analysts and other government staff.” In their report, the President’s National Infrastructure Advisory Council (NIAC) proposed the creation of a Critical Infrastructure Command Center (CICC) to “provid[e] real-time collaboration between government and industry…[and] take direct action and provide tactical solutions to mitigate, remediate,  and deter threats.” NIAC urged the President to “direct relevant federal agencies to support the private sector in executing the concept, including identifying the required government staff…[and] work with Congress to ensure the appropriate authorities are established to allow the CICC to fully realize its operational functionality.” NIAC recommended “near-term actions to implement the CICC concept:
    • 1.The President should direct the relevant federal agencies to support the private sector in rapidly standing up the CICC concept with the energy, financial services, and communications sectors:
      • a. Within 90 days the private sector will identify the executives who will lead execution of the CICC concept and establish governing criteria (including membership, staffing and rotation, and other logistics).
      • b. Within 120 days the CICC sector executives will identify and assign the necessary CICC staff from the private sector.
      • c. Within 90 days an appropriate venue to house the operational component will be identified and the necessary agreements put in place.
    • 2. The President should direct the Intelligence Community and other relevant government agencies to identify and co-locate the required government staff counterparts to enable the direct coordination required by the CICC. This staff should be pulled from the IC, SSAs, and law enforcement.
    • 3. The President, working with Congress, should establish the appropriate authorities and mission for federal agencies to directly share intelligence with critical infrastructure companies, along with any other authorities required for the CICC concept to be fully successful (identified in Appendix A).
    • 4. Once the CICC concept is fully operational (within 180 days), the responsible executives should deliver a report to the NSC and the NIAC demonstrating how the distinct capabilities of the CICC have been achieved and the impact of the capabilities to date. The report should identify remaining gaps in resources, direction, or authorities.

Coming Events

  • On 13 January, the Federal Communications Commission (FCC) will hold its monthly open meeting, and the agency has placed the following items on its tentative agenda “Bureau, Office, and Task Force leaders will summarize the work their teams have done over the last four years in a series of presentations:
    • Panel One. The Commission will hear presentations from the Wireless Telecommunications Bureau, International Bureau, Office of Engineering and Technology, and Office of Economics and Analytics.
    • Panel Two. The Commission will hear presentations from the Wireline Competition Bureau and the Rural Broadband Auctions Task Force.
    • Panel Three. The Commission will hear presentations from the Media Bureau and the Incentive Auction Task Force.
    • Panel Four. The Commission will hear presentations from the Consumer and Governmental Affairs Bureau, Enforcement Bureau, and Public Safety and Homeland Security Bureau.
    • Panel Five. The Commission will hear presentations from the Office of Communications Business Opportunities, Office of Managing Director, and Office of General Counsel.
  • On 27 July, the Federal Trade Commission (FTC) will hold PrivacyCon 2021.

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Further Reading, Other Development, and Coming Events (7 December)

Further Reading

  • Facebook steps up campaign to ban false information about coronavirus vaccines” By Elizabeth Dwoskin — The Washington Post. In its latest step to find and remove lies, misinformation, and disinformation, the social media giant is now committing to removing and blocking untrue material about COVID-19 vaccines, especially from the anti-vaccine community. Will the next step be to take on anti-vaccination proponents generally?
  • Comcast’s 1.2 TB data cap seems like a ton of data—until you factor in remote work” By Rob Pegoraro — Fast Company. Despite many people and children working and learning from home, Comcast is reimposing a 1.2 terabyte limit on data for homes. Sounds like quite a lot until you factor in video meetings, streaming, etc. So far, other providers have not set a cap.
  • Google’s star AI ethics researcher, one of a few Black women in the field, says she was fired for a critical email” By Drew Harwell and Nitasha Tiku — The Washington Post. Timnit Gebru, a top flight artificial intelligence (AI) computer scientist, was fired for questioning Google’s review of a paper she wanted to present at an AI conference that is likely critical of the company’s AI projects. Google claims she resigned, but Gebru says she was fired. She has long been an advocate for women and minorities in tech and AI and her ouster will likely only increase scrutiny of and questions about Google’s commitment to diversity and an ethical approach to the development and deployment of AI. It will also probably lead to more employee disenchantment about the company that follows in the wake of protests about Google’s involvement with the United States Department of Defense’s Project Maven and hiring of former United States Department of Homeland Security chief of staff Miles Taylor who was involved with the policies that resulted in caging children and separating families on the southern border of the United States.
  • Humans Can Help Clean Up Facebook and Twitter” By Greg Bensinger — The New York Times. In this opinion piece, the argument is made that social media platforms should redeploy their human monitors to the accounts that violate terms of service most frequently (e.g., President Donald Trump) and more aggressively label and remove untrue or inflammatory content, they would have a greater impact on lies, misinformation, and disinformation.
  • Showdown looms over digital services tax” By Ashley Gold — Axios. Because the Organization for Economic Cooperation and Development (OECD) has not reached a deal on digital services taxes, a number of the United States (U.S.) allies could move forward with taxes on U.S. multinationals like Amazon, Google, and Apple. The Trump Administration has variously taken an adversarial position threatening to retaliate against countries like France who have enacted a tax that has not been collected during the OECD negotiations. The U.S. also withdrew from talks. It is probable the Biden Administration will be more willing to work in a multi-lateral fashion and may strike a deal on an issue that it not going away as the United Kingdom, Italy, and Canada also have plans for a digital tax.
  • Trump’s threat to veto defense bill over social-media protections is heading to a showdown with Congress” By Karoun Demirjian and Tony Romm — The Washington Post. I suppose I should mention of the President’s demands that the FY 2021 National Defense Authorization Act (NDAA) contain a repeal of 47 U.S.C. 230 (Section 230 of the Communications Act) that came at the eleventh hour and fifty-ninth minute of negotiations on a final version of the bill. Via Twitter, Donald Trump threatened to veto the bill which has been passed annually for decades. Republicans were not having it, however, even if they agreed on Trump’s desire to remove liability protection for technology companies. And yet, if Trump continues to insist on a repeal, Republicans may find themselves in a bind and the bill could conceivably get pulled until President-elect Joe Biden is sworn in. On the other hand, Trump’s veto threats about renaming military bases currently bearing the names of Confederate figures have not been renewed even though the final version of the bill contains language instituting a process to do just that.

Other Developments

  • The Senate Judiciary Committee held over its most recent bill to narrow 47 U.S.C. 230 (Section 230 of the Communications Act) that provides liability protection for technology companies for third-party material posted on their platforms and any decisions to edit, alter, or remove such content. The committee opted to hold the “Online Content Policy Modernization Act” (S.4632), which may mean the bill’s chances of making it to the Senate floor are low. What’s more, even if the Senate passes Section 230 legislation, it is not clear there will be sufficient agreement with Democrats in the House to get a final bill to the President before the end of this Congress. On 1 October, the committee also decided to hold over bill to try to reconcile the fifteen amendments submitted for consideration. The Committee could soon meet again to formally markup and report out this legislation.
    • At the earlier hearing, Chair Lindsey Graham (R-SC) submitted an amendment revising the bill’s reforms to Section 230 that incorporate some of the below amendments but includes new language. For example, the bill includes a definition of “good faith,” a term not currently defined in Section 230. This term would be construed as a platform taking down or restricting content only according to its publicly available terms of service, not as a pretext, and equally to all similarly situated content. Moreover, good faith would require alerting the user and giving him or her an opportunity to respond subject to certain exceptions. The amendment also makes clear that certain existing means of suing are still available to users (e.g. suing claiming a breach of contract.)
    • Senator Mike Lee (R-UT) offered a host of amendments:
      • EHF20913 would remove “user[s]” from the reduced liability shield that online platforms would receive under the bill. Consequently, users would still not be legally liable for the content posted by another user.
      • EHF20914 would revise the language the language regarding the type of content platforms could take down with legal protection to make clear it would not just be “unlawful” content but rather content “in violation of a duly enacted law of the United States,” possibly meaning federal laws and not state laws. Or, more likely, the intent would be to foreclose the possibility a platform would say it is acting in concert with a foreign law and still assert immunity.
      • EHF20920 would add language making clear that taking down material that violates terms of service or use according to an objectively reasonable belief would be shielded from liability.
      • OLL20928 would expand legal protection to platforms for removing or restricting spam,
      • OLL20929 would bar the Federal Communications Commission (FCC) from a rulemaking on Section 230.
      • OLL20930 adds language making clear if part of the revised Section 230 is found unconstitutional, the rest of the law would still be applicable.
      • OLL20938 revises the definition of an “information content provider,” the term of art in Section 230 that identifies a platform, to expand when platforms may be responsible for the creation or development of information and consequently liable for a lawsuit.
    • Senator Josh Hawley (R-MO) offered an amendment that would create a new right of action for people to sue large platforms for taking down his or her content if not done in “good faith.” The amendment limits this right only to “edge providers” who are platforms with more than 30 million users in the U.S. , 300 million users worldwide, and with revenues of more than $1.5 billion. This would likely exclude all platforms except for Twitter, Facebook, Instagram, TikTok, Snapchat, and a select group of a few others.
    • Senator John Kennedy (R-LA) offered an amendment that removes all Section 230 legal immunity from platforms that collect personal data and then uses an “automated function” to deliver targeted or tailored content to a user unless a user “knowingly and intentionally elect[s]” to receive such content.
  • The Massachusetts Institute of Technology’s (MIT) Work of the Future Task Force issued its final report and drew the following conclusions:
    • Technological change is simultaneously replacing existing work and creating new work. It is not eliminating work altogether.
    • Momentous impacts of technological change are unfolding gradually.
    • Rising labor productivity has not translated into broad increases in incomes because labor market institutions and policies have fallen into disrepair.
    • Improving the quality of jobs requires innovation in labor market institutions.
    • Fostering opportunity and economic mobility necessitates cultivating and refreshing worker skills.
    • Investing in innovation will drive new job creation, speed growth, and meet rising competitive challenges.
    • The Task Force stated:
      • In the two-and-a-half years since the Task Force set to work, autonomous vehicles, robotics, and AI have advanced remarkably. But the world has not been turned on its head by automation, nor has the labor market. Despite massive private investment, technology deadlines have been pushed back, part of a normal evolution as breathless promises turn into pilot trials, business plans, and early deployments — the diligent, if prosaic, work of making real technologies work in real settings to meet the demands of hard-nosed customers and managers.
      • Yet, if our research did not confirm the dystopian vision of robots ushering workers off of factor y floors or artificial intelligence rendering superfluous human expertise and judgment, it did uncover something equally pernicious: Amidst a technological ecosystem delivering rising productivity, and an economy generating plenty of jobs (at least until the COVID-19 crisis), we found a labor market in which the fruits are so unequally distributed, so skewed towards the top, that the majority of workers have tasted only a tiny morsel of a vast har vest.
      • As this report documents, the labor market impacts of technologies like AI and robotics are taking years to unfold. But we have no time to spare in preparing for them. If those technologies deploy into the labor institutions of today, which were designed for the last century, we will see similar effects to recent decades: downward pressure on wages, skills, and benefits, and an increasingly bifurcated labor market. This report, and the MIT Work of the Future Task Force, suggest a better alternative: building a future for work that har vests the dividends of rapidly advancing automation and ever-more powerful computers to deliver opportunity and economic security for workers. To channel the rising productivity stemming from technological innovations into broadly shared gains, we must foster institutional innovations that complement technological change.
  • The European Data Protection Supervisor (EDPS) Wojciech Wiewiorówski published his “preliminary opinion on the European Commission’s (EC) Communication on “A European strategy for data” and the creation of a common space in the area of health, namely the European Health Data Space (EHDS).” The EDPS lauded the goal of the EHDS, “the prevention, detection and cure of diseases, as well as for evidence-based decisions in order to enhance effectiveness, accessibility and sustainability of the healthcare systems.” However, Wiewiorówski articulated his concerns that the EC needs to think through the applicability of the General Data Protection Regulation (GDPR), among other European Union (EU) laws before it can legally move forward. The EDPS stated:
    • The EDPS calls for the establishment of a thought-through legal basis for the processing operations under the EHDS in line with Article 6(1) GDPR and also recalls that such processing must comply with Article 9 GDPR for the processing of special categories of data.
    • Moreover, the EDPS highlights that due to the sensitivity of the data to be processed within the EHDS, the boundaries of what constitutes a lawful processing and a compatible further processing of the data must be crystal-clear for all the stakeholders involved. Therefore, the transparency and the public availability of the information relating to the processing on the EHDS will be key to enhance public trust in the EHDS.
    • The EDPS also calls on the Commission to clarify the roles and responsibilities of the parties involved and to clearly identify the precise categories of data to be made available to the EHDS. Additionally, he calls on the Member States to establish mechanisms to assess the validity and quality of the sources of the data.
    • The EDPS underlines the importance of vesting the EHDS with a comprehensive security infrastructure, including both organisational and state-of-the-art technical security measures to protect the data fed into the EHDS. In this context, he recalls that Data Protection Impact Assessments may be a very useful tool to determine the risks of the processing operations and the mitigation measures that should be adopted.
    • The EDPS recommends paying special attention to the ethical use of data within the EHDS framework, for which he suggests taking into account existing ethics committees and their role in the context of national legislation.
    • The EDPS is convinced that the success of the EHDS will depend on the establishment of a strong data governance mechanism that provides for sufficient assurances of a lawful, responsible, ethical management anchored in EU values, including respect for fundamental rights. The governance mechanism should regulate, at least, the entities that will be allowed to make data available to the EHDS, the EHDS users, the Member States’ national contact points/ permit authorities, and the role of DPAs within this context.
    • The EDPS is interested in policy initiatives to achieve ‘digital sovereignty’ and has a preference for data being processed by entities sharing European values, including privacy and data protection. Moreover, the EDPS calls on the Commission to ensure that the stakeholders taking part in the EHDS, and in particular, the controllers, do not transfer personal data unless data subjects whose personal data are transferred to a third country are afforded a level of protection essentially equivalent to that guaranteed within the European Union.
    • The EDPS calls on Member States to guarantee the effective implementation of the right to data portability specifically in the EHDS, together with the development of the necessary technical requirements. In this regard, he considers that a gap analysis might be required regarding the need to integrate the GDPR safeguards with other regulatory safeguards, provided e.g. by competition law or ethical guidelines.
  • The Office of Management and Budget (OMB) extended a guidance memorandum directing agencies to consolidate data centers after Congress pushed back the sunset date for the program. OMB extended OMB Memorandum M-19-19, Update to Data Center Optimization Initiative (DCOI) through 30 September 2022, which applies “to the 24 Federal agencies covered by the Chief Financial Officers (CFO) Act of 1990, which includes the Department of Defense.” The DCOI was codified in the “Federal Information Technology Acquisition Reform” (FITARA) (P.L. 113-291) and extended in 2018 until October 1, 2020. And this sunset was pushed back another two years in the FY 2020 National Defense Authorization Act (NDAA) (P.L. 116-92).
    • In March 2020, the Government Accountability Office (GAO) issued another of its periodic assessments of the DCOI, started in 2012 by the Obama Administration to shrink the federal government’s footprint of data centers, increase efficiency and security, save money, and reduce energy usage.
    • The GAO found that 23 of the 24 agencies participating in the DCOI met or planned to meet their FY 2019 goals to close 286 of the 2,727 data centers considered part of the DCOI. This latter figure deserves some discussion, for the Trump Administration changed the definition of what is a data center to exclude smaller ones (so-called non-tiered data centers). GAO asserted that “recent OMB DCOI policy changes will reduce the number of data centers covered by the policy and both OMB and agencies may lose important visibility over the security risks posed by these facilities.” Nonetheless, these agencies are projecting savings of $241.5 million when all the 286 data centers planned for closure in FY 2019 actually close. It bears note that the GAO admitted in a footnote it “did not independently validate agencies’ reported cost savings figures,” so these numbers may not be reliable.
    • In terms of how to improve the DCOI, the GAO stated that “[i]n addition to reiterating our prior open recommendations to the agencies in our review regarding their need to meet DCOI’s closure and savings goals and optimization metrics, we are making a total of eight new recommendations—four to OMB and four to three of the 24 agencies. Specifically:
      • The Director of the Office of Management and Budget should (1) require that agencies explicitly document annual data center closure goals in their DCOI strategic plans and (2) track those goals on the IT Dashboard. (Recommendation 1)
      • The Director of the Office of Management and Budget should require agencies to report in their quarterly inventory submissions those facilities previously reported as data centers, even if those facilities are not subject to the closure and optimization requirements of DCOI. (Recommendation 2)
      • The Director of the Office of Management and Budget should document OMB’s decisions on whether to approve individual data centers when designated by agencies as either a mission critical facility or as a facility not subject to DCOI. (Recommendation 3)
      • The Director of the Office of Management and Budget should take action to address the key performance measurement characteristics missing from the DCOI optimization metrics, as identified in this report. (Recommendation 4)
  • Australia’s Inspector-General of Intelligence and Security (IGIS) released its first report on how well the nation’s security services did in observing the law with respect to COVID  app  data. The IGIS “is satisfied that the relevant agencies have policies and procedures in place and are taking reasonable steps to avoid intentional collection of COVID app data.” The IGIS revealed that “[i]ncidental collection in the course of the lawful collection of other data has occurred (and is permitted by the Privacy Act); however, there is no evidence that any agency within IGIS jurisdiction has decrypted, accessed or used any COVID app data.” The IGIS is also “satisfied  that  the intelligence agencies within IGIS jurisdiction which have the capability to incidentally collect a least some types of COVID app data:
    • Are aware of their responsibilities under Part VIIIA of the Privacy Act and are taking active steps to minimise the risk that they may collect COVID app data.
    • Have appropriate  policies  and  procedures  in  place  to  respond  to  any  incidental  collection of COVID app data that they become aware of. 
    • Are taking steps to ensure any COVID app data is not accessed, used or disclosed.
    • Are taking steps to ensure any COVID app data is deleted as soon as practicable.
    • Have not decrypted any COVID app data.
    • Are applying the usual security measures in place in intelligence agencies such that a ‘spill’ of any data, including COVID app data, is unlikely.
  • New Zealand’s Government Communications Security Bureau’s National Cyber Security Centre (NCSC) has released its annual Cyber Threat Report that found that “nationally significant organisations continue to be frequently targeted by malicious cyber actors of all types…[and] state-sponsored and non-state actors targeted public and private sector organisations to steal information, generate revenue, or disrupt networks and services.” The NCSC added:
    • Malicious cyber actors have shown their willingness to target New Zealand organisations in all sectors using a range of increasingly advanced tools and techniques. Newly disclosed vulnerabilities in products and services, alongside the adoption of new services and working arrangements, are rapidly exploited by state-sponsored actors and cyber criminals alike. A common theme this year, which emerged prior to the COVID-19 pandemic, was the exploitation of known vulnerabilities in internet-facing applications, including corporate security products, remote desktop services and virtual private network applications.
  • The former Director of the United States’ (U.S.) Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) wrote an opinion piece disputing President Donald Trump’s claims that the 2020 Presidential Election was fraudulent. Christopher Krebs asserted:
    • While I no longer regularly speak to election officials, my understanding is that in the 2020 results no significant discrepancies attributed to manipulation have been discovered in the post-election canvassing, audit and recount processes.
    • This point cannot be emphasized enough: The secretaries of state in Georgia, Michigan, Arizona, Nevada and Pennsylvania, as well officials in Wisconsin, all worked overtime to ensure there was a paper trail that could be audited or recounted by hand, independent of any allegedly hacked software or hardware.
    • That’s why Americans’ confidence in the security of the 2020 election is entirely justified. Paper ballots and post-election checks ensured the accuracy of the count. Consider Georgia: The state conducted a full hand recount of the presidential election, a first of its kind, and the outcome of the manual count was consistent with the computer-based count. Clearly, the Georgia count was not manipulated, resoundingly debunking claims by the president and his allies about the involvement of CIA supercomputers, malicious software programs or corporate rigging aided by long-gone foreign dictators.

Coming Events

  • The National Institute of Standards and Technology (NIST) will hold a webinar on the Draft Federal Information Processing Standards (FIPS) 201-3 on 9 December.
  • On 9 December, the Senate Commerce, Science, and Transportation Committee will hold a hearing titled “The Invalidation of the EU-US Privacy Shield and the Future of Transatlantic Data Flows” with the following witnesses:
    • The Honorable Noah Phillips, Commissioner, Federal Trade Commission
    • Ms. Victoria Espinel, President and Chief Executive Officer, BSA – The Software Alliance
    • Mr. James Sullivan, Deputy Assistant Secretary for Services, International Trade Administration, U.S. Department of Commerce
    • Mr. Peter Swire, Elizabeth and Tommy Holder Chair of Law and Ethics, Georgia Tech Scheller College of Business, and Research Director, Cross-Border Data Forum
  • On 10 December, the Federal Communications Commission (FCC) will hold an open meeting and has released a tentative agenda:
    • Securing the Communications Supply Chain. The Commission will consider a Report and Order that would require Eligible Telecommunications Carriers to remove equipment and services that pose an unacceptable risk to the national security of the United States or the security and safety of its people, would establish the Secure and Trusted Communications Networks Reimbursement Program, and would establish the procedures and criteria for publishing a list of covered communications equipment and services that must be removed. (WC Docket No. 18-89)
    • National Security Matter. The Commission will consider a national security matter.
    • National Security Matter. The Commission will consider a national security matter.
    • Allowing Earlier Equipment Marketing and Importation Opportunities. The Commission will consider a Notice of Proposed Rulemaking that would propose updates to its marketing and importation rules to permit, prior to equipment authorization, conditional sales of radiofrequency devices to consumers under certain circumstances and importation of a limited number of radiofrequency devices for certain pre-sale activities. (ET Docket No. 20-382)
    • Promoting Broadcast Internet Innovation Through ATSC 3.0. The Commission will consider a Report and Order that would modify and clarify existing rules to promote the deployment of Broadcast Internet services as part of the transition to ATSC 3.0. (MB Docket No. 20-145)

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2020. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Michael Kans, Michael Kans Blog, and michaelkans.blog with appropriate and specific direction to the original content.

Photo by Daniel Schludi on Unsplash

Armed Services Committees Agree On Final NDAA

The annual defense policy bill creates a new National Cyber Director and addresses other technology issues.

Last week, the negotiators agreed on a final FY 2021 National Defense Authorization Act (NDAA) that could get passed as early as this week. To no great surprise, President Donald Trump has threatened to veto the annual policy and authorization package for reasons largely unrelated to the Department of Defense and other agencies subject to the bill. It is unclear how the President will respond if Congress ends him the bill and similarly unclear whether Republicans would vote to override a veto. Additionally, the bill might not make it to the White House until around Christmas Day which would complicate the reconvening of Congress to hold override votes.

Nonetheless, big picture, the conferees explained in the Joint Explanatory Statement that conference report to accompany the “William M. “Mac” Thornberry National Defense Authorization Act for Fiscal Year 2021” (H.R.6395):

  • The budget request for national defense discretionary programs within the jurisdiction of the Committees on Armed Services of the Senate and the House of Representatives for fiscal year 2021 was $731.6 billion. Of this amount, $636.3 billion was requested for base Department of Defense programs, $69.0 billion was requested for overseas contingency operations, $26.0 billion was requested for national security programs in the Department of Energy and the Defense Nuclear Facilities Safety Board, and $314.0 million for defense-related activities.
  • The conference agreement would authorize $731.6 billion in fiscal year 2021, including $635.5 billion for base Department of Defense programs, $69.0 billion for overseas contingency operations, $26.6 billion for national security programs in the Department of Energy and the Defense Nuclear Facilities Safety Board, and $494.0 million for defense-related activities.

As always, the bill is replete with provisions to change national security-related technology policy, most of which pertains to the Department of Defense (DOD) and the Intelligence Community (IC). However, anymore, the Department of Homeland Security and other agencies also receive policy alterations in the NDAA.

The bill would change the requirements as to when the DOD notifies Congress if it conducts offensive or defensive cyber operations by narrowing the category of such operations. For example, if Cyber Command were to strike a botnet again as it reportedly did in the run up to the election, it would not need to notify Congress, for such an operation is not a foreign terrorist organization or a foreign government unless they may be deemed a “proxy force.” There is a provision extending the liability shield for DOD contractors participating in the Pentagon’s mandated cyber incident reporting system to include compliance with Defense Federal Acquisition Regulation Supplement clause 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting.

H.R.6395 would tweak the Quadrennial Cyber Posture Review assessments of U.S. statutes, policies, and authorities to manage cyber threats, especially in achieving cyber deterrence.

The DOD would need to set requirements for the periodic, systematic review of the cybersecurity of major weapons systems and related critical infrastructure to ensure the security of these platforms. The Pentagon must also establish a “Strategic Cybersecurity Program” “to ensure that the Department of Defense is always able to conduct the most important military missions of the Department.” This new initiative “shall identify and designate for inclusion in the Program all of the systems, critical infrastructure, kill chains, and processes, including systems and components in development, that comprise the following military missions of the Department of Defense:

  • Nuclear deterrence and strike.
  • Select long-range conventional strike missions germane to the warfighting plans of United States European Command and United States Indo-Pacific Command.
  • Offensive cyber operations.
  • Homeland missile defense.

The DOD will need to “develop a standard, comprehensive framework to enhance the consistency, execution, and effectiveness of cyber hunt forward operations” including the criteria used to identify such operations, the roles of various stakeholders in the DOD, pre-deployment planning guidelines, the metrics to measure the success of the operation, and other facets. Cyber Command and the National Security Agency have been deploying more of these teams to other nations to develop partnerships with nations closer to shared cyber adversaries (e.g. Estonia and Montenegro visa vis Russia.) The formalization of this process indicates increased Congressional interest and a desire to regularize the practice.

The DOD must “conduct a review of the Cybersecurity Service Provider and Cyber Mission Force enterprises” to determine where there are gaps and redundancies between DOD systems and those provided by contractors. Presumably such an inventory process would precede the DOD consolidating where it can and expanding where necessary.

The position of DOD Principal Cyber Advisor would be reformed. The Secretary of Defense would name a person to fill this position from the DOD civilian officials confirmed by the Senate. The Principal Cyber Advisor would have the following responsibilities, among others:

  • Acting as the principal advisor to the Secretary on military cyber forces and activities.
  • Overall integration of Cyber Operations Forces activities relating to cyberspace operations, including associated policy and operational considerations, resources, personnel, technology development and transition, and acquisition.
  • Assessing and overseeing the implementation of the cyber strategy of the Department and execution of the cyber posture review of the Department on behalf of the Secretary.

The Principal Cyber Advisor will be tasked with the responsibility for the cybersecurity and critical infrastructure protection of the Defense Industrial Base (DIB) and must “synchronize, harmonize, de-conflict, and coordinate all policies and programs germane to defense industrial base cybersecurity.” This will encompass the Sector Specific Agency (SSA) responsibilities bestowed on the Under Secretary of Defense for Policy’s purview under Presidential Policy Directive-21, the Obama Administration era document that established the division and oversight of critical infrastructure with an eye towards cyber infrastructure. The Principal Cyber Advisor would also need to examine the Under Secretary of Defense for Acquisition and Sustainment’s authorities and responsibilities with respect to contracting and cybersecurity. The Principal Cyber Advisor would need to evaluate other facets of the DIB’s cybersecurity and critical infrastructure protection housed in different offices in the DOD, suggesting an obvious fracturing of efforts that may be at odds with one another.

The Principal Cyber Advisor and the head of Cyber Command would need to “conduct and complete an assessment on the operational planning and deconfliction policies and processes that govern cyber operations of the Department of Defense.” It appears that Congress would like DOD components to play better together when planning and conducting cyber operations, but this state of affairs is to be expected inside a large bureaucracy with players and entities interested in defending and even expanding their turf.

The DOD must “assess the feasibility and advisability of developing and using speed-based metrics to measure the performance and effectiveness of security operations centers and cyber security service providers in the Department of Defense.”

The DOD must study the feasibility of creating a new DIB information sharing program that would be above and beyond any current incident reporting requirements. Under law and regulation, at present, DIB contractors must report intrusions and incidents within 72 hours, but the language in H.R. 6395 envisions a program of greater information sharing for “cybersecurity purposes.” However, it begs the question as to why the DOD does not already have such a program given the “Cybersecurity Act of 2015” established the template for such programs over five years ago.

The Pentagon would need to “complete an assessment of the feasibility, suitability, definition of, and resourcing required to establish a defense industrial base cybersecurity threat hunting program to actively identify cybersecurity threats and vulnerabilities within the DIB.”

The DOD must “assess each Department component against the Cybersecurity Maturity Model Certification (CMMC) framework and submit to the congressional defense committees a report that identifies each such component’s CMMC level and implementation of the cybersecurity practices and capabilities required in each of the levels of the CMMC framework.” And, for those components that fail to meet the “good cyber hygiene” standards, the report must indicate whether they will bring their hygiene up to snuff by March of 2022 and how they will shore up vulnerabilities and risks in the meantime.

The DOD would need to start submitting monthly reports on all “cross domain incidents,” a new term that seems to include all intrusions into classified or restricted systems regardless of whether information is exfiltrated, contaminated, or exposed. The Pentagon would also need to provide Congress with a list of all currently operative exemptions to DOD information policy.

The DOD must draft and implement a plan on how to secure and protect the U.S. nuclear command and control system from cyber threats.

The Cyberspace Solarium Commission (CSC) was extended. It was supposed to sunset after the delivery of its final report, but now it will continue to exist for the better part of two more years. The CSC would need to discharge the following duties:

  • collecting and assessing comments and feedback from the Executive Branch, academia, and the public on the analysis and recommendations contained in the Commission’s report;
  • collecting and assessing any developments in cybersecurity that may affect the analysis and recommendations contained in the Commission’s report;
  • reviewing the implementation of the recommendations contained in the Commission’s report;
  • revising, amending, or making new recommendations based on the [aforementioned] assessments and reviews…

The CSC’s primary recommendation that the U.S. have a National Cyber Director in the White House was included in the final bill. This new position shall also have a dedicated office in the Executive Office of the President but would not be a Senate confirmed position as the CSC advised. Moreover, it appears that offensive and defensive cyber operations of the DOD would be outside his or her statutory remit unless the President decides to make it so. The National Cyber Director would offer advice to the National Security Council (NSC) on U.S. cyber strategy and policy and coordinate the formulation of such policies and strategies. Moreover, the director would be a statutory member of the NSC. The National Cyber Director would lead U.S. responses at the federal level to cyber attacks and significant cyber campaigns.

The bill would expand the authority of the United States’ (U.S.) Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) with respect to operating on civilian agency networks. CISA would be able to access and inspect other agencies’ information systems without the permission or knowledge of the other agency and could then share information and its findings with the agency. And yet, CISA would not receive authority to act if it found something on another agency’s information networks or systems. Nonetheless, CISA would also be empowered to provide a range of assistance to other agencies.

DHS would need to conduct an assessment of CISA per the CSC’s recommendations on how the agency could improve its operations and better use its resources, among other matters. DHS would also be tasked with evaluating how well the Sector Specific Agency approach to regulating critical infrastructure is working as laid out in Presidential Policy Directive 21 and successor documents and make recommendations on how to revise the framework if needed. This could result in the Biden Administration revamping the current 17 sectors and other components of how the U.S. oversees its critical infrastructure. In concert with this review and possible revision, Sector Specific Agencies would be replaced by Sector Risk Management Agencies that, as a practical matter, will probably be the same agencies overseeing the same sectors but with greater statutory responsibilities.

DHS must study and draft a strategy for all U.S.-based email providers to use Domain-based Message Authentication, Reporting, and Conformance (DMARC), “an email authentication, policy, and reporting protocol that verifies the authenticity of the sender of an email and blocks and reports to the sender fraudulent accounts.”

DHS would need to report annually on digital content forgery technology with the Director of National Intelligence, including:

  • An assessment of the underlying technologies used to create or propagate digital content forgeries, including the evolution of such technologies and patterns of dissemination of such technologies.
  • A description of the types of digital content forgeries, including those used to commit fraud, cause harm, harass, coerce, or silence vulnerable groups or individuals, or violate civil rights recognized under Federal law.
  • An assessment of how foreign governments, and the proxies and networks thereof, use, or could use, digital content forgeries to harm national security.
  • An assessment of how non-governmental entities in the United States use, or could use, digital content forgeries.
  • An assessment of the uses, applications, dangers, and benefits, including the impact on individuals, of deep learning or digital content forgery technologies used to generate realistic depictions of events that did not occur.
  • An analysis of the methods used to determine whether content is created by digital content forgery technology, and an assessment of any effective heuristics used to make such a determination, as well as recommendations on how to identify and address suspect content and elements to provide warnings to users of such content.
  • A description of the technological countermeasures that are, or could be, used to address concerns with digital content forgery technology.
  • Any additional information the Secretary determines appropriate.

CISA would receive the subpoena authority it requested to obtain the contact information of owners and operators of critical cyber infrastructure from internet service providers (ISP) should there be a risk. CISA submitted a legislative proposal in summer 2019 that was then taken up by Senate and House stakeholders who then introduced legislation in December and February respectively: the “Cybersecurity Vulnerability Identification and Notification Act of 2019” (S. 3045) and the “Cybersecurity Vulnerability Identification and Notification Act of 2020” (H.R. 5680). The bills were very similar but had some differences that have been ironed out.

CISA would be able to appoint an employee in each state to serve as Cybersecurity State Coordinator to help states improve their cybersecurity.

CISA must establish a “Cybersecurity Advisory Committee” to “advise, consult with, report to, and make recommendations to the Director, as appropriate, on the development, refinement, and implementation of policies, programs, planning, and training pertaining to the cybersecurity mission of the Agency.”

Inside CISA, there would be a newly created Joint Cyber Planning Office “to develop, for public and private sector entities, plans for cyber defense operations, including the development of a set of coordinated actions to protect, detect, respond to, and recover from cybersecurity risks or incidents or limit, mitigate, or defend against coordinated, malicious cyber operations that pose a potential risk to critical infrastructure or national interests.”

Within one year, CISA “a report on Federal cybersecurity centers and the potential for better coordination of Federal cybersecurity efforts at an integrated cybersecurity center within” CISA.

The Government Accountability Office (GAO) would need to investigate and report on cyber insurance in the U.S. At one time, some experts considered the development of a cyber insurance market as being crucial to driving greater cybersecurity across the private sector. However, this has not come to pass, which is likely why the GAO will be reporting on the issue.

On other technology policy, a Public Wireless Supply Chain Innovation Fund would be established and overseen by the Department of Commerce’s National Telecommunications and Information Administration (NTIA) to support the following activities:

  • Promoting and deploying technology, including software, hardware, and microprocessing technology, that will enhance competitiveness in the fifth-generation (commonly known as ‘‘5G’’) and successor wireless technology supply chains that use open and interoperable interface radio access networks.
  • Accelerating commercial deployments of open interface standards-based compatible, interoperable equipment, such as equipment developed pursuant to the standards set forth by organizations such as the O-RAN Alliance, the Telecom Infra Project, 3GPP, the Open-RAN Software Community, or any successor organizations.
  • Promoting and deploying compatibility of new 5G equipment with future open standards-based, interoperable equipment.
  • Managing integration of multi-vendor network environments.
  • Identifying objective criteria to define equipment as compliant with open standards for multi-vendor network equipment interoperability.
  • Promoting and deploying security features enhancing the integrity and availability of equipment in multi-vendor networks.
  • Promoting and deploying network function virtualization to facilitate multi-vendor interoperability and a more diverse vendor market.

A Multilateral Telecommunications Security Fund would be created and run by the Department of State “to establish a common funding mechanism, in coordination with foreign partners, that uses amounts from the Multilateral Telecommunications Security Fund to support the development and adoption of secure and trusted telecommunications technologies.” The bill provides that “[i]n creating and sustaining a common funding mechanism, the Secretary of State should leverage United States funding in order to secure commitments and contributions from trusted foreign partners such as the United Kingdom, Canada, Australia, New Zealand, and Japan, and should prioritize the following objectives:

  • Advancing research and development of secure and trusted communications technologies.
  • Strengthening supply chains.
  • Promoting the use of trusted vendors.”

Both of these new programs would need the Appropriations Committees to provide funding as the FY 2021 NDAA does not give them any money.

H.R.6395 directs “an interagency information technology spectrum modernization effort, led by the Assistant Secretary of Commerce for Communications and Infrastructure and the NTIA, to synchronize development and coordination of standards and Federal spectrum management.” This provision “would also require the Secretary of Defense to establish a program to identify and mitigate vulnerabilities in the telecommunications infrastructure of the DOD.”

The FY 2021 NDAA contains the “Developing Innovation and Growing the Internet of Things Act” (DIGIT Act) (S.1611) that would require the Department of Commerce to “convene a working group of Federal stakeholders for the purpose of providing recommendations and a report to Congress relating to the aspects of the Internet of Things.”

H.R.6395 has provisions “that would require the Secretary of Commerce to establish a program that provides grants to covered entities to incentivize investment of semiconductor fabrication facilities, or assembly, testing, advanced packaging, or advanced research and development of semiconductors in the U.S.”

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2020. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Michael Kans, Michael Kans Blog, and michaelkans.blog with appropriate and specific direction to the original content.

Photo by Michael Afonso on Unsplash

Bill To Reform IOT Security in U.S. Passes Congress

A long awaited bill to revamp how the U.S. government secures its IOT is on its way to the White House.

Last night, the Senate agreed to a House passed bill that would remake how the United States (U.S.) government buys Internet of Things (IOT) items, with the idea that requiring security standards in government IOT will drive greater security across the U.S. IOT market. Of course, such legislation, if implemented as intended, would also have the salutary effect of strengthening government networks. Incidentally, there is language in the bill that would seem to give the White House additional muscle to drive better information security across the civilian government.

The effort to pass this bill started in the last Congress and continued into this Congress. The bill will require the Office of Management and Budget (OMB) to set standards and practices that private sector contractors will need to meet in selling IOT to federal agencies. The OMB’s work is to be based on a series of IOT guidance documents the National Institute of Standards and Technology (NIST) has issued.

In September, the United States House of Representatives took up and passed a revised version of “Internet of Things Cybersecurity Improvement Act of 2020” (H.R. 1668) by voice vote. As noted, the United States Senate passed the same bill by unanimous consent yesterday, sending the legislation to the White House. While OMB did not issue a Statement of Administration Policy on H.R. 1668 or any of its previous iterations, Senate Republicans, particularly Majority Leader Mitch McConnell (R-KY), have not shown a willingness to even consider any bill the White House has not greenlit. Therefore, it may be reasonable to assume the President will sign this bill into law.

H.R. 1668 requires NIST to publish “standards and guidelines for the Federal Government on the appropriate use and management by agencies of Internet of Things devices owned or controlled by an agency and connected to information systems owned or controlled by an agency, including minimum information security requirements for managing cybersecurity risks associated with such devices.” These standards and guidelines are to be consistent with existing NIST standards and guidance on IOT, and the agency has issued a series of such documents described in some detail later in this article.

Six months after NIST issues such standards and guidelines, OMB must judge current agency standards and practices with IOT against NIST’s (excepting “national security systems, meaning almost all the Department of Defense and Intelligence Community). OMB is required to then issue policies and principles necessary to rectify shortcomings in agency IOT security after consulting with the United States’ (U.S.) Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA). At least once every five years after the initial policies and procedures are issued, OMB must revisit, assess, and adjust them as needed. Moreover, U.S. acquisition regulations must be amended to implement these standards and guidelines, meaning these would be binding in the purchase and use of IOT by civilian agencies.

NIST must also create and operate a system under which vulnerabilities and fixes in agency owned or operated IOT can be reported. OMB would oversee the establishment of this process, and DHS would administer the guidelines, possibly through its powers to issue Binding Operational Directives to federal civilian agencies.

Now, we come to a curious section of H.R.1668 that may well have implications for government bought or used technology beyond just IOT. Within two years of becoming law, OMB, in consultation with DHS, must “develop and oversee the implementation of policies, principles, standards, or guidelines as may be necessary to address security vulnerabilities of information systems (including Internet of Things devices) (emphasis added.) This is a seemingly open-ended grant of authority for OMB to put in place binding policies and procedures for all information systems, a very broad term that encompasses information technology and other resources, across federal agencies. OMB already possesses power and means to do much of this, begging the question why such authority was needed. The bill is not clear on this point, and OMB may well use this additional authority in areas not strictly pertaining to IOT.

And now the hammer to drive better IOT security. Civilian agencies will not be able to buy or use IOT until its Chief Information Officer (CIO) has certified such IOT meets the aforementioned standards developed along the dual tracks the bill requires. There are, of course, loopholes to this requirement since industry and agency stakeholders likely insisted on them. First, any purchase below the simplified acquisition threshold (which is currently $250,000) would be exempt from this requirement, and the agency could waive the need for the CIO to agree if

  • the waiver is necessary in the interest of national security;
  • procuring, obtaining, or using such device is necessary for research purposes; or
  • such device is secured using alternative and effective methods appropriate to the function of such device.

And so, these three grounds for waivers may be the exceptions that eat the rule. Time will tell.

In June, the Senate and House committees of jurisdictions marked up their versions of the “Internet of Things (IOT) Cybersecurity Improvement Act of 2020” (H.R. 1668/S. 734). The bill text as released in March 2019 for both bills was identical signaling agreement between the two chambers’ sponsors, but the process of marking up the bills resulted in different versions, requiring negotiation on a final bill. The House Oversight and Reform Committee marked up and reported out H.R. 1668 after adopting an amendment in the nature of a substitute that narrowed the scope of the bill and is more directive than the bill initially introduced in March. The Senate Homeland Security Committee marked up S. 734 a week later, making their own changes from the March bill. The March version of the legislation unified two similar bills from the 115th Congress of the same title: the “Internet of Things (IOT) Cybersecurity Improvement Act of 2017” (S. 1691) and the “Internet of Things (IOT) Federal Cybersecurity Improvement Act of 2018” (H.R. 7283).

Per the Committee Report for S. 734, the purpose of bill

is to proactively mitigate the risks posed by inadequately-secured Internet of Things (IOT) devices through the establishment of minimum security standards for IOT devices purchased by the Federal Government. The bill codifies the ongoing work of the NIST to develop standards and guidelines, including minimum-security requirements, for the use of IOT devices by Federal agencies. The bill also directs OMB, in consultation with DHS, to issue the necessary policies and principles to implement the NIST standards and guidelines on IOT security and management. Additionally, the bill requires NIST, in consultation with cybersecurity researchers and industry experts, to publish guidelines for the reporting, coordinating, publishing, and receiving of information about Federal agencies’ security vulnerabilities and the coordinate resolutions of the reported vulnerabilities. OMB will provide the policies and principles and DHS will develop and issue the procedures necessary to implement NIST’s guidelines on coordinated vulnerability disclosure for Federal agencies. The bill includes a provision allowing Federal agency heads to waive the IOT use and management requirements issued by OMB for national security, functionality, alternative means, or economic reasons.

According to a staff memorandum, H.R. 1668

would require the NIST to develop guidelines for managing cybersecurity risks of IOT devices by June 30, 2020. The bill would require OMB to issue standards for implementing those guidelines by December 31, 2020. The bill also would require similar guidelines from NIST and standards from OMB on reporting, coordinating, and publishing security vulnerabilities of IOT devices.

As noted earlier, NIST has worked on and published a suite of guidance documents on IOT. In June, NIST published final guidance as part of its follow up to A Report to the President on Enhancing the Resilience of the Internet and Communications Ecosystem Against Botnets and Other Automated, Distributed Threats and NIST’s Botnet Roadmap. Neither document is binding on federal agencies or private sector entities, but given the respect the agency enjoys, these will likely become referenced extensively by other standards.

NIST explained in a blog post:

In NISTIR 8259A, NIST explained the purpose of the publication as defining an “IOT device cybersecurity capability core baseline, which is a set of device capabilities generally needed to support common cybersecurity controls that protect an organization’s devices as well as device data, systems, and ecosystems.” NIST stated “[t]he purpose of this publication is to provide organizations a starting point to use in identifying the device cybersecurity capabilities for new IOT devices they will manufacture, integrate, or acquire…[and] can be used in conjunction with NISTIR 8259, Foundational Cybersecurity Activities for IOT Device Manufacturers.”

NIST further explained how the core baseline was developed:

  • The IOT device cybersecurity capability core baseline (core baseline) defined in this publication is a set of device capabilities generally needed to support commonly used cybersecurity controls that protect devices as well as device data, systems, and ecosystems.
  • The core baseline has been derived from researching common cybersecurity risk management approaches and commonly used capabilities for addressing cybersecurity risks to IOT devices, which were refined and validated using a collaborative public-private process to incorporate all viewpoints.
  • Regardless of an organization’s role, this baseline is intended to give all organizations a starting point for IOT device cybersecurity risk management, but the implementation of all capabilities is not considered mandatory. The individual capabilities in the baseline may be implemented in full, in part, or not at all. It is left to the implementing organization to understand the unique risk context in which it operates and what is appropriate for its given circumstance.

NIST 8259 is designed “give manufacturers recommendations for improving how securable the IOT devices they make are…[and] [t]his means the IOT devices offer device cybersecurity capabilities—cybersecurity features or functions the devices provide through their own technical means (i.e., device hardware and software)—that customers, both organizations and individuals, need to secure the devices when used within their systems and environments.”

NIST stated “[t]his publication describes six recommended foundational cybersecurity activities that manufacturers should consider performing to improve the securability of the new IOT devices they make…[and] [f]our of the six activities primarily impact decisions and actions performed by the manufacturer before a device is sent out for sale (pre-market), and the remaining two activities primarily impact decisions and actions performed by the manufacturer after device sale (post-market).” NIST claimed “[p]erforming all six activities can help manufacturers provide IOT devices that better support the cybersecurity-related efforts needed by IOT device customers, which in turn can reduce the prevalence and severity of IOT device compromises and the attacks performed using compromised IOT devices.” NIST asserted “[t]hese activities are intended to fit within a manufacturer’s existing development process and may already be achieved in whole or part by that existing process.”

In June 2019, NIST issued “Considerations for Managing Internet of Things (IOT) Cybersecurity and Privacy Risks” (NISTIR 8228) which is designed “to help organizations better understand and manage the cybersecurity and privacy risks associated with individual IOT devices throughout the devices’ lifecycles.” The agency claims the publication “provides insights to inform organizations’ risk management processes and “[a]fter reading this publication, an organization should be able to improve the quality of its risk assessments for IOT devices and its response to the identified risk through the lens of cybersecurity and privacy.” It bears note that from the onset of tackling IOT standards that NIST paired cybersecurity and privacy unlike its Cybersecurity Framework which addresses privacy as an important but ancillary concern to cybersecurity.

NIST explained that NIST Interagency or Internal Report 8228: Considerations for Managing Internet of Things (IOT) Cybersecurity and Privacy Risks is aimed at “personnel at federal agencies with responsibilities related to managing cybersecurity and privacy risks for IOT devices, although personnel at other organizations may also find value in the content.” NIST stated that “[t]his publication emphasizes what makes managing these risks different for IOT devices in general, including consumer, enterprise, and industrial IOT devices, than conventional information technology (IT) devices…[and] omits all aspects of risk management that are largely the same for IOT and conventional IT, including all aspects of risk management beyond the IOT devices themselves, because these are already addressed by many other risk management publications.”

NIST explained that “[t]his publication identifies three high-level considerations that may affect the management of cybersecurity and privacy risks for IOT devices as compared to conventional IT devices:

1. Many IOT devices interact with the physical world in ways conventional IT devices usually do not. The potential impact of some IOT devices making changes to physical systems and thus affecting the physical world needs to be explicitly recognized and addressed from cybersecurity and privacy perspectives. Also, operational requirements for performance, reliability, resilience, and safety may be at odds with common cybersecurity and privacy practices for conventional IT devices.

2. Many IOT devices cannot be accessed, managed, or monitored in the same ways conventional IT devices can. This can necessitate doing tasks manually for large numbers of IOT devices, expanding staff knowledge and tools to include a much wider variety of IOT device software, and addressing risks with manufacturers and other third parties having remote access or control over IOT devices.

3. The availability, efficiency, and effectiveness of cybersecurity and privacy capabilities are often different for IOT devices than conventional IT devices. This means organizations may have to select, implement, and manage additional controls, as well as determine how to respond to risk when sufficient controls for mitigating risk are not available.

NIST laid out “[c]ybersecurity and privacy risks for IOT devices can be thought of in terms of three high-level risk mitigation goals:

1. Protect device security. In other words, prevent a device from being used to conduct attacks, including participating in distributed denial of service (DDoS) attacks against other organizations, and eavesdropping on network traffic or compromising other devices on the same network segment. This goal applies to all IOT devices.

2. Protect data security. Protect the confidentiality, integrity, and/or availability of data (including personally identifiable information [PII]) collected by, stored on, processed by, or transmitted to or from the IOT device. This goal applies to each IOT device except those without any data that needs protection.

3. Protect individuals’ privacy. Protect individuals’ privacy impacted by PII processing beyond risks managed through device and data security protection. This goal applies to all IOT devices that process PII or that directly or indirectly impact individuals.

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2020. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Michael Kans, Michael Kans Blog, and michaelkans.blog with appropriate and specific direction to the original content.

Photo by Free Creative Stuff from Pexels

U.S. Alleges Russian and Iranian Election Interference

U.S. security services called out Russian and Iranian efforts to hack and disrupt the U.S. election. There was a split between the DNI’s view and those in the intelligence agencies, however.

The United States (U.S.) government announced that the Russian Federation and Iran have undertaken operations to disrupt and undermine next month’s U.S. election. The Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) and the Federal Bureau of Investigation (FBI) released a pair of advisories about Russian and Iranian attempts to interfere with the election. It appears U.S. intelligence community agencies and their partners want to avoid a repeat of 2016 when they were often behind the curve on Russian interference and failed to alert the public to what they knew.

Email sent to Democratic voters supposedly by the Proud Boys, a white supremacist group that supports President Donald Trump, was actually sent by Iran. These emails warned people in three swing states to vote for Trump or “we will come after you” because the group is “in possession of all your information.” According to media accounts, the day the Department of Homeland Security (DHS) identified Iran as the culprit, the Director of National Intelligence (DNI) John Ratcliffe decided to disclose this information at a hastily called press conference with Federal Bureau of Investigation (FBI) Director Christopher Wray.

In Ratcliffe’s remarks, he put Iran before Russia as has been the wont of the Trump Administration to make it seem as if Russia’s capabilities and intentions are matched by two other adversaries of the U.S. Moreover, the Trump Administration has placed more emphasis generally on the dangers posed by Tehran than Moscow, particularly in light of the nuclear agreement from which the U.S. withdrew. Ratcliffe asserted:

  • we would like to alert the public that we have identified that two foreign actors – Iran and Russia – have taken specific actions to influence public opinion relating to our elections.
  • First, we have confirmed that some voter registration information has been obtained by Iran, and separately, by Russia. This data can be used by foreign actors to attempt to communicate false information to registered voters that they hope will cause confusion, sow chaos, and undermine your confidence in American democracy.
  • To that end, we have already seen Iran sending “spoofed” emails designed to intimidate voters, incite social unrest, and damage President Trump. You may have seen some reporting on this in the last 24 hours, or you may have been one of the recipients.
  • Additionally, Iran is distributing other content, to include a video that implies that individuals could cast fraudulent ballots, even from overseas. This video – and any claims about such allegedly fraudulent ballots – are not true.
  • These actions are desperate attempts by desperate adversaries. Even if the adversaries pursue further attempts to intimidate or attempt to undermine voter confidence, know that our election systems are resilient, and you can be confident your votes are secure.
  • Although we have not seen the same actions from Russia, we are aware that they have obtained some voter information, just as they did in 2016.

Unnamed U.S. intelligence officials shortly thereafter disagreed with Ratcliffe’s emphasis on Iran when they think the evidence clearly shows Russia to be the more dangerous threat. Some speculated Ratcliffe was improperly political given the DNI is supposed to be non-partisan.

In contrast, Wray sought to tamp down alarm about interference:

  • We’re not going to tolerate foreign interference in our elections or any criminal activity that threatens the sanctity of your vote or undermines public confidence in the outcome of the election.
  • When we see indications of foreign interference or federal election crimes, we’re going to aggressively investigate and work with our partners, to quickly take appropriate action.
  • We’re also coordinating with the private sector—both technology and social media companies—to make sure that their platforms are not used by foreign adversaries to spread disinformation and propaganda.
  • We’ve been working for years as a community to build resilience in our election infrastructure—and today that infrastructure remains resilient.
  • You should be confident that your vote counts.

Following Wray’s remarks, there were leaks to the media that Trump wants to remove him and Attorney General William Barr from office after the election. During “repeated” discussion on the removal of two of the U.S.’ two top law enforcement officials, Trump and top Administration officials have apparently decried Wray’s disinclination to announce an investigation of former Vice President Joe Biden and his son in a reprise of former FBI Director James Comey’s announcement days before the 2016 election he would reopen the investigation into former Secretary of State Hillary Clinton’s email. Moreover, the FBI also declined to support Ratcliffe’s public assertions that Russia had nothing to do with the purported email and data of Hunter Biden being portrayed as evidence of the corruption of the Biden family. In a letter to Senate Homeland Security & Governmental Affairs Committee Chair Ron Johnson (R-WI), the FBI referenced the Inspector General’s findings about the impropriety of Comey’s remarks so close to an election as a significant reason why it would neither confirm nor deny any such inquiry.

The FBI and CISA issued a pair of joint advisories:

  • Russian State-Sponsored Advanced Persistent Threat Actor Compromises U.S. Government Targets that “updates joint CISA-FBI cybersecurity advisory AA20-283A: APT Actors Chaining Vulnerabilities Against SLTT, Critical Infrastructure, and Elections Organizations.” The agencies asserted:
    • Since at least September 2020, a Russian state-sponsored APT actor—known variously as Berserk Bear, Energetic Bear, TeamSpy, Dragonfly, Havex, Crouching Yeti, and Koala in open-source reporting—has conducted a campaign against a wide variety of U.S. targets. The Russian state- sponsored APT actor has targeted dozens of SLTT government and aviation networks, attempted intrusions at several SLTT organizations, successfully compromised network infrastructure, and as of October 1, 2020, exfiltrated data from at least two victim servers.
    • The Russian-sponsored APT actor is obtaining user and administrator credentials to establish initial access, enable lateral movement once inside the network, and locate high value assets in order to exfiltrate data. In at least one compromise, the APT actor laterally traversed an SLTT victim network and accessed documents related to:
      • Sensitive network configurations and passwords.
      • Standard operating procedures (SOP), such as enrolling in multi-factor authentication (MFA).
      • IT instructions, such as requesting password resets.
      • Vendors and purchasing information.
      • Printing access badges.
    • To date, the FBI and CISA have no information to indicate this APT actor has intentionally disrupted any aviation, education, elections, or government operations. However, the actor may be seeking access to obtain future disruption options, to influence U.S. policies and actions, or to delegitimize SLTT government entities.
    • As this recent malicious activity has been directed at SLTT government networks, there may be some risk to elections information housed on SLTT government networks. However, the FBI and CISA have no evidence to date that integrity of elections data has been compromised. Due to the heightened awareness surrounding elections infrastructure and the targeting of SLTT government networks, the FBI and CISA will continue to monitor this activity and its proximity to elections infrastructure.
  • Iranian State-Sponsored Advanced Persistent Threat Actors Threaten Election-Related Systems in which the FBI and CISA “warn[] that Iranian advanced persistent threat (APT) actors are likely intent on influencing and interfering with the U.S. elections to sow discord among voters and undermine public confidence in the U.S. electoral process.” They added:
    • The APT actors are creating fictitious media sites and spoofing legitimate media sites to spread obtained U.S. voter-registration data, anti-American propaganda, and misinformation about voter suppression, voter fraud, and ballot fraud.
    • The APT actors have historically exploited critical vulnerabilities to conduct distributed denial-of- service (DDoS) attacks, structured query language (SQL) injections attacks, spear-phishing campaigns, website defacements, and disinformation campaigns.

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2020. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Michael Kans, Michael Kans Blog, and michaelkans.blog with appropriate and specific direction to the original content.

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Further Reading, Other Developments, and Coming Events (22 October)

Further Reading

  •  “A deepfake porn Telegram bot is being used to abuse thousands of women” By Matt Burgess — WIRED UK. A bot set loose on Telegram can take pictures of women and, apparently teens, too, and “takes off” their clothing, rendering a naked image of females who never took naked pictures. This seems to be the next iteration in deepfake porn, a problem that will surely get worse until governments legislate against it and technology companies have incentives to locate and take down such material.
  • The Facebook-Twitter-Trump Wars Are Actually About Something Else” By Charlie Warzel — The New York Times. This piece makes the case that there are no easy fixes for American democracy or for misinformation on social media platforms.
  • Facebook says it rejected 2.2m ads for breaking political campaigning rules” — Agence France-Presse. Facebook’s Vice President of Global Affairs and Communications Nick Clegg said the social media giant is employing artificial intelligence and humans to find and remove political advertisements that violate policy in order to avoid a repeat of 2016 where untrue information and misinformation played roles in both Brexit and the election of Donald Trump as President of the United States.
  • Huawei Fallout—Game-Changing New China Threat Strikes At Apple And Samsung” By Zak Doffman — Forbes. Smartphone manufacturers from the People’s Republic of China (PRC) appear ready to step into the projected void caused by the United States (U.S.) strangling off Huawei’s access to chips. Xiaomi and Oppo have already seen sales surge worldwide and are poised to pick up where Huawei is being forced to leave off, perhaps demonstrating the limits of U.S. power to blunt the rise of PRC technology companies.
  • As Local News Dies, a Pay-for-Play Network Rises in Its Place” By Davey Alba and Jack Nicas — The New York Times. With a decline and demise of many local media outlets in the United States, new groups are stepping into the void, and some are politically minded but not transparent about biases. The organization uncovered in this article is nakedly Republican and is running and planting articles at both legitimate and artificial news sites for pay. Sometimes conservative donors pay, sometimes campaigns do. Democrats are engaged in the same activity but apparently to a lesser extent. These sorts of activities will only erode further faith in the U.S. media.
  • Forget Antitrust Laws. To Limit Tech, Some Say a New Regulator Is Needed.” By Steve Lohr — The New York Times. This piece argues that anti-trust enforcement actions are plodding, tending to take years to finish. Consequently, this body of law is inadequate to the task of addressing the market dominance of big technology companies. Instead, a new regulatory body is needed along the lines of those regulating the financial services industries that is more nimble than anti-trust. Given the problems in that industry with respect to regulation, this may not be the best model.
  • “‘Do Not Track’ Is Back, and This Time It Might Work” By Gilad Edelman — WIRED. Looking to utilize the requirement in the “California Consumer Privacy Act” (CCPA) (AB 375) that requires regulated entities to respect and effectuate the use of a one-time opt-out mechanism, a group of entities have come together to build and roll out the Global Privacy Control. In theory, users could download this technical specification to their phones and computers, install it, use it once, and then all websites would be on notice regarding that person’s privacy preferences. Such a means would go to the problem turned up by Consumer Reports recent report on the difficulty of trying to opt out of having one’s personal information sold.
  • EU countries sound alarm about growing anti-5G movement” By Laurens Cerulus — Politico. 15 European Union (EU) nations wrote the European Commission (EC) warning that the nascent anti-5G movement borne of conspiracy thinking and misinformation threatens the Eu’s position vis-à-vis the United States (U.S.) and the People’s Republic of China (PRC). There have been more than 200 documented arson attacks in the EU with the most having occurred in the United Kingdom, France, and the Netherlands. These nations called for a more muscular, more forceful debunking of the lies and misinformation being spread about 5G.
  • Security firms call Microsoft’s effort to disrupt botnet to protect against election interference ineffective” By Jay Greene — The Washington Post. Microsoft seemingly acted alongside the United States (U.S.) Cyber Command to take down and impair the operation of Trickbot, but now cybersecurity experts are questioning how effective Microsoft’s efforts really were. Researchers have shown the Russian operated Trickbot has already stood up operations and has dispersed across servers around the world, showing how difficult it is to address some cyber threats.
  • Governments around the globe find ways to abuse Facebook” By Sara Fischer and Ashley Gold — Axios. This piece puts a different spin on the challenges Facebook faces in countries around the world, especially those that ruthlessly use the platform to spread lies and misinformation than the recent BuzzFeed News article. The new article paints Facebook as the well-meaning company being taken advantage of while the other one portrays a company callous to content moderation except in nations where it causes them political problems such as the United States, the European Union, and other western democracies.

Other Developments

  • The United States (U.S.) Department of Justice’s (DOJ) Cyber-Digital Task Force (Task Force) issued “Cryptocurrency: An Enforcement Framework,” that “provides a comprehensive overview of the emerging threats and enforcement challenges associated with the increasing prevalence and use of cryptocurrency; details the important relationships that the Department of Justice has built with regulatory and enforcement partners both within the United States government and around the world; and outlines the Department’s response strategies.” The Task Force noted “[t]his document does not contain any new binding legal requirements not otherwise already imposed by statute or regulation.” The Task Force summarized the report:
    • [I]n Part I, the Framework provides a detailed threat overview, cataloging the three categories into which most illicit uses of cryptocurrency typically fall: (1) financial transactions associated with the commission of crimes; (2) money laundering and the shielding of legitimate activity from tax, reporting, or other legal requirements; and (3) crimes, such as theft, directly implicating the cryptocurrency marketplace itself. 
    • Part II explores the various legal and regulatory tools at the government’s disposal to confront the threats posed by cryptocurrency’s illicit uses, and highlights the strong and growing partnership between the Department of Justice and the Securities and Exchange Commission, the Commodity Futures Commission, and agencies within the Department of the Treasury, among others, to enforce federal law in the cryptocurrency space.
    • Finally, the Enforcement Framework concludes in Part III with a discussion of the ongoing challenges the government faces in cryptocurrency enforcement—particularly with respect to business models (employed by certain cryptocurrency exchanges, platforms, kiosks, and casinos), and to activity (like “mixing” and “tumbling,” “chain hopping,” and certain instances of jurisdictional arbitrage) that may facilitate criminal activity.    
  • The White House’s Office of Science and Technology Policy (OSTP) has launched a new website for the United States’ (U.S.) quantum initiative and released a report titled “Quantum Frontiers: Report On Community Input To The Nation’s Strategy For Quantum Information Science.” The Quantum Initiative flows from the “National Quantum Initiative Act” (P.L. 115-368) “to  provide  for  a  coordinated  Federal  program  to  accelerate  quantum  research  and  development  for  the  economic and national security of the United States.” The OSTP explained that the report “outlines eight frontiers that contain core problems with fundamental questions confronting quantum information science (QIS) today:
    • Expanding Opportunities for Quantum Technologies to Benefit Society
    • Building the Discipline of Quantum Engineering
    • Targeting Materials Science for Quantum Technologies
    • Exploring Quantum Mechanics through Quantum Simulations
    • Harnessing Quantum Information Technology for Precision Measurements
    • Generating and Distributing Quantum Entanglement for New Applications
    • Characterizing and Mitigating Quantum Errors
    • Understanding the Universe through Quantum Information
    • OSTP asserted “[t]hese frontier areas, identified by the QIS research community, are priorities for the government, private sector, and academia to explore in order to drive breakthrough R&D.”
  • The New York Department of Financial Services (NYDFS) published its report on the July 2020 Twitter hack during which a team of hacker took over a number of high-profile accounts (e.g. Barack Obama, Kim Kardashian West, Jeff Bezos, and Elon Musk) in order to perpetrate a cryptocurrency scam. The NYDFS has jurisdiction over cryptocurrencies and companies dealing in this item in New York. The NYDFS found that the hackers used the most basic means to acquire permission to take over accounts. The NYDFS explained:
    • Given that Twitter is a publicly traded, $37 billion technology company, it was surprising how easily the Hackers were able to penetrate Twitter’s network and gain access to internal tools allowing them to take over any Twitter user’s account. Indeed, the Hackers used basic techniques more akin to those of a traditional scam artist: phone calls where they pretended to be from Twitter’s Information Technology department. The extraordinary access the Hackers obtained with this simple technique underscores Twitter’s cybersecurity vulnerability and the potential for devastating consequences. Notably, the Twitter Hack did not involve any of the high-tech or sophisticated techniques often used in cyberattacks–no malware, no exploits, and no backdoors.
    • The implications of the Twitter Hack extend far beyond this garden-variety fraud. There are well-documented examples of social media being used to manipulate markets and interfere with elections, often with the simple use of a single compromised account or a group of fake accounts.In the hands of a dangerous adversary, the same access obtained by the Hackers–the ability to take control of any Twitter users’ account–could cause even greater harm.
    • The Twitter Hack demonstrates the need for strong cybersecurity to curb the potential weaponization of major social media companies. But our public institutions have not caught up to the new challenges posed by social media. While policymakers focus on antitrust and content moderation problems with large social media companies, their cybersecurity is also critical. In other industries that are deemed critical infrastructure, such as telecommunications, utilities, and finance, we have established regulators and regulations to ensure that the public interest is protected. With respect to cybersecurity, that is what is needed for large, systemically important social media companies.
    • The NYDFS recommended the cybersecurity measures cryptocurrency companies in New York should implement to avoid similar hacks, including its own cybersecurity regulations that bind its regulated entities in New York. The NYDFS also called for a national regulator to address the lack of a dedicated regulator of Twitter and other massive social media platforms. The NYDFS asserted:
      • Social media companies currently have no dedicated regulator. They are subject to the same general oversight applicable to other companies. For instance, the SEC’s regulations for all public companies apply to public social media companies, and antitrust and related laws and regulations enforced by the Department of Justice and the FTC apply to social media companies as they do to all companies. Social media companies are also subject to generally applicable laws, such as the California Consumer Privacy Act and the New York SHIELD Act. The European Union’s General Data Protection Regulation, which regulates the storage and use of personal data, also applies to social media entities doing business in Europe.
      • But there are no regulators that have the authority to uniformly regulate social media platforms that operate over the internet, and to address the cybersecurity concerns identified in this Report. That regulatory vacuum must be filled.
      • A useful starting point is to create a “systemically important” designation for large social media companies, like the designation for critically important bank and non-bank financial institutions. In the wake of the 2007-08 financial crisis, Congress established a new regulatory framework for financial institutions that posed a systemic threat to the financial system of the United States. An institution could be designated as a Systemically Important Financial Institution (“SIFI”) “where the failure of or a disruption to the functioning of a financial market utility or the conduct of a payment, clearing, or settlement activity could create, or increase, the risk of significant liquidity or credit problems spreading among financial institutions or markets and thereby threaten the stability of the financial system of the United States.”
      • The risks posed by social media to our consumers, economy, and democracy are no less grave than the risks posed by large financial institutions. The scale and reach of these companies, combined with the ability of adversarial actors who can manipulate these systems, require a similarly bold and assertive regulatory approach.
      • The designation of an institution as a SIFI is made by the Financial Stability Oversight Council (“FSOC”), which Congress established to “identify risks to the financial stability of the United States” and to provide enhanced supervision of SIFIs.[67] The FSOC also “monitors regulatory gaps and overlaps to identify emerging sources of systemic risk.” In determining whether a financial institution is systemically important, the FSOC considers numerous factors including: the effect that a failure or disruption to an institution would have on financial markets and the broader financial system; the nature of the institution’s transactions and relationships; the nature, concentration, interconnectedness, and mix of the institution’s activities; and the degree to which the institution is regulated.
      • An analogue to the FSOC should be established to identify systemically important social media companies. This new Oversight Council should evaluate the reach and impact of social media companies, as well as the society-wide consequences of a social media platform’s misuse, to determine which companies they should designate as systemically important. Once designated, those companies should be subject to enhanced regulation, such as through the provision of “stress tests” to evaluate the social media companies’ susceptibility to key threats, including cyberattacks and election interference.
      • Finally, the success of such oversight will depend on the establishment of an expert agency to oversee designated social media companies. Systemically important financial companies designated by the FSOC are overseen by the Federal Reserve Board, which has a long-established and deep expertise in banking and financial market stability. A regulator for systemically important social media would likewise need deep expertise in areas such as technology, cybersecurity, and disinformation. This expert regulator could take various forms; it could be a completely new agency or could reside within an established agency or at an existing regulator.
  • The Government Accountability Office (GAO) evaluated how well the Trump Administration has been implementing the “Open, Public, Electronic and Necessary Government Data Act of 2018” (OPEN Government Data Act) (P.L. 115-435). As the GAO explained, this statute “requires federal agencies to publish their information as open data using standardized, nonproprietary formats, making data available to the public open by default, unless otherwise exempt…[and] codifies and expands on existing federal open data policy including the Office of Management and Budget’s (OMB) memorandum M-13-13 (M-13-13), Open Data Policy—Managing Information as an Asset.”
    • The GAO stated
      • To continue moving forward with open government data, the issuance of OMB implementation guidance should help agencies develop comprehensive inventories of their data assets, prioritize data assets for publication, and decide which data assets should or should not be made available to the public.
      • Implementation of this statutory requirement is critical to agencies’ full implementation and compliance with the act. In the absence of this guidance, agencies, particularly agencies that have not previously been subject to open data policies, could fall behind in meeting their statutory timeline for implementing comprehensive data inventories.
      • It is also important for OMB to meet its statutory responsibility to biennially report on agencies’ performance and compliance with the OPEN Government Data Act and to coordinate with General Services Administration (GSA) to improve the quality and availability of agency performance data that could inform this reporting. Access to this information could inform Congress and the public on agencies’ progress in opening their data and complying with statutory requirements. This information could also help agencies assess their progress and improve compliance with the act.
    • The GAO made three recommendations:
      • The Director of OMB should comply with its statutory requirement to issue implementation guidance to agencies to develop and maintain comprehensive data inventories. (Recommendation 1)
      • The Director of OMB should comply with the statutory requirement to electronically publish a report on agencies’ performance and compliance with the OPEN Government Data Act. (Recommendation 2)
      • The Director of OMB, in collaboration with the Administrator of GSA, should establish policy to ensure the routine identification and correction of errors in electronically published performance information. (Recommendation 3)
  • The United States’ (U.S.) National Security Agency (NSA) issued a cybersecurity advisory titled “Chinese State-Sponsored Actors Exploit Publicly Known Vulnerabilities,” that “provides Common Vulnerabilities and Exposures (CVEs) known to be recently leveraged, or scanned-for, by Chinese state-sponsored cyber actors to enable successful hacking operations against a multitude of victim networks.” The NSA recommended a number of mitigations generally for U.S. entities, including:
    • Keep systems and products updated and patched as soon as possible after patches are released.
    • Expect that data stolen or modified (including credentials, accounts, and software) before the device was patched will not be alleviated by patching, making password changes and reviews of accounts a good practice.
    • Disable external management capabilities and set up an out-of-band management network.
    • Block obsolete or unused protocols at the network edge and disable them in device configurations.
    • Isolate Internet-facing services in a network Demilitarized Zone (DMZ) to reduce the exposure of the internal network.
    • Enable robust logging of Internet-facing services and monitor the logs for signs of compromise.
    • The NSA then proceeded to recommend specific fixes.
    • The NSA provided this policy backdrop:
      • One of the greatest threats to U.S. National Security Systems (NSS), the U.S. Defense Industrial Base (DIB), and Department of Defense (DOD) information networks is Chinese state-sponsored malicious cyber activity. These networks often undergo a full array of tactics and techniques used by Chinese state-sponsored cyber actors to exploit computer networks of interest that hold sensitive intellectual property, economic, political, and military information. Since these techniques include exploitation of publicly known vulnerabilities, it is critical that network defenders prioritize patching and mitigation efforts.
      • The same process for planning the exploitation of a computer network by any sophisticated cyber actor is used by Chinese state-sponsored hackers. They often first identify a target, gather technical information on the target, identify any vulnerabilities associated with the target, develop or re-use an exploit for those vulnerabilities, and then launch their exploitation operation.
  • Belgium’s data protection authority (DPA) (Autorité de protection des données in French or Gegevensbeschermingsautoriteit in Dutch) (APD-GBA) has reportedly found that the Transparency & Consent Framework (TCF) developed by the Interactive Advertising Bureau (IAB) violates the General Data Protection Regulation (GDPR). The Real-Time Bidding (RTB) system used for online behavioral advertising allegedly transmits the personal information of European Union residents without their consent even before a popup appears on their screen asking for consent. The APD-GBA is the lead DPA in the EU in investigating the RTB and will likely now circulate their findings and recommendations to other EU DPAs before any enforcement will commence.
  • None Of Your Business (noyb) announced “[t]he Irish High Court has granted leave for a “Judicial Review” against the Irish Data Protection Commission (DPC) today…[and] [t]he legal action by noyb aims to swiftly implement the [Court of Justice for the European Union (CJEU)] Decision prohibiting Facebook’s” transfer of personal data from the European Union to the United States (U.S.) Last month, after the DPC directed Facebook to stop transferring the personal data of EU citizens to the U.S., the company filed suit in the Irish High Court to stop enforcement of the order and succeeded in staying the matter until the court rules on the merits of the challenge.
    • noyb further asserted:
      • Instead of making a decision in the pending procedure, the DPC has started a second, new investigation into the same subject matter (“Parallel Procedure”), as widely reported (see original reporting by the WSJ). No logical reasons for the Parallel Procedure was given, but the DPC has maintained that Mr Schrems will not be heard in this second case, as he is not a party in this Parallel Procedure. This Paralell procedure was criticised by Facebook publicly (link) and instantly blocked by a Judicial Review by Facebook (see report by Reuters).
      • Today’s Judicial Review by noyb is in many ways the counterpart to Facebook’s Judicial Review: While Facebook wants to block the second procedure by the DPC, noyb wants to move the original complaints procedure towards a decision.
      • Earlier this summer, the CJEU struck down the adequacy decision for the agreement between the EU and (U.S. that had provided the easiest means to transfer the personal data of EU citizens to the U.S. for processing under the General Data Protection Regulation (GDPR) (i.e. the EU-U.S. Privacy Shield). In the case known as Schrems II, the CJEU also cast doubt on whether standard contractual clauses (SCC) used to transfer personal data to the U.S. would pass muster given the grounds for finding the Privacy Shield inadequate: the U.S.’s surveillance regime and lack of meaningful redress for EU citizens. Consequently, it has appeared as if data protection authorities throughout the EU would need to revisit SCCs for transfers to the U.S., and it appears the DPC was looking to stop Facebook from using its SCC. Facebook is apparently arguing in its suit that it will suffer “extremely significant adverse effects” if the DPC’s decision is implemented.
  • Most likely with the aim of helping British chances for an adequacy decision from the European Union (EU), the United Kingdom’s Information Commissioner’s Office (ICO) published guidance that “discusses the right of access [under the General Data Protection Regulation (GDPR)] in detail.” The ICO explained “is aimed at data protection officers (DPOs) and those with specific data protection responsibilities in larger organisations…[but] does not specifically cover the right of access under Parts 3 and 4 of the Data Protection Act 2018.”
    • The ICO explained
      • The right of access, commonly referred to as subject access, gives individuals the right to obtain a copy of their personal data from you, as well as other supplementary information.
  • The report the House Education and Labor Ranking Member requested from the Government Accountability Office (GAO) on the data security and data privacy practices of public schools. Representative Virginia Foxx (R-NC) asked the GAO “to review the security of K-12 students’ data. This report examines (1) what is known about recently reported K-12 cybersecurity incidents that compromised student data, and (2) the characteristics of school districts that experienced these incidents.” Strangely, the report did have GAO’s customary conclusions or recommendations. Nonetheless, the GAO found:
    • Ninety-nine student data breaches reported from July 1, 2016 through May 5, 2020 compromised the data of students in 287 school districts across the country, according to our analysis of K-12 Cybersecurity Resource Center (CRC) data (see fig. 3). Some breaches involved a single school district, while others involved multiple districts. For example, an attack on a vendor system in the 2019-2020 school year affected 135 districts. While information about the number of students affected was not available for every reported breach, examples show that some breaches affected thousands of students, for instance, when a cybercriminal accessed 14,000 current and former students’ personally identifiable information (PII) in one district.
    • The 99 reported student data breaches likely understate the number of breaches that occurred, for different reasons. Reported incidents sometimes do not include sufficient information to discern whether data were breached. We identified 15 additional incidents in our analysis of CRC data in which student data might have been compromised, but the available information was not definitive. In addition, breaches can go undetected for some time. In one example, the personal information of hundreds of thousands of current and former students in one district was publicly posted for 2 years before the breach was discovered.
    • The CRC identified 28 incidents involving videoconferences from April 1, 2020 through May 5, 2020, some of which disrupted learning and exposed students to harm. In one incident, 50 elementary school students were exposed to pornography during a virtual class. In another incident in a different district, high school students were targeted with hate speech during a class, resulting in the cancellation that day of all classes using the videoconferencing software. These incidents also raise concerns about the potential for violating students’ privacy. For example, one district is reported to have instructed teachers to record their class sessions. Teachers said that students’ full names were visible to anyone viewing the recording.
    • The GAO found gaps in the protection and enforcement of student privacy by the United States government:
      • [The Department of] Education is responsible for enforcing Family Educational Rights and Privacy Act (FERPA), which addresses the privacy of PII in student education records and applies to all schools that receive funds under an applicable program administered by Education. If parents or eligible students believe that their rights under FERPA have been violated, they may file a formal complaint with Education. In response, Education is required to take appropriate actions to enforce and deal with violations of FERPA. However, because the department’s authority under FERPA is directly related to the privacy of education records, Education’s security role is limited to incidents involving potential violations under FERPA. Further, FERPA amendments have not directly addressed educational technology use.
      • The “Children’s Online Privacy Protection Act” (COPPA) requires the Federal Trade Commission (FTC) to issue and enforce regulations concerning children’s privacy. The COPPA Rule, which took effect in 2000 and was later amended in 2013, requires operators of covered websites or online services that collect personal information from children under age 13 to provide notice and obtain parental consent, among other things. COPPA generally applies to the vendors who provide educational technology, rather than to schools directly. However, according to FTC guidance, schools can consent on behalf of parents to the collection of students’ personal information if such information is used for a school-authorized educational purpose and for no other commercial purpose.
  • Upturn, an advocacy organization that “advances equity and justice in the design, governance, and use of technology,” has released a report showing that United States (U.S.) law enforcement agencies have multiple means of hacking into encrypted or protected smartphones. There have long been the means and vendors available in the U.S. and abroad for breaking into phones despite the claims of a number of nations like the Five Eyes (U.S., the United Kingdom, Australia, Canada, and New Zealand) that default end-to-end encryption was a growing problem that allowed those preying on children and engaged in terrorism to go undetected. In terms of possible bias, Upturn is “is supported by the Ford Foundation, the Open Society Foundations, the John D. and Catherine T. MacArthur Foundation, Luminate, the Patrick J. McGovern Foundation, and Democracy Fund.”
    • Upturn stated:
      • Every day, law enforcement agencies across the country search thousands of cellphones, typically incident to arrest. To search phones, law enforcement agencies use mobile device forensic tools (MDFTs), a powerful technology that allows police to extract a full copy of data from a cellphone — all emails, texts, photos, location, app data, and more — which can then be programmatically searched. As one expert puts it, with the amount of sensitive information stored on smartphones today, the tools provide a “window into the soul.”
      • This report documents the widespread adoption of MDFTs by law enforcement in the United States. Based on 110 public records requests to state and local law enforcement agencies across the country, our research documents more than 2,000 agencies that have purchased these tools, in all 50 states and the District of Columbia. We found that state and local law enforcement agencies have performed hundreds of thousands of cellphone extractions since 2015, often without a warrant. To our knowledge, this is the first time that such records have been widely disclosed.
    • Upturn argued:
      • Law enforcement use these tools to investigate not only cases involving major harm, but also for graffiti, shoplifting, marijuana possession, prostitution, vandalism, car crashes, parole violations, petty theft, public intoxication, and the full gamut of drug-related offenses. Given how routine these searches are today, together with racist policing policies and practices, it’s more than likely that these technologies disparately affect and are used against communities of color.
      • We believe that MDFTs are simply too powerful in the hands of law enforcement and should not be used. But recognizing that MDFTs are already in widespread use across the country, we offer a set of preliminary recommendations that we believe can, in the short-term, help reduce the use of MDFTs. These include:
        • banning the use of consent searches of mobile devices,
        • abolishing the plain view exception for digital searches,
        • requiring easy-to-understand audit logs,
        • enacting robust data deletion and sealing requirements, and
        • requiring clear public logging of law enforcement use.

Coming Events

  • The Federal Communications Commission (FCC) will hold an open commission meeting on 27 October, and the agency has released a tentative agenda:
    • Restoring Internet Freedom Order Remand – The Commission will consider an Order on Remand that would respond to the remand from the U.S. Court of Appeals for the D.C. Circuit and conclude that the Restoring Internet Freedom Order promotes public safety, facilitates broadband infrastructure deployment, and allows the Commission to continue to provide Lifeline support for broadband Internet access service. (WC Docket Nos. 17-108, 17-287, 11- 42)
    • Establishing a 5G Fund for Rural America – The Commission will consider a Report and Order that would establish the 5G Fund for Rural America to ensure that all Americans have access to the next generation of wireless connectivity. (GN Docket No. 20-32)
    • Increasing Unlicensed Wireless Opportunities in TV White Spaces – The Commission will consider a Report and Order that would increase opportunities for unlicensed white space devices to operate on broadcast television channels 2-35 and expand wireless broadband connectivity in rural and underserved areas. (ET Docket No. 20-36)
    • Streamlining State and Local Approval of Certain Wireless Structure Modifications – The Commission will consider a Report and Order that would further accelerate the deployment of 5G by providing that modifications to existing towers involving limited ground excavation or deployment would be subject to streamlined state and local review pursuant to section 6409(a) of the Spectrum Act of 2012. (WT Docket No. 19-250; RM-11849)
    • Revitalizing AM Radio Service with All-Digital Broadcast Option – The Commission will consider a Report and Order that would authorize AM stations to transition to an all-digital signal on a voluntary basis and would also adopt technical specifications for such stations. (MB Docket Nos. 13-249, 19-311)
    • Expanding Audio Description of Video Content to More TV Markets – The Commission will consider a Report and Order that would expand audio description requirements to 40 additional television markets over the next four years in order to increase the amount of video programming that is accessible to blind and visually impaired Americans. (MB Docket No. 11-43)
    • Modernizing Unbundling and Resale Requirements – The Commission will consider a Report and Order to modernize the Commission’s unbundling and resale regulations, eliminating requirements where they stifle broadband deployment and the transition to next- generation networks, but preserving them where they are still necessary to promote robust intermodal competition. (WC Docket No. 19-308)
    • Enforcement Bureau Action – The Commission will consider an enforcement action.
  • The Senate Commerce, Science, and Transportation Committee will hold a hearing on 28 October regarding 47 U.S.C. 230 titled “Does Section 230’s Sweeping Immunity Enable Big Tech Bad Behavior?” with testimony from:
    • Jack Dorsey, Chief Executive Officer of Twitter;
    • Sundar Pichai, Chief Executive Officer of Alphabet Inc. and its subsidiary, Google; and 
    • Mark Zuckerberg, Chief Executive Officer of Facebook.
  • On 29 October, the Federal Trade Commission (FTC) will hold a seminar titled “Green Lights & Red Flags: FTC Rules of the Road for Business workshop” that “will bring together Ohio business owners and marketing executives with national and state legal experts to provide practical insights to business and legal professionals about how established consumer protection principles apply in today’s fast-paced marketplace.”
  • On 10 November, the Senate Commerce, Science, and Transportation Committee will hold a hearing to consider nominations, including Nathan Simington’s to be a Member of the Federal Communications Commission.

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