House Appropriations Committee Passes Bills With Funding For and Directives To Technology Agencies

Four bills full of technology funding and programmatic direction are reported to the House.

First things first, if you would like to receive my Technology Policy Update, email me. You can find some of these Updates from 2019 and 2020 here.

The House Appropriations Committee finished work on four of the FY 2021 appropriations bills that fund a substantial portion of the United States’ (US) government’s technology programs and activities. Often appropriations bills are the primary vehicle by which Congress changes executive branch policy through the use of its funding powers, and so the bills and their committee reports contain a range of directives and instructions year-to-year. The House is set to finish committee consideration of all 12 bills this month, but there is no indication as to when the Senate Appropriations Committee will take up its bills. Given the late start on appropriations, it is all but certain the federal government will be operating under a stopgap funding bill for some portion of the first quarter of the next fiscal year. The outcome of the election could result in a further postponing of full appropriations and delaying of passage of technology funding and program changes.

FY 2021 Homeland Security Appropriations Act

In advance of the 15 July markup, the House Appropriations Committee made available its Committee Report to accompany the FY 2021 Homeland Security Appropriations Act.

The package includes $2.6 million for a Joint Cybersecurity Coordination Group (JCCG) inside DHS “serve as a coordinating entity that will help the Department identify strategic priorities and synchronize cyber-related activities across the operational components.” This new entity comes about because the Trump Administration requested its creation as part of its FY 2021 budget request. The Committee expressed disappointment with “the lack of quality and detail provided in CISA’s fiscal year 2021 budget justification documents, to include several errors and unjustified adjustments that appear to be attributable to CISA’s premature proposal for a new Program, Project, or Activity (PPA) structure and raise questions about whether the budget could be executed as requested.” Consequently, the Committee directed that CISA “submit the fiscal year 2022 budget request at the same level of PPA detail as provided in the table at the end of this report with no further adjustments to the PPA structure.”

Among other programmatic and funding highlights, the Committee

  • “[E]ncourage[d] CISA to continue to use commercial, human-led threat behavioral analysis and technology, and to employ private sector, industry-specific, threat intelligence and best practices to better characterize potential consequences to critical infrastructure sectors during a systemic cyber event.”
  • Urged “CISA and the Election Infrastructure Information Sharing and Analysis Center (EI–ISAC) to expand outreach to the most vulnerable jurisdictions” with respect to election security assistance.
  • Directed “CISA to continue providing the semiannual briefing on the National Cybersecurity Protection System (NCPS) program and the Continuous Diagnostics and Mitigation (CDM)”
  • Pointed to $5.8 million to set up a ‘‘central Federal information security incident center,’ a requirement mandated by the Federal Information Security Modernization Act (FISMA) (P.L. 113-283) and $9.3 million “to establish a formal program office to coordinate supply chain risk management efforts for federal civilian agencies; act as the executive agent for the Federal Acquisition Security Council (FASC), as authorized by the SECURE Technology Act, 2018 (Public Law 115– 390); and fund various supply chain related efforts and services.”
  • Emphasized its increase of $6 million as compared to FY 2020 “to grow CISA’s threat hunting capabilities” “[i]n the face of cyber threats from nation-state adversaries such as Russia, China, Iran, and North Korea.”
  • [P]rovide[d] an increase of $11,568,000 above the request to establish a Joint Cyber Center (JCC) for National Cyber Defense to bring together federal and State, Local, Tribal, and Territorial (SLTT) governments, industry, and international partners to strategically and operationally counter nation-state cyber threats.”
  • Bestowed “an increase of $10,022,000 above the request for the underlying infrastructure that enables better identification, analysis, and publication of known vulnerabilities and common attack patterns, including through the National Vulnerability Database, and to expand the coordinated responsible disclosure of vulnerabilities.”
  • Noted “[t]hrough the Shared Cybersecurity Services Office (SCSO), CISA serves as the Quality Services Management Office for federal cybersecurity” and explained “[t]o help improve efforts to make strategic cybersecurity services available to federal agencies, the Committee includes $5,064,000 above the request to sustain prior year investments and an additional $5,000,000 to continue to expand the office.”
  • Expressed its concern “about cyber vulnerabilities within supply chains, which pose unacceptable risks to the nation’s physical and cyber infrastructure and, therefore, to national security” and provided “an increase of $18,005,000 above the request to continue the development of capabilities to address these risks through the ICT Supply Chain Risk Management Task Force and other stakeholders, such as the FASC.”

FY 2021 Financial Services and General Government Appropriations Act

The FY 2021 Financial Services and General Government Appropriations Act has a provision that would bar either the Federal Trade Commission (FTC) or Federal Communications Commission (FCC) from taking certain actions related to Executive Order 13925, “Preventing Online Censorship” issued in May by the White House after Twitter fact checked a pair of President Donald Trump’s Tweets that contained untruthful claims about voting by mail. It is very unlikely Senate Republicans, some of whom have publicly supported this Executive Order will allow this language into the final bill funding the agencies.

Under the Executive Order, the National Telecommunications and Information Administration (NTIA) is to file a petition for rulemaking with the FCC to clarify the interplay between clauses of 47 USC 230, notably whether the liability shield that protects companies like Twitter and Facebook for content posted on an online platform also extends to so-called “editorial decisions,” presumably actions like Twitter’s in fact checking Trump regarding mail balloting. The NTIA would also ask the FCC to define better the conditions under which an online platform may take down content in good faith that are “deceptive, pretextual, or inconsistent with a provider’s terms of service; or taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard.” The NTIA is also ask the FCC to promulgate any other regulations necessary to effectuate the EO. The FTC was directed consider whether online platforms are violating Section 5 of the FTC Act barring unfair or deceptive practices, which “may include practices by entities covered by section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices.”

In the Committee Report for the FY 2021 Financial Services and General Government Appropriations Act, the House Appropriations Committee explained it provided $341 million for the FTC, “a $10,000,000 increase over fiscal year 2020… will increase the FTC’s capabilities both to monitor mergers and acquisitions that could reduce competition or lead to higher prices, and to take enforcement action against companies that fail to take reasonable steps to secure their customer data or that engage in other problematic trade practices.”

The Committee detailed the following program and funding provisions related to the FTC, including combatting fraudulent calls to seniors, robocalls, fraudulent health care calls, and the following:

  • Cryptocurrency.— The Committee encourages the FTC to work with the Securities and Exchange Commission, other financial regulators, consumer groups, law enforcement, and other public and private stakeholders to identify and investigate fraud related to cryptocurrencies market and discuss methods to empower and protect consumers.”
  • Consumer Repair Rights.—The Committee is aware of the FTC’s ongoing review of how manufacturers—in particular mobile phone and car manufacturers—may limit repairs by consumers and repair shops, and how those limitations may increase costs, limit choice, and impact consumers’ rights under the Magnuson-Moss Warranty Act. Not later than 120 days after the enactment of this Act, the FTC is directed to provide to the Committee, and to publish online, a report on anticompetitive practices related to repair markets. The report shall provide recommendations on how to best address these problems.
  • Antitrust Actions.—The Committee directs the GAO to study FTC and DOJ antitrust actions over the past 25 years. The study shall examine the following questions: How many instances have FTC and DOJ been on opposing sides of the same matter? In how many of these instances was the split created by (a) the FTC intervening in DOJ’s case; and (b) the DOJ intervening in FTC’s case? In these instances, how (if at all) did the split affect the final outcome (e.g., did the judicial opinion cite the split or explain how it affected the court’s decision)? In how many instances has an FTC action appeared before the Supreme Court? Of these instances, in how many cases did the FTC represent itself (rather than be represented by the Solicitor General)? In how many instances has the DOJ or FTC reneged on a clearance agreement with the other agency? In how many of these instances was the disruption created by (a) the FTC’s decision to renege on the agreement; and (b) the DOJ’s decision to renege on the agreement? How many amicus briefs did each agency file in each year? How many of the total amicus briefs filed by DOJ were done so at the invitation of the court? How many of the total amicus briefs filed by FTC were done so at the invitation of the court?

With respect to the FCC, the package provides $376 million and requires a host of programmatic responses, including:

  • Broadband Maps.—The Committee provides significant funding for upfront costs associated with implementation of the Broadband DATA Act. The Committee anticipates funding related to the Broadband DATA Act will decline considerably in future years and expects the FCC to repurpose a significant amount of staff currently working on economic, wireline, and wireless issues to focus on broadband mapping.
  • Broadband Access.—The Committee believes that deployment of broadband in rural and economically disadvantaged areas is a driver of economic development, jobs, and new educational opportunities. The Committee supports FCC efforts to judiciously allocate Universal Service Fund (USF) funds for these areas.
  • Rural Digital Opportunity Fund.—The Committee appreciates the significant investment the FCC is planning to make to deploy broadband services to unserved areas. The Committee recognizes the need for government programs to minimize instances in which two different providers receive support from two different programs to serve the same location. However, the Committee is concerned that current program rules may have the unintended consequence of discouraging other funding sources from participating in broadband deployment, particularly State-based programs. The Committee directs the FCC to adjust program rules to ensure applicants, and the States in which those applicants would deploy broadband, are not put at a disadvantage when applying for the Rural Digital Opportunity Fund based on the State’s proactive, independent investment in broadband.
  • Lifeline Service.—The Committee is concerned that changes to the Lifeline minimum service standards and support levels will adversely impact low-income Americans, including many suffering from economic hardships due to the coronavirus. The Committee directs the FCC to pause implementation of any changes to the currently applicable minimum service standards for Lifeline-supported mobile broadband service and any changes in the current levels of Lifeline support for voice services until the FCC has completed the State of the Lifeline Marketplace Report required by the 2016 Lifeline Order…
  • Mid-Band Spectrum.—The Committee believes that Fifth-Generation (5G) mobile technology is critical to U.S. national and economic security. A key component of the U.S. strategy for 5G is ensuring that U.S. wireless providers have enough mid-band spectrum (frequencies between 3 GHz and 24 GHz), which provides fast data connections while also traveling longer distances. The Committee is concerned that the U.S. is falling behind other countries in the allocation of such spectrum. The Committee urges the Administration and the FCC to work expeditiously to identify and make available more mid-band spectrum for 5G so that the U.S. does not fall further in the race to deploy 5G networks and services.
  • 5G Supply Chain.—The Committee understands the importance of a secure 5G technology supply chain. The Committee encourages the FCC to investigate options for increasing supply chain diversity, competition, and network security via interoperable technologies and open standard-based interfaces.

The Committee had a range of mandates for the Office of Management and Budget (OMB):

  • Federal and Critical Infrastructure Cybersecurity.—The Committee is aware that Federal agencies and the nation’s critical infrastructure face unique cybersecurity threats. Executive Order 13800, issued on May 11, 2017, directs agency heads to implement several risk management and cybersecurity measures, including the National Institute of Standards and Technology Framework for Improving Critical Infrastructure Cybersecurity. OMB is directed to report, within 90 days of enactment of this Act, on the status of compliance with Executive Order 13800 by each applicable agency. The report shall identify risk management and cybersecurity compliance gaps and outline the steps each agency needs to take to manage such risks. OMB shall prioritize working with the applicable agency heads to address remaining gaps and inconsistencies.
  • Federal Information Technology Workforce.—OMB is directed to consult with the Office of Personnel Management and the General Services Administration and report to the Committee, no later than September 30, 2021, on gaps in Federal information technology workforce skills, disciplines, and experience required to enable the Federal government to modernize its ability to use technology and develop effective citizen-facing digital services to carry out its mission.

The Committee noted its additional funding to the Election Assistance Commission (EAC) for Election Security Grants of $500 million:

  • [T]he Coronavirus Aid, Relief, and Economic Security Act (CARES Act) (P.L. 116–136) included $400,000,000 for grants to States to prevent, prepare for, and respond to coronavirus. The Committee is gravely concerned by persistent threats from Russia and other foreign actors attempting to influence the U.S. democratic process, and vulnerabilities that continue to exist throughout the Nation’s election system.
  • Since fiscal year 2018, Congress has provided $805,000,000 in grants to States to improve the security of elections for Federal office.
  • However, that funding has been inconsistent, unpredictable, and insufficient to meet the vast need across all the States and territories.
  • Congress must provide a consistent, steady source of Federal funds to support State and local election officials on the frontlines of protecting U.S. elections. The bill requires States to use payments to replace direct-recording electronic (DRE) voting machines with voting systems that require the use of an individual, durable, voter-verified paper ballot, marked by the voter by hand or through the use of a non-tabulating ballot marking device or system, and made available for inspection and verification by the voter before the vote is cast and counted.
  • Funds shall only be available to a State or local election jurisdiction for further election security improvements after a State has submitted a certification to the EAC that all DRE voting machines have been or are in the process of being replaced. Funds shall be available to States for the following activities to improve the security of elections for Federal office:
    • implementing a post-election, risk-limiting audit system that provides a high level of confidence in the accuracy of the final vote tally;
    • maintaining or upgrading election-related computer systems, including voter registration systems, to address cyber vulnerabilities identified through DHS scans or similar assessments of existing election systems;
    • facilitating cyber and risk mitigation training for State and local election officials;
    • implementing established cybersecurity best practices for election systems; and other priority activities and
    • investments identified by the EAC, in consultation with DHS, to improve election security.
  • The EAC shall define in the Notice of Grant Award the eligible investments and activities for which grant funds may be used by the States. The EAC shall review all proposed investments to ensure funds are used for the purposes set forth in the Notice of Grant Award.
  • The bill also requires that not less than 50 percent of the payment made to a State be allocated in cash or in kind to local government entities responsible for the administration of elections for Federal office.

Regarding the General Services Administration (GSA), the Committee directed the following:

  • Interagency Task Force on Health and Human Services Information Technology (IT).— The Committee urges the Chief Information Office and Chief Technology Officer (CTO) of HHS, in collaboration with the White House CTO and U.S. Department of Agriculture (USDA), as well as the Office of the National Coordinator for Health Information Technology (ONC) within HHS, 18F within the GSA, and the Cybersecurity and Infrastructure security Agency (CISA) within the U.S. Department of Homeland Security, to establish an interagency task force that will examine existing IT infrastructure in Federal health human service programs nationwide and identify the limitations to successfully integrating and modernizing health and human services IT, and the network security necessary for health and human services IT interoperability. The task force shall submit to the Committee within 180 days of enactment on this Act a report on its progress and on recommendations for further Congressional action, which should include estimated costs for agencies to make progress on interoperability initiatives.
  • Category Management.—The Committee is interested in understanding the effects of GSA’s category management policy on contracts with small businesses. Category management refers to the business practice of buying common goods and services as an enterprise to eliminate redundancies, increase efficiency, and deliver more value and savings from the Federal government’s acquisition programs. Within 180 days of the enactment of this Act, the Committee directs GSA, in cooperation with SBA, to submit a report to the Committee on the number of contracts that could have been awarded under sections 8(a), 8(m), 15(a), 15(j), 31, or 36 of the Small Business Act, but were exempted by category management since its implementation.

The Committee made the following recommendations generally:

  • Cyberspace Solarium Commission Recommendations.—The Committee recognizes and supports the priorities and recommendations laid out in the Cyberspace Solarium Commission’s report and urges Federal departments and agencies to align cybersecurity budgetary priorities with those laid out by the Commission. In particular, the Committee calls attention to recommendation 3.2, Develop and Maintain Continuity of the Economy Planning; recommendation 4.6.3, Strengthen the Capacity of the Committee on Foreign Investment in the United States, particularly with respect to the need to train Federal bankruptcy judges; recommendation 3.4, Improve and Enhance the Funding of the Election Assistance Commission; and recommendation 3.1, Strengthen Sector-specific Agencies’ Ability to Manage Critical Infrastructure Risk, particularly with respect to the Department of the Treasury’s Office of Cybersecurity and Critical Infrastructure Protection.
  • Zero Trust Model.—The Committee is aware that the most effective cybersecurity systems are based on the zero trust model, which is designed not only to prevent cyber intrusions but to prevent cyberthieves from accessing or removing protected information. To ensure that Federal agencies achieve the highest level of security against cyberattacks in the shortest amount of time, the Committee encourages all agencies to acquire and deploy zero trust cybersecurity software that is compatible with all existing operating systems and hardware platforms used by Federal agencies. The Committee also encourages Federal agencies to acquire and utilize software compatible with all existing operating systems and hardware platforms that will enable agencies to measure or quantify their risk of a cybersecurity attack in the months ahead and the types of cyberattack the agency is most likely to experience. Upon learning the risk and type of cyberattack the agency is most likely to face, the agency shall immediately take remedial action to minimize such risk. Agencies shall include information in their fiscal year 2022 Congressional Justification to Congress on their progress in complying with this directive.

FY 2021 Department of Defense Appropriations Act

On 14 July, the House Appropriations Committee marked up and reported out the “FY 2021 Department of Defense Appropriations Act,” which would provide $695 billion for the Department of Defense (DOD), “an increase of $1,294,992,000 above the fiscal year 2020 enacted level and a decrease of $3,695,880,000 below the budget request.”

The Committee Report contained these technology-related provisions:

  • ZERO TRUST ARCHITECTURE. The Committee encourages the Secretary of Defense to implement a Zero Trust Architecture to increase its cybersecurity posture and enhance the Department’s ability to protect its systems and data.
  • DISTRIBUTED LEDGER TECHNOLOGY RESEARCH AND DEVELOPMENT. The Committee is aware that distributed ledger technologies, such as blockchain, may have potentially useful applications for the Department of Defense, which include but are not limited to distributed computing, cybersecurity, logistics, and auditing. Therefore, the Committee encourages the Under Secretary of Defense (Research and Engineering) to consider research and development to explore the use of distributed ledger technologies for defense applications.
  • ARTIFICIAL INTELLIGENCE PARTNERSHIPS. The Committee is aware of the United States-Singapore partnership focusing on applying artificial intelligence in support of humanitarian assistance and disaster relief operations, which will help first responders better serve those in disaster zones. The Committee encourages the Secretary of Defense to pursue similar partnerships with additional partners in different regions, including the Middle East.
  • CYBER EDUCATION COLLABORATIVES. The Committee remains concerned by widespread shortages in cybersecurity talent across both the public and private sector. In accordance with the recommendations of the Cyberspace Solarium Commission, the Committee encourages the Under Secretary of Defense (Research and Engineering) to direct cyber-oriented units to collaborate with local colleges and universities on research, fellowships, internships, and cooperative work experiences to expand cyber-oriented education opportunities and grow the cybersecurity workforce. The Committee also appreciates that veterans and transitioning servicemembers could serve as a valuable recruiting pool to fill gaps in the cybersecurity workforce. Accordingly, the Committee encourages the Under Secretary to prioritize collaboration with colleges and universities near military installations as well as the veteran population.
  • 5G TELECOMMUNICATIONS TECHNOLOGY. The Committee is concerned about reports that foreign manufacturers are significantly ahead of United States companies in the development and deployment of 5G telecommunications technologies, which poses a national security risk to the United States and its allies. Without a robust domestic 5G supply chain, the United States will be vulnerable to 5G systems that facilitate cyber intrusion from hostile actors. In order to secure a reliable 5G system and a domestic supply chain that meets the national security needs of the United States and its allies, the Committee encourages the Secretary of Defense to accelerate engagement with domestic industry partners that are developing 5G systems. Additionally, the Committee is aware of the significant investments being made in 5G efforts but is concerned with the level of detail provided for congressional oversight. The Committee directs the Under Secretary of Defense (Research and Engineering) to conduct quarterly execution briefings with the House and Senate Appropriations Committees beginning not later than 90 days after the enactment of this Act.
  • MILITARY INFORMATION SUPPORT OPERATIONS. Over the past decade, the bulk of activities under Military Information Support Operations (MISO) focused on countering violent extremist organizations (VEO). While VEOs remain an ongoing threat and require continued vigilance, peer and near-peer adversaries like China and Russia are using social media and other vectors to weaken domestic and international institutions and undermine United States interests. This new information environment and the difficulty of discriminating between real and fake information heightens the importance of enhancing and coordinating United States government information-related capabilities as a tool of diplomatic and military strategy.
  • The Committee recognizes the efforts and accomplishments of the United States Special Operations Command and other agencies within the executive branch to operate in the digital domain. However, it is difficult to view individual agency activities as a coordinated whole of government effort. Over the past several years, the classified annex accompanying annual Department of Defense Appropriations Acts included direction focusing on the individual activities of geographic combatant commands. However, information messaging strategies to counter Chinese and Russian malign influences cuts across these geographic boundaries and requires coordination between multiple government agencies using different authorities.
  • Therefore, in order to better understand how MISO activities support a whole of government messaging strategy, the Committee directs the Assistant Secretary of Defense (Special Operations/Low Intensity Conflict) to submit a report for MISO activities for the individual geographic combatant commands justified by the main pillars of the National Defense Strategy to the House and Senate Appropriations Committees not later than 15 days after submission of the fiscal year 2022 budget request and annually thereafter. The report shall include spend plans identifying the requested and enacted funding levels for both voice and internet activities and how those activities are coordinated with the Intelligence Community and the Department of State. The enacted levels will serve as the baseline for reprogramming in accordance with section 8007 of this Act. Furthermore, the Committee directs the Assistant Secretary of Defense (Special Operations/Low Intensity Conflict) to submit to the congressional defense committees, not later than 90 days after the end of the fiscal year, an annual report that provides details on each combatant commands’ MISO activities by activity name, description, goal or objective, target audience, dissemination means, executed funds, and assessments of their effectiveness. Additional details for the report are included in the classified annex accompanying this Act.

FY 2021 Commerce, Justice, Science Appropriations Act

Also on 14 July, the “FY 2021 Commerce, Justice, Science Appropriations Act” was also marked up and reported out and its Committee Report contains these provisions:

  • Cybersecurity Threats.—The Committee remains concerned that as the Census Bureau looks to modernize data collection methods, the Census Bureau could potentially be exploited by nefarious actors who seek to undermine the integrity of census data, which is vital to democratic institutions, and gain access to sensitive information otherwise protected by law. These threats include both hacking into the Census Bureau IT infrastructure and efforts to use supercomputing to unmask the privacy of census respondents. The Committee directs the Census Bureau to prioritize cyber protections and high standards of data differential privacy, while also maintaining the accuracy of the data, and expects the Census Bureau to update the Committee regularly on these efforts.
  • Cybersecurity and Privacy.—The proliferation of data generation, storage, and usage associated with the digital economy is making it increasingly important to protect that data with effective cryptography and privacy standards. The Committee is concerned that individual, corporate, and public-sector data privacy is continuously at risk from attacks by individual actors, criminal organization, and nation-states. The Committee urges NIST to address the rapidly emerging threats in this field by furthering the development of new and needed cryptographic standards and technologies.
  • National Initiative for Cybersecurity Education.—The Committee notes with concern the shortage of cybersecurity professionals across the government and private sector, from entry level applicants to experienced professionals. The Committee therefore supports the National Initiative for Cybersecurity Education (NICE) and directs NIST to provide resources commensurate with the prior fiscal year for this effort.
  • Cybersecurity Conformity Assessment Programs.—The Committee instructs NIST, in collaboration with other relevant organizations, to report to the Committee no later than 270 days after the enactment of this Act on challenges and approaches to establishing and managing voluntary cybersecurity conformity assessment programs for information and communication technologies including federal cloud technologies.
  • Cybersecurity Training.—Within the increase to Manufacturing Extension Partnership (MEP), the Committee directs NIST to maintain the core services of the MEP and encourages NIST to utilize existing expertise within its Information Technology Laboratory to increase cybersecurity technical training to small manufacturers to strengthen their cybersecurity capabilities given the troubling threats from state and non-state actors and other emerging threats.
  • Cybersecurity threat information sharing.—The Committee supports sharing by DOJ of cybersecurity threat warnings and intelligence with private companies who may benefit from actionable information to deter, prevent, or mitigate threats. The Committee asks DOJ to provide a briefing on this topic not later than 90 days after enactment of this Act.
  • Chinese-government affiliated companies.—The Committee is concerned with companies operating within the United States that are known to have substantial ties to the Chinese government, including full or partial ownership by the Chinese government, and that are required by Chinese law to assist in espionage activities, including collection of personally identifiable information of American citizens. Such companies may pose cybersecurity risks, such as vulnerabilities in their equipment, and some are the subject of ongoing Congressional and Executive Branch investigations involving their business practices. The Committee directs DOJ to enforce applicable laws and prevent the operation of known foreign entities who participate in the theft of American intellectual property, the harvesting of personal identifiable information on behalf of a foreign government, and the unlawful surveillance of American citizens by adversarial state-owned enterprises.

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Further Reading and Other Developments (6 June)

Other Developments

First things first, if you would like to receive my Technology Policy Update, email me. You can find some of these Updates from 2019 and 2020 here.

  • A number of tech trade groups are asking the House Appropriations Committee’s Commerce-Justice-Science Subcommittee “to direct the National Institute of Standards and Technology (NIST) to create guidelines that help companies navigate the technical and ethical hurdles of developing artificial intelligence.” They argued:
    • A NIST voluntary framework-based consensus set of best practices would be pro-innovation, support U.S. leadership, be consistent with NIST’s ongoing engagement on AI industry consensus standards development, and align with U.S. support for the OECD AI principles as well as the draft Memorandum to Heads of Executive Departments and Agencies, “Guidance for Regulation of Artificial Intelligence Applications.”
  • The Department of Defense (DOD) “named seven U.S. military installations as the latest sites where it will conduct fifth-generation (5G) communications technology experimentation and testing. They are Naval Base Norfolk, Virginia; Joint Base Pearl Harbor-Hickam, Hawaii; Joint Base San Antonio, Texas; the National Training Center (NTC) at Fort Irwin, California; Fort Hood, Texas; Camp Pendleton, California; and Tinker Air Force Base, Oklahoma.”  The DOD explained “[t]his second round, referred to as Tranche 2, brings the total number of installations selected to host 5G testing to 12…[and] builds on DOD’s previously-announced 5G communications technology prototyping and experimentation and is part of a 5G development roadmap guided by the Department of Defense 5G Strategy.”
  • The Federal Trade Commission announced a $150,000 settlement with “HyperBeard, Inc. [which] violated the Children’s Online Privacy Protection Act Rule (COPPA Rule) by allowing third-party ad networks to collect personal information in the form of persistent identifiers to track users of the company’s child-directed apps, without notifying parents or obtaining verifiable parental consent.”
  • The National Institute of Standards and Technology (NIST) released Special Publication 800-133 Rev. 2, Recommendation for Cryptographic Key Generation that “discusses the generation of the keys to be used with the approved  cryptographic  algorithms…[which] are  either  1) generated  using  mathematical  processing  on  the  output  of  approved  Random  Bit  Generators (RBGs) and  possibly  other  parameters or 2) generated based on keys that are generated in this fashion.”
  • United States Trade Representative (USTR) announced “investigations into digital services taxes that have been adopted or are being considered by a number of our trading partners.” These investigations are “with respect to Digital Services Taxes (DSTs) adopted or under consideration by Austria, Brazil, the Czech Republic, the European Union, India, Indonesia, Italy, Spain, Turkey, and the United Kingdom.” The USTR is accepting comments until 15 July.
  • NATO’s North Atlantic Council released a statement “concerning malicious cyber activities” that have targeted medical facilities stating “Allies are committed to protecting their critical infrastructure, building resilience and bolstering cyber defences, including through full implementation of NATO’s Cyber Defence Pledge.” NATO further pledged “to employ the full range of capabilities, including cyber, to deter, defend against and counter the full spectrum of cyber threats.”
  • The Public Interest Declassification Board (PIDB) released “A Vision for the Digital Age: Modernization of the U.S. National Security Classification and Declassification System” that “provides recommendations that can serve as a blueprint for modernizing the classification and declassification system…[for] there is a critical need to modernize this system to move from the analog to the digital age by deploying advanced technology and by upgrading outdated paper-based policies and practices.”
  • In a Department of State press release, a Declaration on COVID-19, the G7 Science and Technology Ministers stated their intentions “to work collaboratively, with other relevant Ministers to:
    • Enhance cooperation on shared COVID-19 research priority areas, such as basic and applied research, public health, and clinical studies. Build on existing mechanisms to further priorities, including identifying COVID-19 cases and understanding virus spread while protecting privacy and personal data; developing rapid and accurate diagnostics to speed new testing technologies; discovering, manufacturing, and deploying safe and effective therapies and vaccines; and implementing innovative modeling, adequate and inclusive health system management, and predictive analytics to assist with preventing future pandemics.
    • Make government-sponsored COVID-19 epidemiological and related research results, data, and information accessible to the public in machine-readable formats, to the greatest extent possible, in accordance with relevant laws and regulations, including privacy and intellectual property laws.
    • Strengthen the use of high-performance computing for COVID-19 response. Make national high-performance computing resources available, as appropriate, to domestic research communities for COVID-19 and pandemic research, while safeguarding intellectual property.
    • Launch the Global Partnership on AI, envisioned under the 2018 and 2019 G7 Presidencies of Canada and France, to enhance multi-stakeholder cooperation in the advancement of AI that reflects our shared democratic values and addresses shared global challenges, with an initial focus that includes responding to and recovering from COVID-19. Commit to the responsible and human-centric development and use of AI in a manner consistent with human rights, fundamental freedoms, and our shared democratic values.
    • Exchange best practices to advance broadband connectivity; minimize workforce disruptions, support distance learning and working; enable access to smart health systems, virtual care, and telehealth services; promote job upskilling and reskilling programs to prepare the workforce of the future; and support global social and economic recovery, in an inclusive manner while promoting data protection, privacy, and security.
  • The Digital, Culture, Media and Sport Committee’s Online Harms and Disinformation Subcommittee held a virtual meeting, which “is the second time that representatives of the social media companies have been called in by the DCMS Sub-committee in its ongoing inquiry into online harms and disinformation following criticism by Chair Julian Knight about a lack of clarity of evidence and further failures to provide adequate answers to follow-up correspondence.” Before the meeting, the Subcommittee sent a letter to Twitter, Facebook, and Google and received responses. The Subcommittee heard testimony from:
    • Facebook Head of Product Policy and Counterterrorism Monika Bickert
    • YouTube Vice-President of Government Affairs and Public Policy Leslie Miller
    • Google Global Director of Information Policy Derek Slater
    • Twitter Director of Public Policy Strategy Nick Pickles
  • Senators Ed Markey (D-MA), Ron Wyden (D-OR) and Richard Blumenthal (D-CT) sent a letter to AT&T CEO Randall Stephenson “regarding your company’s policy of not counting use of HBO Max, a streaming service that you own, against your customers’ data caps.” They noted “[a]lthough your company has repeatedly stated publicly that it supports legally binding net neutrality rules, this policy appears to run contrary to the essential principle that in a free and open internet, service providers may not favor content in which they have a financial interest over competitors’ content.”
  • The Brookings Institution released what it considers a path forward on privacy legislation and held a webinar on the report with Federal Trade Commissioner (FTC) Christine Wilson and former FTC Commissioner and now Microsoft Vice President and Deputy General Counsel Julie Brill.

Further Reading

  • Google: Overseas hackers targeting Trump, Biden campaigns” – Politico. In what is the latest in a series of attempted attacks, Google’s Threat Analysis Group announced this week that People’s Republic of China affiliated hackers tried to gain access to the campaign of former Vice President Joe Biden and Iranian hackers tried the same with President Donald Trump’s reelection campaign. The group referred the matter to the federal government but said the attacks were not successful. An official from the Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) remarked “[i]t’s not surprising that a number of state actors are targeting our elections…[and] [w]e’ve been warning about this for years.” It is likely the usual suspects will continue to try to hack into both presidential campaigns.
  • Huawei builds up 2-year reserve of ‘most important’ US chips” ­– Nikkei Asian Review. The Chinese tech giant has been spending billions of dollars stockpiling United States’ (U.S.) chips, particularly from Intel for servers and programable chips from Xilinx, the type that is hard to find elsewhere. This latter chip maker is seen as particularly crucial to both the U.S. and the People’s Republic of China (PRC) because it partners with the Taiwan Semiconductor Manufacturing Company, the entity persuaded by the Trump Administration to announce plans for a plant in Arizona. Shortly after the arrest of Huawei CFO Meng Wanzhou in 2018, the company began these efforts and spent almost $24 billion USD last year stockpiling crucial U.S. chips and other components.
  • GBI investigation shows Kemp misrepresented election security” – Atlanta-Journal Constitution. Through freedom of information requests, the newspaper obtained records from the Georgia Bureau of Investigation (GBI) on its investigation at the behest of then Secretary of State Brian Kemp, requested days before the gubernatorial election he narrowly won. At the time, Kemp claimed hackers connected to the Democratic Party were trying to get into the state’s voter database, when it was Department of Homeland Security personnel running a routine scan for vulnerabilities Kemp’s office had agreed to months earlier. The GBI ultimately determined Kemp’s claims did not merit a prosecution. Moreover, even though Kemp’s staff at the time continues to deny these findings, the site did have vulnerabilities, including one turned up by a software company employee.
  • Trump, Biden both want to repeal tech legal protections — for opposite reasons” – Politico. Former Vice President Joe Biden (D) wants to revisit Section 230 because online platforms are not doing enough to combat misinformation, in his view. Biden laid out his views on this and other technology matters for the editorial board of The New York Times in January, at which point he said Facebook should have to face civil liability for publishing misinformation. Given Republican and Democratic discontent with Section 230 and the social media platforms, there may be a possibility legislation is enacted to limit this shield from litigation.
  • Wearables like Fitbit and Oura can detect coronavirus symptoms, new research shows” –The Washington Post. Perhaps wearable health technology is a better approach to determining when a person has contracted COVID-19 than contact tracing apps. A handful of studies are producing positive results, but these studies have not yet undergone the per review process. Still, these devices may be able to determine disequilibrium in one’s system as compared to a baseline, suggesting an infection and a need for a test. This article, however, did not explore possible privacy implications of sharing one’s personal health data with private companies.
  • Singapore plans wearable virus-tracing device for all” – Reuters. For less than an estimated $10 USD for unit, Singapore will soon introduce wearable devices to better track contacts to fight COVID-19. In what may be a sign that the city-state has given up on its contact tracing app, TraceTogether, the Asian nation will soon release these wearables. If it not clear if everyone will be mandated to wear one and what privacy and data protections will be in place.
  • Exclusive: Zoom plans to roll out strong encryption for paying customers” – Reuters. In the same vein as Zoom allowing paying customers to choose where their calls are routing through (e.g. paying customers in the United States could choose a different region with lesser surveillance capabilities), Zoom will soon offer stronger security for paying customers. Of course, should Zoom’s popularity during the pandemic solidify into a dominant competitive position, this new policy of offering end-to-end encryption that the company cannot crack would likely rouse the ire of the governments of the Five Eyes nations. These plans breathe further life into the views of those who see a future in which privacy and security are commodities to be bought and those unable or unwilling to afford them will not enjoy either. Nonetheless, the company may still face a Federal Trade Commission (FTC) investigation into its apparently inaccurate claims that calls were encrypted, which may have violated Section 5 of the FTC Act along with similar investigations by other nations.
  • Russia and China target U.S. protests on social media” – Politico. Largely eschewing doctored material, the Russian Federation and the People’s Republic of China (PRC) are using social media platforms to further drive dissension and division in the United States (U.S.) during the protests by amplifying the messages and points of views of Americans, according to an analysis of one think tank. For example, some PRC officials have been tweeting out “Black Lives Matter” and claims that videos purporting to show police violence are, in fact, police violence. The goal to fan the flames and further weaken Washington. Thus far, the American government and the platforms themselves have not had much of a public response. Additionally, this represents a continued trend of the PRC in seeking to sow discord in the U.S. whereas before this year use of social media and disinformation tended to be confined to issues of immediate concern to Beijing.
  • The DEA Has Been Given Permission To Investigate People Protesting George Floyd’s Death” – BuzzFeed News. The Department of Justice (DOJ) used a little known section of the powers delegated to the agency to task the Drug Enforcement Agency (DEA) with conducting “covert surveillance” of to help police maintain order during the protests following the killing of George Floyd’s, among other duties. BuzzFeed News was given the two page memorandum effectuating this expansion of the DEA’s responsibilities beyond drug crimes, most likely by agency insiders who oppose the memorandum. These efforts could include use of authority granted to the agency to engage in “bulk collection” of some information, a practice the DOJ Office of the Inspector General (OIG) found significant issues with, including the lack of legal analysis on the scope of the sprawling collection practices.
  • Cops Don’t Need GPS Data to Track Your Phone at Protests” – Gizmodo. Underlying this extensive rundown of the types of data one’s phone leaks that is vacuumed up by a constellation of entities is the fact that more law enforcement agencies are buying or accessing these data because the Fourth Amendment’s protections do not apply to private parties giving the government information.
  • Zuckerberg Defends Approach to Trump’s Facebook Posts” – The New York Times. Unlike Twitter, Facebook opted not to flag President Donald Trump’s tweets about the protests arising from George Floyd’s killing last week that Twitter found to be glorifying violence. CEO Mark Zuckerberg reportedly deliberated at length with senior leadership before deciding the tweets did not violate the platform’s terms of service, a decision roundly criticized by Facebook employees, some of whom staged a virtual walkout on 1 June. In a conference call, Zuckerberg faced numerous questions about why the company does not respond more forcefully to tweets that are inflammatory or untrue. His answers that Facebook does not act as an arbiter of truth were not well freceived among many employees.
  • Google’s European Search Menu Draws Interest of U.S. Antitrust Investigators” – The New York Times. Allegedly Department of Justice (DOJ) antitrust investigators are keenly interested in the system Google lives under in the European Union (EU) where Android users are now prompted to select a default search engine instead of just making its Google’s. This system was put in place as a response to the EU’s €4.34 billion fine in 2018 for imposing “illegal restrictions on Android device manufacturers and mobile network operators to cement its dominant position in general internet search.” This may be seen as a way to address competition issues while not breaking up Google as some have called for. However, Google is conducting monthly auctions among the other search engines to be of the three choices given to EU consumers, which allows Google to reap additional revenue.

© 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.

Appropriators Have Work To Do

Now that Congress and the White House have agreed on the FY 2020 top line numbers for defense and non-defense discretionary spending, both the House and Senate need to adjust the numbers they have put forth as their working caps.

The House did not pass a budget resolution and instead passed a deeming resolution (H.J.Res. 293) in April that functions in much the same way with respect to setting the top-line numbers for appropriations. During debate on the deeming resolution, Representative James Morelle (D-NY) explained the caps put forth by Democrats:

In fiscal year 2020, defense spending would be capped at $664 billion, with nondefense discretionary spending capped at $631 billion. The Investing for the People Act (H.R. 2021) would also provide up to $8 billion, annually, for nondefense overseas contingency operations, OCO, activities that do not count against the spending caps, while limiting OCO designation of defense spending in 2020 and 2021 to no more than the fiscal year 2019 level of $69 billion dollars.

In my this post, I detailed the new spending caps under the as the “Bipartisan Budget Act of 2019” (P.L. 116-37) raised the caps

  FY 2020 FY 2021
Defense (aka Security) $666.5 billion $671.5 billion
Non-Defense (aka non-security) $621.5 billion $626.5 billion

For FY 2020, House Democrats will need to trim roughly $10 billion from the non-defense side of appropriations and slightly boost for the defense side. The House Appropriations Committee will need to trim the non-defense funds from the bills with non-defense funding, and it is not immediately clear what their approach will be. Is an across-the-board reduction equitable? Or should the committee eliminate funds based on need and priorities? I’d say it is likely to be the latter approach, but the process for how the House does this is not clear beyond the Appropriations Committee reporting a new 302(b) allocation. Will the Appropriations Committee essentially draft new bills and hold them until the Senate has finished work on their bills all the while negotiating on final numbers for programs? This seems like the likeliest outcome although it is possible the House could bring new bills to the floor, but I suspect they wouldn’t do so unless there was some leverage to be gained against or pressure exerted on the Senate.

In the other body, appropriators are more or less working from a blank slate as Senate Majority Leader Mitch McConnell (R-KY) prevailed upon Senate Appropriations Committee Chair Richard Shelby (R-AL) to not begin the appropriations process until agreement had been reached on top-line numbers. Undoubtedly, the committee has bill language and report language that has been negotiated on; all that was missing was the top-line funding numbers. Having said that, it didn’t exactly take a crystal ball to project a reasonable range of top-line funding numbers and work from those. I’m assuming this is, in fact, what happened, and so the committee may hit the ground running next month.

While the Senate did not pass a budget resolution as McConnell undoubtedly wanted to protect those Senate Republicans up for reelection from uncomfortable votes, the Senate Budget Committee did mark up a budget resolution. In S.Con.Res. 12, the Senate Budget Committee set the following caps in FY 2020: $576 billion for defense (plus the majority of $67 billion in OCO funds) and $542 billion for non-defense. Consequently, the Senate has just gained a huge amount of breathing room on both sides of the discretionary divide, and yet, because the Senate Appropriations Committee has not marked up any bills, the process of effecting the new caps will be somewhat easier. In any event, the nominal, not-real numbers the Senate started with will be adjusted upwards by $90 billion on the defense side of the ledger and $79 billion for non-defense.

Opening the aperture on appropriations reveals an uncertain view. Sure, we have top-line numbers, but will Fox News rile up the President after Republicans and Democrats have reached agreement on full-year appropriations for FY 2020. However, more immediately, it seems unlikely we will have all 12 bills enacted before the end of FY 2019 on September 30 and has been common practice there will almost certainly be a continuing resolution (CR) for some portion of the federal government through December. It’s just a question of which agencies will have FY 2020 appropriations in place and which will be operating under a CR, which does cause some problems. In any event, it will quite the ride as always.

FY 2020 Appropriations Starting

It’s a been a while.

In any event, it’s a big week. The House Appropriations Committee begins work on FY 2020 appropriations bills even though top-line numbers haven’t entirely been decided in the Democratic Caucus, and the Congressional Budget Office (CBO) releases its revised baseline on this coming Thursday, May 2.

This week’s House Appropriations Committee markup schedule is

Over in the Senate, the Appropriations Committee will hold these hearings:

Subcommittee Hearing: Review of the FY2020 Budget Request for the Department of Homeland Security   05/02/19 10:00AM
Subcommittee Hearing: Review of the FY2020 Budget Request for Department of Labor   05/02/19 10:00AM
Subcommittee Hearing: Review of the FY2020 Budget Request for the U.S. Nuclear Regulatory Commission   05/01/19 02:30PM
Subcommittee Hearing: Review of the FY2020 Budget Request for NASA   05/01/19 02:30PM
Subcommittee Hearing: Review of the FY2020 Budget Request for the Navy and Marine Corps   05/01/19 10:00AM
Subcommittee Hearing: Review of the FY2020 Budget Request for the Indian Health Service   05/01/19 09:30AM
Subcommittee Hearing: Review of the FY2020 and FY2021 Budget Request for the VA   04/30/19 02:30PM
Subcommittee Hearing: Review of the FY2020 Budget Request for USAID   04/30/19 02:30PM

Also, Senate Appropriations Committee Chair Richard Shelby (R-AL) said yesterday that his committee will not work on their appropriations bills until there is a deal in place on the caps. He remarked that “[t]hat’s what we’d like to do because we’d have more certainty.”

Of course, where the caps are ultimately set is a major stumbling block in enacting FY 2020 appropriations. At present, the caps for defense funding would be $576 billion (without uncapped Overseas Contingency Operations (OCO) funding) and non-defense $542 billion (without OCO, Disaster relief, and other adjustments). House Democrats are split on how much to raise the caps, but House Appropriations Committee Chair Nita Lowey (D-NY) seems to be willing to work with the cap adjustments in the “Investing for the People Act of 2019” (H.R. 2021) of $664 billion for defense (plus $69 billion for defense OCO for a total of $733 billion) and $631 billion for non-defense (plus add ons pushing the cap up to $662 billion.) Consequently, House appropriations bills will likely meet those top lines as reported out of committee.

The Senate Budget Committee, however, opted to remain with the current cap levels for FY 2020 with the hopes that a deal will soon be reached for both FY 2020 and FY 2021. Their budget resolution, S.Con.Res.12, would keep the FY 2020 caps of $576 billion for defense and $542 for non-defense.

There’s still a supplemental appropriations bill floating that Congress hasn’t passed, which seems to be held up on whether Puerto Rico would receive more funding to recover from Hurricane Maria. However, the White House opposes more funds, and Democrats are insisting on it. Hence, an impasse even though a number of the states waiting on relief via supplemental appropriations for FY 2019 include states Trump will need to carry in 2020, including Florida, Georgia, and Iowa.