Further Reading, Other Development, and Coming Events (20 and 21 January 2021)

Further Reading

  • Amazon’s Ring Neighbors app exposed users’ precise locations and home addresses” By Zack Whittaker — Tech Crunch. Again Amazon’s home security platform suffers problems by way of users data being exposed or less than protected.
  • Harassment of Chinese dissidents was warning signal on disinformation” By Shawna Chen and Bethany Allen-Ebrahimian — Axios. In an example of how malicious online activities can spill into the real world as a number of Chinese dissidents were set upon by protestors.
  • How Social Media’s Obsession with Scale Supercharged Disinformation” By Joan Donovan — Harvard Business Review. Companies like Facebook and Twitter emphasized scale over safety in trying to grow as quickly as possible. This lead to a proliferation of fake accounts and proved welcome ground for the seeds of misinformation.
  • The Moderation War Is Coming to Spotify, Substack, and Clubhouse” By Alex Kantrowitz — OneZero. The same issues with objectionable and abusive content plaguing Twitter, Facebook, YouTube and others will almost certainly become an issue for the newer platforms, and in fact already are.
  • Mexican president mounts campaign against social media bans” By Mark Stevenson — The Associated Press. The leftist President of Mexico President Andrés Manuel López Obrador is vowing to lead international efforts to stop social media companies from censoring what he considers free speech. Whether this materializes into something substantial is not clear.
  • As Trump Clashes With Big Tech, China’s Censored Internet Takes His Side” By Li Yuan — The New York Times. The government in Beijing is framing the ban of former President Donald Trump after the attempted insurrection by social media platforms as proof there is no untrammeled freedom of speech. This position helps bolster the oppressive policing of online content the People’s Republic of China (PRC) wages against its citizens. And quite separately many Chinese people (or what appear to be actual people) are questioning what is often deemed the censoring of Trump in the United States (U.S.), a nation ostensibly committed to free speech. There is also widespread misunderstanding about the First Amendment rights of social media platforms not to host content with which they disagree and the power of platforms to make such determinations without fear that the U.S. government will punish them as is often the case in the PRC.
  • Trump admin slams China’s Huawei, halting shipments from Intel, others – sources” By Karen Freifeld and Alexandra Alper — Reuters. On its way out of the proverbial door, the Trump Administration delivered parting shots to Huawei and the People’s Republic of China by revoking one license and denying others to sell the PRC tech giant semiconductors. Whether the Biden Administration will reverse or stand by these actions remains to be seen. The companies, including Intel, could appeal. Additionally, there are an estimated $400 million worth of applications for similar licenses pending at the Department of Commerce that are now the domain of the new regime in Washington. It is too early to discern how the Biden Administration will maintain or modify Trump Administration policy towards the PRC.
  • Behind a Secret Deal Between Google and Facebook” By Daisuke Wakabayashi and Tiffany Hsu — The New York Times. The newspaper got its hands on an unredacted copy of the antitrust suit Texas Attorney General Ken Paxton and other attorneys general filed against Google, and it has details on the deal Facebook and Google allegedly struck to divide the online advertising world. Not only did Facebook ditch an effort launched by publishers to defeat Google’s overwhelming advantages in online advertising bidding, it joined Google’s rival effort with a guarantee that it would win a specified number of bids and more time to bid on ads. Google and Facebook naturally deny any wrongdoing.
  • Biden and Trump Voters Were Exposed to Radically Different Coverage of the Capitol Riot on Facebook” By Colin Lecher and Jon Keegan — The Markup. Using a tool on browsers the organization pays Facebook users to have, the Markup can track the type of material they see in their feed. Facebook’s algorithm fed people material about the 6 January 2021 attempted insurrection based on their political views. Many have pointed out that this very dynamic creates filter bubbles that poison democracy and public discourse.
  • Banning Trump won’t fix social media: 10 ideas to rebuild our broken internet – by experts” By Julia Carrie Wong — The Guardian. There are some fascinating proposals in this piece that could help address the problems of social media.
  • Misinformation dropped dramatically the week after Twitter banned Trump and some allies” By Elizabeth Dwoskin and Craig Timberg — The Washington Post. Research showed that lies, misinformation, and disinformation about election fraud dropped by three-quarters after former President Donald Trump was banned from Twitter and other platforms. Other research showed that a small group of conservatives were responsible for up to 20% of misinformation on this and other conspiracies.
  • This Was WhatsApp’s Plan All Along” By Shoshana Wodinsky — Gizmodo. This piece does a great job of breaking down into plain English the proposed changes to terms of service on WhatsApp that so enraged users that competitors Signal and Telegram have seen record-breaking downloads. Basically, it is all about reaping advertising dollars for Facebook through businesses and third-party partners using user data from business-related communications. Incidentally, WhatsApp has delayed changes until March because of the pushback.
  • Brussels eclipsed as EU countries roll out their own tech rules” By By Laura Kayali and Mark Scott — Politico EU. The European Union (EU) had a hard-enough task in trying to reach final language on a Digital Services Act and Digital Markets Act without nations like France, Germany, Poland, and others picking and choosing text from draft bills and enacting them into law. Brussels is not happy with this trend.

Other Developments

  • Federal Trade Commission (FTC) Chair Joseph J. Simons announced his resignation from the FTC effective on 29 January 2021 in keeping with tradition and past practice. This resignation clears the way for President Joe Biden to name the chair of the FTC, and along with FTC Commissioner Rohit Chopra’s nomination to head the Consumer Financial Protection Bureau (CFPB), the incoming President will get to nominate two Democratic FTC Commissioners, tipping the political balance of the FTC and likely ushering in a period of more regulation of the technology sector.
    • Simons also announced the resignation of senior staff: General Counsel Alden F. Abbott; Bureau of Competition Director Ian Conner; Bureau of Competition Deputy Directors Gail Levine and Daniel Francis; Bureau of Consumer Protection Director Andrew Smith; Bureau of Economics Director Andrew Sweeting; Office of Public Affairs Director Cathy MacFarlane; and Office of Policy Planning Director Bilal Sayyed.
  • In a speech last week before he sworn in, President Joe Biden announced his $1.9 trillion American Rescue Plan, and according to a summary, Biden will ask Congress to provide $10 billion for a handful of government facing programs to improve technology. Notably, Biden “is calling on Congress to launch the most ambitious effort ever to modernize and secure federal IT and networks.” Biden is proposing to dramatically increase funding for a fund that would allow agencies to borrow and then pay back funds to update their technology. Moreover, Biden is looking to push more money to a program to aid officials at agencies who oversee technology development and procurement.
    • Biden stated “[t]o remediate the SolarWinds breach and boost U.S. defenses, including of the COVID-19 vaccine process, President-elect Biden is calling on Congress to:
      • Expand and improve the Technology Modernization Fund. ​A $9 billion investment will help the U.S. launch major new IT and cybersecurity shared services at the Cyber Security and Information Security Agency (CISA) and the General Services Administration and complete modernization projects at federal agencies. ​In addition, the president-elect is calling on Congress to change the fund’s reimbursement structure in order to fund more innovative and impactful projects.
      • Surge cybersecurity technology and engineering expert hiring​. Providing the Information Technology Oversight and Reform fund with $200 million will allow for the rapid hiring of hundreds of experts to support the federal Chief Information Security Officer and U.S. Digital Service.
      • Build shared, secure services to drive transformational projects. ​Investing$300 million in no-year funding for Technology Transformation Services in the General Services Administration will drive secure IT projects forward without the need of reimbursement from agencies.
      • Improving security monitoring and incident response activities. ​An additional $690M for CISA will bolster cybersecurity across federal civilian networks, and support the piloting of new shared security and cloud computing services.
  • The United States (U.S.) Department of Commerce issued an interim final rule pursuant to an executive order (EO) issued by former President Donald Trump to secure the United States (U.S.) information and communications supply chain. This rule will undoubtedly be reviewed by the Biden Administration and may be withdrawn or modified depending on the fate on the EO on which the rule relies.
    • In the interim final rule, Commerce explained:
      • These regulations create the processes and procedures that the Secretary of Commerce will use to identify, assess, and address certain transactions, including classes of transactions, between U.S. persons and foreign persons that involve information and communications technology or services designed, developed, manufactured, or supplied, by persons owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary; and pose an undue or unacceptable risk. While this interim final rule will become effective on March 22, 2021, the Department of Commerce continues to welcome public input and is thus seeking additional public comment. Once any additional comments have been evaluated, the Department is committed to issuing a final rule.
      • On November 27, 2019, the Department of Commerce (Department) published a proposed rule to implement the terms of the Executive Order. (84 FR 65316). The proposed rule set forth processes for (1) how the Secretary would evaluate and assess transactions involving ICTS to determine whether they pose an undue risk of sabotage to or subversion of the ICTS supply chain, or an unacceptable risk to the national security of the United States or the security and safety of U.S. persons; (2) how the Secretary would notify parties to transactions under review of the Secretary’s decision regarding the ICTS Transaction, including whether the Secretary would prohibit or mitigate the transaction; and (3) how parties to transactions reviewed by the Secretary could comment on the Secretary’s preliminary decisions. The proposed rule also provided that the Secretary could act without complying with the proposed procedures where required by national security. Finally, the Secretary would establish penalties for violations of mitigation agreements, the regulations, or the Executive Order.
      • In addition to seeking general public comment, the Department requested comments from the public on five specific questions: (1) Whether the Secretary should consider categorical exclusions or whether there are classes of persons whose use of ICTS cannot violate the Executive Order; (2) whether there are categories of uses or of risks that are always capable of being reliably and adequately mitigated; (3) how the Secretary should monitor and enforce any mitigation agreements applied to a transaction; (4) how the terms, “transaction,” “dealing in,” and “use of” should be clarified in the rule; and (5) whether the Department should add record-keeping requirements for information related to transactions.
      • The list of “foreign adversaries” consists of the following foreign governments and non-government persons: The People’s Republic of China, including the Hong Kong Special Administrative Region (China); the Republic of Cuba (Cuba); the Islamic Republic of Iran (Iran); the Democratic People’s Republic of Korea (North Korea); the Russian Federation (Russia); and Venezuelan politician Nicolás Maduro (Maduro Regime).
  • The Federal Trade Commission (FTC) adjusted its penalty amounts for inflation, including a boost to the per violation penalty virtually all the privacy bills introduced in the last Congress would allow the agency to wield against first-time violators. The penalty for certain unfair and deceptive acts or practices was increased from $43,280 to $43,792.
  • The United States (U.S.) Department of State stood up its new Bureau of Cyberspace Security and Emerging Technologies (CSET) as it has long planned. At the beginning of the Trump Administration, the Department of State dismantled the Cyber Coordinator Office and gave its cybersecurity portfolio to the Bureau of Economic Affairs, which displeased Congressional stakeholders. In 2019, the department notified Congress of its plan to establish CSET. The department asserted:
    • The need to reorganize and resource America’s cyberspace and emerging technology security diplomacy through the creation of CSET is critical, as the challenges to U.S. national security presented by China, Russia, Iran, North Korea, and other cyber and emerging technology competitors and adversaries have only increased since the Department notified Congress in June 2019 of its intent to create CSET.
    • The CSET bureau will lead U.S. government diplomatic efforts on a wide range of international cyberspace security and emerging technology policy issues that affect U.S. foreign policy and national security, including securing cyberspace and critical technologies, reducing the likelihood of cyber conflict, and prevailing in strategic cyber competition.  The Secretary’s decision to establish CSET will permit the Department to posture itself appropriately and engage as effectively as possible with partners and allies on these pressing national security concerns.
    • The Congressional Members of the Cyberspace Solarium Commission made clear their disapproval of the decision. Senators Angus King (I-ME) and Ben Sasse, (R-NE) and Representatives Mike Gallagher (R-WI) and Jim Langevin (D-RI) said:
      • In our report, we emphasize the need for a greater emphasis on international cyber policy at State. However, unlike the bipartisan Cyber Diplomacy Act, the State Department’s proposed Bureau will reinforce existing silos and […] hinder the development of a holistic strategy to promote cyberspace stability on the international stage. We urge President-elect Biden to pause this reorganization when he takes office in two weeks and work with Congress to enact meaningful reform to protect our country in cyberspace.
  • The Australian Cyber Security Centre (ACSC) the Risk Identification Guidance “developed to assist organisations in identifying risks associated with their use of suppliers, manufacturers, distributors and retailers (i.e. businesses that constitute their cyber supply chain)” and the Risk Management Guidance because “[c]yber supply chain risk management can be achieved by identifying the cyber supply chain, understanding cyber supply chain risk, setting cyber security expectations, auditing for compliance, and monitoring and improving cyber supply chain security practices.”
  • The United Kingdom’s Surveillance Camera Commissioner (SCC), issued “best practice guidance, ‘Facing the Camera’, to all police forces in England and Wales” The SCC explained that “The provisions of this document only apply to the use of facial recognition technology and the inherent processing of images by the police where such use is integral to a surveillance camera system being operated in ‘live time’ or ‘near real time’ operational scenarios.” Last summer, a British appeals court overturned a decision that found that a police force’s use of facial recognition technology in a pilot program that utilized live footage to be legal. The appeals court found the use of this technology by the South Wales Police Force a violation of “the right to respect for private life under Article 8 of the European  Convention  on  Human  Rights,  data  protection  legislation,  and  the  Public  Sector Equality Duty (“PSED”) under section 149 of the Equality Act 2010.” The SCC stated:
    • The SCC considers surveillance to be an intrusive investigatory power where it is conducted by the police which impacts upon those fundamental rights and freedoms of people, as set out by the European Convention of Human Rights (ECHR) and the Human Rights Act 1998. In the context of surveillance camera systems which make use of facial recognition technology, the extent of state intrusion in such matters is significantly increased by the capabilities of algorithms which are in essence, integral to the surveillance conduct seeking to harvest information, private information, metadata, data, personal data, intelligence and evidence. Each of the aforementioned are bound by laws and rules which ought to be separately and jointly considered and applied in a manner which is demonstrably lawful and ethical and engenders public trust and confidence.
    • Whenever the police seek to use technology in pursuit of a legitimate aim, the key question arises as to whether the degree of intrusion which is caused to the fundamental freedoms of citizens by the police surveillance conduct using surveillance algorithms (biometric or otherwise) is necessary in a democratic society when considered alongside the legality and proportionality of their endeavours and intent. The type of equipment/technology/modality which they choose to use to that end (e.g. LFR, ANPR, thermal imaging, gait analysis, movement sensors etc), the manner in which such technological means are deployed, (such as using static cameras at various locations, used with body worn cameras or other mobile means), and whether such technology is used overtly alongside or networked with other surveillance technologies, are all factors which may significantly influence the depth of intrusion caused by police conduct upon citizen’s rights.
  • The Senate confirmed the nomination of Avril Haines to be the new Director of National Intelligence by an 89-10 vote after Senator Tom Cotton (R-AK) removed his hold on her nomination. However, Josh Hawley (R-MO) placed a hold on the nomination of Alejandro Mayorkas to be the next Secretary of Homeland Security and explained his action this way:
    • On Day 1 of his administration, President-elect Biden has said he plans to unveil an amnesty plan for 11 million immigrants in this nation illegally. This comes at a time when millions of American citizens remain out of work and a new migrant caravan has been attempting to reach the United States. Mr. Mayorkas has not adequately explained how he will enforce federal law and secure the southern border given President-elect Biden’s promise to roll back major enforcement and security measures. Just today, he declined to say he would enforce the laws Congress has already passed to secure the border wall system. Given this, I cannot consent to skip the standard vetting process and fast-track this nomination when so many questions remain unanswered.
  • Former Trump White House Cyber Coordinator Rob Joyce will replace the National Security Agency’s (NSA) Director of Cybersecurity Anne Neuberger who has been named the Biden White House’s Deputy National Security Advisor for Cyber and Emerging Technology. Anne Neuberger’s portfolio at the NSA included “lead[ing] NSA’s cybersecurity mission, including emerging technology areas like quantum-resistant cryptography.” Joyce was purged when former National Security Advisor John Bolton restructured the NSC in 2018, forcing out Joyce and his boss, former Homeland Security Advisor Tom Bossert. Presumably Joyce would have the same responsibilities. At the National Security Council, Neuberger would will work to coordinate cybersecurity and emerging technology policy across agencies and funnel policy options up to the full NSC and ultimately the President. This work would include Joyce.
  • The Supreme Court of the United States (SCOTUS) heard oral arguments on whether the Federal Trade Commission (FTC) Act gives the agency the power to seek monetary damages and restitution alongside permanent injunctions under Section 13(b). In AMG Capital Management, LLC v. FTC, the parties opposing the FTC argue the plain language of the statute does not allow for the seeking of restitution and monetary damages under this specific section of the FTC Act while the agency argues long accepted past practice and Congressional intent do, in fact, allow this relief to be sought when the FTC is seeking to punish violators of Section 5. The FTC is working a separate track to get a fix from Congress which could rewrite the FTC Act to make clear this sort of relief is legal. However, some stakeholders in the debate over privacy legislation may be using the case as leverage.
    • In October 2020, the FTC wrote the House and Senate committees with jurisdiction over the agency, asking for language to resolve the litigation over the power to seek and obtain restitution for victims of those who have violated Section 5 of the FTC Act and disgorgement of ill-gotten gains. The FTC is also asking that Congress clarify that the agency may act against violators even if their conduct has stopped as it has for more than four decades. Two federal appeals courts have ruled in ways that have limited the FTC’s long used powers, and now the Supreme Court of the United States is set to rule on these issues sometime next year. The FTC is claiming, however, that defendants are playing for time in the hopes that the FTC’s authority to seek and receive monetary penalties will ultimately be limited by the United States (U.S.) highest court. Judging by language tucked into a privacy bill introduced by the former chair of one of the committees, Congress may be willing to act soon.
    • The FTC asked the House Energy and Commerce and Senate Commerce, Science, and Transportation Committees “to take quick action to amend Section 13(b) [of the FTC Act i.e. 15 U.S.C. § 53(b)] to make clear that the Commission can bring actions in federal court under Section 13(b) even if conduct is no longer ongoing or impending when the suit is filed and can obtain monetary relief, including restitution and disgorgement, if successful.” The agency asserted “[w]ithout congressional action, the Commission’s ability to use Section 13(b) to provide refunds to consumer victims and to enjoin illegal activity is severely threatened.” All five FTC Commissioners signed the letter.
    • The FTC explained that adverse rulings by two federal appeals courts are constraining the agency from seeking relief for victims and punishment for violators of the FTC Act in federal courts below those two specific courts, but elsewhere defendants are either asking courts for a similar ruling or using delaying tactics in the hopes the Supreme Court upholds the two federal appeals courts:
      • …[C]ourts of appeals in the Third and Seventh Circuits have recently ruled that the agency cannot obtain any monetary relief under Section 13(b). Although review in the Supreme Court is pending, these lower court decisions are already inhibiting our ability to obtain monetary relief under 13(b). Not only do these decisions already prevent us from obtaining redress for consumers in the circuits where they issued, prospective defendants are routinely invoking them in refusing to settle cases with agreed-upon redress payments.
      • Moreover, defendants in our law enforcement actions pending in other circuits are seeking to expand the rulings to those circuits and taking steps to delay litigation in anticipation of a potential Supreme Court ruling that would allow them to escape liability for any monetary relief caused by their unlawful conduct. This is a significant impediment to the agency’s effectiveness, its ability to provide redress to consumer victims, and its ability to prevent entities who violate the law from profiting from their wrongdoing.
  • The United Kingdom’s Information Commissioner’s Office (ICO) issued guidance for British entities that may be affected by the massive SolarWinds hack that has compromised many key systems in the United States. The ICO advised:
    • Organisations should immediately check whether they are using a version of the software that has been compromised. These are versions 2019.4 HF 5, 2020.2 with no hotfix installed, and 2020.2 HF 1.
    • Organisations must also determine if the personal data they hold has been affected by the cyber-attack. If a reportable personal data breach is found, UK data controllers are required to inform the ICO within 72 hours of discovering the breach. Reports can be submitted online or organisations can call the ICO’s personal data breach helpline for advice on 0303 123 1113, option 2.
    • Organisations subject to the NIS Regulation will also need to determine if this incident has led to a “substantial impact on the provision’ of its digital services and report to the ICO.
  • Europol announced the takedown of “the world’s largest illegal marketplace on the dark web” in an operation coordinated by the following nations: “Germany, Australia, Denmark, Moldova, Ukraine, the United Kingdom (the National Crime Agency), and the USA (DEA, FBI, and IRS).” Europol added:
    • The Central Criminal Investigation Department in the German city of Oldenburg arrested an Australian citizen who is the alleged operator of DarkMarket near the German-Danish border over the weekend. The investigation, which was led by the cybercrime unit of the Koblenz Public Prosecutor’s Office, allowed officers to locate and close the marketplace, switch off the servers and seize the criminal infrastructure – more than 20 servers in Moldova and Ukraine supported by the German Federal Criminal Police office (BKA). The stored data will give investigators new leads to further investigate moderators, sellers, and buyers. 
  • The Enforcement Bureau (Bureau) of the Federal Communications Commission (FCC) issued an enforcement advisory intended to remind people that use of amateur and personal radios to commit crimes is itself a criminal offense that could warrant prosecution. The notice was issued because the FCC is claiming it is aware of discussion by some of how these means of communications may be superior to social media, which has been cracking down on extremist material since the attempted insurrection at the United States Capitol on 6 January. The Bureau stated:
    • The Bureau has become aware of discussions on social media platforms suggesting that certain radio services regulated by the Commission may be an alternative to social media platforms for groups to communicate and coordinate future activities.  The Bureau recognizes that these services can be used for a wide range of permitted purposes, including speech that is protected under the First Amendment of the U.S. Constitution.  Amateur and Personal Radio Services, however, may not be used to commit or facilitate crimes. 
    • Specifically, the Bureau reminds amateur licensees that they are prohibited from transmitting “communications intended to facilitate a criminal act” or “messages encoded for the purpose of obscuring their meaning.” Likewise, individuals operating radios in the Personal Radio Services, a category that includes Citizens Band radios, Family Radio Service walkie-talkies, and General Mobile Radio Service, are prohibited from using those radios “in connection with any activity which is against Federal, State or local law.” Individuals using radios in the Amateur or Personal Radio Services in this manner may be subject to severe penalties, including significant fines, seizure of the offending equipment, and, in some cases, criminal prosecution.
  • The European Data Protection Board (EDPB) issued its “Strategy for 2021-2023” in order “[t]o be effective in confronting the main challenges ahead.” The EDPB cautioned:
    • This Strategy does not provide an exhaustive overview of the work of the EDPB in the years to come. Rather it sets out the four main pillars of our strategic objectives, as well as set of key actions to help achieve those objectives. The EDPB will implement this Strategy within its Work Program, and will report on the progress achieved in relation to each Pillar as part of its annual reports.
    • The EDPB listed and explained the four pillars of its strategy:
      • PILLAR 1: ADVANCING HARMONISATION AND FACILITATING COMPLIANCE. The EDPB will continue to strive for a maximum degree of consistency in the application of data protection rules and limit fragmentation among Member States. In addition to providing practical, easily understandable and accessible guidance, the EDPB will develop and promote tools that help to implement data protection into practice, taking into account practical experiences of different stakeholders on the ground.
      • PILLAR 2: SUPPORTING EFFECTIVE ENFORCEMENT AND EFFICIENT COOPERATION BETWEEN NATIONAL SUPERVISORY AUTHORITIES. The EDPB is fully committed to support cooperation between all national supervisory authorities that work together to enforce European data protection law. We will streamline internal processes, combine expertise and promote enhanced coordination. We intend not only to ensure a more efficient functioning of the cooperation and consistency mechanisms, but also to strive for the development of a genuine EU-wide enforcement culture among supervisory authorities.
      • PILLAR 3: A FUNDAMENTAL RIGHTS APPROACH TO NEW TECHNOLOGIES. The protection of personal data helps to ensure that technology, new business models and society develop in accordance with our values, such as human dignity, autonomy and liberty. The EDPB will continuously monitor new and emerging technologies and their potential impact on the fundamental rights and daily lives of individuals. Data protection should work for all people, particularly in the face of processing activities presenting the greatest risks to individuals’ rights and freedoms (e.g. to prevent discrimination). We will help to shape Europe’s digital future in line with our common values and rules. We will continue to work with other regulators and policymakers to promote regulatory coherence and enhanced protection for individuals.
      • PILLAR 4: THE GLOBAL DIMENSION. The EDPB is determined to set and promote high EU and global standards for international data transfers to third countries in the private and the public sector, including in the law enforcement sector. We will reinforce our engagement with the international community to promote EU data protection as a global model and to ensure effective protection of personal data beyond EU borders.
  • The United Kingdom’s (UK) Information Commissioner’s Office (ICO) revealed that all but one of the videoconferencing platforms it and other data protection authorities’ (DPA) July 2020 letter urging them to “adopt principles to guide them in addressing some key privacy risks.” The ICO explained:
    • Microsoft, Cisco, Zoom and Google replied to the open letter. The joint signatories thank these companies for engaging on this important matter and for acknowledging and responding to the concerns raised. In their responses the companies highlighted various privacy and security best practices, measures, and tools that they advise are implemented or built-in to their video teleconferencing services.
    • The information provided by these companies is encouraging. It is a constructive foundation for further discussion on elements of the responses that the joint signatories feel would benefit from more clarity and additional supporting information.
    • The ICO stated:
      • The joint signatories have not received a response to the open letter from Houseparty. They strongly encourage Houseparty to engage with them and respond to the open letter to address the concerns raised.
  • The European Union Agency for Cybersecurity (ENISA) “launched a public consultation, which runs until 7 February 2021, on its draft of the candidate European Union Cybersecurity Certification Scheme on Cloud Services (EUCS)…[that] aims to further improve the Union’s internal market conditions for cloud services by enhancing and streamlining the services’ cybersecurity guarantees.” ENISA stated:
    • There are challenges to the certification of cloud services, such as a diverse set of market players, complex systems and a constantly evolving landscape of cloud services, as well as the existence of different schemes in Member States. The draft EUCS candidate scheme tackles these challenges by calling for cybersecurity best practices across three levels of assurance and by allowing for a transition from current national schemes in the EU. The draft EUCS candidate scheme is a horizontal and technological scheme that intends to provide cybersecurity assurance throughout the cloud supply chain, and form a sound basis for sectoral schemes.
    • More specifically, the draft EUCS candidate scheme:
      • Is a voluntary scheme;
      • The scheme’s certificates will be applicable across the EU Member States;
      • Is applicable for all kinds of cloud services – from infrastructure to applications;
      • Boosts trust in cloud services by defining a reference set of security requirements;
      • Covers three assurance levels: ‘Basic’, ‘Substantial’ and ‘High’;
      • Proposes a new approach inspired by existing national schemes and international standards;
      • Defines a transition path from national schemes in the EU;
      • Grants a three-year certification that can be renewed;
      • Includes transparency requirements such as the location of data processing and storage.

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 27 July, the Federal Trade Commission (FTC) will hold PrivacyCon 2021.

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Further Reading, Other Developments, and Coming Events (13 and 14 January 2021)

Further Reading

  • YouTube Suspends Trump’s Channel for at Least Seven Days” By Daisuke Wakabayashi — The New York Times. Even Google is getting further into the water. Its YouTube platform flagged a video of President Donald Trump’s for inciting violence and citing the “ongoing potential for violence,” Trump and his team will not be able to upload videos for seven days and the comments section would be permanently disabled. YouTube has been the least inclined of the major platforms to moderate content and has somehow escaped the scrutiny and opprobrium Facebook and Twitter have faced even though those platforms have been more active in policing offensive content.
  • Online misinformation that led to Capitol siege is ‘radicalization,’ say researchers” By Elizabeth Culliford — Reuters. Experts in online disinformation are saying that the different conspiracy movements that impelled followers to attack the United States (U.S.) Capitol are the result of radicalization. Online activities translated into real world violence, they say. The also decried the responsive nature of social media platforms in acting, waiting for an insurrection to take steps experts and others have been begging them to take.
  • Uganda orders all social media to be blocked – letter” — Reuters. In response to Facebook blocking a number of government related accounts for Coordinated Inauthentic Behaviour” (CIB), the Ugandan government has blocked all access to social media ahead of its elections. In a letter seen by Reuters, the Uganda Communications Commission directed telecommunications providers “to immediately suspend any access and use, direct or otherwise, of all social media platforms and online messaging applications over your network until further notice.” This may become standard practice for many regimes around the world if social media companies crack down on government propaganda.
  • BlackBerry sells 90 patents to Huawei, covering key smartphone technology advances” By Sean Silcoff — The Globe and Mail. Critics of a deal to assign 90 key BlackBerry patents to Huawei are calling on the government of Prime Minister Justin Trudeau to be more involved in protecting Canadian intellectual property and innovations.
  • ‘Threat to democracy is real’: MPs call for social media code of conduct” By David Crowe and Nick Bonyhady — The Sydney Morning Herald. There has been mixed responses in Australia’s Parliament on social media platforms banning President Donald Trump after his role in inciting the violence at the United States (U.S.) Capitol. Many agree with the platforms, some disagree strenuously in light of other inflammatory content that is not taken down, and many want greater rationality and transparency in how platforms make these decisions. And since Canberra has been among the most active governments in regulating technology, it may inform the process of drafting its “Online Safety Bill,” which may place legal obligations on social media platforms.
  • Poland plans to make censoring of social media accounts illegal” By Shaun Walker — The Guardian. Governments around the world continue to respond to a number of social media companies deciding to deplatform United States (U.S.) President Donald Trump. In Warsaw there is a draft bill that would make deplatforming a person illegal unless the offense is also contrary to Polish law. The spin is that the right wing regime in Warsaw is less interested in protecting free speech and more interested in propagating the same grievances the right wing in the United States is. Therefore, this push in Poland may be more about messaging and trying to cow social media companies and less about protecting free speech, especially speech with which the government disagrees (e.g. advocates for LGBTQI rights have been silenced in Poland.)
  • Facebook, Twitter could face punishing regulation for their role in U.S. Capitol riot, Democrats say” By Tony Romm — The Washington Post. Democrats were already furious with social media companies for what they considered their lacking governance of content that clearly violated terms of service and policies. These companies are bracing for an expected barrage of hearings and legislation with the Democrats controlling the White House, House, and Senate.
  • Georgia results sweep away tech’s regulatory logjam” By Margaret Harding McGill and Ashley Gold — Axios. This is a nice survey of possible policy priorities at the agencies and in the Congress over the next two years with the Democrats in control of both.
  • The Capitol rioters put themselves all over social media. Now they’re getting arrested.” By Sara Morrison — Recode. Will the attack on the United States (U.S.) Capitol be the first time a major crime is solved by the evidence largely provided by the accused? It is sure looking that way as law enforcement continues to use the posts of the rioters to apprehend, arrest, and charge them. Additionally, in the same way people who acted in racist and entitled ways (e.g. Amy Cooper in Central Park threatening an African American gentleman with calling the police even though he had asked her to put her dog on a leash) were caught through crowd-sourced identification pushes, rioters are also being identified.
  • CISA: SolarWinds Hackers Got Into Networks by Guessing Passwords” By Mariam Baksh — Nextgov. The Cybersecurity and Infrastructure Security Agency (CISA) has updated its alert on the SolarWinds hack to reflect its finding. CISA explained:
    • CISA incident response investigations have identified that initial access in some cases was obtained by password guessing [T1101.001], password spraying [T1101.003], and inappropriately secured administrative credentials [T1078] accessible via external remote access services [T1133]. Initial access root cause analysis is still ongoing in a number of response activities and CISA will update this section as additional initial vectors are identified.
  •  “A Facial Recognition Company Says That Viral Washington Times “Antifa” Story Is False” By Craig Silverman — BuzzFeed News. XRVIsion denied the Washington Times’ account that the company had identified antifa protestors among the rioters at the United States (U.S. Capitol) (archived here.) The company said it had identified two Neo-Nazis and a QAnon adherent. Even though the story was retracted and a corrected version issued, some still claimed the original story had merit such as Trump supporter Representative Matt Gaetz (R-FL).

Other Developments

  • The United States (U.S.) Trade Representative (USTR) announced that it would not act on the basis of three completed reports on Digital Services Taxes (DST) three nations have put in place and also that it would not proceed with tariffs in retaliation against France, one of the first nations in the world to enact a DST. Last year, the Organization for Economic Co-operation and Development convened multi-lateral talks to resolve differences on how a global digital services tax will ideally function with most of the nations involved arguing for a 2% tax to be assessed in the nation where the transaction occurs as opposed to where the company is headquartered. European Union (EU) officials claimed an agreement was possible, but the U.S. negotiators walked away from the table. It will fall to the Biden Administration to act on these USTR DST investigations if they choose.
    • In its press release, the USTR stated it would “suspend the tariff action in the Section 301 investigation of France’s Digital Services Tax (DST).”
      • The USTR added:
        • The additional tariffs on certain products of France were announced in July 2020, and were scheduled to go into effect on January 6, 2021.  The U.S. Trade Representative has decided to suspend the tariffs in light of the ongoing investigation of similar DSTs adopted or under consideration in ten other jurisdictions.  Those investigations have significantly progressed, but have not yet reached a determination on possible trade actions.  A suspension of the tariff action in the France DST investigation will promote a coordinated response in all of the ongoing DST investigations.
      • In its December 2019 report, the USTR determined “that France’s DST is unreasonable or discriminatory and burdens or restricts U.S. commerce, and therefore is actionable under sections 301(b) and 304(a) of the Trade Act (19 U.S.C. 2411(b) and 2414(a))” and proposed a range of measures in retaliation.
    • The USTR also “issued findings in Section 301 investigations of Digital Service Taxes (DSTs) adopted by India, Italy, and Turkey, concluding that each of the DSTs discriminates against U.S. companies, is inconsistent with prevailing principles of international taxation, and burden or restricts U.S. commerce.” The USTR stated it “is not taking any specific actions in connection with the findings at this time but will continue to evaluate all available options.” The USTR added:
      • The Section 301 investigations of the DSTs adopted by India, Italy, and Turkey were initiated in June 2020, along with investigations of DSTs adopted or under consideration by Austria, Brazil, the Czech Republic, the European Union, Indonesia, Spain, and the United Kingdom.  USTR expects to announce the progress or completion of additional DST investigations in the near future. 
  • The United Kingdom’s Competition and Markets Authority (CMA) has started investigating Google’s Privacy Sandbox’ project to “assess whether the proposals could cause advertising spend to become even more concentrated on Google’s ecosystem at the expense of its competitors.” The CMA asserted:
    • Third party cookies currently play a fundamental role online and in digital advertising. They help businesses target advertising effectively and fund free online content for consumers, such as newspapers. But there have also been concerns about their legality and use from a privacy perspective, as they allow consumers’ behaviour to be tracked across the web in ways that many consumers may feel uncomfortable with and may find difficult to understand.
    • Google’s announced changes – known collectively as the ‘Privacy Sandbox’ project – would disable third party cookies on the Chrome browser and Chromium browser engine and replace them with a new set of tools for targeting advertising and other functionality that they say will protect consumers’ privacy to a greater extent. The project is already under way, but Google’s final proposals have not yet been decided or implemented. In its recent market study into online platforms digital advertising, the CMA highlighted a number of concerns about their potential impact, including that they could undermine the ability of publishers to generate revenue and undermine competition in digital advertising, entrenching Google’s market power.
  • Facebook took down coordinated inauthentic behavior (CIB) originating from France and Russia, seeking to allegedly influence nations in Africa and the Middle East. Facebook asserted:
    • Each of the networks we removed today targeted people outside of their country of origin, primarily targeting Africa, and also some countries in the Middle East. We found all three of them as a result of our proactive internal investigations and worked with external researchers to assess the full scope of these activities across the internet.
    • While we’ve seen influence operations target the same regions in the past, this was the first time our team found two campaigns — from France and Russia — actively engage with one another, including by befriending, commenting and criticizing the opposing side for being fake. It appears that this Russian network was an attempt to rebuild their operations after our October 2019 takedown, which also coincided with a notable shift in focus of the French campaign to begin to post about Russia’s manipulation campaigns in Africa.
    • Unlike the operation from France, both Russia-linked networks relied on local nationals in the countries they targeted to generate content and manage their activity across internet services. This is consistent with cases we exposed in the past, including in Ghana and the US, where we saw the Russian campaigns co-opt authentic voices to join their influence operations, likely to avoid detection and help appear more authentic. Despite these efforts, our investigation identified some links between these two Russian campaigns and also with our past enforcements.
  • Two of the top Democrats on the House Energy and Committee along with another Democrat wrote nine internet service providers (ISP) “questioning their commitment to consumers amid ISPs raising prices and imposing data caps during the COVID-19 pandemic.” Committee Chair Frank Pallone, Jr. (D-NJ), Communications and Technology Subcommittee Chairman Mike Doyle (D-PA), and Representative Jerry McNerney (D-CA) wrote the following ISPs:
    • Pallone, Doyle, and McNerney took issue with the companies raising prices and imposing data caps after having pledged not to do so at the behest of the Federal Communications Commission (FCC). They asked the companies to answer a series of questions:
      • Did the company participate in the FCC’s “Keep Americans Connected” pledge?
      • Has the company increased prices for fixed or mobile consumer internet and fixed or phone service since the start of the pandemic, or do they plan to raise prices on such plans within the next six months? 
      • Prior to March 2020, did any of the company’s service plans impose a maximum data consumption threshold on its subscribers?
      • Since March 2020, has the company modified or imposed any new maximum data consumption thresholds on service plans, or do they plan to do so within the next six months? 
      • Did the company stop disconnecting customers’ internet or telephone service due to their inability to pay during the pandemic? 
      • Does the company offer a plan designed for low-income households, or a plan established in March or later to help students and families with connectivity during the pandemic?
      • Beyond service offerings for low-income customers, what steps is the company currently taking to assist individuals and families facing financial hardship due to circumstances related to COVID-19? 
  • The United States (U.S.) Department of Homeland Security (DHS) issued a “Data Security Business Advisory: Risks and Considerations for Businesses Using Data Services and Equipment from Firms Linked to the People’s Republic of China,” that “describes the data-related risks American businesses face as a result of the actions of the People’s Republic of China (PRC) and outlines steps that businesses can take to mitigate these risks.” DHS generally recommended:
    • Businesses and individuals that operate in the PRC or with PRC firms or entities should scrutinize any business relationship that provides access to data—whether business confidential, trade secrets, customer personally identifiable information (PII), or other sensitive information. Businesses should identify the sensitive personal and proprietary information in their possession. To the extent possible, they should minimize the amount of at-risk data being stored and used in the PRC or in places accessible by PRC authorities. Robust due diligence and transaction monitoring are also critical for addressing potential legal exposure, reputation risks, and unfair advantage that data and intellectual property theft would provide competitors. Businesses should seek to acquire a thorough understanding of the ownership of data service providers, location of data infrastructure, and any tangential foreign business relationships and significant foreign investors.
  • The Federal Communications Commission (FCC) is asking for comments on the $3.2 billion Emergency Broadband Benefit Program established in the “Consolidated Appropriations Act, 2021” (H.R. 133). Comments are due by 16 February 2021. The FCC noted “eligible households may receive a discount off the cost of broadband service and certain connected devices during an emergency period relating to the COVID-19 pandemic, and participating providers can receive a reimbursement for such discounts.” The FCC explained the program in further detail:
    • Pursuant to the Consolidated Appropriations Act, the Emergency Broadband Benefit Program will use available funding from the Emergency Broadband Connectivity Fund to support participating providers’ provision of certain broadband services and connected devices to qualifying households.
    • To participate in the program, a provider must elect to participate and either be designated as an eligible telecommunications carrier or be approved by the Commission. Participating providers will make available to eligible households a monthly discount off the standard rate for an Internet service offering and associated equipment, up to $50.00 per month.
    • On Tribal lands, the monthly discount may be up to $75.00 per month. Participating providers will receive reimbursement from the Emergency Broadband Benefit Program for the discounts provided.
    • Participating providers that also supply an eligible household with a laptop, desktop computer, or tablet (connected device) for use during the emergency period may receive a single reimbursement of up to $100.00 for the connected device, if the charge to the eligible household for that device is more than $10.00 but less than $50.00.  An eligible household may receive only one supported device.  Providers must submit certain certifications to the Commission to receive reimbursement from the program, and the Commission is required to adopt audit requirements to ensure provider compliance and prevent waste, fraud, and abuse.
  • The Biden-Harris transition team named National Security Agency’s (NSA) Director of Cybersecurity as the Biden White House’s Deputy National Security Advisor for Cyber and Emerging Technology. Anne Neuberger’s portfolio at the NSA included “lead[ing] NSA’s cybersecurity mission, including emerging technology areas like quantum-resistant cryptography.” At the National Security Council, Neuberger would will work to coordinate cybersecurity and emerging technology policy across agencies and funnel policy options up to the full NSC and ultimately the President. It is not clear how Neuberger’s portfolio will interact with the newly created National Cybersecurity Director, a position that, thus far, has remained without a nominee.
    • The transition noted “[p]rior to this role, she led NSA’s Election Security effort and served as Assistant Deputy Director of NSA’s Operations Directorate, overseeing foreign intelligence and cybersecurity operations…[and] also previously served as NSA’s first Chief Risk Officer, as Director of NSA’s Commercial Solutions Center, as Director of the Enduring Security Framework cybersecurity public-private partnership, as the Navy’s Deputy Chief Management Officer, and as a White House Fellow.” The transition stated that “[p]rior to joining government service, Neuberger was Senior Vice President of Operations at American Stock Transfer & Trust Company (AST), where she directed technology and operations.”
  • The Federal Communications Commission (FCC) published a final rule in response to the United States (U.S.) Court of Appeals for the District of Columbia’s decision striking down three aspects of the FCC’s rollback of net neutrality, “Restoring Internet Freedom Order.” The FCC explained the final rule:
    • responds to a remand from the U.S. Court of Appeals for the D.C. Circuit directing the Commission to assess the effects of the Commission’s Restoring Internet Freedom Order on public safety, pole attachments, and the statutory basis for broadband internet access service’s inclusion in the universal service Lifeline program. This document also amends the Commission’s rules to remove broadband internet service from the list of services supported by the universal service Lifeline program, while preserving the Commission’s authority to fund broadband internet access service through the Lifeline program.
    • In 2014, the U.S. Court of Appeals for the District of Columbia struck down a 2010 FCC net neutrality order in Verizon v. FCC, but the court did suggest a path forward. The court held the FCC “reasonably interpreted section 706 to empower it to promulgate rules governing broadband providers’ treatment of Internet traffic, and its justification for the specific rules at issue here—that they will preserve and facilitate the “virtuous circle” of innovation that has driven the explosive growth of the Internet—is reasonable and supported by substantial evidence.” The court added that “even though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates…[and] [g]iven that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such.” However, in 2016, the same court upheld the 2015 net neutrality regulations in U.S. Telecom Association v. FCC, and then upheld most of the Trump Administration’s FCC’s repeal of the its earlier net neutrality rule.
    • However, the D.C. Circuit declined to accept the FCC’s attempt to preempt all contrary state laws and struck down this part of the FCC’s rulemaking. Consequently, states and local jurisdictions may now be free to enact regulations of internet services along the lines of the FCC’s now repealed Open Internet Order. The D.C. Circuit also sent the case back to the FCC for further consideration on three points.
    • In its request for comments on how to respond to the remand, the FCC summarized the three issues: public safety, pole attachments, and the Lifeline Program:
      • Public Safety.  First, we seek to refresh the record on how the changes adopted in the Restoring Internet Freedom Order might affect public safety. In the Restoring Internet Freedom Order, the Commission predicted, for example, that permitting paid prioritization arrangements would “increase network innovation,” “lead[] to higher investment in broadband capacity as well as greater innovation on the edge provider side of the market,” and “likely . . . be used to deliver enhanced service for applications that need QoS [i.e., quality of service] guarantees.” Could the network improvements made possible by prioritization arrangements benefit public safety applications—for example, by enabling the more rapid, reliable transmission of public safety-related communications during emergencies? 
      • Pole Attachments.  Second, we seek to refresh the record on how the changes adopted in the Restoring Internet Freedom Order might affect the regulation of pole attachments in states subject to federal regulation.  To what extent are ISPs’ pole attachments subject to Commission authority in non-reverse preemption states by virtue of the ISPs’ provision of cable or telecommunications services covered by section 224?  What impact would the inapplicability of section 224 to broadband-only providers have on their access to poles?  Have pole owners, following the Order, “increase[d] pole attachment rates or inhibit[ed] broadband providers from attaching equipment”?  How could we use metrics like increases or decreases in broadband deployment to measure the impact the Order has had on pole attachment practices?  Are there any other impacts on the regulation of pole attachments from the changes adopted in the Order?  Finally, how do any potential considerations about pole attachments bear on the Commission’s underlying decision to classify broadband as a Title I information service?
      • Lifeline Program.  Third, we seek to refresh the record on how the changes adopted in the Restoring Internet Freedom Order might affect the Lifeline program.  In particular, we seek to refresh the record on the Commission’s authority to direct Lifeline support to eligible telecommunications carriers (ETCs) providing broadband service to qualifying low-income consumers.  In the 2017 Lifeline NPRM, the Commission proposed that it “has authority under Section 254(e) of the Act to provide Lifeline support to ETCs that provide broadband service over facilities-based broadband-capable networks that support voice service,” and that “[t]his legal authority does not depend on the regulatory classification of broadband Internet access service and, thus, ensures the Lifeline program has a role in closing the digital divide regardless of the regulatory classification of broadband service.”  How, if at all, does the Mozilla decision bear on that proposal, and should the Commission proceed to adopt it? 
  • The Federal Trade Commission (FTC) reached a settlement with a photo app company that allegedly did not tell users their photos would be subject to the company’s facial recognition technology. The FTC deemed this a deceptive business practice in violation of Section 5 of the FTC Act and negotiated a settlement the Commissioners approved in a 5-0 vote. The consent order includes interesting, perhaps even new language, requiring the company “to delete models and algorithms it developed by using the photos and videos uploaded by its users” according to the FTC’s press release.
    • In the complaint, the FTC asserted:
      • Since 2015, Everalbum has provided Ever, a photo storage and organization application, to consumers.
      • In February 2017, Everalbum launched its “Friends” feature, which operates on both the iOS and Android versions of the Ever app. The Friends feature uses face recognition to group users’ photos by faces of the people who appear in the photos. The user can choose to apply “tags” to identify by name (e.g., “Jane”) or alias (e.g., “Mom”) the individuals who appear in their photos. These tags are not available to other Ever users. When Everalbum launched the Friends feature, it enabled face recognition by default for all users of the Ever mobile app. At that time, Everalbum did not provide users of the Ever mobile app an option to turn off or disable the feature.
      • However, prior to April 2019, Ever mobile app users who were located anywhere other than Texas, Illinois, Washington, and the European Union did not need to, and indeed could not, take any affirmative action to “let[ Everalbum] know” that it should apply face recognition to the users’ photos. In fact, for those users, face recognition was enabled by default and the users lacked the ability to disable it. Thus, the article was misleading for Ever mobile app users located outside of Texas, Illinois, Washington, and the European Union.
      • Between September 2017 and August 2019, Everalbum combined millions of facial images that it extracted from Ever users’ photos with facial images that Everalbum obtained from publicly available datasets in order to create four new datasets to be used in the development of its face recognition technology. In each instance, Everalbum used computer scripts to identify and compile from Ever users’ photos images of faces that met certain criteria (i.e., not associated with a deactivated Ever account, not blurry, not too small, not a duplicate of another image, associated with a specified minimum number of images of the same tagged identity, and, in three of the four instances, not identified by Everalbum’s machines as being an image of someone under the age of thirteen).
      • The FTC summarized its settlement:
        • The proposed settlement requires Everalbum to delete:
          • the photos and videos of Ever app users who deactivated their accounts;
          • all face embeddings—data reflecting facial features that can be used for facial recognition purposes—the company derived from the photos of Ever users who did not give their express consent to their use; and
          • any facial recognition models or algorithms developed with Ever users’ photos or videos.
        • In addition, the proposed settlement prohibits Everalbum from misrepresenting how it collects, uses, discloses, maintains, or deletes personal information, including face embeddings created with the use of facial recognition technology, as well as the extent to which it protects the privacy and security of personal information it collects. Under the proposed settlement, if the company markets software to consumers for personal use, it must obtain a user’s express consent before using biometric information it collected from the user through that software to create face embeddings or develop facial recognition technology.
      • FTC Commissioner Rohit Chopra issued a statement, explaining his view on facial recognition technology and he settlement:
        • As outlined in the complaint, Everalbum made promises that users could choose not to have facial recognition technology applied to their images, and that users could delete the images and their account. In addition to those promises, Everalbum had clear evidence that many of the photo app’s users did not want to be roped into facial recognition. The company broke its promises, which constitutes illegal deception according to the FTC’s complaint. This matter and the FTC’s proposed resolution are noteworthy for several reasons.
        • First, the FTC’s proposed order requires Everalbum to forfeit the fruits of its deception. Specifically, the company must delete the facial recognition technologies enhanced by any improperly obtained photos. Commissioners have previously voted to allow data protection law violators to retain algorithms and technologies that derive much of their value from ill-gotten data. This is an important course correction.
        • Second, the settlement does not require the defendant to pay any penalty. This is unfortunate. To avoid this in the future, the FTC needs to take further steps to trigger penalties, damages, and other relief for facial recognition and data protection abuses. Commissioners have voted to enter into scores of settlements that address deceptive practices regarding the collection, use, and sharing of personal data. There does not appear to be any meaningful dispute that these practices are illegal. However, since Commissioners have not restated this precedent into a rule under Section 18 of the FTC Act, we are unable to seek penalties and other relief for even the most egregious offenses when we first discover them.
        • Finally, the Everalbum matter makes it clear why it is important to maintain states’ authority to protect personal data. Because the people of Illinois, Washington, and Texas passed laws related to facial recognition and biometric identifiers, Everalbum took greater care when it came to these individuals in these states. The company’s deception targeted Americans who live in states with no specific state law protections.
  • The Trump Administration issued the “National Maritime Cybersecurity Plan” that “sets forth how the United States government will defend the American economy through enhanced cybersecurity coordination, policies and practices, aimed at mitigating risks to the maritime sub-sector, promoting prosperity through information and intelligence sharing, and preserving and increasing the nation’s cyber workforce” according to the National Security Advisor Robert O’Brien. It will be up to the Biden Administration to implement, revise, or discard this strategy, but strategy documents such as this that complain anodyne recommendations tend to stay in place for the short-term, at least. It bears note that the uneven margins to the columns in the document suggests a rush to issue this document before the end of the Trump Administration. Nevertheless, O’Brien added:
    • President [Donald] Trump designated the cybersecurity of the Maritime Transportation System (MTS) as a top priority for national defense, homeland security, and economic competitiveness in the 2017 National Security Strategy. The MTS contributes to one quarter of all United States gross domestic product, or approximately $5.4 trillion. MTS operators are increasingly reliant on information technology (IT) and operational technology (OT) to maximize the reliability and efficiency of maritime commerce. This plan articulates how the United States government can buy down the potential catastrophic risks to our national security and economic prosperity created by technology innovations to strengthen maritime commerce efficiency and reliability.
    • The strategy lists a number of priority actions for the executive branch, including:
      • The United States will de- conflict government roles and responsibilities.
      • The United States will develop risk modeling to inform maritime cybersecurity standards and best practices.
      • The United States will strengthen cybersecurity requirements in port services contracts and leasing.
      • The United States will develop procedures to identify, prioritize, mitigate, and investigate cybersecurity risks in critical ship and port systems.
      • Exchange United States government information with the maritime industry.
      • Share cybersecurity intelligence with appropriate non- government entities.
      • Prioritize maritime cybersecurity intelligence collection.
  • The National Security Agency’s NSA Cybersecurity Directorate has issued its very annual review, the “2020 NSA Cybersecurity Year in Review” that encapsulates the first year of operation for the newly created part of the NSA.
    • Highlights include:
      • In 2020, NSA focused on modernizing encryption across the Department of Defense (DOD). It began with a push to eliminate cryptography that is at risk from attack due to adversarial computational advances. This applied to several systems commonly used by the Armed Services today to provide command and control, critical communications, and battlefield awareness. It also applied to operational practices concerning the handling of cryptographic keys and the implementation of modern suites of cryptography in network communications devices.
      • 2020 was notable for the number of Cybersecurity Advisories (CSAs) and other products NSA cybersecurity produced and released. These products are intended to alert network owners, specifically National Security System (NSS), Department of Defense (DOD), and Defense Industrial Base (DIB), of cyber threats and enable defenders to take immediate action to secure their systems.
      • 2020 was notable not just because it was the NSA Cybersecurity Directorate’s first year nor because of COVID-19, but also because it was an election year in the United States. Drawing on lessons learned from the 2016 presidential election and the 2018 mid-term elections, NSA was fully engaged in whole-of-government efforts to protect 2020 election from foreign interference and influence. Cybersecurity was a foundational component of NSA’s overall election defense effort.
      • This past year, NSA cybersecurity prioritized public-private collaboration, invested in cybersecurity research, and made a concerted effort to build trusted partnerships with the cybersecurity community.
      • The NSA touted the following achievements:
        • In November 2019, NSA began laying the groundwork to conduct a pilot with the Defense Cyber Crime Center and five DIB companies to monitor and block malicious network traffic based on continuous automated analysis of the domain names these companies’ networks were contacting. The pilot’s operational phase commenced in March 2020. Over six months, the Protective Domain Name Service (PDNS) examined more than 4 billion DNS queries to and from these companies. The PDNS provider identified callouts to 3,519 malicious domains and blocked upwards of 13 million connections to those domains. The pilot proved the value of DoD expanding the PDNS service to all DIB entities at scale
        • How cyber secure is cyber “ready” for combat? In response to legislation that recognized the imperative of protecting key weapons and space systems from adversary cyber intrusions, NSA partnered closely with the DoD CIO, Joint Staff, Undersecretary of Defense for Acquisition & Sustainment, and the Military Services to structure, design, and execute a new cybersecurity program, focused on the most important weapons and space systems, known as the Strategic Cybersecurity Program (SCP), with the mindset of “stop assessing and start addressing.”The program initially identified 12 key weapons and space systems that must be evaluated for cybersecurity vulnerabilities that need to be mitigated. This is either due to the existence of intelligence indicating they are being targeted by cyber adversaries or because the systems are particularly important to warfighting. These systems cover all warfighting domains (land, sea, air, cyber, and space). Under the auspices of the SCP, NSA and military service partners will conduct cybersecurity evaluations, and, most importantly, maintain cyber risk scoreboards and mitigation plans accountability in reducing cyber risk to acceptable levels
      • The NSA sees the following issue son the horizon:
        • In October 2020, NSA launched an expansive effort across the Executive Branch to understand how we can better inform, drive, and understand the activities of NSS owners to prevent, or respond to, critical cybersecurity events, and cultivate an operationally-aligned community resilient against the most advanced threats. These efforts across the community will come to fruition during the first quarter of 2021 and are expected to unify disparate elements across USG for stronger cybersecurity at scale.
        • NSA Cybersecurity is also focused on combating ransomware, a significant threat to NSS and critical infrastructure. Ransomware activity has become more destructive and impactful in nature and scope. Malicious actors target critical data and propagate ransomware across entire networks, alarmingly focusing recent attacks against U.S. hospitals. In 2020, NSA formed multiple working groups with U.S. Government agencies and other partners to identify ways to make ransomware operations more difficult for our adversaries, less scalable, and less lucrative. While the ransomware threat remains significant, NSA will continue to develop innovative ways to keep the activity at bay.
  • This week, Parler sued Amazon after it rescinded its web hosting services to the social media platform billed as the conservative, unbiased alternative to Twitter. Amazon has responded with an extensive list of the inflammatory, inciting material upon which it based its decision.
    • In its 11 January complaint, Parler asked a federal court “for injunctive relief, including a temporary restraining order and preliminary injunctive relief, and damages” because mainly “AWS’s decision to effectively terminate Parler’s account is apparently motivated by political animus…[and] is also apparently designed to reduce competition in the microblogging services market to the benefit of Twitter” in violation of federal antitrust law.
    • In its 12 January response, Amazon disagreed:
      • This case is not about suppressing speech or stifling viewpoints. It is not about a conspiracy to restrain trade. Instead, this case is about Parler’s demonstrated unwillingness and inability to remove from the servers of Amazon Web Services (“AWS”) content that threatens the public safety, such as by inciting and planning the rape, torture, and assassination of named public officials and private citizens. There is no legal basis in AWS’s customer agreements or otherwise to compel AWS to host content of this nature. AWS notified Parler repeatedly that its content violated the parties’ agreement, requested removal, and reviewed Parler’s plan to address the problem, only to determine that Parler was both unwilling and unable to do so. AWS suspended Parler’s account as a last resort to prevent further access to such content, including plans for violence to disrupt the impending Presidential transition.
    • Amazon offered a sampling of the content on Parler that caused AWS to pull the plug on the platform:
      • “Fry’em up. The whole fkn crew. #pelosi #aoc #thesquad #soros #gates #chuckschumer #hrc #obama #adamschiff #blm #antifa we are coming for you and you will know it.”
      • “#JackDorsey … you will die a bloody death alongside Mark Suckerturd [Zuckerberg]…. It has been decided and plans are being put in place. Remember the photographs inside your home while you slept? Yes, that close. You will die a sudden death!”
      • “We are going to fight in a civil War on Jan.20th, Form MILITIAS now and acquire targets.”
      • “On January 20th we need to start systematicly [sic] assassinating [sic] #liberal leaders, liberal activists, #blm leaders and supporters, members of the #nba #nfl #mlb #nhl #mainstreammedia anchors and correspondents and #antifa. I already have a news worthy event planned.”
      • Shoot the police that protect these shitbag senators right in the head then make the senator grovel a bit before capping they ass.”

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 15 January, the Senate Intelligence Committee will hold a hearing on the nomination of Avril Haines to be the Director of National Intelligence.
  • The Senate Homeland Security and Governmental Affairs Committee will hold a hearing on the nomination of Alejandro N. Mayorkas to be Secretary of Homeland Security on 19 January.
  • On 19 January, the Senate Armed Services Committee will hold a hearing on former General Lloyd Austin III to be Secretary of Defense.
  • On 27 July, the Federal Trade Commission (FTC) will hold PrivacyCon 2021.

Further Reading, Other Developments, and Coming Events (12 January 2021)

Further Reading

  • Biden’s NSC to focus on global health, climate, cyber and human rights, as well as China and Russia” By Karen DeYoung — The Washington Post. Like almost every incoming White House, the Biden team has announced a restructuring of the National Security Council (NSC) to better effectuate the President-elect’s policy priorities. To not surprise, the volume on cybersecurity policy will be turned up. Other notable change is plans to take “cross-cutting” approaches to issues that will likely meld foreign and domestic and national security and civil issues, meaning there could be a new look on offensive cyber operations, for example. It is possible President Biden decides to put the genie back in the bottle, so to speak, by re-imposing an interagency decision-making process as opposed to the Trump Administration’s approach of delegating discretion to the National Security Agency/Cyber Command head. Also, the NSC will focus on emerging technology, a likely response to the technology arms race the United States finds itself in against the People’s Republic of China.
  • Exclusive: Pandemic relief aid went to media that promoted COVID misinformation” By Caitlin Dickson — yahoo! news. The consulting firm Alethea Group and the nonprofit Global Disinformation Index are claiming the COVID stimulus Paycheck Protection Program (PPP) provided loans and assistance to five firms that “were publishing false or misleading information about the pandemic, thus profiting off the infodemic” according to an Alethea Group vice president. This report follows an NBC News article claiming that 14 white supremacist and racist organizations have also received PPP loans. The Alethea Group and Global Disinformation Index named five entities who took PPP funds and kept spreading pandemic misinformation: Epoch Media Group, Newsmax Media, The Federalist, Liftable Media, and Prager University.
  • Facebook shuts Uganda accounts ahead of vote” — France24. The social media company shuttered a number of Facebook and Instagram accounts related to government officials in Uganda ahead of an election on account of “Coordinated Inauthentic Behaviour” (CIB). This follows the platform shutting down accounts related to the French Army and Russia seeking to influence events in Africa. These and other actions may indicate the platform is starting to pay the same attention to the non-western world as at least one former employee has argued the platform was negligent at best and reckless at worst in not properly resourcing efforts to police CIB throughout the Third World.
  • China tried to punish European states for Huawei bans by adding eleventh-hour rule to EU investment deal” By Finbarr Bermingham — South China Morning Post. At nearly the end of talks on a People’s Republic of China (PRC)-European Union (EU) trade deal, PRC negotiators tried slipping in language that would have barred entry to the PRC’s cloud computing market to any country or company from a country that restricts Huawei’s services and products. This is alternately being seen as either standard Chinese negotiating tactics or an attempt to avenge the thwarting of the crown jewel in its telecommunications ambitions.
  • Chinese regulators to push tech giants to share consumer credit data – sources” By Julie Zhu — Reuters. Ostensibly in a move to better manage the risks of too much unsafe lending, tech giants in the People’s Republic of China (PRC) will soon need to share data on consumer loans. It seems inevitable that such data will be used by Beijing to further crack down on undesirable people and elements within the PRC.
  • The mafia turns social media influencer to reinforce its brand” By Miles Johnson — The Financial Times. Even Italy’s feared ’Ndrangheta is creating and curating a social media presence.

Other Developments

  • President Donald Trump signed an executive order (EO) that bans eight applications from the People’s Republic of China on much the same grounds as the EOs prohibiting TikTok and WeChat. If this EO is not rescinded by the Biden Administration, federal courts may block its implementation as has happened with the TikTok and WeChat EOs to date. Notably, courts have found that the Trump Administration exceeded its authority under the International Emergency Economic Powers Act (IEEPA), which may also be an issue in the proposed prohibition on Alipay, CamScanner, QQ Wallet, SHAREit, Tencent QQ, VMate, WeChat Pay, and WPS Office. Trump found:
    • that additional steps must be taken to deal with the national emergency with respect to the information and communications technology and services supply chain declared in Executive Order 13873 of May 15, 2019 (Securing the Information and Communications Technology and Services Supply Chain).  Specifically, the pace and pervasiveness of the spread in the United States of certain connected mobile and desktop applications and other software developed or controlled by persons in the People’s Republic of China, to include Hong Kong and Macau (China), continue to threaten the national security, foreign policy, and economy of the United States.  At this time, action must be taken to address the threat posed by these Chinese connected software applications.
    • Trump directed that within 45 days of issuance of the EO, there shall be a prohibition on “any transaction by any person, or with respect to any property, subject to the jurisdiction of the United States, with persons that develop or control the following Chinese connected software applications, or with their subsidiaries, as those transactions and persons are identified by the Secretary of Commerce (Secretary) under subsection (e) of this section: Alipay, CamScanner, QQ Wallet, SHAREit, Tencent QQ, VMate, WeChat Pay, and WPS Office.”
  • The Government Accountability Office (GAO) issued its first statutorily required annual assessment of how well the United States Department of Defense (DOD) is managing its major information technology (IT) procurements. The DOD spent more than $36 billion of the $90 billion the federal government was provided for IT in FY 2020. The GAO was tasked with assessing how well the DOD did in using iterative development, managing costs and schedules, and implementing cybersecurity measures. The GAO found progress in the first two realms but a continued lag in deploying long recommended best practices to ensure the security of the IT the DOD buys or builds. Nonetheless, the GAO focused on 15 major IT acquisitions that qualify as administrative (i.e. “business”) and communications and information security (i.e. “non-business.”) While there were no explicit recommendations made, the GAO found:
    • Ten of the 15 selected major IT programs exceeded their planned schedules, with delays ranging from 1 month for the Marine Corps’ CAC2S Inc 1 to 5 years for the Air Force’s Defense Enterprise Accounting and Management System-Increment 1.
    • …eight of the 10 selected major IT programs that had tested their then-current technical performance targets reported having met all of their targets…. As of December 2019, four programs had not yet conducted testing activities—Army’s ACWS, Air Force’s AFIPPS Inc 1, Air Force’s MROi, and Navy ePS. Testing data for one program, Air Force’s ISPAN Inc 4, were classified.
    • …officials from the 15 selected major IT programs we reviewed reported using software development approaches that may help to limit risks to cost and schedule outcomes. For example, major business IT programs reported using COTS software. In addition, most programs reported using an iterative software development approach and using a minimum deployable product. With respect to cybersecurity practices, all the programs reported developing cybersecurity strategies, but programs reported mixed experiences with respect to conducting cybersecurity testing. Most programs reported using operational cybersecurity testing, but less than half reported conducting developmental cybersecurity testing. In addition, programs that reported conducting cybersecurity vulnerability assessments experienced fewer increases in planned program costs and fewer schedule delays. Programs also reported a variety of challenges associated with their software development and cybersecurity staff.
    • 14 of the 15 programs reported using an iterative software development approach which, according to leading practices, may help reduce cost growth and deliver better results to the customer. However, programs also reported using an older approach to software development, known as waterfall, which could introduce risk for program cost growth because of its linear and sequential phases of development that may be implemented over a longer period of time. Specifically, two programs reported using a waterfall approach in conjunction with an iterative approach, while one was solely using a waterfall approach.
    • With respect to cybersecurity, programs reported mixed implementation of specific practices, contributing to program risks that might impact cost and schedule outcomes. For example, all 15 programs reported developing cybersecurity strategies, which are intended to help ensure that programs are planning for and documenting cybersecurity risk management efforts.
    • In contrast, only eight of the 15 programs reported conducting cybersecurity vulnerability assessments—systematic examinations of an information system or product intended to, among other things, determine the adequacy of security measures and identify security deficiencies. These eight programs experienced fewer increases in planned program costs and fewer schedule delays relative to the programs that did not report using cybersecurity vulnerability assessments.
  • The United States (U.S.) Department of Energy gave notice of a “Prohibition Order prohibiting the acquisition, importation, transfer, or installation of specified bulk-power system (BPS) electric equipment that directly serves Critical Defense Facilities (CDFs), pursuant to Executive Order 13920.” (See here for analysis of the executive order.) The Department explained:
    • Executive Order No. 13920 of May 1, 2020, Securing the United States Bulk-Power System (85 FR 26595 (May 4, 2020)) (E.O. 13920) declares that threats by foreign adversaries to the security of the BPS constitute a national emergency. A current list of such adversaries is provided in a Request for Information (RFI), issued by the Department of Energy (Department or DOE) on July 8, 2020 seeking public input to aid in its implementation of E.O. 13920. The Department has reason to believe, as detailed below, that the government of the People’s Republic of China (PRC or China), one of the listed adversaries, is equipped and actively planning to undermine the BPS. The Department has thus determined that certain BPS electric equipment or programmable components subject to China’s ownership, control, or influence, constitute undue risk to the security of the BPS and to U.S. national security. The purpose of this Order is to prohibit the acquisition, importation, transfer, or subsequent installation of such BPS electric equipment or programmable components in certain sections of the BPS.
  • The United States’ (U.S.) Department of Commerce’s Bureau of Industry and Security (BIS) added the People’s Republic of China’s (PRC) Semiconductor Manufacturing International Corporation (SMIC) to its Entity List in a move intended to starve the company of key U.S. technology needed to manufacture high end semiconductors. Therefore, any U.S. entity wishing to do business with SMIC will need a license which the Trump Administration may not be likely to grant. The Department of Commerce explained in its press release:
    • The Entity List designation limits SMIC’s ability to acquire certain U.S. technology by requiring U.S. exporters to apply for a license to sell to the company.  Items uniquely required to produce semiconductors at advanced technology nodes—10 nanometers or below—will be subject to a presumption of denial to prevent such key enabling technology from supporting China’s military-civil fusion efforts.
    • BIS also added more than sixty other entities to the Entity List for actions deemed contrary to the national security or foreign policy interest of the United States.  These include entities in China that enable human rights abuses, entities that supported the militarization and unlawful maritime claims in the South China Sea, entities that acquired U.S.-origin items in support of the People’s Liberation Army’s programs, and entities and persons that engaged in the theft of U.S. trade secrets.
    • As explained in the Federal Register notice:
      • SMIC is added to the Entity List as a result of China’s military-civil fusion (MCF) doctrine and evidence of activities between SMIC and entities of concern in the Chinese military industrial complex. The Entity List designation limits SMIC’s ability to acquire certain U.S. technology by requiring exporters, reexporters, and in-country transferors of such technology to apply for a license to sell to the company. Items uniquely required to produce semiconductors at advanced technology nodes 10 nanometers or below will be subject to a presumption of denial to prevent such key enabling technology from supporting China’s military modernization efforts. This rule adds SMIC and the following ten entities related to SMIC: Semiconductor Manufacturing International (Beijing) Corporation; Semiconductor Manufacturing International (Tianjin) Corporation; Semiconductor Manufacturing International (Shenzhen) Corporation; SMIC Semiconductor Manufacturing (Shanghai) Co., Ltd.; SMIC Holdings Limited; Semiconductor Manufacturing South China Corporation; SMIC Northern Integrated Circuit Manufacturing (Beijing) Co., Ltd.; SMIC Hong Kong International Company Limited; SJ Semiconductor; and Ningbo Semiconductor International Corporation (NSI).
  • The United States’ (U.S.) Department of Commerce’s Bureau of Industry and Security (BIS) amended its Export Administration Regulations “by adding a new ‘Military End User’ (MEU) List, as well as the first tranche of 103 entities, which includes 58 Chinese and 45 Russian companies” per its press release. The Department asserted:
    • The U.S. Government has determined that these companies are ‘military end users’ for purposes of the ‘military end user’ control in the EAR that applies to specified items for exports, reexports, or transfers (in-country) to the China, Russia, and Venezuela when such items are destined for a prohibited ‘military end user.’
  • The Australia Competition and Consumer Commission (ACCC) rolled out another piece of the Consumer Data Right (CDR) scheme under the Competition and Consumer Act 2010, specifically accreditation guidelines “to provide information and guidance to assist applicants with lodging a valid application to become an accredited person” to whom Australians may direct data holders share their data. The ACCC explained:
    • The CDR aims to give consumers more access to and control over their personal data.
    • Being able to easily and efficiently share data will improve consumers’ ability to compare and switch between products and services and encourage competition between service providers, leading to more innovative products and services for consumers and the potential for lower prices.
    • Banking is the first sector to be brought into the CDR.
    • Accredited persons may receive a CDR consumer’s data from a data holder at the request and consent of the consumer. Any person, in Australia or overseas, who wishes to receive CDR data to provide products or services to consumers under the CDR regime, must be accredited
  • Australia’s government has released its “Data Availability and Transparency Bill 2020” that “establishes a new data sharing scheme for federal government data, underpinned by strong safeguards to mitigate risks and simplified processes to make it easier to manage data sharing requests” according to the summary provided in Parliament by the government’s point person. In the accompanying “Explanatory Memorandum,” the following summary was provided:
    • The Bill establishes a new data sharing scheme which will serve as a pathway and regulatory framework for sharing public sector data. ‘Sharing’ involves providing controlled access to data, as distinct from open release to the public.
    • To oversee the scheme and support best practice, the Bill creates a new independent regulator, the National Data Commissioner (the Commissioner). The Commissioner’s role is modelled on other regulators such as the Australian Information Commissioner, with whom the Commissioner will cooperate.
    • The data sharing scheme comprises the Bill and disallowable legislative instruments (regulations, Minister-made rules, and any data codes issued by the Commissioner). The Commissioner may also issue non-legislative guidelines that participating entities must have regard to, and may release other guidance as necessary.
    • Participants in the scheme are known as data scheme entities:
      • Data custodians are Commonwealth bodies that control public sector data, and have the right to deal with that data.
      • Accredited users are entities accredited by the Commissioner to access to public sector data. To become accredited, entities must satisfy the security, privacy, infrastructure and governance requirements set out in the accreditation framework.
      • Accredited data service providers (ADSPs) are entities accredited by the Commissioner to perform data services such as data integration. Government agencies and users will be able to draw upon ADSPs’ expertise to help them to share and use data safely.
    • The Bill does not compel sharing. Data custodians are responsible for assessing each sharing request, and deciding whether to share their data if satisfied the risks can be managed.
    • The data sharing scheme contains robust safeguards to ensure sharing occurs in a consistent and transparent manner, in accordance with community expectations. The Bill authorises data custodians to share public sector data with accredited users, directly or through an ADSP, where:
      • Sharing is for a permitted purpose – government service delivery, informing government policy and programs, or research and development;
      • The data sharing principles have been applied to manage the risks of sharing; and
      • The terms of the arrangement are recorded in a data sharing agreement.
    • Where the above requirements are met, the Bill provides limited statutory authority to share public sector data, despite other Commonwealth, State and Territory laws that prevent sharing. This override of non-disclosure laws is ‘limited’ because it occurs only when the Bill’s requirements are met, and only to the extent necessary to facilitate sharing.
  • The United Kingdom’s Competition and Markets Authority’s (CMA) is asking interested parties to provide input on the proposed acquisition of British semiconductor company by a United States (U.S.) company before it launches a formal investigation later this year. However, CMA is limited to competition considerations, and any national security aspects of the proposed deal would need to be investigated by Prime Minister Boris Johnson’s government. CMA stated:
    • US-based chip designer and producer NVIDIA Corporation (NVIDIA) plans to purchase the Intellectual Property Group business of UK-based Arm Limited (Arm) in a deal worth $40 billion. Arm develops and licenses intellectual property (IP) and software tools for chip designs. The products and services supplied by the companies support a wide range of applications used by businesses and consumers across the UK, including desktop computers and mobile devices, game consoles and vehicle computer systems.
    • CMA added:
      • The CMA will look at the deal’s possible effect on competition in the UK. The CMA is likely to consider whether, following the takeover, Arm has an incentive to withdraw, raise prices or reduce the quality of its IP licensing services to NVIDIA’s rivals.
  • The Israeli firm, NSO Group, has been accused by an entity associated with a British university of using real-time cell phone data to sell its COVID-19 contact tracing app, Fleming, in ways that may have broken the laws of a handful of nations. Forensic Architecture,  a research agency, based at Goldsmiths, University of London, argued:
    • In March 2020, with the rise of COVID-19, Israeli cyber-weapons manufacturer NSO Group launched a contact-tracing technology named ‘Fleming’. Two months later, a database belonging to NSO’s Fleming program was found unprotected online. It contained more than five hundred thousand datapoints for more than thirty thousand distinct mobile phones. NSO Group denied there was a security breach. Forensic Architecture received and analysed a sample of the exposed database, which suggested that the data was based on ‘real’ personal data belonging to unsuspecting civilians, putting their private information in risk
    • Forensic Architecture added:
      • Leaving a database with genuine location data unprotected is a serious violation of the applicable data protection laws. That a surveillance company with access to personal data could have overseen this breach is all the more concerning.
      • This could constitute a violation of the General Data Protection Regulation (GDPR) based on where the database was discovered as well as the laws of the nations where NSO Group allegedly collected personal data
    • The NSO Group denied the claims and was quoted by Tech Crunch:
      • “We have not seen the supposed examination and have to question how these conclusions were reached. Nevertheless, we stand by our previous response of May 6, 2020. The demo material was not based on real and genuine data related to infected COVID-19 individuals,” said an unnamed spokesperson. (NSO’s earlier statement made no reference to individuals with COVID-19.)
      • “As our last statement details, the data used for the demonstrations did not contain any personally identifiable information (PII). And, also as previously stated, this demo was a simulation based on obfuscated data. The Fleming system is a tool that analyzes data provided by end users to help healthcare decision-makers during this global pandemic. NSO does not collect any data for the system, nor does NSO have any access to collected 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.

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FY 2021 Omnibus and COVID Stimulus Become Law

The end-of-the-year funding package for FY 2021 is stuffed with technology policy changes.

At the tail end of the calendar year 2020, Congress and the White House finally agreed on FY 2021 appropriations and further COVID-19 relief funding and policies, much of which implicated or involved technology policy. As is often the practice, Congressional stakeholders used the opportunity of must-pass legislation as the vehicle for other legislation that perhaps could not get through a chamber of Congress or surmount the now customary filibuster in the Senate.

Congress cleared the “Consolidated Appropriations Act, 2021” (H.R.133) on 21 December 2020, but President Donald Trump equivocated on whether to sign the package, in part, because it did not provide for $2,000 in aid to every American, a new demand at odds with the one his negotiators worked out with House Democrats and Senate Republicans. Given this disparity, it seems more likely Trump made an issue of the $2,000 assistance to draw attention from a spate of controversial pardons issued to Trump allies and friends. Nonetheless, Trump ultimately signed the package on 27 December.

As one of the only bills or set of bills to annually pass Congress, appropriations acts are often the means by which policy and programmatic changes are made at federal agencies through the ability of the legislative branch to condition the use of such funds as are provided. This year’s package is different only in that it contains much more in the way of ride-along legislation than the average omnibus. In fact, there are hundreds, perhaps even more than 1,000 pages of non-appropriations legislation, some that pertains to technology policy. Moreover, with an additional supplemental bill attached to the FY 2021 omnibus also carries significant technology funding and programming.

First, we will review FY 2021 funding and policy for key U.S. agencies, then discuss COVID-19 related legislation, and then finally all the additional legislation Congress packed into the omnibus.

The Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) would receive $2.025 billion, a bare $9 million increase above FY 2020 with significant reordering of how the agency may spend its funds:

  • The agreement includes a net increase of $224,178,000 above the budget request. This includes $226,256,000 above the request to maintain current services, and $54,516,000 in enhancements that are described in more detail below. Assumed in the current services level of funding are several rejections of proposed reductions to prior year initiatives and the inclusion of necessary annualizations to sustain them, such as: $35,606,000 for threat analysis and response; $5,507,000 for soft targets and crowded places security, including school safety and best practices; $6,852,000 for bombing prevention activities, including the train-the-trainer programs; and $67,371,000 to fully fund the Chemical Facility Anti-Terrorism Standards program. The agreement includes the following reductions below the budget request: $6,937,000 for personnel cost adjustments; $2,500,000 of proposed increases to the CyberSentry program; $11,354,000 of proposed increases for the Vulnerability Management program; $2,000,000 of proposed increases to the Cybersecurity Quality Service Management Office (QSMO); $6,500,000 of proposed increases for cybersecurity advisors; and $27,303,000 for the requested increase for protective security advisors. Of the total amount provided for this account, $22,793,000 is available until September 30, 2022, for the National Infrastructure Simulation Analysis Center.

The FY 2021 omnibus requires of CISA the following:

  • Financial Transparency and Accountability.-The Cybersecurity and Infrastructure Security Agency (CISA) is directed to submit the fiscal year 2022 budget request at the same level of PP A detail provided in the table at the end of this report with no further adjustments to the PP A structure. Further, CISA shall brief the Committees not later than 45 days after the date of enactment of this Act and quarterly thereafter on: a spend plan; detailed hiring plans with a delineation of each mission critical occupation (MCO); procurement plans for all major investments to include projected spending and program schedules and milestones; and an execution strategy for each major initiative. The hiring plan shall include an update on CISA’s hiring strategy efforts and shall include the following for each MCO: the number of funded positions and FTE within each PP A; the projected and obligated funding; the number of actual onboard personnel as of the date of the plan; and the hiring and attrition projections for the fiscal year.
  • Cyber Defense Education and Training (CDET).-The agreement includes $29,457,000 for CISA’s CDET programs, an increase of$20,607,000 above the request that is described in further detail below. Efforts are underway to address the shortage of qualified national cybersecurity professionals in the current and future cybersecurity workforce. In order to move forward with a comprehensive plan for a cybersecurity workforce development effort, the agreement includes $10,000,000 above the request to enhance cybersecurity education and training and programs to address the national shortfall of cybersecurity professionals, including activities funded through the use of grants or cooperative agreements as needed in order to fully comply with congressional intent. CISA should consider building a higher education consortium of colleges and universities, led by at least one academic institution with an extensive history of education, research, policy, and outreach in computer science and engineering disciplines; existing designations as a land-grant institution with an extension role; a center of academic excellence in cyber security operations; a proven track record in hosting cyber corps programs; a record of distinction in research cybersecurity; and extensive experience in offering distance education programs and outreach with K-12 programs. The agreement also includes $4,300,000 above the request for the Cybersecurity Education and Training Assistance Program (CETAP), which was proposed for elimination, and $2,500,000 above the request to further expand and initiate cybersecurity education programs, including CETAP, which improve education delivery methods for K-12 students, teachers, counselors and post-secondary institutions and encourage students to pursue cybersecurity careers.
  • Further, the agreement includes $2,500,000 above the request to support CISA’s role with the National Institute of Standards and Technology, National Initiative for Cybersecurity Education Challenge project or for similar efforts to address shortages in the cybersecurity workforce through the development of content and curriculum for colleges, universities, and other higher education institutions.
  • Lastly, the agreement includes $800,000 above the request for a review of CISA’s program to build a national cybersecurity workforce. CISA is directed to enter into a contract for this review with the National Academy of Public Administration, or a similar non-profit organization, within 45 days of the date of enactment of this Act. The review shall assess: whether the partnership models under development by CISA are positioned to be effective and scalable to address current and anticipated needs for a highly capable cybersecurity workforce; whether other existing partnership models, including those used by other agencies and private industry, could usefully augment CISA’s strategy; and the extent to which CISA’s strategy has made progress on workforce development objectives, including excellence, scale, and diversity. A report with the findings of the review shall be provided to the Committees not later than 270 days after the date of enactment of this Act.
  • Cyber QSMO.-To help improve efforts to make strategic cybersecurity services available to federal agencies, the agreement provides $1,514,000 above the request to sustain and enhance prior year investments. As directed in the House report and within the funds provided, CISA is directed to work with the Management Directorate to conduct a crowd-sourced security testing program that uses technology platforms and ethical security researchers to test for vulnerabilities on departmental systems. In addition, not later than 90 days after the date of enactment of this Act, CISA is directed to brief the Committees on opportunities for state and local governments to leverage shared services provided through the Cyber QSMO or a similar capability and to explore the feasibility of executing a pilot program focused on this goal.
  • Cyber Threats to Critical Election Infrastructure.-The briefing required in House Report 116–458 regarding CISA’s efforts related to the 2020 elections shall be delivered not later than 60 days after the date of enactment of this Act. CISA is directed to continue working with SL TT stakeholders to implement election security measures.
  • Cybersecurity Worliforce.-By not later than September 30, 2021, CISA shall provide a joint briefing, in conjunction with the Department of Commerce and other appropriate federal departments and agencies, on progress made to date on each recommendation put forth in Executive Order 13800 and the subsequent “Supporting the Growth and Sustainment of the Nation’s Cybersecurity Workforce” report.
  • Hunt and Incident Response Teams.-The agreement includes an increase of $3,000,000 above fiscal year 2020 funding levels to expand CISA’s threat hunting capabilities.
  • Joint Cyber Planning Office (JCPO).-The agreement provides an increase of $10,568,000 above the request to establish a JCPO to bring together federal and SLTT governments, industry, and international partners to strategically and operationally counter nation-state cyber threats. CISA is directed to brief the Committees not later than 60 days after the date of enactment of this Act on a plan for establishing the JCPO, including a budget and hiring plan; a description of how JCPO will complement and leverage other CISA capabilities; and a strategy for partnering with the aforementioned stakeholders.
  • Multi-State Information Sharing and Analysis Center (MS-ISAC).-The agreement provides $5,148,000 above the request for the MS-ISAC to continue enhancements to SLTT election security support, and furthers ransomware detection and response capabilities, including endpoint detection and response, threat intelligence platform integration, and malicious domain activity blocking.
  • Software Assurance Tools.-Not later than 90 days after the date of enactment of this Act, CISA, in conjunction with the Science and Technology Directorate, is directed to brief the Committees on their collaborative efforts to transition cyber-related research and development initiatives into operational tools that can be used to provide continuous software assurance. The briefing should include an explanation for any completed projects and activities that were not considered viable for practice or were considered operationally self-sufficient. Such briefing shall include software assurance projects, such as the Software Assurance Marketplace.
  • Updated Lifecycle Cost Estimates.–CISA is directed to provide a briefing, not later than 60 days after the date of enactment of this Act, regarding the Continuous Diagnostics and Mitigation (COM) and National Cybersecurity Protection System (NCPS) program lifecycles. The briefing shall clearly describe the projected evolution of both programs by detailing the assumptions that have changed since the last approved program cost and schedule baseline, and by describing the plans to address such changes. In addition, the briefing shall include an analysis of alternatives for aligning vulnerability management, incident response, and NCPS capabilities. Finally, CISA is directed to provide a report not later than 120 days after the date of enactment of this Act with updated five-year program costs and schedules which is congruent with projected capability gaps across federal civilian systems and networks.
  • Vulnerability Management.-The agreement provides $9,452,000 above fiscal year 2020 levels to continue reducing the 12-month backlog in vulnerability assessments. The agreement also provides an increase of $8,000,000 above the request to address the increasing number of identified and reported vulnerabilities in the software and hardware that operates critical infrastructure. This investment will improve capabilities to identify, analyze, and share information about known vulnerabilities and common attack patterns, including through the National Vulnerability Database, and to expand the coordinated responsible disclosure of vulnerabilities.

There are a pair of provisions aimed at the People’s Republic of China (PRC) in Division B (i.e. the FY 2021 Commerce-Justice-Science Appropriations Act):

  • Section 514 prohibits funds for acquisition of certain information systems unless the acquiring department or agency has reviewed and assessed certain risks. Any acquisition of such an information system is contingent upon the development of a risk mitigation strategy and a determination that the acquisition is in the national interest. Each department or agency covered under section 514 shall submit a quarterly report to the Committees on Appropriations describing reviews and assessments of risk made pursuant to this section and any associated findings or determinations.
  • Section 526 prohibits the use of funds by National Aeronautics and Space Administration (NASA), Office of Science and Technology Policy (OSTP), or the National Space Council (NSC) to engage in bilateral activities with China or a Chinese-owned company or effectuate the hosting of official Chinese visitors at certain facilities unless the activities are authorized by subsequent legislation or NASA, OSTP, or NSC have made a certification…

The National Institute of Standards and Technology (NIST) is asked with a number of duties, most of which relate to current or ongoing efforts in artificial intelligence (AI), cybersecurity, and the Internet of Things:

  • Artificial Intelligence (Al). -The agreement includes no less than $6,500,000 above the fiscal year 2020 level to continue NIST’s research efforts related to AI and adopts House language on Data Characterization Standards in Al. House language on Framework for Managing AI Risks is modified to direct NIST to establish a multi-stakeholder process for the development of an Al Risk Management Framework regarding the reliability, robustness, and trustworthiness of Al systems. Further, within 180 days of enactment of this Act, NIST shall establish the process by which it will engage with stakeholders throughout the multi-year framework development process.
  • Cybersecurity.-The agreement includes no less than the fiscal year 2020 enacted level for cybersecurity research, outreach, industry partnerships, and other activities at NIST, including the National Cybersecurity Center of Excellence (NCCoE) and the National Initiative for Cybersecurity Education (NICE). Within the funds provided, the agreement encourages NIST to establish additional NICE cooperative agreements with regional alliances and multi-stakeholder partnerships for cybersecurity workforce and education.
  • Cybersecurity of Genomic Data.-The agreement includes no less than $1,250,000 for NIST and NCCoE to initiate a use case, in collaboration with industry and academia, to research the cybersecurity of personally identifiable genomic data, with a particular focus on better securing deoxyribonucleic acid sequencing techniques, including clustered regularly interspaced short palindromic repeat (CRISPR) technologies, and genomic data storage architectures from cyber threats. NIST and NCCoE should look to partner with entities who have existing capability to research and develop state-of-the-art cybersecurity technologies for the unique needs of genomic and biomedical-based systems.
  • Industrial Internet of Things (IIoT).-The agreement includes no less than the fiscal year 2020 enacted amount for the continued development of an IloT cybersecurity research initiative and to partner, as appropriate, with academic entities and industry to improve the sustainable security of IloT devices in industrial settings.

NIST would receive a modest increase in funding from $1.034 billion to $1.0345 billion from the last fiscal year to the next.

The National Telecommunications and Information Administration (NTIA) would be provided $45.5 million and “the agreement provides (1) up to $7,500,000 for broadband mapping in coordination with the Federal Communications Commission (FCC); (2) no less than the fiscal year 2020 enacted amount for Broadband Programs; (3) $308,000 for Public Safety Communications; and (4) no less than $3,000,000 above the fiscal year 2020 enacted level for Advanced Communications Research.” The agency’s funding for FY 2021 is higher than the last fiscal year at a bit more than $40 million but far less than the Trump Administration’s request of more than $70 million.

Regarding NTIA programmatic language, the bill provides:

  • Further, the agreement directs the additional funds for Advanced Communications Research be used to procure and maintain cutting-edge equipment for research and testing of the next generation of communications technologies, including 5G, as well as to hire staff as needed. The agreement further encourages NTIA to improve the deployment of 5G and spectrum sharing through academic partnerships to accelerate the development of low-cost sensors. For fiscal year 2021, NTIA is directed to follow prior year report language, included in Senate Report 116-127 and adopted in Public Law 116-93, on the following topics: Federal Spectrum Management, Spectrum Management for Science, and the Internet Corporation for Assigned Names and Numbers (ICANN).
  • Spectrum Management System.-The agreement encourages NTIA and the Department to consider alternative proposals to fully fund the needed upgrades to its spectrum management system, including options outside of direct appropriations, and is directed to brief the Committees regarding possible alternative options no later than 90 days after enactment of this Act.
  • Next Generation Broadband in Rural Areas.-NTIA is encouraged to ensure that deployment of last-mile broadband infrastructure is targeted to areas that are currently unserved or underserved, and to utilize public-private partnerships and projects where Federal funding will not exceed 50 percent of a project’s total cost where practicable.
  • National Broadband Map Augmentation.-NTIA is directed to engage with rural and Tribal communities to further enhance the accuracy of the national broadband availability map. NTIA should include in its fiscal year 2022 budget request an update on rural-and Tribal-related broadband availability and access trends, challenges, and Federal actions to achieve equitable access to broadband services in currently underserved communities throughout the Nation. Furthermore, NTIA is encouraged, in coordination with the FCC, to develop and promulgate a standardized process for collecting data from State and local partners.
  • Domain Name Registration.-NTIA is directed, through its position within the Governmental Advisory Committee to work with ICANN to expedite the establishment of a global access model that provides law enforcement, intellectual property rights holders, and third parties with timely access to accurate domain name registration information for legitimate purposes. NTIA is encouraged, as appropriate, to require registrars and registries based in the United States to collect and make public accurate domain name registration information.

The Federal Trade Commission (FTC) would receive $351 million, an increase of $20 million over FY 2020. The final bill includes this policy provision for the FTC to heed:

  • Resources for Data Privacy and Security. -The agreement urges the FTC to conduct a comprehensive internal assessment measuring the agency’s current efforts related to data privacy and security while separately identifying all resource-based needs of the FTC to improve in these areas. The agreement also urges the FTC to provide a report describing the assessment’s findings to the Committees within 180 days of enactment of this Act.

The Federal Communications Commission (FCC) would see a larger increase in funding for agency operations than the FTC, going from $339 million in FY 2020 to $374 million in FY 2021. However, $33 million of the increase is earmarked for implementing the “Broadband DATA Act” (P.L.116-130) along with the $65 million in COVID-19 supplemental funding for the same purpose. The FY 2021 omnibus directs the FCC on a range of policy issues:

  • Broadband Maps.-In addition to adopting the House report language on Broadband Maps, the agreement provides substantial dedicated resources for the FCC to implement the Broadband DATA Act. The FCC is directed to submit a report to the Committees on Appropriations within 90 days of enactment of this Act providing a detailed spending plan for these resources. In addition, the FCC, in coordination with the NTIA, shall outline the specific roles and responsibilities of each agency as it relates to the National Broadband Map and implementation of the Broadband DATA Act. The FCC is directed to report in writing to the Committees every 30 days on the date, amount, and purpose of any new obligation made for broadband mapping and any updates to the broadband mapping spending plan.
  • Lifeline Service. In lieu of the House report language on Lifeline Service, the agreement notes recent action by the FCC to partially waive its rules updating the Lifeline program’s minimum service standard for mobile broadband usage in light of the large increase to the standard that would have gone into effect on Dec. I, 2020, and the increased reliance by Americans on mobile broadband as a result of the pandemic. The FCC is urged to continue to balance the Lifeline program’s goals of accessibility and affordability.
  • 5G Fund and Rural America.-The agreement remains concerned about the feasible deployment of 5G in rural America. Rural locations will likely run into geographic barriers and infrastructure issues preventing the robust deployment of 5G technology, just as they have faced with 4G. The FCC’s proposed 5G Fund fails to provide adequate details or a targeted spend plan on creating seamless coverage in the most rural parts of the Nation. Given these concerns, the FCC is directed to report in writing on: (1) its current and future plans fix prioritizing deployment of 4G coverage in rural areas, (2) its plans for 5G deployment in rural areas, and (3) its plan for improving the mapping and long-term tracking of coverage in rural areas.
  • 6 Gigahertz. -As the FCC has authorized unlicensed use of the 6 gigahertz band, the agreement expects the Commission to ensure its plan does not result in harmful interference to incumbent users or impact critical infrastructure communications systems. The agreement is particularly concerned about the potential effects on the reliability of the electric transmission and distribution system. The agreement expects the FCC to ensure any mitigation technologies are rigorously tested and found to be effective in order to protect the electric transmission system. The FCC is directed to provide a report to the Committees within 90 days of enactment of this Act on its progress in ensuring rigorous testing related to unlicensed use of the 6 gigahertz band. Rural Broadband-The agreement remains concerned that far too many Americans living in rural and economically disadvantaged areas lack access to broadband at speeds necessary to fully participate in the Internet age. The agreement encourages the agency to prioritize projects in underserved areas, where the infrastructure to be installed provides access at download and upload speeds comparable to those available to Americans in urban areas. The agreement encourages the FCC to avoid efforts that could duplicate existing networks and to support deployment of last-mile broadband infrastructure to underserved areas. Further, the agreement encourages the agency to prioritize projects financed through public-private partnerships.
  • Contraband Cell Phones. -The agreement notes continued concern regarding the exploitation of contraband cell phones in prisons and jails nationwide. The agreement urges the FCC to act on the March 24, 2017 Further Notice of Proposed Rulemaking regarding combating contraband wireless devices. The FCC should consider all legally permissible options, including the creation, or use, of “quiet or no service zones,” geolocation-based denial, and beacon technologies to geographically appropriate correctional facilities. In addition, the agreement encourages the FCC to adopt a rules-based approach to cellphone disabling that would require immediate disabling by a wireless carrier upon proper identification of a contraband device. The agreement recommends that the FCC move forward with its suggestion in the Fiscal Year 2019 report to this Committee, noting that “additional field testing of jamming technology will provide a better understanding of the challenges and costs associated with the proper deployment of jamming system.” The agreement urges the FCC to use available funds to coordinate rigorous Federal testing of jamming technology and coordinate with all relevant stakeholders to effectively address this urgent problem.
  • Next-Generation Broadband Networks/or Rural America-Deployment of broadband and telecommunications services in rural areas is imperative to support economic growth and public safety. However, due to geographical challenges facing mobile connectivity and fiber providers, connectivity in certain areas remains challenging. Next generation satellite-based technology is being developed to deliver direct satellite to cellular capability. The FCC is encouraged to address potential regulatory hurdles, to promote private sector development and implementation of innovative, next generation networks such as this, and to accelerate broadband and telecommunications access to all Americans.

$635 million is provided for a Department of Agriculture rural development pilot program, and he Secretary will need to explain how he or she will use authority provided in the last farm bill to expand broadband:

  • The agreement provides $635,000,000 to support the ReConnect pilot program to increase access to broadband connectivity in unserved rural communities and directs the Department to target grants and loans to areas of the country with the largest broadband coverage gaps. These projects should utilize technology that will maximize coverage of broadband with the most benefit to taxpayers and the rural communities served. The agreement notes stakeholder concerns that the ReConnect pilot does not effectively recognize the unique challenges and opportunities that different technologies, including satellite, provide to delivering broadband in noncontiguous States or mountainous terrain and is concerned that providing preference to 100 mbps symmetrical service unfairly disadvantages these communities by limiting the deployment of other technologies capable of providing service to these areas.
  • The Agriculture Improvement Act of 2018 (Public Law 115-334) included new authorities for rural broadband programs that garnered broad stakeholder support as well as bipartisan, bicameral agreement in Congress. Therefore, the Secretary is directed to provide a report on how the Department plans to utilize these authorities to deploy broadband connectivity to rural communities.

In Division M of the package, the “Coronavirus Response and Relief Supplemental Appropriations Act, 2021,” there are provisions related to broadband policy and funding. The bill created a $3.2 billion program to help low-income Americans with internet service and buying devices for telework or distance education. The “Emergency Broadband Benefit Program” is established at the FCC, “under which eligible households may receive a discount of up to $50, or up to $75 on Tribal lands, off the cost of internet service and a subsidy for low-cost devices such as computers and tablets” according to a House Appropriations Committee summary. This funding is far short of what House Democrats wanted. And yet, this program aims to help those on the wrong side of the digital divide during the pandemic.

Moreover, this legislation also establishes two grant programs at the NTIA, designed to help provide broadband on tribal lands and in rural areas. $1 billion is provided for the former and $300 million for the latter with the funds going to tribal and state and local governments to obtain services from private sector providers. The $1 billion for tribal lands allows for greater flexibility in what the funds are ultimately spent on with the $320 million for underserved rural areas being restricted to broadband deployment. Again, these funds are aimed at bridging the disparity in broadband service exposed and exacerbated during the pandemic.

Congress also provided funds for the FCC to reimburse smaller telecommunications providers in removing and replacing risky telecommunications equipment from the People’s Republic of China (PRC). Following the enactment of the “Secure and Trusted Communications Networks Act of 2019” (P.L.116-124) that codified and added to a FCC regulatory effort to address the risks posed by Huawei and ZTE equipment in United States (U.S.) telecommunications networks, there was pressure in Congress to provide the funds necessary to help carriers meet the requirements of the program. The FY 2021 omnibus appropriates $1.9 billion for this program. In another but largely unrelated tranche of funding, the aforementioned $65 million given to the FCC to undertake the “Broadband DATA Act.”

Division Q contains text similar to the “Cybersecurity and Financial System Resilience Act of 2019” (H.R.4458) that would require “the Board of Governors of the Federal Reserve System, Office of the Comptroller of the Currency, Federal Deposit Insurance Corporation, and National Credit Union Administration to annually report on efforts to strengthen cybersecurity by the agencies, financial institutions they regulate, and third-party service providers.”

Division U contains two bills pertaining to technology policy:

  • Title I. The AI in Government Act of 2020. This title codifies the AI Center of Excellence within the General Services Administration to advise and promote the efforts of the federal government in developing innovative uses of artificial intelligence (AI) and competency in the use of AI in the federal government. The section also requires that the Office of Personnel Management identify key skills and competencies needed for federal positions related to AI and establish an occupational series for positions related to AI.
  • Title IX. The DOTGOV Act. This title transfers the authority to manage the .gov internet domain from the General Services Administration to the Cybersecurity and Infrastructure Security Agency (CISA) of the Department of Homeland Security. The .gov internet domain shall be available to any Federal, State, local, or territorial government entity, or other publicly controlled entity, subject to registration requirements established by the Director of CISA and approved by the Director of the Office of Management and Budget.

Division W is the FY 2021 Intelligence Authorization Act with the following salient provisions:

  • Section 323. Report on signals intelligence priorities and requirements. Section 323 requires the Director of National Intelligence (DNI) to submit a report detailing signals intelligence priorities and requirements subject to Presidential Policy Directive-28 (PPD-28) that stipulates “why, whether, when, and how the United States conducts signals intelligence activities.” PPD-28 reformed how the National Security Agency (NSA) and other Intelligence Community (IC) agencies conducted signals intelligence, specifically collection of cellphone and internet data, after former NSA contractor Edward Snowden exposed the scope of the agency’s programs.
  • Section 501. Requirements and authorities to improve education in science, technology, engineering, arts, and mathematics. Section 501 ensures that the Director of the Central Intelligence Agency (CIA) has the legal authorities required to improve the skills in science, technology, engineering, arts, and mathematics (known as STEAM) necessary to meet long-term national security needs. Section 502. Seedling investment in next-generation microelectronics in support of artificial intelligence. Section 502 requires the DNI, acting through the Director of the Intelligence Advanced Research Projects Activity, to award contracts or grants, or enter into other transactions, to encourage microelectronics research.
  • Section 601. Report on attempts by foreign adversaries to build telecommunications and cybersecurity equipment and services for, or to provide them to, certain U.S. Section 601 requires the CIA, NSA, and DIA to submit a joint report that describes the United States intelligence sharing and military posture in Five Eyes countries that currently have or intend to use adversary telecommunications or cybersecurity equipment, especially as provided by China or Russia, with a description of potential vulnerabilities of that information and assessment of mitigation options.
  • Section 602. Report on foreign use of cyber intrusion and surveillance technology. Section 602 requires the DNI to submit a report on the threats posed by foreign governments and foreign entities using and appropriating commercially available cyber intrusion and other surveillance technology.
  • Section 603. Reports on recommendations of the Cyberspace Solarium Commission. Section 603 requires the ODNI and representatives of other agencies to report to Congress their assessment of the recommendations submitted by the Cyberspace Solarium Commission pursuant to Section 1652(j) of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year 2019, and to describe actions that each agency expects to take to implement these recommendations.
  • Section 604. Assessment of critical technology trends relating to artificial intelligence, microchips, and semiconductors and related matters. Section 604 requires the DNI to complete an assessment of export controls related to artificial intelligence (AI), microchips, advanced manufacturing equipment, and other AI-enabled technologies, including the identification of opportunities for further cooperation with international partners.
  • Section 605. Combating Chinese influence operations in the United States and strengthening civil liberties protections. Section 605 provides additional requirements to annual reports on Influence Operations and Campaigns in the United States by the Chinese Communist Party (CCP) by mandating an identification of influence operations by the CCP against the science and technology sector in the United States. Section 605 also requires the FBI to create a plan to increase public awareness of influence activities by the CCP. Finally, section 605 requires the FBI, in consultation with the Assistant Attorney General for the Civil Rights and the Chief Privacy and Civil Liberties Officer of the Department of Justice, to develop recommendations to strengthen relationships with communities targeted by the CCP and to build trust with such communities through local and regional grassroots outreach.
  • Section 606. Annual report on corrupt activities of senior officials of the CCP. Section 606 requires the CIA, in coordination with the Department of Treasury’s Office of Intelligence and Analysis and the FBI, to submit to designated congressional committees annually through 2025 a report that describes and assesses the wealth and corruption of senior officials of the CCP, as well as targeted financial measures, including potential targets for sanctions designation. Section 606 further expresses the Sense of Congress that the United States should undertake every effort and pursue every opportunity to expose the corruption and illicit practices of senior officials of the CCP, including President Xi Jinping.
  • Section 607. Report on corrupt activities of Russian and other Eastern European oligarchs. Section 607 requires the CIA, in coordination with the Department of the Treasury’s Office of Intelligence and Analysis and the FBI, to submit to designated congressional committees and the Under Secretary of State for Public Diplomacy, a report that describes the corruption and corrupt or illegal activities among Russian and other Eastern European oligarchs who support the Russian government and Russian President Vladimir Putin, and the impact of those activities on the economy and citizens of Russia. Section 607 further requires the CIA, in coordination with the Department of Treasury’s Office of Intelligence and Analysis, to describe potential sanctions that could be imposed for such activities. Section 608. Report on biosecurity risk and disinformation by the CCP and the PRC. Section 608 requires the DNI to submit to the designated congressional committees a report identifying whether and how CCP officials and the Government of the People’s Republic of China may have sought to suppress or exploit for national advantage information regarding the novel coronavirus pandemic, including specific related assessments. Section 608 further provides that the report shall be submitted in unclassified form, but may have a classified annex.
  • Section 612. Research partnership on activities of People’s Republic of China. Section 612 requires the Director of the NGA to seek to enter into a partnership with an academic or non-profit research institution to carry out joint unclassified geospatial intelligence analyses of the activities of the People’s Republic of China that pose national security risks to the United States, and to make publicly available unclassified products relating to such analyses.

Division Z would tweak a data center energy efficiency and energy savings program overseen by the Secretary of Energy and the Administrator of the Environmental Protection Agency that could impact the Office of Management and Budget’s (OMB) government-wide program. Specifically, “Section 1003 requires the development of a metric for data center energy efficiency, and requires the Secretary of Energy, Administrator of the Environmental Protection Agency (EPA), and Director of the Office of Management and Budget (OMB) to maintain a data center energy practitioner program and open data initiative for federally owned and operated data center energy usage.” There is also language that would require the U.S. government to buy and use more energy-efficient information technology (IT): “each Federal agency shall coordinate with the Director [of OMB], the Secretary, and the Administrator of the Environmental Protection Agency to develop an implementation strategy (including best-practices and measurement and verification techniques) for the maintenance, purchase, and use by the Federal agency of energy-efficient and energy-saving information technologies at or for facilities owned and operated by the Federal agency, taking into consideration the performance goals.”

Division FF contains telecommunications provisions:

  • Section 902. Don’t Break Up the T-Band Act of 2020. Section 902 repeals the requirement for the FCC to reallocate and auction the 470 to 512megahertz band, commonly referred to as the T-band. In certain urban areas, the T-band is utilized by public-safety entities. It also directs the FCC to implement rules to clarify acceptable expenditures on which 9-1- 1 fees can be spent, and creates a strike force to consider how the Federal Government can end 9-1-1 fee diversion.
  • Section 903. Advancing Critical Connectivity Expands Service, Small Business Resources, Opportunities, Access, and Data Based on Assessed Need and Demand (ACCESS BROADBAND) Act. Section 903 establishes the Office of Internet Connectivity and Growth (Office) at the NTIA. This Office would be tasked with performing certain responsibilities related to broadband access, adoption, and deployment, such as performing public outreach to promote access and adoption of high-speed broadband service, and streamlining and standardizing the process for applying for Federal broadband support. The Office would also track Federal broadband support funds, and coordinate Federal broadband support programs within the Executive Branch and with the FCC to ensure unserved Americans have access to connectivity and to prevent duplication of broadband deployment programs.
  • Section 904. Broadband Interagency Coordination Act. Section 904 requires the Federal Communications Commission (FCC), the National Telecommunications and Information Administration (NTIA), and the Department of Agriculture to enter into an interagency agreement to coordinate the distribution of federal funds for broadband programs, to prevent duplication of support and ensure stewardship of taxpayer dollars. The agreement must cover, among other things, the exchange of information about project areas funded under the programs and the confidentiality of such information. The FCC is required to publish and collect public comments about the agreement, including regarding its efficacy and suggested modifications.
  • Section 905. Beat CHINA for 5G Act of 2020. Section 905 directs the President, acting through the Assistant Secretary of Commerce for Communications and Information, to withdraw or modify federal spectrum assignments in the 3450 to 3550 megahertz band, and directs the FCC to begin a system of competitive bidding to permit non-Federal, flexible-use services in a portion or all of such band no later than December 31, 2021.

Section 905 would countermand the White House’s efforts to auction off an ideal part of spectrum for 5G (see here for analysis of the August 2020 announcement). Congressional and a number of Trump Administration stakeholders were alarmed by what they saw as a push to bestow a windfall on a private sector company in the rollout of 5G.

Title XIV of Division FF would allow the FTC to seek civil fines of more than $43,000 per violation during the duration of the public health emergency arising from the pandemic “for unfair and deceptive practices associated with the treatment, cure, prevention, mitigation, or diagnosis of COVID–19 or a government benefit related to COVID-19.”

Finally, Division FF is the vehicle for the “American COMPETES Act” that:

directs the Department of Commerce and the FTC to conduct studies and submit reports on technologies including artificial intelligence, the Internet of Things, quantum computing, blockchain, advanced materials, unmanned delivery services, and 3-D printing. The studies include requirements to survey each industry and report recommendations to help grow the economy and safely implement the technology.

© 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 forcal35 from Pixabay

Further Reading, Other Developments, and Coming Events (10 December)

Further Reading

  • Social media superspreaders: Why Instagram, not Facebook, will be the real battleground for COVID-19 vaccine misinformation” By Isobel Asher Hamilton — Business Insider. According to one group, COVID-19 anti-vaccination lies and misinformation are proliferating on Instagram despite its parent company’s, Facebook, efforts to find and remove such content. There has been dramatic growth in such content on Instagram, and Facebook seems to be applying COVID-19 standards more loosely on Instagram. In fact, some people kicked off of Facebook for violating that platform’s standards on COVID-19 are still on Instagram spreading the same lies, misinformation, and disinformation. For example, British anti-vaccination figure David Icke was removed from Facebook for making claims that COVID-19 was caused by or related to 5G, but he has a significant following on Instagram.
  • ‘Grey area’: China’s trolling drives home reality of social media war” By Chris Zappone — The Sydney Morning Herald. The same concept that is fueling aggressive cyber activity at a level below outright war has spread to diplomacy. The People’s Republic of China (PRC) has been waging “gray” social media campaigns against a number of Western nations, including Australia, mainly be propagating lies and misinformation. The most recent example is the spreading a fake photo of an Australian soldier appearing to kill an Afghan child. This false material seems designed to distract from the real issues between the two nations arising from clashing policies on trade and human rights. The PRC’s activities do not appear to violate Australia’s foreign interference laws and seem to have left Canberra at a loss as to how to respond effectively.
  • Facebook to start policing anti-Black hate speech more aggressively than anti-White comments, documents show” By Elizabeth Dwoskin, Nitasha Tiku and Heather Kelly — The Washington Post. Facebook will apparently seek to revamp its algorithms to target the types of hate speech that have traditionally targeted women and minority groups. Up until now all attacks were treated equally so that something like “white people suck” would be treated the same way as anti-Semitic content. Facebook has resisted changes for years even though experts and civil rights groups made the case that people of color, women, and LGBTI people endure far more abuse online. There is probably no connection between Facebook’s more aggressive content moderation policies and the advent of a new administration in Washington more receptive to claims that social media platforms allow the abuse of these people.
  • How Joe Biden’s Digital Team Tamed the MAGA Internet” By Kevin Roose — The New York Times. Take this piece with a block of salt. The why they won articles are almost always rife with fallacies, including the rationale that if a candidate won, his or her strategy must have worked. It is not clear that the Biden Campaign’s online messaging strategy of being nice and emphasizing positive values actually beat the Trump Campaign’s “Death Star” so much as the President’s mishandling of the pandemic response and cratering of the economy did him in.
  • Coronavirus Apps Show Promise but Prove a Tough Sell” By Jennifer Valentino-DeVries — The New York Times. It appears the intersection of concerns about private and public sector surveillance from two very different groups has worked to keep down rates of adopting smartphone COVID tracking apps in the United States. There are people wary of private sector practices to hoover up as much data as possible, and others concerned about the government’s surveillance activities. Consequently, many are shunning Google and Apple’s COVID contact tracing apps to the surprise of government, industry, and academia. A pair of studies show resistance to downloading or using such apps even if there are very strong privacy safeguards. This result may well be a foreseeable outcome from U.S. policies that have allowed companies and the security services to collect and use vast quantities of personal information.
  • UAE target of cyber attacks after Israel deal, official says” — Reuters. A top cybersecurity official in the United Arab Emirates claimed his nation’s financial services industries were targeted for cyber attack and implied Iran and affiliated hackers were responsible.

Other Developments

  • President-elect Joe Biden announced his intention to nominate California Attorney General Xavier Becerra to serve as the next Secretary of Health and Human Services (HHS). If confirmed by the Senate, California Governor Gavin Newsom would name Becerra’s successor who would need to continue enforcement of the “California Consumer Privacy Act” (CCPA) (AB 375) while also working towards the transition to the “California Privacy Rights Act” (Proposition 24) approved by California voters last month. The new statute establishes the California Privacy Protection Agency that will assume the Attorney General’s responsibilities regarding the enforcement of California’s privacy laws. However, Becerra’s successor may play a pivotal role in the transition between the two regulators and the creation of the new regulations needed to implement Proposition 24.
  • The Senate approved the nomination of Nathan Simington to be a Commissioner of the Federal Communications Commission (FCC) by a 49-46 vote. Once FCC Chair Ajit Pai steps down, the agency will be left with two Democratic and two Republican Commissioners, pending the Biden Administration’s nominee to fill Pai’s spot. If the Senate stays Republican, it is possible the calculation could be made that a deadlocked FCC is better than a Democratic agency that could revive net neutrality rules among other Democratic and progressive policies. Consequently, Simington’s confirmation may be the first step in a FCC unable to develop substantive policy.
  • Another federal court has broadened the injunction against the Trump Administration’s ban on TikTok to encompass the entirety of the Department of Commerce’s September order meant to stop the usage of the application in the United States (U.S.) It is unclear as to whether the Trump Administration will appeal, and if it should, whether a court would decide the case before the Biden Administration begins in mid-January. The United States Court for the District of Columbia found that TikTok “established that  the government likely exceeded IEEPA’s express limitations as part of an agency action that was arbitrary and capricious” and would likely suffer irreparable harm, making an injunction an appropriate remedy.
  • The United States’ National Security Agency (NSA) “released a Cybersecurity Advisory on Russian state-sponsored actors exploiting CVE-2020-4006, a command-injection vulnerability in VMware Workspace One Access, Access Connector, Identity Manager, and Identity Manager Connector” and provided “mitigation and detection guidance.”
  • The United States (U.S.) Cybersecurity and Infrastructure Security Agency (CISA) and the Federal Bureau of Investigation (FBI) issued a joint alert, warning that U.S. think tanks are being targeted by “persistent continued cyber intrusions by advanced persistent threat (APT) actors.” The agencies stated “[t]his malicious activity is often, but not exclusively, directed at individuals and organizations that focus on international affairs or national security policy.” CISA and the FBI stated its “guidance may assist U.S. think tanks in developing network defense procedures to prevent or rapidly detect these attacks.” The agencies added:
    • APT actors have relied on multiple avenues for initial access. These have included low-effort capabilities such as spearphishing emails and third-party message services directed at both corporate and personal accounts, as well as exploiting vulnerable web-facing devices and remote connection capabilities. Increased telework during the COVID-19 pandemic has expanded workforce reliance on remote connectivity, affording malicious actors more opportunities to exploit those connections and to blend in with increased traffic. Attackers may leverage virtual private networks (VPNs) and other remote work tools to gain initial access or persistence on a victim’s network. When successful, these low-effort, high-reward approaches allow threat actors to steal sensitive information, acquire user credentials, and gain persistent access to victim networks.
    • Given the importance that think tanks can have in shaping U.S. policy, CISA and FBI urge individuals and organizations in the international affairs and national security sectors to immediately adopt a heightened state of awareness and implement the critical steps listed in the Mitigations section of this Advisory.
  • A group of Democratic United States Senators have written the CEO of Alphabet and Google about its advertising policies and how its platforms may have been used to spread misinformation and contribute to voter suppression. Thus far, most of the scrutiny about the 2020 election and content moderation policy has fallen on Facebook and Twitter even though Google-owned YouTube has been flagged as containing the same amount of misinformation. Senators Amy Klobuchar (D-MN) and Mark Warner (D-VA) led the effort and expressed “serious concerns regarding recent reports that Google is profiting from the sale of ads spreading election-related disinformation” to Alphabet and Google CEO Sundar Pichai. Klobuchar, Warner, and their colleagues asserted:
    • Google is also helping organizations spreading election-related disinformation to raise revenue by placing ads on their websites. While Google has some policies in place to prevent the spread of election misinformation, they are not properly enforced and are inadequate. We urge you to immediately strengthen and improve enforcement of your policies on election-related disinformation and voter suppression, reject all ads spreading election-related disinformation, and stop providing advertising services on sites that spread election-related disinformation.
    • …a recent study by the Global Disinformation Index (GDI) found that Google services ads on 145 out of 200 websites GDI examined that publish disinformation. 
    • Similarly, a recent report from the Center for Countering Digital Hate (CCDH) found that Google has been placing ads on websites publishing disinformation designed to undermine elections. In examining just six websites publishing election-related disinformation, CCDH estimates that they receive 40 million visits a month, generating revenue for these sites of up to $3.4 million annually from displaying Google ads. In addition, Google receives $1.6 million from the advertisers’ payments annually.  These sites published stories ahead of the 2020 general election that contained disinformation alleging that voting by mail was not secure, that mail-in voting was being introduced to “steal the election,” and that election officials were “discarding mail ballots.” 
  • A bipartisan group of United States Senators on one committee are urging Congressional leadership to include funding to help telecommunications companies remove and replace Huawei and ZTE equipment and to aid the Federal Communications Commission (FCC) in drafting accurate maps of broadband service in the United States (U.S.). Senate Commerce, Science, and Transportation Committee Chair Roger Wicker (R-MS) and a number of his colleagues wrote the leadership of both the Senate and House and argued:
    • we urge you to provide full funding for Public Law 116-124, the Secure and Trusted Communications Networks Act, and Public Law 116-130, the Broadband DATA Act.   
    • Closing the digital divide and winning the race to 5G are critical to America’s economic prosperity and global leadership in technology. However, our ability to connect all Americans and provide access to next-generation technology will depend in large part on the security of our communications infrastructure. The Secure and Trusted Communications Networks Act (“rip and replace”) created a program to help small, rural telecommunications operators remove equipment posing a security threat to domestic networks and replace it with equipment from trusted providers. This is a national security imperative. Fully funding this program is essential to protecting the integrity of our communications infrastructure and the future viability of our digital economy at large.
    • In addition to safeguarding the security of the nation’s communications systems, developing accurate broadband maps is also critically important. The United States faces a persistent digital divide, and closing this divide requires accurate maps that show where broadband is available and where it is not. Current maps overstate broadband availability, which prevents many underserved communities, particularly in rural areas, from receiving the funds needed to build or expand broadband networks to millions of unconnected Americans. Fully funding the Broadband DATA Act will ensure more accurate broadband maps and better stewardship over the millions of dollars the federal government awards each year to support broadband deployment. Without these maps, the government risks overbuilding existing networks, duplicating funding already provided, and leaving communities unserved.  
  • The Government Accountability Office (GAO) released an assessment of 5G policy options that “discusses (1) how the performance goals and expected uses are to be realized in U.S. 5Gwireless networks; (2) the challenges that could affect the performance or usage of 5G wireless networks in the U.S.; and (3) policy options to address these challenges.” The report had been requested by the chairs and ranking members of the House Armed Services, Senate Armed Services, Senate Intelligence, and House Intelligence Committees along with other Members. The GAO stated “[w]hile 5G is expected to deliver significantly improved network performance and greater capabilities, challenges may hinder the performance or usage of 5G technologies in the U.S. We grouped the challenges into the following four categories:
    • availability and efficient use of spectrum
    • security of 5G networks
    • concerns over data privacy
    • concerns over possible health effects
    • The GAO presented the following policy options along with opportunities and considerations for each:
      • Spectrum-Sharing Technologies Opportunities:
        • Could allow for more efficient use of the limited spectrum available for 5G and future generations of wireless networks.
        • It may be possible to leverage existing5G testbeds for testing the spectrum sharing technologies developed through applied research.
      • Spectrum-Sharing Technologies Considerations:
        • Research and development is costly, must be coordinated and administered, and its potential benefits are uncertain. Identifying a funding source, setting up the funding mechanism, or determining which existing funding streams to reallocate will require detailed analysis.
      • Coordinated Cybersecurity Monitoring Opportunities:
        • A coordinated monitoring program would help ensure the entire wireless ecosystem stays knowledgeable about evolving threats, in close to real time; identify cybersecurity risks; and allow stakeholders to act rapidly in response to emerging threats or actual network attacks.
      • Coordinated Cybersecurity Monitoring Considerations:
        • Carriers may not be comfortable reporting incidents or vulnerabilities, and determinations would need to be made about what information is disclosed and how the information will be used and reported.
      • Cybersecurity Requirements Opportunities
        • Taking these steps could produce a more secure network. Without a baseline set of security requirements the implementation of network security practices is likely to be piecemeal and inconsistent.
        • Using existing protocols or best practices may decrease the time and cost of developing and implementing requirements.
      • Cybersecurity Requirements Considerations
        • Adopting network security requirements would be challenging, in part because defining and implementing the requirements would have to be done on an application-specific basis rather than as a one-size-fits-all approach.
        • Designing a system to certify network components would be costly and would require a centralized entity, be it industry-led or government-led.
      • Privacy Practices Considerations
        • Development and adoption of uniform privacy practices would benefit from existing privacy practices that have been implemented by states, other countries, or that have been developed by federal agencies or other organizations.
      • Privacy Practices Opportunities
        • Privacy practices come with costs, and policymakers would need to balance the need for privacy with the direct and indirect costs of implementing privacy requirements. Imposing requirements can be burdensome, especially for smaller entities.
      • High-band Research Opportunities
        • Could result in improved statistical modeling of antenna characteristics and more accurately representing propagation characteristics.
        • Could result in improved understanding of any possible health effects from long-term radio frequency exposure to high-band emissions.
      • High-band Research Considerations
        • Research and development is costly and must be coordinated and administered, and its potential benefits are uncertain. Policymakers will need to identify a funding source or determine which existing funding streams to reallocate.

Coming Events

  • The Senate Judiciary Committee will hold an executive session at which the “Online Content Policy Modernization Act” (S.4632), a bill to narrow the liability shield in 47 USC 230, may be marked up on 10 December.
  • 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 Tima Miroshnichenko from Pexels

Further Reading, Other Developments, and Coming Events (9 December)

Further Reading

  • Secret Amazon Reports Expose the Company’s Surveillance of Labor and Environmental Groups” By Lauren Kaori Gurley — Vice’s Motherboard. Yet another article by Vice drawing back the curtain on Amazon’s labor practices, especially its apparently fervent desire to stop unionizing. This piece shines light on the company’s Global Security Operations Center that tracks labor organizing and union activities among Amazon’s workers and monitors environmental and human rights on social media. The company has even hired Pinkerton operatives to surveil its warehouse employees. Although the focus is on Europe because the leaked emails on which the story is based pertain to activities on that continent, there is no reason to expect the same tactics are not being used elsewhere. Moreover, the company may be violating the much stricter laws in Europe protecting workers and union activities.
  • Cyber Command deployed personnel to Estonia to protect elections against Russian threat” By Shannon Vavra — cyberscoop.  It was recently revealed that personnel from the United States (U.S.) Cyber Command were deployed to Estonia to work with the latter country’s Defense Forces Cyber Command to fend off potential Russian attacks during the U.S. election. This follows another recent “hunt forward” mission for Cyber Command in Montenegro, another nation on the “frontline” of Russian hacking activities. Whether this has any effect beyond building trust and capacity between nations opposed to state-sponsored hacking and disinformation is unclear.
  • How China Is Buying Up the West’s High-Tech Sector” By Elizabeth Braw — Foreign Policy. This piece by a fellow at the ring wing American Enterprise Institute (AEI) makes the case that reviewing and potentially banning direct foreign investment by People’s Republic of China (PRC) in the United States (U.S.), European Union (EU), and European nations is probably not cutting off PRC access to cutting edge technology. PRC entities are investing directly or indirectly as limited partners in venture capital firms and are probably still gaining access to new technology. For example, an entity associated with the University of Cambridge is working with Huawei on a private 5G wireless network even though London is advancing legislation and policy to ban the PRC giant from United Kingdom (UK) networks. The author advocates for expanding the regulation of foreign investment to include limited partnerships and other structures that are apparently allowing the PRC to continue investing in and reaping the benefit of Western venture capital. There is hope, however, as a number of Western nations are starting government-funded venture capital firms to fund promising technology.
  • Twitter expands hate speech rules to include race, ethnicity” By Katie Paul — Reuters. The social media platform announced that it “further expanding our hateful conduct policy to prohibit language that dehumanizes people on the basis of race, ethnicity, or national origin.” A human rights group, the Color of Change, that was part of a coalition to pressure Twitter and other platforms called the change “essential concessions” but took issue with the timing, stating it would have had more impact had it been made before the election. A spokesperson added “[t]he jury is still out for a company with a spotty track record of policy implementation and enforcing its rules with far-right extremist users…[and] [v]oid of hard evidence the company will follow through, this announcement will fall into a growing category of too little, too late PR stunt offerings.”
  • White House drafts executive order that could restrict global cloud computing companies” By Steven Overly and Eric Geller — Politico. The Trump Administration may make another foray into trying to ban foreign companies from United States (U.S.) key critical infrastructure, and this time would reportedly bar U.S. cloud companies like Microsoft, Amazon, and others from partnering with foreign companies or entities that pose risk to the U.S. through the use of these U.S. systems to conduct cyber-attacks. This seems like another attempt to strike at the People’s Republic of China’s (PRC) technology firms. If issued, it remains to be seen how a Biden Administration would use or implement such a directive given that there is not enough time for the Trump government to see things through to end on such an order. In any event, one can be sure that tech giants have already begun pressing both the outgoing and incoming Administration against any such order and most likely Congress as well.

Other Developments

  • A bipartisan group of Senators and Representatives issued the framework for a $908 billion COVID-19 stimulus package that is reportedly the subject of serious in Congress. The framework details $10 billion for broadband without no detail on how these funds would be distributed.
  • The Australian Competition & Consumer Commission (ACCC) announced the signing of the Australian Product Safety Pledge, “a voluntary initiative that commits its signatories to a range of safety related responsibilities that go beyond what is legally required of them” in e-commerce. The ACCC stated “AliExpress, Amazon Australia, Catch.com.au and eBay Australia, who together account for a significant share of online sales in Australia, are the first businesses to sign the pledge, signifying their commitment to consumers’ safety through a range of commitments such as removing unsafe product listings within two days of being notified by the ACCC.” The pledge consists of 12 commitments:
    • Regularly consult the Product Safety Australia website and other relevant sources for information on recalled/unsafe products. Take appropriate action[1] on these products once they are identified.
    • Provide a dedicated contact point(s) for Australian regulatory authorities to notify and request take-downs of recalled/unsafe products.
    • Remove identified unsafe product listings within two business days of the dedicated contact point(s) receiving a take-down request from Australian regulatory authorities. Inform authorities on the action that has been taken and any relevant outcomes.
    • Cooperate with Australian regulatory authorities in identifying, as far as possible, the supply chain of unsafe products by responding to data/information requests within ten business days should relevant information not be publicly available.
    • Have an internal mechanism for processing data/information requests and take-downs of unsafe products.
    • Provide a clear pathway for consumers to notify the pledge signatory directly of unsafe product listings. Such notifications are treated according to the signatory’s processes and where responses to consumers are appropriate, they are given within five business days.
    • Implement measures to facilitate sellers’ compliance with Australian product safety laws. Share information with sellers on compliance training/guidance, including a link to the ACCC’s Selling online page on the Product Safety Australia website.
    • Cooperate with Australian regulatory authorities and sellers to inform consumers[2] about relevant recalls or corrective actions on unsafe products.
    • Set up processes aimed at preventing or restricting the sale of banned, non-compliant and recalled products as appropriate.
    • Put in place reasonable measures to act against repeat offenders selling unsafe products, including in cooperation with Australian regulatory authorities.
    • Take measures aimed at preventing the reappearance of unsafe product listings already removed.
    • Explore the potential use of new technologies and innovation to improve the detection and removal of unsafe products.
  • Senator Ron Wyden (D-OR) and Representative Lauren Underwood (D-IL) introduced “The Federal Cybersecurity Oversight Act” (S.4912) that would amend the “Federal Cybersecurity Enhancement Act of 2015” (P.L. 114-113) to restrict the use of exceptions to longstanding requirements that federal agencies use measures such as multi-factor authentication and encryption. Currently federal agencies exempt themselves on a number of grounds. Wyden and Underwood’s bill would tighten this process by making the exceptions good only for a year at a time and require the Office of Management and Budget (OMB) approve the execption. In a fact sheet, they claimed:
    • [T]he bill requires the Director of the Office of Management and Budget to approve all waivers, which can currently be self-issued by the head of the agency. To request a waiver, the agency head will have to certify that:
      • It would be excessively burdensome to implement the particular requirement;
      • The particular requirement is not necessary to secure the agency system and data; and
      • The agency has taken all necessary steps to secure the agency system and data.
  • The Government Accountability Office (GAO) looked at the United States (U.S.) longstanding efforts to buy common services and equipment in bulk known as Category Management. The GAO found progress but saw room for considerably more progress. GAO noted:
    • Since 2016, the Office of Management and Budget (OMB) has led efforts to improve how agencies buy these products and services through the category management initiative, which directs agencies across the government to buy more like a single enterprise. OMB has reported the federal government has saved $27.3 billion in 3 years through category management.
  • The GAO concluded:
    • The category management initiative has saved the federal government billions of dollars, and in some instances, enhanced agencies’ mission capabilities. However, the initiative has opportunities to accomplish much more. To date, OMB has focused primarily on contracting aspects of the initiative, and still has several opportunities to help agencies improve how they define their requirements for common products and services. OMB can take concrete steps to improve how agencies define these requirements through more robust guidance and training, changes to leadership delegations and cost savings reporting, and the development of additional metrics to measure implementation of the initiative.
    • Additionally, OMB can lead the development of a coordinated strategy that addresses government-wide data challenges hindering agencies’ efforts to assess their spending and identify prices paid for common products and services.
    • Finally, OMB can tailor additional training courses to provide more relevant information to agency personnel responsible for small business matters, and improve public reporting about the impact of category management on small businesses. In doing so, OMB can enhance the quality of the information provided to the small business community and policymakers. Through these efforts to further advance the category management initiative, OMB can help federal agencies accomplish their missions more effectively while also being better stewards of taxpayer dollars.
    • The GAO made the following recommendations:
      • The Director of the Office of Management and Budget should emphasize in its overarching category management guidance the importance of effectively defining requirements for common products and services when implementing the category management initiative. (Recommendation 1)
      • The Director of the Office of Management and Budget should work with the Category Management Leadership Council and the General Services Administration’s Category Management Program Management Office, and other appropriate offices, to develop additional tailored training for Senior Accountable Officials and agency personnel who manage requirements for common products and services. (Recommendation 2)
      • The Director of the Office of Management and Budget should account for agencies’ training needs, including training needs for personnel who define requirements for common products and services, when setting category management training goals. (Recommendation 3)
      • The Director of the Office of Management and Budget should ensure that designated Senior Accountable Officials have the authority necessary to hold personnel accountable for defining requirements for common products and services as well as contracting activities. (Recommendation 4)
      • The Director of the Office of Management and Budget should report cost savings from the category management initiative by agency. (Recommendation 5)
      • The Director of the Office of Management and Budget should work with the Category Management Leadership Council and the Performance Improvement Council to establish additional performance metrics for the category management initiative that are related to agency requirements. (Recommendation 6)
      • The Director of the Office of Management and Budget should, in coordination with the Category Management Leadership Council and the Chief Data Officer Council, establish a strategic plan to coordinate agencies’ responses to government-wide data challenges hindering implementation of the category management initiative, including challenges involving prices-paid and spending data. (Recommendation 7)
      • The Director of the Office of Management and Budget should work with the General Services Administration’s Category Management Program Management Office and other organizations, as appropriate, to develop additional tailored training for Office of Small Disadvantaged Business Utilization personnel that emphasizes information about small business opportunities under the category management initiative. (Recommendation 8)
      • The Director of the Office of Management and Budget should update its methodology for calculating potentially duplicative contract reductions to strengthen the linkage between category management actions and the number of contracts eliminated. (Recommendation 9)
      • The Director of the Office of Management and Budget should identify the time frames covered by underlying data when reporting on how duplicative contract reductions have impacted small businesses. (Recommendation 10)
  • The chair and ranking member of the House Commerce Committee are calling on the Federal Communications Commission (FCC) to take preparatory steps before Congress provides funding to telecommunications providers to remove and replace Huawei and ZTE equipment. House Energy and Commerce Committee Chair Frank Pallone Jr (D-NJ) and Ranking Member Greg Walden (R-OR) noted the “Secure and Trusted Communications Networks Act” (P.L. 116-124):
    • provides the Federal Communications Commission (FCC) with several new authorities to secure our communications supply chain, including the establishment and administration of the Secure and Trusted Communications Networks Reimbursement Program (Program). Through this Program, small communications providers may seek reimbursement for the cost of removing and replacing suspect network equipment. This funding is critical because some small and rural communications providers would not otherwise be able to afford these upgrades. Among the responsibilities entrusted to the FCC to carry out the Program is the development of a list of suggested replacements for suspect equipment, including physical and virtual communications equipment, application and management software, and services.
    • Pallone and Walden conceded that Congress has not yet provided funds but asked the FCC to take some steps:
      • First, the FCC should develop and release the list of eligible replacement equipment, software, and services as soon as possible. Second, the agency should reassure companies that they will not jeopardize their eligibility for reimbursement under the Program just because replacement equipment purchases were made before the Program is funded, assuming other eligibility criteria are met.
  • The Office of Special Counsel (OSC) wrote one of the whistleblowers at the United States Agency for Global Media (USAGM) and indicated it has ordered the head of USAGM to investigate the claims of malfeasance at the agency. The OSC stated:
    • On December 2, 2020, after reviewing the information you submitted, we directed the Chief Executive Officer (CEO) of USAGM to order an investigation into the following allegations and report back to OSC pursuant to 5 U.S.C. § 1213(c). Allegations to be investigated include that, since June 2020, USAGM:
      • Repeatedly violated the Voice of America (VOA) firewall—the law that protects VOA journalists’ “professional independence and integrity”;
      • Engaged in gross mismanagement and abuse of authority by:
        • Terminating the Presidents of each USAGM-funded network— Radio Free Asia (RFA), Radio Free Europe/Radio Liberty (RFE/RL), the Middle East Broadcasting Networks (MBN), and the Office of Cuba Broadcasting (OCB)—as well as the President and the CEO of the Open Technology Fund (OTF);
        • Dismissing the bipartisan board members that governed the USAGM- funded networks, replacing those board members with largely political appointees, and designating the USAGM CEO as Chairman;
        • Revoking all authority from various members of USAGM’s Senior Executive Service (SES) and reassigning those authorities to political appointees outside of the relevant offices;
        • Removing the VOA Editor for News Standards and Best Practices—a central figure in the VOA editorial standards process and a critical component of the VOA firewall—from his position and leaving that position vacant;
        • Similarly removing the Executive Editor of RFA;
        • Suspending the security clearances of six of USAGM’s ten SES members and placing them on administrative leave; and
        • Prohibiting several offices critical to USAGM’s mission—including the Offices of General Counsel, Chief Strategy, and Congressional and Public Affairs—from communicating with outside parties without the front office’s express knowledge and consent;
      • Improperly froze all agency hiring, contracting, and Information Technology migrations, and either refused to approve such decisions or delayed approval until the outside reputation and/or continuity of agency or network operations, and at times safety of staff, were threatened;
      • Illegally repurposed, and pressured career staff to illegally repurpose, congressionally appropriated funds and programs without notifying Congress; and
      • Refused to authorize the renewal of the visas of non-U.S. citizen journalists working for the agency, endangering both the continuity of agency operations and those individuals’ safety.

Coming Events

  • The Senate Judiciary Committee will hold an executive session at which the “Online Content Policy Modernization Act” (S.4632), a bill to narrow the liability shield in 47 USC 230, may be marked up on 10 December.
  • 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.

Image by Makalu from Pixabay

Johnson’s Government Unveils Telecoms Bill

The UK seeks to remake its telecommunications sector, especially its security and supply chain risk aspects.

The government of Prime Minister Boris Johnson has released its telecommunications legislation that would delineate the United Kingdom’s (UK) approach to managing “high risk” companies such as Huawei. The Telecommunications (Security) Bill would reform how the UK regulates the security practices of telecommunications providers like Vodafone and also address risks to the nation’s telecommunications system.

The genesis of the legislation was the 2018 UK Telecoms Supply Chain Review, an inquiry launched “to address three key questions:

  1. How should we incentivise telecoms providers to improve security standards and practices in 5G and full fibre networks?
  2. How should we address the security challenges posed by vendors?
  3. How can we create sustainable diversity in the telecoms supply chain?”

A year later, the UK government “identified three areas of concern:

  1. Existing industry practices may have achieved good commercial outcomes but did not incentivise effective cyber security risk management.
  2. Policy and regulation in enforcing telecoms cyber security needed to be significantly strengthened to address these concerns.
  3. The lack of diversity across the telecoms supply chain creates the possibility of national dependence on single suppliers, which poses a range of risks to the security and resilience of UK telecoms networks.”

The Department asserted:

The Review recommended the establishment of a new security framework for the UK’s public telecoms providers, with its foundations set by new telecoms security requirements overseen by Ofcom and the government. It also recommended new national security powers for the government to control the presence of high risk vendors in UK networks.

Working in the background during this initiative was the pressure brought by the United States (U.S.) and the People’s Republic of China (PRC) over Huawei and 5G and the pending exit from the European Union (EU). The Trump Administration was making claims about the security of Huawei’s 5G technology and equipment, arguing it would serve to allow the PRC’s security services to spy in any nation that installed the PRC technology giant’s systems. At first, the UK tried to manage the risks its security services turned up in reviewing Huawei’s technology and sought a middle path where Huawei would have a significant role in 5G in the UK as it did for previous iterations of the nation’s wireless network.

However, this approach proved politically unfeasible when Conservative backbenchers indicated to Downing Street that they would amend a telecoms bill to ban Huawei. At this point, the Prime Minister changed tack and announced ban that would take effect by 2027 of any new Huawei technology in the UK’s 5G networks. Johnson’s government nearly lost a vote in March on a different telecoms bill, sending his leadership team a signal they appear to have received. The reason provided for the UK’s change was U.S. sanctions on Huawei that cut off its access to semiconductors that allegedly now made it impossible to use the company for the 5G rollout. In a fact sheet, it was claimed:

  • on 14 July 2020 the Secretary of State for Digital, Culture, Media, and Sport (DCMS) announced in the House of Commons that UK telecoms providers should cease to procure any new 5G equipment from Huawei after 31 December 2020 and remove all Huawei equipment from 5G networks by the end of 2027.
  • The government advised full fibre telecoms providers to transition away from purchasing Huawei full fibre equipment affected by the US sanctions. For full fibre networks, we have held a technical consultation with industry on the transition away from Huawei equipment, in order to better understand supply chain alternatives. The conclusions of the consultation will be announced in due course.

The Department for Digital, Culture, Media, and Sport (Department) explained in one fact sheet, “[t]he Telecommunications (Security) Bill is in two parts:

  1. Clauses 1 to 14 introduce a stronger telecoms security framework. The Bill amends the Communications Act 2003 by placing strengthened telecoms security duties on public telecoms providers. To support these duties, the Bill will enable more specific security requirements to be set out in secondary legislation, underpinned by codes of practice providing guidance on the security measures to be taken to meet those requirements. The Bill gives the telecoms regulator, the Office of Communications (Ofcom), powers to monitor and enforce industry compliance with the duties and specific security requirements. It places new obligations on public telecoms providers to share information with Ofcom that is necessary to assess the security of their networks, including reporting duties in the event of a security compromise. It also places new duties on Ofcom to promote security and resilience of public telecoms providers. In addition, the Bill introduces financial penalties for non-compliance with the new duties and requirements placed on public telecoms providers.
  2. Clauses 15 to 23 introduce new national security powers for the government to manage risks posed by high risk vendors. The Bill creates new powers for the Secretary of State to designate vendors for the purpose of issuing directions to public communications providers imposing controls on their use of those designated vendors’ goods, services and facilities. Designation and the giving of directions can only take place where the Secretary of State considers it is necessary in the interests of national security. The Bill makes it a duty for providers to comply with the requirements set out in the directions and creates financial penalties for non-compliance. It also includes provisions to ensure the monitoring and enforcement of those requirements, including new powers for the Secretary of State to give monitoring directions to Ofcom requiring Ofcom to obtain information relating to a provider’s compliance with requirements in a direction, and to provide such information in a report to the Secretary of State.

In a different fact sheet, the Department described how telecommunications providers would be regulated under the new security framework: “strengthened overarching security duties, specific security requirements, and codes of practice.” The Department provided detail on each piece:

Security duties

The Bill introduces strengthened overarching security duties. These will require all telecoms providers to take appropriate and proportionate measures to identify and reduce the risks of security compromises occurring, as well as preparing for the occurrence of security compromises. Security compromises will include:

  • anything that compromises the availability, performance or functionality of a network or service
  • any unauthorised access to, interference with or exploitation of networks or services
  • anything that compromises the confidentiality of signals or data
  • anything that causes signals or data to be lost, unintentionally altered or altered without permission of the telecoms provider
  • anything occurring in connection with a network or service that causes a compromise on another network or service that belongs to another telecoms provider

Telecoms providers will also be required to take appropriate and proportionate action after a security compromise has occurred, to limit damage and take steps to remedy or mitigate the damage.

Secondary legislation

The Telecommunications (Security) Bill also allows the government to make secondary legislation to detail specific security requirements that providers must meet. This will include targeted action to make sure telecoms providers securely design, construct and maintain network equipment that handles sensitive data; reduce supply chain risks; carefully control access to sensitive parts of the network; and make sure the right processes are in place to understand the risks facing their company’s public networks and services.

These requirements will be enforced by Ofcom and may be updated in the future where new threats arise or technologies evolve. The government will engage with telecoms providers on the technical detail of secondary legislation before it is finalised, during passage of the Bill. This engagement will help to inform an impact assessment, which will be published alongside the secondary legislation to assess costs and benefits to businesses.

Codes of practice

Finally, the Bill provides the government with the powers to issue codes of practice to provide guidance on how, and to what timescale, certain telecoms providers should comply with their legal obligations. For example, it will set out the detailed technical measures that should be taken to segregate and control access to the areas of networks that process and manage customers’ data. Ofcom will take relevant codes into account when monitoring and enforcing the new security framework.

There are many different sized telecoms companies providing telecoms networks and services, and while their security and resilience is critical, it is important their differences are recognised. To ensure measures are applied proportionately, the government intends to define three tiers of telecoms provider in an initial code of practice, which will be finalised via public consultation:

  1. The code of practice will apply to the largest national-scale (‘Tier 1’) telecoms providers, whose availability and security is critical to people and businesses across the UK. These providers will also be subject to intensive Ofcom monitoring and oversight.
  2. The code of practice will also apply to medium-sized (‘Tier 2’) telecoms providers, who will be subject to some Ofcom oversight and monitoring. These providers are expected to have more time to implement the security measures set out in the code of practice.
  3. The smallest (‘Tier 3’) telecoms providers, including small businesses and micro enterprises, will need to comply with the law. It is not anticipated that the code of practice will be applied to Tier 3 providers, but these providers may be subject to some limited Ofcom oversight.

The Bill includes a requirement for the government to consult on any codes of practice. DCMS will issue a full public consultation on the approach to implementing the code of practice following Royal Assent, including the approach to tiering and implementation timetables.

Alongside acting as a tool to help regulatory compliance, the code of practice will serve as best practice security guidance to all UK telecoms providers (including private networks).

The Department explained the new penalty scheme:

  • For contravention of a security duty (other than the duty to explain a failure to follow a code of practice) Ofcom may impose a penalty up to a maximum of ten percent of a provider’s ‘relevant turnover’ or (in the case of a continuing contravention) £100,000 per day.
  • For contravention of an information requirement or refusal to explain a failure to follow a code of practice, Ofcom may impose a penalty up to a maximum of £10 million or (in the case of a continuing contravention) £50,000 per day.

The Department explained other part of the bill under which the Secretary of State would be empowered to address risk in the telecommunications system is discussed in a different fact sheet:

The Telecommunications (Security) Bill introduces new powers for the Secretary of State to manage the risks posed by high risk vendors. In the Bill, such vendors are referred to ‘designated vendors’.

The Bill creates powers for the Secretary of State to:

  1. issue directions, in the interests of national security, to public communications providers placing controls on their use of goods, services or facilities supplied, provided or made available by designated vendors (‘designated vendor directions’)
  2. designate specific vendors, in the interests of national security, for the purpose of issuing the designated vendor directions (‘designated vendors’)

The Bill makes it a duty for public communications providers to comply with any requirements set out in a direction and introduces financial penalties for non-compliance. The Secretary of State will be responsible for assessing and enforcing compliance with any direction requirements. Ofcom may be tasked by the Secretary of State with gathering information relevant to the Secretary of State’s assessment of a provider’s compliance with a direction. Ofcom will provide such information to the Secretary of State in the form of a report, the frequency of which can be specified by the Secretary of State.

The Secretary of State will also be responsible for assessing and enforcing compliance with the requirements in the Bill relating to non-disclosure. The Bill enables the Secretary of State to impose requirements not to disclose particular information (such as in relation to a designated vendor director or designation notice), where disclosure would be contrary to the interests of national security.

The Secretary of State will also be responsible for assessing and enforcing compliance with any requirements to provide information given under the information requirement power. These requirements can apply not just to telecoms providers but to anyone who appears to the Secretary of State to have information relevant to the exercise of the Secretary of State’s functions in relation to designation notices and designated vendor directions.

© 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.

Image by David Mark from Pixabay

Final NDAA Agreement, Part II

There are AI, 5G, and supply chain provisions in the national security policy bill the Armed Services Committee have agreed upon.

So, it appears I failed to include all the technology goodies to be found in the final FY 2021 National Defense Authorization Act (NDAA). And so, I will cover the provisions I missed yesterday in the conference report to accompany the “William M. “Mac” Thornberry National Defense Authorization Act for Fiscal Year 2021” (H.R.6395). For example, there are artificial intelligence (AI), 5G, and supply chain provisions.

Notably, the final bill includes the House Science, Space, and Technology Committee’s “National Artificial Intelligence Initiative Act of 2020” (H.R.6216). In the Joint Explanatory Statement, the conferees asserted:

The conferees believe that artificial intelligence systems have the potential to transform every sector of the United States economy, boosting productivity, enhancing scientific research, and increasing U.S. competitiveness and that the United States government should use this Initiative to enable the benefits of trustworthy artificial intelligence while preventing the creation and use of artificial intelligence systems that behave in ways that cause harm. The conferees further believe that such harmful artificial intelligence systems may include high-risk systems that lack sufficient robustness to prevent adversarial attacks; high-risk systems that harm the privacy or security of users or the general public; artificial general intelligence systems that become self-aware or uncontrollable; and artificial intelligence systems that unlawfully discriminate against protected classes of persons, including on the basis of sex, race, age, disability, color, creed, national origin, or religion. Finally, the conferees believe that the United States must take a whole of government approach to leadership in trustworthy artificial intelligence, including through coordination between the Department of Defense, the Intelligence Community, and the civilian agencies.

H.R.6216 directs the President to establish the National Artificial Intelligence Initiative that would:

  • Ensure the U.S. continues to lead in AI research and development (R&D)
  • Lead efforts throughout the world to develop and use “trustworthy AI systems” in both the public and private sectors
  • Prepare to assist U.S. workers for the coming integration and use of AI throughout the U.S., and
  • Coordinate AI R&D development and demonstration activities across the federal government, including national security agencies.

The President would have a variety of means at his or her discretion in effectuating those goals, including existing authority to ask Congress for funding and to use Executive Office agencies to manage the authority and funding Congress provides.

Big picture, H.R. 6216 would require better coordination of federal AI initiatives, research, and funding, and more involvement in the development of voluntary, consensus-based standards for AI. Much of this would happen through the standing up of a new “National Artificial Intelligence Initiative Office” by the Office of Science and Technology Policy (OSTP) in the White House. This new entity would be the locus of AI activities and programs in the United States’ (U.S.) government with the ultimate goal of ensuring the nation is the world’s foremost developer and user of the new technology.

Moreover, OSTP would “acting through the National Science and Technology Council…establish or designate an Interagency Committee to coordinate Federal programs and activities in support of the Initiative.” This body would “provide for interagency coordination of Federal artificial intelligence research, development, and demonstration activities, development of voluntary consensus standards and guidelines for research, development, testing, and adoption of ethically developed, safe, and trustworthy artificial intelligence systems, and education and training activities and programs of Federal departments and agencies undertaken pursuant to the Initiative.” The committee would need to “develop a strategic plan for AI” within two years and update it every three years thereafter. Moreover, the committee would need to “propose an annually coordinated interagency budget for the Initiative to the Office of Management and Budget (OMB) that is intended to ensure that the balance of funding across the Initiative is sufficient to meet the goals and priorities established for the Initiative.” However, OMB would be under no obligation to take notice of this proposal save for pressure from AI stakeholders in Congress or AI champions in any given Administration. The Secretary of Commerce would create a ‘‘National Artificial Intelligence Advisory Committee” to advise the President and National Artificial Intelligence Initiative Office on a range of AI policy matters. In the bill as added to the House’s FY 2021 NDAA, it was to have been the Secretary of Energy.

Federal agencies would be permitted to award funds to new Artificial Intelligence Research Institutes to pioneer research in any number of AI fields or considerations. The bill does not authorize any set amount of money for this program and instead kicks the decision over to the Appropriations Committees on any funding. The National Institute of Standards and Technology (NIST) must “support measurement research and development of best practices and voluntary standards for trustworthy artificial intelligence systems” and “support measurement research and development of best practices and voluntary standards for trustworthy artificial intelligence systems” among other duties. NIST must “shall work to develop, and periodically update, in collaboration with other public and private sector organizations, including the National Science Foundation and the Department of Energy, a voluntary risk management framework for the trustworthiness of artificial intelligence systems.” NIST would also “develop guidance to facilitate the creation of voluntary data sharing arrangements between industry, federally funded research centers, and Federal agencies for the purpose of advancing artificial intelligence research and technologies.”

The National Science Foundation (NSF) would need to “fund research and education activities in artificial intelligence systems and related fields, including competitive awards or grants to institutions of higher education or eligible non-profit organizations (or consortia thereof).” The Department of Energy must “carry out a cross-cutting research and development program to advance artificial intelligence tools, systems, capabilities, and workforce needs and to improve the reliability of artificial intelligence methods and solutions relevant to the mission of the Department.” This department would also be tasked with advancing “expertise in artificial intelligence and high-performance computing in order to improve health outcomes for veteran populations.”

According to a fact sheet issued by the House Science, Space, and Technology Committee, [t]he legislation will:

  • Formalize interagency coordination and strategic planning efforts in AI research, development, standards, and education through an Interagency Coordination Committee and a coordination office managed by the Office of Science and Technology Policy (OSTP).
  • Create an advisory committee to better inform the Coordination Committee’s strategic plan, track the state of the science around artificial intelligence, and ensure the Initiative is meeting its goals.
  • Create a network of AI institutes, coordinated through the National Science Foundation, that any Federal department of agency could fund to create partnerships between the academia and the public and private sectors to accelerate AI research focused on an economic sector, social sector, or on a cross-cutting AI challenge.
  • Support basic AI measurement research and standards development at the National Institute for Standards and Technology(NIST) and require NIST to create a framework for managing risks associated with AI systems and best practices for sharing data to advance trustworthy AI systems.
  • Support research at the National Science Foundation (NSF) across a wide variety of AI related research areas to both improve AI systems and use those systems to advance other areas of science. This section requires NSF to include an obligation for an ethics statement for all research proposals to ensure researchers are considering, and as appropriate, mitigating potential societal risks in carrying out their research.
  • Support education and workforce development in AI and related fields, including through scholarships and traineeships at NSF.
  • Support AI research and development efforts at the Department of Energy (DOE), utilize DOE computing infrastructure for AI challenges, promote technology transfer, data sharing, and coordination with other Federal agencies, and require an ethics statement for DOE funded research as required at NSF.
  • Require studies to better understand workforce impacts and opportunities created by AI, and identify the computing resources necessary to ensure the United States remains competitive in AI.

A provision would expand the scope of the biannual reports the DOD must submit to Congress on the Joint Artificial Intelligence Center (JAIC) to include the Pentagon’s efforts to develop or contribute to efforts to institute AI standards and more detailed information on uniformed DOD members who serve at the JAIC. Other language would revamp how the Under Secretary of Defense for Research and Engineering shall manage efforts and procurements between the DOD and the private sector on AI and other technology with cutting edge national security applications. The new emphasis of the program would be to buy mature AI to support DOD missions, allowing DOD components to directly use AI and machine learning to address operational problems, speeding up the development, testing, and deployment of AI technology and capabilities, and overseeing and managing any friction between DOD agencies and components over AI development and use. This section also spells out which DOD officials should be involved with this program and how the JAIC fits into the picture. This language and other provisions suggest the DOD may have trouble in coordinating AI activities and managing infighting, at least in the eyes of the Armed Services Committees.

Moreover, the JAIC would be given a new Board of Advisors to advise the Secretary of Defense and JAIC Director on a range of AI issues. However, as the Secretary shall appoint the members of the board, all of whom must be from outside the Pentagon, this organ would seem to be a means of the Office of the Secretary asserting greater control over the JAIC.

And yet, the Secretary is also directed to delegate acquisition authority to the JAIC, permitting it to operate with the same independence as a DOD agency. The JAIC Director will need to appoint an acquisition executive to manage acquisition and policy inside and outside the DOD. $75 million would be authorized a year for these activities, and the Secretary needs to draft and submit an implementation plan to Congress and conduct a demonstration before proceeding.

The DOD must identify five use cases of when AI-enabled systems have improved the functioning of the Department in handling management functions in implementing the National Defense Strategy and then create prototypes and technology pilots to utilize commercially available AI capabilities to bolster the use cases.

Within six months of enactment, the DOD must determine whether it currently has the resources, capability, and know how to ensure that any AI bought has been ethically and responsibly developed. Additionally, the DOD must assess how it can install ethical AI standards in acquisitions and supply chains.

The Secretary is provided the authority to convene a steering committing on emerging technology and national security threats comprised of senior DOD officials to decide on how the Department can best adapt to and buy new technology to ensure U.S. military superiority. This body would also investigate the new technology used by adversaries and how to address and counter any threats. For this steering committee, emerging technology is defined as:

Technology determined to be in an emerging phase of development by the Secretary, including quantum information science and technology, data analytics, artificial intelligence, autonomous technology, advanced materials, software, high performance computing, robotics, directed energy, hypersonics, biotechnology, medical technologies, and such other technology as may be identified by the Secretary.

Not surprisingly, the FY 2021 NDAA has provisions on 5G. Most notably, the Secretary of Defense must assess and mitigate any risks presented by “at-risk” 5G or 6G systems in other nations before a major weapons system or a battalion, squadron, or naval combatant can be based there. The Secretary must take into account any steps the nation is taking to address risk, those steps the U.S. is taking, any agreements in place to mitigate risks, and other steps. This provision names Huawei and ZTE as “at-risk vendors.” This language may be another means by which the U.S. can persuade other nations not to buy and install technology from these People’s Republic of China (PRC) companies.

The Under Secretary of Defense for Research and Engineering and a cross-functional team would need to develop a plan to transition the DOD to 5G throughout the Department and its components. Each military department inside the DOD would get to manage its own 5G acquisition with the caveat that the Secretary would need to establish a telecommunications security program to address 5G security risks in the DOD. The Secretary would also be tasked with conducting a demonstration project to “evaluate the maturity, performance, and cost of covered technologies to provide additional options for providers of fifth-generation wireless network services” for Open RAN (aka oRAN) and “one or more massive multiple-input, multiple-output radio arrays, provided by one or more companies based in the United States, that have the potential to compete favorably with radios produced by foreign companies in terms of cost, performance, and efficiency.”

The service departments would need to submit reports to the Secretary on how they are assessing and mitigating and reporting to the DOD on the following risks to acquisition programs:

  • Technical risks in engineering, software, manufacturing and testing.
  • Integration and interoperability risks, including complications related to systems working across multiple domains while using machine learning and artificial intelligence capabilities to continuously change and optimize system performance.
  • Operations and sustainment risks, including as mitigated by appropriate sustainment planning earlier in the lifecycle of a program, access to technical data, and intellectual property rights.
  • Workforce and training risks, including consideration of the role of contractors as part of the total workforce.
  • Supply chain risks, including cybersecurity, foreign control and ownership of key elements of supply chains, and the consequences that a fragile and weakening defense industrial base, combined with barriers to industrial cooperation with allies and partners, pose for delivering systems and technologies in a trusted and assured manner.

Moreover, “[t]he Under Secretary of Defense for Acquisition and Sustainment, in coordination with the Chief Information Officer of the Department of Defense, shall develop requirements for ap- propriate software security criteria to be included in solicitations for commercial and developmental solutions and the evaluation of bids submitted in response to such solicitations, including a delineation of what processes were or will be used for a secure software development life cycle.”

The Armed Services Committees are directing the Secretary to follow up a report submitted to the President per Executive Order 13806 on strengthening Defense Industrial Base (DIB) manufacturing and supply chain resiliency. The DOD must submit “additional recommendations regarding United States industrial policies….[that] shall consist of specific executive actions, programmatic changes, regulatory changes, and legislative proposals and changes, as appropriate.”

The DOD would also need to submit an annex to an annual report to Congress on “strategic and critical materials, including the gaps and vulnerabilities in supply chains of such materials.”

There is language that would change how the DOD manages the production of microelectronics and related supply chain risk. The Pentagon would also need to investigate how to commercialize its intellectual property for microelectronic R&D. The Department of Commerce would need to “assess the capabilities of the United States industrial base to support the national defense in light of the global nature of the supply chain and significant interdependencies between the United States industrial base and the industrial bases of foreign countries with respect to the manufacture, design, and end use of microelectronics.”

There is a revision of the Secretary of Energy’s authority over supply chain risk administered by the National Nuclear Security Administration (NNSA) that would provide for a “special exclusion action” that would bar the procurement of risky technology for up to two years.

© 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.

Further Reading, Other Developments, and Coming Events (18 November)

Further Reading

  • Trump fires top DHS official who refuted his claims that the election was rigged” By Ellen Nakashima and Nick Miroff — The Washington Post. As rumored, President Donald Trump has decapitated the United States’ (U.S.) Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA). Director Christopher Krebs was fired via Twitter, after he had endorsed a letter by 59 experts on election security who said there was no fraud in the election. Trump tweeted: “The recent statement by Chris Krebs on the security of the 2020 Election was highly inaccurate, in that there were massive improprieties and fraud — including dead people voting, Poll Watchers not allowed into polling locations, ‘glitches’ in the voting machines which changed votes from Trump to Biden, late voting, and many more. Therefore, effective immediately, Chris Krebs has been terminated as Director of the Cybersecurity and Infrastructure Security Agency.” Of course, the statement CISA cosigned and issued last week asserting there was no evidence of fraud or wrongdoing in the election probably did not help his prospects. Additionally, CISA Deputy Director Matthew Travis was essentially forced out when he was informed the normal succession plan would be ignored and he would not become the acting head of CISA. A CISA senior civil servant, Brandon Wales, will helm the agency in an acting basis. Last week, CISA’s Assistant Director for Cybersecurity Bryan Ware was forced out.
  • NSA Spied On Denmark As It Chose Its Future Fighter Aircraft: Report” By Thomas Newdick — The Drive. A Danish media outlet is claiming the United States U.S. National Security Agency (NSA) spied Denmark’s Ministry of Finance, the Ministry of Foreign Affairs, and the defense firm Terma in order to help Lockheed Martin’s bid to sell F-35 Joint Strike Fighters to Denmark. Eurofighter GmbH and Saab were offering their Typhoon and Gripen fighters to replace Denmark’s F-16s. Reportedly, the NSA used an existing arrangement with Denmark to obtain information from a program allowing the NSA access to fiber optics cables in the country. It is likely Denmark did not have such surveillance in mind when it struck this agreement with the U.S. Two whistleblowers reports have been filed with the Forsvarets Efterretningstjeneste (FE), Denmark’s Defense Intelligence Service, and there are allegations that the U.S. surveillance was illegal. However, the surveillance appears not to have influenced the Danish government, which opted for the F-35. Earlier this year, there were allegations the FE was improperly sharing Danish cables containing information on Danish citizens improperly.
  • Facebook Knows That Adding Labels To Trump’s False Claims Does Little To Stop Their Spread” By Craig Silverman and Ryan Mac — BuzzFeed News. These reporters must know half of Facebook’s staff because they always see what is going on internally with the company. In this latest scoop, they say they have seen internal numbers showing that labeling President Donald Trump’s false tweets have done little to slow their spread. In fact, labelling may only slow their spread by 8%. This outcome is contrary to a practice Facebook employed in 2017 under which fact checkers would label untrue posts as false. This reduced their virality by 80%.
  • Apple Halves Its App Store Fee for the Smaller Companies” By Jack Nicas — The New York Times. The holiday spirit must already be afoot in Cupertino, California, for small app developers will now only pay Apple 15% of in-app purchases for the privilege of being in the App Store. Of course, this decision has nothing to do with the antitrust pressure the company is facing in the European Union and United States (U.S.) and will have very little impact on their bottom line since app developers with less than $1 million in revenue (i.e., those entitled to a reduction) account for 2% of App Store revenue. It does give Apple leadership and executive some great talking points when pressed by antitrust investigators, legislators, and the media.
  • Inside the behind-the-scenes fight to convince Joe Biden about Silicon Valley” By Theodore Schleifer — recode. The jockeying among factions in the Democratic party and other stakeholders is fierce and will only grow fiercer when it comes to who will serve where in a Biden Administration. Silicon Valley and those who would reform tech are fighting to get people amenable to their policy goals placed in the new Administration. President-elect Joe Biden and his campaign were ambiguous on many tech policy issues and have flexibility which has been further helped by appointing people respected in both camps like new White House Chief of Staff Ron Klain.
  • Group of 165 Google critics calls for swift EU antitrust action – letter” By Foo Yun Chee — Reuters. A wide-ranging group of companies and industry associations are urging the European Union to investigate and punish what they see as Google’s anti-competitive dominance of online search engines, especially the One Box that now appears at the top of search results that points people to Google sites and products.

Other Developments

  • The European Union (EU) announced a revision of its export control process for allowing the export of dual use items, including cyber surveillance tools. The European Commission (EC) asserted “[t]hanks to the new Regulation, the EU can now effectively protect its interests and values and, in particular, address the risk of violations of human rights associated with trade in cyber-surveillance technologies without prior agreement at multilateral level…[and] also enhances the EU’s capacity to control trade flows in sensitive new and emerging technologies. The EC explained “[t]he new Regulation includes many of the Commission proposals for a comprehensive “system upgrade”, and will make the existing EU Export control system more effective by:
    • introducing a novel ‘human security’ dimension so the EU can respond to the challenges posed by emerging dual-use technologies – especially cyber-surveillance technologies – that pose a risk to national and international security, including protecting human rights;
    • updating key notions and definitions (e.g. definition of an “exporter” to apply to natural persons and researchers involved in dual-use technology transfers);
    • simplifying and harmonising licensing procedures and allowing the Commission to amend – by ‘simplified’ procedure, i.e. delegated act – the list of items or destinations subject to specific forms of control, thereby making the export control system more agile and able to evolve and adjust to circumstances;
    • enhancing information-exchange between licensing authorities and the Commission with a view to increasing transparency of licensing decisions;
    • coordination of, and support for, robust enforcement of controls, including enhancing secure electronic information-exchange between licensing and enforcement agencies;
    • developing an EU capacity-building and training programme for Member States’ licensing and enforcement authorities;
    • outreach to industry and transparency with stakeholders, developing a structured relationship with the private sector through specific consultations of stakeholders by the relevant Commission group of Member-State experts, and;
    • setting up a dialogue with third countries and seeking a level playing field at global level.
    • The European Parliament contended:
      • The reviewed rules, agreed by Parliament and Council negotiators, govern the export of so-called dual use goods, software and technology – for example, high-performance computers, drones and certain chemicals – with civilian applications that might be repurposed to be used in ways which violate human rights.
      • The current update, made necessary by technological developments and growing security risks, includes new criteria to grant or reject export licenses for certain items.
      • The Parliament added its negotiators
        • got agreement on setting up an EU-wide regime to control cyber-surveillance items that are not listed as dual-use items in international regimes, in the interest of protecting human rights and political freedoms;
        • strengthened member states’ public reporting obligations on export controls, so far patchy, to make the cyber-surveillance sector in particular more transparent;
        • increased the importance of human rights as licensing criterion; and
        • agreed on rules to swiftly include emerging technologies in the regulation.
  • The United States House of Representatives passed three technology bills by voice vote yesterday. Two of these bills would address in different ways the United States’ (U.S.) efforts to make up ground on the People’s Republic of China in the race to roll out 5G networks. It is possible but not foreseeable whether the Senate will take up these bills before year’s end and send them to the White House. It is possible given how discrete the bills are in scope. The House Energy and Commerce Committee provided these summaries:
    • The “Utilizing Strategic Allied (USA) Telecommunications Act of 2020” (H.R.6624) creates a new grant program through the National Telecommunications and Information Administration (NTIA) to promote technology that enhances supply chain security and market competitiveness in wireless communications networks.
      • One of the bill’s sponsors, House Energy and Commerce Committee Chair Frank Pallone Jr (D-NJ) stated:
        • Earlier this year, the House passed, and the President signed, my Secure and Trusted Communications Networks Act to create a program to fund the replacement of suspect network equipment. Suspect equipment, including that produced by Huawei and ZTE, could allow foreign adversaries to surveil Americans at home or, worse, disrupt our communications systems.
        • While we are still pushing for Congress to appropriate funds to that end, it is important to recognize that my legislation was only half the battle, even when it is funded. We also need to create and foster competition for trusted network equipment that uses open interfaces so that the United States is not beholden to a market for network equipment that is becoming less competitive. This bill before us today, the Utilizing Strategic Allied Telecommunications Act, or the USA Telecommunications Act, does just that.
        • The bipartisan legislation creates a grant program and authorizes $750 million in funding for the National Telecommunications and Information Administration to help promote and deploy Open Radio Access Network technologies that can spur that type of competition. We must support alternatives to companies like Huawei and ZTE…
    • The “Spectrum IT Modernization Act of 2020” (H.R.7310) requires NTIA – in consultation with the Policy and Plans Steering Group – to submit to Congress a report on its plans to modernize agency information technology systems relating to managing the use of federal spectrum. 
      • A sponsor of the bill, House Energy and Commerce Committee Ranking Member Greg Walden (R-OR) explained:
      • H.R. 7310 would require NTIA to establish a process to upgrade their spectrum management infrastructure for the 21st century. The bill would direct the policy coordination arm of NTIA to submit a plan to Congress as to how they will standardize the data collection across agencies and then directs agencies with Federal spectrum assignments from NTIA to issue an implementation plan to interoperate with NTIA’s plan.
      • This is a good-government bill–it really is–and with continued support and oversight from Congress, we can continue the United States’ leadership in making Federal spectrum available for flexible use by the private sector.
    • The “Reliable Emergency Alert Distribution Improvement (READI) Act of 2020” (H.R.6096) amends the Warning, Alert, and Response Network Act to classify emergency alerts from the Federal Emergency Management Agency as a type of alert that commercial mobile service providers may not allow subscribers to block from their devices. The bill also directs the Federal Communications Commission (FCC) to adopt regulations to facilitate coordination with State Emergency Communications Committees in developing and modernizing State Emergency Alert System plans. Finally, the READI Act directs the FCC to examine the feasibility of modernizing the Emergency Alert System by expanding alert distribution to the internet and streaming services.  
  • The same privacy activists that brought the suits that resulted in the striking down of the Safe Harbor and Privacy Shield agreements have filed complaints in Spain and Germany that Apple has violated the European Union’s (EU) e-Privacy Directive and laws in each nation through its use of IDFA (Apple’s Identifier for Advertisers). Because the General Data Protection Regulation (GDPR) is not the grounds for the complaints, each nation could act without needing to consult other EU nations. Moreover, a similar system used by Google is also being investigated for possible violations. The group none of your business (noyb) asserted:
    • IDFA – the cookie in every iPhone user’s pocket. Each iPhone runs on Apple’s iOS operating system. By default, iOS automatically generates a unique “IDFA” (short for Identifier for Advertisers) for each iPhone. Just like a license plate this unique string of numbers and characters allows Apple and other third parties to identify users across applications and even connect online and mobile behaviour (“cross device tracking”).
    • Tracking without user consent. Apple’s operating system creates the IDFA without user’s knowledge or consent. After its creation, Apple and third parties (e.g. applications providers and advertisers) can access the IDFA to track users’ behaviour, elaborate consumption preferences and provide personalised advertising. Such tracking is strictly regulated by the EU “Cookie Law” (Article 5(3) of the e-Privacy Directive) and requires the users’ informed and unambiguous consent.
    • Insufficient “improvement” on third-party access. Recently Apple announced plans for future changes to the IDFA system. These changes seem to restrict the use of the IDFA for third parties (but not for Apple itself). Just like when an app requests access to the camera or microphone, the plans foresee a new dialog that asks the user if an app should be able to access the IDFA. However, the initial storage of the IDFA and Apple’s use of it will still be done without the users’ consent and therefore in breach of EU law. It is unclear when and if these changes will be implemented by the company.
    • No need for EU cooperation. As the complaint is based on Article 5(3) of the e-Privacy Directive and not the GDPR, the Spanish and German authorities can directly fine Apple, without the need for cooperation among EU Data Protection Authorities as under GDPR.
  • The Federal Trade Commission (FTC) Chair made remarks at antitrust conference on how antitrust law should view “an acquisition of a nascent competitive threat by a monopolist when there is reason to think that the state of competition today may not tell the whole story.” Chair Joseph Simons views are timely for a number of reasons, particularly the extent to which large technology firms have sought and bought smaller, newer companies. Obviously, the acquisitions of WhatsApp and Instagram by Facebook and YouTube and AdSense by Google come to mind as the sorts of acquisitions United States (U.S.) regulators approved, possibly without much thought given to what a future market may look like for competition if the larger, dominant company is allowed to proceed. Simons suggested regulators and courts would be wise to give this aspect of antitrust mush more thought, which could theoretically inform the approach the Biden Department of Justice and FTC take. Simons stated:
    • And if firms are looking to the future, then antitrust enforcers should too. We must be willing and able to recognize that harm to competition might not be obvious from looking at the marketplace as it stands. If we confine ourselves to examining a static picture of the market at the moment we investigate a practice or transaction, without regard to the dynamic business realities at work, then we risk forfeiting the benefits of competition that could arise in the future to challenge the dominant firm, even when this future competition is to some extent uncertain.
    • Simons asserted:
      • A merger or acquisition can of course constitute anticompetitive conduct for purposes of Section 2 [of the Sherman Act]
      • From a competition perspective, a monopolist can “squash” a nascent competitor by buying it, not just by targeting it with anticompetitive actions as Microsoft did. In fact, from the monopolist’s perspective, it may be easier and more effective to buy the nascent threat (even if only to keep it out of the hands of others) than to target it with other types of anticompetitive conduct.
      • A central issue in potential competition cases is the nature and strength of evidence that the parties will become actual competitors in the future. Some cases have applied Section 7 [of the Clayton Act] narrowly in this context: too narrowly, I think, given that the purpose of Section 7 is to prohibit acquisitions that “may” substantially lessen competition or “tend” to create a monopoly.
    • Simons concluded:
      • But uncertainty has always been a feature of the competitive process, even in markets that appear to be simple or traditional, and dealing with uncertainty is all in a day’s work for an antitrust enforcer. I have referred to the Microsoft case repeatedly today, so, in closing, let me remind everyone that there was some uncertainty about the future in Microsoft as well. The court, in holding that the plaintiff does not and should not bear the burden of “reconstruct[ing] a product’s hypothetical development,” observed that the defendant should appropriately be “made to suffer the uncertain consequences of its own undesirable conduct.” The same holds when the monopolist has simply chosen to acquire the threat.
  • The National Institute of Standards and Technology’s (NIST) National Initiative for Cybersecurity Education (NICE) revised the Workforce Framework for Cybersecurity (NICE Framework) that “improves communications about how to identify, recruit, develop, and retain cybersecurity talent ­ – offering a common, consistent lexicon that categorizes and describes cybersecurity work.” NIST explained:
    • The NICE Framework assists organizations with managing cybersecurity risks by providing a way to discuss the work and learners associated with cybersecurity. These cybersecurity risks are an important input into enterprise risk decisions as described in NIST Interagency Report 8286, Integrating Cybersecurity and Enterprise Risk Management (ERM).
    • NIST stated “[r]evisions to the NICE Framework (NIST Special Publication 800-181) provide:
      • A streamlined set of “building blocks” comprised of Task, Knowledge, and Skill Statements;
      • The introduction of Competencies as a mechanism for organizations to assess learners; and
      • A reference to artifacts, such as Work Roles and Knowledge Skills and Abilities statements, that will live outside of the publication to enable a more fluid update process.
  • A left center think tank published a report on how the United States (U.S.) and likeminded nations can better fight cybercrime. In the report addressed to President-elect Joe Biden and Vice President-elect Kamala Harris, the Third Way presented the results of a “multiyear effort to define concrete steps to improve the government’s ability to tackle the scourge of cybercrime by better identifying unlawful perpetrators and imposing meaningful consequences on them and those behind their actions.” In “A Roadmap to Strengthen US Cyber Enforcement: Where Do We Go From Here?,” the Third Way made a list of detailed recommendations on how the Biden Administration could better fight cybercrime, but in the cover letter to the report, there was a high level summary of these recommendations:
    • In this roadmap, we identify the challenges the US government faces in investigating and prosecuting these crimes and advancing the level of international cooperation necessary to do so. Cyberattackers take great pains to hide their identity, using sophisticated tools that require technical investigative and forensic expertise to attribute the attacks. The attacks are often done at scale, where perpetrators prey on multiple victims across many jurisdictions and countries, requiring coordination across criminal justice agencies. The skills necessary to investigate these crimes are in high demand in the private sector, making it difficult to retain qualified personnel. A number of diplomatic barriers make cross-border cooperation difficult, a challenge exacerbated often by blurred lines line between state and non-state actors in perpetrating these crimes.
    • This roadmap recommends actions that your administration can take to develop a comprehensive strategy to reduce cybercrime and minimize its impact on the American people by identifying the perpetrators and imposing meaningful consequences on them. We propose you make clear at the outset to the American public and global partners that cyber enforcement will be a top priority for your administration. In reinstating a White House cybersecurity position, we have extensive recommendations on how that position should address cybercrime. And, to make policy from an intelligence baseline, we believe you should request a National Intelligence Estimate on the linkages between cybercrime and nation-state cyber actors to understand the scope of the problem.
    • Our law enforcement working group has detailed recommendations to improve and modernize law enforcement’s ability to track and respond to cybercrime. And our global cooperation working group has detailed recommendations on creating a cohesive international cyber engagement strategy; assessing and improving the capacity of foreign partners on cybercrime; and improving the process for cross-border data requests that are critical to solving these crimes. We believe that with these recommendations, you can make substantial strides in bringing cybercriminals to justice and deterring future cybercriminals from victimizing Americans.

Coming Events

© 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.

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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