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Ranking Digital Rights Project Seeks to Compare Privacy and Free Expression by Big Tech and Internet Companies

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Photo of Rebecca MacKinnon from November 2008 by J.D. Lasica used with permission

WASHINGTON, September 5, 2019 – In the context of the increasing scrutiny faced by global technology and internet companies, the think tank New America has taken a stab at producing a comprehensive overview of how these powerful and influential global companies address and respect users’ privacy, transparency and freedom of expression.

Many of the companies listed on New America’s Ranking Digital Rights Index are “unaccountable sovereigns of cyberspace,” said Rebecca MacKinnon, director of the project, in an interview. Based off the principles of the Global Network Initiative, RDR’s goal was to establish standards based on the challenges governments have created with censorship and surveillance.

Tim Berners-Lee, inventor of the World Wide Web, called last year for a new “Contract for the Web,” in order to rebuild trust in the web and increase internet access on fair and affordable terms.

The comes as many are questioning the future of the internet. Is it still – or was it ever – a force for democratization?. Although the internet has helped people circumvent traditional barriers to hold governments and corporations accountable for their actions, it has also contributed increasing vulnerability to mass surveillance, disinformation, censorship and much more.

RDR aims to assist in that endeavor. As the number of internet users increases, global internet freedom has suffered an overall decline. The internet’s growth has provided more insight to issues concerning democracy and freedom of expression, yet practices of worldwide corporations have also hindered them.

Evaluating 12 tech company and 12 internet companies

The 2019 index evaluated 24 of these companies, based on their disclosure of commitments, policies, and practices affecting freedom of expression and privacy. The study focused on three key areas: privacy, expression and governance. These areas had their own respective indicators, which went into depth on how each company abided or failed to abide by the guidelines.

Additionally, the companies were grouped and graded within two categories: Internet and mobile ecosystem (think consumer electronics and big tech), and telecommunications/broadband providers.

Because some companies, such as Google and Apple, also produce software and devices, the study combined internet and mobile ecosystem firms. All the companies were evaluated with their respective subsidiaries.

The report’s results are described as a benchmark of how well companies are meeting their responsibility to respect users’ rights. It also provided recommendations ICT companies should take to uphold the principles of free internet.

Weaknesses exposed in even high-ranking companies

Even the supposedly highest-ranking companies were found lacking in some critical areas. This year, Microsoft earned first place among internet and mobile ecosystem companies, whereas Madrid-based Telefónica lead the way with telecom firms. However, their respective total scores were only above average on a 100-point scale: 62 and 57 percent.

Microsoft’s result is primarily due to an 85 percent score in governance, indicating that it disclosed more about its commitments and policies affecting users’ human rights than all other ranked companies. It scored moderately well for freedom of expression and privacy, rounding up to 55 and 59 percent.

Telefónica’s governance scored an astronomical 94 percent, the highest value of any other company in the three categories. On the other hand, its freedom of expression and privacy rankings were 47 and 49 percent, slightly below average.

It comes as no surprise that some companies received low scores, such as China’s Baidu and Tencent services as well as Russia’s Mail.ru. As they are based in countries with highly restrictive political systems, they are unable to commit to privacy and free expression as human rights.

The big tech giants in America received mixed results

On the other hand, other major corporations, including some prominent members of the “GAFA” faction, received mixed results. Apple is typically highly regarded for its privacy approach, yet its privacy ranking only totaled up to 58 percent while scoring poorly in other categories.

Facebook’s 78 percent governance score resulted from its clear commitment to protect human rights and strong management oversight. However, the social media giant was insufficient about disclosing due diligence efforts and had one of the lowest scores of any company in the index for its appeal mechanisms. Lack of disclosure about content and account restriction as well as poor network management and shutdown procedures earned Facebook a below average freedom of expression ranking.

Samsung, one of the leading producers in personal electronics, scored poorly in all three categories. It received the second lowest score of all internet and mobile ecosystem companies in the privacy category. Additionally, South Korean companies are required by law to provide grievance and remedy mechanisms for freedom of expression and privacy complaints. Samsung, however, failed to disclose any information about its mechanisms.

Amazon, one of the biggest tech giants, has yet to be included in the RDR Index, although MacKinnon said it will be in the near future. The products and services that Amazon provides are different enough from the other companies in the ranking that the methodology is not developed enough to support it.

Future indices would have to include more indicators, she said. RDR would also have to formulate a consensus from technical experts as well as human rights communities on what companies need to do to improve their standards.

Privacy grades are uniformly low

Even though these 24 companies operate differently, the most striking result is that none of them received excellent privacy grades. The two frontrunners in each group, Microsoft and Telefónica, earned scores that were average at best. Even Deutsch Telekom, which went above and beyond the standard of the EU’s General Data Protection Regulation – and received the highest privacy score in the index – earned 60 percent.

Simply put, corporations have not been prioritizing privacy, MacKinnon said. Everyone should be concerned about how these companies are conduits for information, yet they are still not disclosing enough.

Even the GDPR, she said, is not effective enough in enforcing better privacy practices. Companies are mainly required to inform regulators what they are doing. Consumers, on the other hand, don’t necessarily know more about company practices.

It’s also unclear, MacKinnon said, if U.S. multinationals that must abide by the GDPR perform better overall, because RDR evaluates the work they do on the domestic level.

Theoretically it is possible for an entity to reach a near “perfect” privacy score on the Index, she said. However, it’s unlikely that the companies on the evaluation list could succeed in doing so. Countries with more stringent political systems may not allow their companies to publicize the data found in RDR. On the other hand, jurisdictions with more liberal policies will more likely incentivize human rights assessments.

Perhaps as RDR’s methodology continues to develop, companies may start to display more profound results in privacy and freedom of expression. Still, the main goal of the Index, MacKinnon said, is to pick a series of companies with a high global reach and apply international human rights standards to their products and services.

Expert Opinion

Jonathan Marashlian: The Legal Landscape Emerging for Robocalls Under the TRACED Act

The biggest risk is likely to come through enforcement actions by state attorneys general and civil litigation, says Marashlian.

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Jonathan Marashlian, Managing Partner of Marashlian & Donahue, LLC, The CommLaw Group, is the author of this Expert Opinion

Requirements for voice service providers emerging from the TRACED Act and the Federal Communications Commission orders that followed have changed the risks and threats to voice service providers.

Voice service providers have just passed some major milestones: Certifying SHAKEN and/or robocall mitigation in the FCC database and refusing calls from unregistered upstream providers. Does that mean it is time to kick back and relax?

Not at all. The legal landscape in the new STIR/SHAKEN era is much larger and more diverse than mere technical compliance with FCC requirements.

We are already seeing clear and unmistakable signs that compliance with the bare minimum requirements established by the FCC—implementing STIR/SHAKEN and robocall mitigation plan procedures—is insufficient to mitigate the myriad of business risks arising from the government onslaught against the scourge of illegal robocalling.

Reading the tea leaves, the biggest risk or threat is likely to come through enforcement actions by state attorneys general and civil litigation initiated by private parties. Wherever the legal landscape provides the opportunity to recover damages, class action plaintiff’s lawyers and attorneys for large enterprise consumers of voice services, such as call center operators, are certain to seize upon those opportunities.

‘Know your Customer’ rules come to the telecom industry

We anticipate that questions around the meaning of and extent to which the “Know Your Customer” requirements apply in different contexts will ultimately be answered through litigation and enforcement, and less so through the FCC regulatory rulemaking process. Questions around damages and who is or can be held responsible for originating, passing, or terminating illegal robocalls are also going to be fleshed out by regulatory enforcement and private litigation.

Perhaps the most significant risk, even more so than the FCC, are the federal and state consumer protection laws that are being developed around robocall mitigation. Starting with the Federal Trade Commission (FTC), where the FTC’s strict “known or should have known” standard is applied to hold voice service providers accountable for illegal robocallers using their networks.

Many service providers and telecom consultants pore over FCC regulations to try and understand the requirements. Is that sufficient? Are there other things they need to worry about?

FCC regulations are a good starting point and, telecommunications providers should stay abreast of updated regulations and releases. However, FCC regulatory compliance alone may not be enough to defend an action if provider’s face the FTC and state attorneys general’s “known or should have known” standard or the creative, evolving litigation strategy of the plaintiff’s bar.

Marriott filed a lawsuit in federal court against unknown perpetrators, “John Does,” who made illegal robocalls misusing Marriott’s name. Why would Marriott do that? What’s the point?

This is sheer speculation, but as often turns out, the actual perpetrators who harmed Marriott likely will be insolvent or outside the reach of Marriott. By using “John Does,” Marriott preserves its ability to amend its complaint to implead carriers and providers that carried or transported the fraudulent traffic.

Marriott could rely on the FTC’s “known or should have known” standard to show underlying carriers are the “John Does” that profited from bad actors (now insolvent or extra-judicial). It’s unlikely Marriott would commence this litigation without a strategy outside positive public relations for pursuing bad actions; rather, the “John Does” will likely turn out to be carriers of bad traffic who settle Marriott’s claims.

The Call Authentication Trust Anchor Working Group issued Caller ID Authentication Best Practices, which the FCC published and endorsed as voluntary measures. Then the Fourth Report and Order on Robocall Prevention mandated affirmative obligations to prevent service providers from originating robocalls. It seems like momentum is building toward holding service providers responsible for knowing their customers and the nature of their calls.

Based on recent trends, there is certainly momentum in that direction and Know Your Customer will likely continue to grow in importance. Thus, providers should ensure they have a good KYC policy in place, particularly as new risks emerge, and scrutiny grows. However, as discussed above, this appears largely driven by the FTC and state attorney general actions.

Of note, the Industry Traceback Group in July 2021 published a Policies and Procedures booklet with a best practices section. All voice service providers should review the booklet, and particularly the best practices. Accountability will keep mounting and the weakest link—the weakest KYC policy—will be the first to break, and that provider will be accountable and “holding the bag.”

Jonathan Marashlian is Managing Partner of Marashlian & Donahue, PLLC, The CommLaw Group, a full-service telecom law firm located in the Washington, D.C., area catering to businesses operating in and around the dynamic and diverse communications and information technology industries. Their clients include providers of VoIP, wireless and traditional telecommunications services, SaaS-based and cloud computing technologists and Internet-of-Things application and network vendors. The CommLaw Group has formed a Robocall Mitigation Response Team to help clients achieve the level of compliance needed to avoid the emerging threats of litigation and regulatory enforcement. Jonathan S. Marashlian may be reached by email or by phone at 703-714-1313.

A prior version of this piece was published on October 6, 2021, on TransNexus. This lightly-edited Expert Opinion is reprinted with permission. Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views expressed in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

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Cybersecurity

Microsoft Executive Calls For Improved Information Sharing Between Governments and Companies

Brad Smith said information sharing is critical for preventative measures against cyberattacks.

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Microsoft Vice Chair Brad Smith

WASHINGTON, September 20, 2021—Microsoft Vice Chair Brad Smith called for improved information sharing between countries to prevent cyberattacks on critical infrastructure.

While participating in a Washington Post Live discussion on September 20, Smith pointed toward certain sectors and aspects of society that should be protected from cyberwarfare. He specifically mentioned that a country’s digital supply chains, healthcare systems, and electoral processes should be considered off limits.

“I think the sobering fact of life is that unfortunately the world typically comes together to do what needs to be done only after it has experienced some kind [disaster],” he said.

“If we said we won’t harm civilians in a time of war, why should we for a moment, tolerate this kind of harm to civilians in what is supposed to be a time of peace?” Smith likened the SolarWinds attack to tampering with a blood supply to harm recipients.

A webinar in June hosted by the Stimson Center heard that a cybersecurity framework between countries is key to combatting cyberattacks.

Information sharing with private companies

In addition to reaffirming a commitment to not cause civilian harm, Smith also called for improving coordination and information sharing between private companies and stated that these efforts are enhanced by government leadership.

“I think any day when we’re sitting down and talking about how we can collaborate more closely among companies, that’s probably a good day.” Smith lauded efforts by the Biden Administration to facilitate information sharing between tech companies to prevent further attacks like the one SolarWinds suffered, “We are going to need a government that can work as a single well-coordinated team and the team is going to need to include participants in an appropriate way from the private sector as well. I’m hopeful, encouraged and I would dare say even optimistic.”

Last month, Comcast Cable’s chief product and information officer Noopur Davis said the private sector is falling behind on information sharing during cyberattacks, and that companies in the tech industry are reevaluating their strategies and how they share information to prevent such acts. Some have noted that companies are still not prioritizing cybersecurity.

Senator Angus King, I-Maine, has even called for new rules requiring companies to disclose when they’ve been breached in a hack.

Shortage of cybersecurity workforce

Smith noted, however, that there is still a lot of work that needs to be done. He described a “substantial shortage” of cybersecurity professionals, which he stated is one of the reasons organizations are not able to move quickly enough to keep pace with bad actors and implement best practices.

“There is a real opportunity for us to work together for community colleges to do more [and] for businesses to do more to train their people,” he said.

Overall, Smith stated that things are moving in the right direction but emphasized that the international community—governments and otherwise—need to establish better methods of federating data that is secure from bad actors but accessible to the necessary parties.

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Cybersecurity

Private Sector Falling Behind on Information Sharing During Cyberattacks, Says Comcast Rep

Comcast’s Noopur Davis says cyber attackers share information better than the private sector.

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Noopur Davis, Chief Product and Information Officer at Comcast Cable.

ASPEN, Colorado, August 23 — In the wake of an influx of ransomware attacks on critical infrastructure and cyberattacks on private carriers, entities across the technology industry are revaluating their strategies and how they share information to prevent such acts.

T-Mobile announced on August 15 that as many as 50 million consumers had their private data compromised during a data breach. Days later, on August 17, as part of Technology Policy Institute’s 2021 Aspen Forum, Noopur Davis, Chief Product and Information Officer at Comcast Cable, sat down for a fireside chat to discuss what the industry was doing to address this event and events like it.

Join in Broadband Breakfast Live Online’s Discussion on “Cybersecurity: Reviewing the Biden Administration’s Executive Order,” on Wednesday, August 25, 2021, at 12 Noon ET.

When Davis was asked how she felt about the current state of cybersecurity, she said it was okay, but that the telecom community at large would have to do more.

She referenced the mean time of comfort—that is, the average duration between the time that a service becomes connected to the internet and when it is targeted by bad actors. While in the early days of the internet cybersecurity experts could expect to have significant mean times of comfort, she stated that this is no longer the case.

“The second you connect [to the internet] you are attacked,” she said.

As soon as a successful breach is recognized, Davis explained that the target companies begin to revaluate their “TTP,” or tactics, techniques, and procedures.

Information sharing is crucial

Though one company may find a remedy to their breach, other companies may remain vulnerable. To combat this, Davis said that it is critical for companies to share information quickly with their counterparts, but she indicated that this is a race that the private sector is currently losing.

“[Attackers] share information better than [the private industry does].”

She went further, revealing that there is now a sophisticated market for malware as a service, where various platforms publish reviews for their products and services and even offer tech support to those struggling to get the most out of their purchases.

Growing market for hacking tools

She pointed to the Colonial Pipeline attack as an example where hackers did not even create the malware themselves—they just purchased it from a provider online. She explained that this marketplace has significantly lowered the barriers of entry and deskilled the activity for would be attackers, and that theoretically anyone could engage in such nefarious acts today.

Though Davis was in favor of collaboration between companies to address these attacks, she made it clear that this would not mean that responses and capabilities would become standardized, and that every company would maintain their own unique strategies to ensure that their services and data remain uncompromised.

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