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Lawmakers, Prosecutors and Big Tech Companies Spar at Senate Hearing Over Unlocking Encryption



Photo of Senate hearing by Masha Abarinova

WASHINGTON, December 11, 2019 – Lawmakers remain concerned about law enforcement’s inability to access highly encrypted devices for investigations. Tuesday’s Senate Judiciary Committee hearing questioned some representatives from big tech on the matter.

This isn’t going to be a world where social media is a haven for child abusers and other criminals, said Committee Chairman Lindsey Graham, R-S.C. Big tech can be either the problem or the solution to this dilemma, but they need to take action on encryption. Otherwise, Graham said, these companies face repercussions from Congress.

When a crime is committed, said Ranking Member Dianne Feinstein, D-Calif., it is imperative that these devices be opened. The tech industry has a responsibility to respond to law enforcement’s concerns, she said, and that determines the degree of congressional action.

Sen. Dick Durbin, D-Ill., inquired about how encrypted information is affected under the Children’s Online Privacy Protection Act. Obtaining this information is not only about deterring hackers or foreign actors, he said, but it is about the government protecting children.

Because of Section 230 of the Communications Decency Act, said Sen. Richard Blumenthal, D-Conn., big tech uniquely enjoys immunity from legal action. Sen. Sheldon Whitehouse, D-R.I., added that these companies seem to profit off encryption, yet they are unwilling to take responsibility for the negative effects they might incur.

Representatives from tech companies included Erik Neuenschwander, manager of user privacy at Apple, and Jay Sullivan, product management director for privacy and integrity at Facebook’s Messenger. They emphasized that their respective companies are actively working to ensure safety and security across devices.

Encryption is one of the most important mechanisms a nation has in order to safeguard an increasingly interconnected future, Neuenschwander said. Currently, Apple doesn’t have the ability to retrieve encrypted information off a device. However, he said, that means malicious actors also do not have access to that personal data.

Neuenschwander also added that Apple works closely with law enforcement and government agencies, receiving thousands of requests. Apple’s team has also trained law enforcement officers in the U.S. and around the world on its security processes.

Most Facebook’s methods to combat malicious actors, Sullivan said, are behavioral and based off social interaction. Facebook does not sell or share minors’ data to third parties, and Facebook does not use private messages for targeted ads or other algorithms, he said.

End-to-end encryption is the best technology available to make messages safe and secure, Sullivan continued. If the United States rolls back its support for privacy and encryption, foreign application providers will fill that vacuum to provide the privacy and security that people demand.

Tech companies have no external incentive to mandate the regulation of encrypted devices, said Prof. Matt Tait, cyber security fellow at the Lyndon B. Johnson School of Public Affairs. Encryption hinders law enforcement in three ways: device searches, which are impacted by a user passcode, traditional wiretaps, which are impacted by end-to-end communications and cyber tips, where companies can alert law enforcement of known child abuse material.

Options exist for conducting wiretaps and retaining cyber tips without altering encryption, Tait said. Only device encryption is amenable to a “front door” access mechanism.

New York City District Attorney Cyrus Vance was also on the panel, and he reiterated that law enforcement has lost functionality due to encrypted devices.

Apple and Google have engineered their phones to no longer have the capacity to be unlocked without encryption, he said. Vance said officers can only access about half of the encrypted phones that come into the DA’s office.

Encrypted material should not go beyond the law when a judge signs a search warrant, Vance said. For their own private business interests, the Fourth Amendment grants a right to not only privacy but to anonymity.

Vance emphasized that law enforcement officials having access to the cloud is not a suitable substitute for lawful access to a device. The cloud only stores data that has been saved. Moreover, a user can opt not to backup particular data to the cloud. The device itself, he said, contains the most critical evidence.


FCC Halts Authorization of Equipment That Threatens National Security

The FCC’s order prevents future authorizations of equipment on the commission’s “Covered List” of national security threats.



Photo of FCC Commissioner Brendan Carr

WASHINGTON, November 28, 2022 – The Federal Communications Commission published Friday a modification of certification rules that will bar from United States markets technologies that are considered threats to national security.

The commission’s action seeks to prevent Chinese tech companies deemed to be national security threats – such as Huawei and ZTE – from gathering data on and surveilling American citizens. The Chinese Communist government can force, under law, private companies to hand over data from their products, thus putting Americans at risk, experts and government officials have said.

Friday’s action bars the commission from issuing further authorizations for covered technologies, without which those technologies may not be imported to or marketed in the United States. The action also closes loopholes that would allow certain products to skirt the authorization process.

“That does not make any sense,” said FCC Chairwoman Jessica Rosenworcel in a statement. “After all, there is little benefit in having these lists and these bans in place just to leave open other opportunities for this equipment to be present in our networks. So today we are taking action to align our equipment authorization procedures with the rest of our national security policies.”

The FCC already publishes a list of entities and products, on the advice of Public Safety and Homeland Security,  that pose national security risks. The commission has long shown skepticism toward such risky technologies, notably disallowing the use of universal service funds to buy certain products in 2019.

The rule covers many types of equipment, including base stations, phones, cameras, and Wi-Fi routers.

With this decision, the FCC has fulfilled a congressional mandate to enact a moratorium on equipment on the covered list within 12 months. The statute followed a notice of proposed rulemaking it issued last year.

Congress in 2017 forbade the Department of Defense from using telecommunications equipment or services from Huawei or ZTE. Building on that effort, Congress the next year expanded prohibitions on federal use of technology from those companies and three others. In 2019, in response to concerns over the integrity of communications networks and supply chains, the White House declared a national emergency.

In March 2020, then-President Donald Trump signed into law the Secure Networks Act, requiring the FCC to prohibit the use of moneys it administers for the acquisition of designated communications equipment. The act promoted the removal of existing compromised equipment through a reimbursement program – called Rip and Replace – and further directed the commission to create and maintain the covered list.

FCC Commissioner Brendan Carr, outspoken on national security issues, celebrated Friday’s decision, but called for further action.

“We must also vigilantly monitor compliance with the rules we’ve established today, including by ensuring that entities do not make an end run around our decision by ‘white labeling’ covered gear – a process that involves putting a benign or front group’s name on equipment that would otherwise be subject to our prohibitions,” Carr said in a statement.

Rosenworcel said in her statement that the order covers “re-branded or ‘white label’ equipment that is developed for the marketplace. In other words, this approach is comprehensive.”

Carr also once again called for federal action against TikTok, the Chinese built social media app. The video-sharing app gathers extensive data on users, and despite protestations to the contrary, the platform routinely feeds Americans’ information to the Chinese government, reports say.

“Secure networks mean little if insecure applications are allowed to run, sweep up much of the same sensitive data, and send it back to Beijing,” Carr said.

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FCC Cracks Down on Straight-to-Voicemail Robocalls

The commission’s ruling follows a notice of inquiry the agency approved last month.



Photoillustration of a mobile phone, used with permission

WASHINGTON, November 21, 2022 – The Federal Communications Commission on Monday took another step to combat telephone spammers by ruling that straight-to-voicemail robocalls are “call(s)” under the 1991 Telephone Consumer Protection Act and will be subject to the law’s consumer protections.

According to the TCPA, before any call using an automatic dialing system or artificial or prerecorded voice is made to a wireless number, the recipient must provide affirmative consent. In 2017, All About the Message – the owner of a proprietary ringless, straight-to-voicemail calling software – petitioned the FCC to allow its software to operate outside of TCPA’s constraints. After the FCC received more than 8,000 comments and replies on the matter, nearly all opposing the petition, All About the Message sought to withdraw its request.

The FCC pushed forward, nonetheless. “Because the Petition drew substantial attention from commenters and members of Congress, and the applicability of the TCPA to ringless voicemail technology has been the subject of considerable recent litigation,” Monday’s ruling read, “We believe this declaratory ruling is necessary to resolve a controversy and remove uncertainty about ringless voicemail.”

“Imagine finding robocallers leaving junk voicemails on your phone without it ever having rung.” said FCC ChairwomanJessica Rosenworcel. “It’s annoying and it’s happening to too many of us.  Today we’re taking action to ensure these deceptive practices don’t find a way around our robocall rules and into consumers’ inboxes.”

The FCC’s ruling follows an anti-robocall notice of inquiry the agency approved last month. The commission is exploring how best to crack down on illegal robocalls occurring over non–internet protocol networks, which are technologically incompatible with the prevailing STIR/SHAKEN protocol.

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Report Urges States, Local Governments Follow Federal Rules on Prohibited Equipment Purchases

Only a handful of states have crafted their purchasing decisions after federal rules banning certain companies’ equipment.



Members of the Center for Security and Emerging Technology at Georgetown University

WASHINGTON, November 14, 2022 – A think tank is recommending state and local governments align their rules on buying technology from companies with federal guidelines that prevent agencies from purchasing certain prohibited foreign technology, such as ones from Chinese companies.

The Center for Security and Emerging Technology at Georgetown University notified the Federal Communications Commission late last month of a report released that month regarding what it said was a concerning trend of state and local governments having outdated procurement policies that are seeing them purchase equipment banned for federal purchase.

“State and local policymakers should not be expected to independently analyze and address the threats posed by foreign technology, but it would behoove them to align their own procurement practices with the rules set by the federal government,” the report recommends.

The FCC has a list of companies, as required by the Secure and Trusted Communications Networks Act of 2019, that it updates on a rolling basis through commission votes that it says pose a national security threat to the country’s networks. It last updated the list in September, when it added Pacific Network Corp. and China Unicom Operations Ltd. to the growing list that already includes Huawei and ZTE.

Chinese companies and following Communist Party directions

U.S. officials and experts have warned that Chinese companies operating anywhere in the world must follow directions of the Chinese Communist Party, which they say could mean anything from surveillance to American data falling into the hands of that government.

The report notes at least six state governments had their networks breached by a state-sponsored Chinese hacking group between May 2021 and February 2022.

The only states that have enacted local regulations aligned with federal provisions are Florida, Georgia, Louisiana, Texas, and Vermont, the report said. Provisions in Georgia and Texas prohibit private companies from entering into agreements with the covered companies. Vermont, Texas and Florida provisions block state entities from purchasing equipment from countries like China, Russia, Iran, North Korea, Cuba, Venezuela and Syria. Louisiana and Georgia provisions ban public-funded schools from buying prohibited technology.

The remaining 45 states do not explicitly target the equipment and services they produce, nor are they directly responsible for following federal provisions, the report said, leaving state entities vulnerable in obtaining equipment from third party contractors that could pose a security risk.

“Many government entities also lack the in-house technical expertise and procedures to understand and address such threats in the first place, and those that do may prioritize addressing immediate threats like ransomware over the more abstract risks posed by foreign ICTS,” the report said.

Section 889 of the 2019 National Defense Authorization Act is one out of four federal provisions addressing the issue, prohibiting federal agencies from using equipment and services from Huawei, ZTE, Hikvision, Dahua and Hytera as well as working with contractors that use the equipment.

Prohibited products finding their way in

In some cases, the report said, the listed companies will sell their products to third party contractors that are not listed on Section 889 to bypass regulations, according to the report. Due to the low cost of Chinese equipment, public schools and local governments will purchase from the third-party entities that are unknowingly selling prohibited equipment, it added.

“These ‘middle-man’ vendors can mask the origin of their products, which creates major challenges for organizations aiming to keep certain equipment and services off their networks”, the report reads.

“Currently, contractors are responsible for self-certifying that their products and internal networks do not contain covered [products]” and “… inspecting the IT infrastructure—equipment, services, and components – of every contractor that does business with the federal government would require a staggering level of resources, making it difficult for agencies to conduct effective oversight.”

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