Executive Briefing January 12, 2018

TOP STORIES: Microsoft Cloud for Global Good

On Monday, Microsoft released an updated A Cloud for Global Good, a policy road map for governments, industry and civil society to consider as they realize the opportunities and address the challenges presented by the Fourth Industrial Revolution. This new version, which updates the edition Microsoft released in October 2016, reflects our rapidly changing world and recent advancements in artificial intelligence, machine learning, mixed reality and other cloud-enabled technologies.

TOP QUOTES

  • While we don’t have all the answers, our hope is that this book will help our customers in both the public and private sectors build cloud-powered solutions that are trusted, responsible and available to everyone.

–Brad Smith, President and Chief Legal Officer, Microsoft on release of Cloud for Global Good

HILL UPDATE

New York Times House Votes to Renew Surveillance Law, Rejecting New Privacy Limits

The House of Representatives voted on Thursday to extend the National Security Agency’s warrantless surveillance program for six years with minimal changes, rejecting a yearslong effort by a bipartisan group of lawmakers to impose significant new privacy limits when it sweeps up Americans’ emails and other personal communications.

Recode Congress Is Going to Grill Alphabet, Facebook and Twitter Again – This Time for Terrorist Content on Their Sites

Alphabet, Facebook and Twitter have been summoned to appear before U.S. lawmakers once again, this time to answer for the extremist, terrorist content that appears on their sites. The fresh round of scrutiny comes from the powerful Senate Commerce Committee, which oversees tech and telecom giants. The panel has scheduled a new Jan. 17 hearing to “examine the steps social media platforms are taking to combat the spread of extremist propaganda over the Internet,” its leader, Republican Sen. John Thune, announced Tuesday. To many in Congress, tech giants in Silicon Valley have failed to fully thwart extremist groups like the Islamic State, which at times have spread terrorist propaganda and sought to recruit new followers using major international social media channels

ARTICLE SUMMARY

Law360 Global Perspectives On High Court Microsoft Warrant Case

Law360 published a contributed post by Ropes & Gray LLP lawyers Heather Sussman, Rohan Massey, Kevin Angle, Michele Goldman, and Patrick Reinikainen, providing an overview of amicus briefs filed with the U.S. Supreme Court on December 13 in Microsoft’s warrant case. The group raises to what extent the Supreme Court will take into account concerns expressed in the amicus briefs regarding international comity, sovereignty and global privacy laws related to foreign-stored data. Relatedly, Craig Newman, litigation partner at Patterson Belknap, published a Data Security Law blog post highlighting that Google recently requested the Ninth Circuit delay briefing in its own SCA warrant litigation until after the Supreme Court makes a ruling in Microsoft’s warrant case.

Tech Crunch Tech executives join more than 100 business leaders calling on Congress to move quickly on DACA

Many of tech’s most prominent executives, including the CEOs of Apple, Facebook, Amazon and Google, have joined more than 100 American business leaders in signing an open letter asking Congress to take action on the Deferred Action for Childhood Arrivals (DACA) program before it expires on March 5.

TechCrunch IBM Led on Patents in 2017, Facebook Broke Into Top 50 for the First Time

Patents may sometimes get a bad rap for how they are abused (and misused) by some companies for commercial gain, but they also remain a marker of how a tech company is progressing with its R&D and pushing ahead on innovation. For one measure of that advance, today, IFI Claims, the patent analytics firm, published its 2017 list of companies with the most U.S. patents assigned for the year. At the top of the list, IBM has once again come in at number-one, a position it’s held for the past 25 years. It was assigned 9,043 U.S. patents in 2017, one thousand more than it picked up in 2016, and around 3,300 more than its next-closest assignee, Samsung Electronics.

Law.com Supreme Court Preview: United States v. Microsoft

This year, the Supreme Court will hear the United States v. Microsoft case, concerning the reach of search warrants to overseas data. The justices agreed to decide whether an email provider who has been served with a warrant must provide the federal government with emails, even when the email records are stored outside the U.S. And Microsoft argued that the Stored Communications Act (SCA) does not apply in this case as the emails were stored overseas.

NBC  Blocked by passwords, FBI can’t unlock over half of devices seized as evidence

NBC reported on comments made by FBI Director Christopher Wray at the International Conference on Cyber Security that the inability of law enforcement authorities to access encrypted data is an “urgent public safety issue.” Coverage is straightforward, reiterating previous law enforcement comments on the issue and noting that Wray’s remarks are his most extensive comments to date on the subject since becoming FBI director five months ago. Wray also stated that even with advanced tools at their disposal and the legal right to access the contents, the FBI failed to break through 7,775 encrypted devices this past year.

Independent Journal Review Orrin Hatch and Chris Coon’s Bipartisan Legislation Would Protect Digital Privacy

The Independent Journal Review published an opinion piece by freelance writer Maryalene LaPonsie examining that, in light of the Supreme Court cases of U.S. v Microsoft and Carpenter v United States, Congress must pass ICPA in order to provide clarity regarding digital privacy. LaPonsie urges that, rather than allowing the Supreme Court to “create a patchwork of precedents,” Congress should act swiftly to create a clear framework governing law enforcement requests for data. She goes on to argue that ICPA is win-win legislation that should be a the top of Congress’ to-do list.

THINK TANK/TECH TRADE ASSOCIATION HIGHLIGHTS

American Enterprise Institute (AEI)

Aspen Institute 

  • Axios report on new cybersecurity initiative: The Aspen Institute launched the Aspen Cyber Strategy Group, which aims “to address a wide range of cybersecurity vulnerabilities on a national scale.” The new tri-chairs of the group are IBM CEO Ginni Rometty, Texas Republican Congressman Will Hurd and former Obama administration Homeland Security Adviser Lisa Monaco. “The group intends to meet several times this year and issue reports from sub-groups once the group selects the topics to focus on this year.” (AXIOS – Exclusive: Aspen Institute launches cybersecurity initiative, By Shannon Vavra, January 5, 2018)

Brookings Institution

  • Op-ed on trust in technology: Non-resident senior fellow Bhaskar Chakravorti wrote, “After decades of unbridled enthusiasm – bordering on addiction – about all things digital, the public may be losing trust in technology.” He added, “All consumers will need to remain on guard against overreach by heavy-handed authorities or autocratic governments, particularly in parts of the world where consumers are new to using technology and, therefore, more trusting.” (THE CONVERSATION – Trust in digital technology will be the internet’s next frontier, for 2018 and beyond, By Bhaskar Chakravorti, January 5, 2018)

Center for American Progress (CAP)

  • Paper on apprenticeships: Associate director Angela Hanks argued, “Registered Apprenticeship programs are an important tool to help raise workers’ wages, equip them with in-demand skills, and meet employer needs. These programs are effective because of the rules of the road that guide their development and execution.” She added, “recent efforts to grow these programs appear to be coming at the expense of the quality standards essential to their success. Policymakers owe it to workers and employers to get the details right.” (CAP BLOG – The Administration and Congress Should Not Undermine Registered Apprenticeships, By Angela Hanks, January 11, 2018)

Information Technology Industry Council (ITI)

  • Blog post on 2018 legislative priorities: Senior vice president Andy Halataei wrote, “Congress should pass meaningful high-skilled immigration reforms and make green cards more readily available to STEM degree holders.” He added, “With 80 percent of the fastest growing jobs dependent on the mastery of STEM and computer science knowledge and skills, Congress should continue to advance education and training programs in these fields to ensure the United States has an inclusive domestic workforce that meets the demand of the jobs of tomorrow.” (ITI BLOG – Tech’s Legislative Outlook for 2018: Building on 2017’s Momentum for Modernization, By Andy Halataei, January 11, 2018)

New America 

NOTABLE QUOTES

  • “Similar cases have been litigated across the country but with differing results… Google appealed Judge Seeborg’s decision to the Ninth Circuit, but asked it to delay briefing until after the Supreme Court’s ruling in Microsoft. In its motion for a stay, which the government did not oppose, Google reasoned that a decision in Microsoft will potentially resolve or at least “significantly influence” the outcome of its appeal.  Google also noted that it is involved in another SCA appeal pending in the D.C. Circuit, which agreed to stay the briefing pending the Microsoft decision. The Ninth Circuit granted Google’s motion and has pushed back the briefing in the appeal to the summer.”

–Craig Newman, litigation partner, Patterson Belknap

  • “I want to wrap up by talking about two challenges connected to the digital revolution. The first is what we call the “Going Dark” problem… Let me be clear: The FBI supports information security measures, including strong encryption. But information security programs need to be thoughtfully designed so they don’t undermine the lawful tools we need to keep this country safe. While the FBI and law enforcement happen to be on the front lines of this problem, this is an urgent public safety issue for all of us. Because as horrifying as 7,800 in one year sounds, it’s going to be a lot worse in just a couple of years if we don’t find a responsible solution.”

–FBI Director Christopher Wray

  • “There is little doubt that government information requests will continue to be actively litigated at the domestic and international levels. The question now is to what extent, if any, the U.S. Supreme Court will take into account concerns expressed in the amicus briefs regarding international comity, sovereignty and global privacy laws in the context of data stored abroad. Companies and providers should therefore stay apprised of the U.S. Supreme Court’s upcoming decision in Microsoft and subsequent developments both in lower federal courts and on the international stage.”

–Lawyers of Ropes & Gray LLP

  • “We deserve to know our data is protected, and our law enforcement agencies deserve to have clear ground rules on how to access the information they need to keep us safe. It’s a win-win piece of legislation, and there’s no reason why the U.S. Congress shouldn’t move passage of the International Communications Privacy Act to the top of its 2018 to-do list.”

–Maryalene LaPonsie, freelance writer

  • “Members of Congress should recognize that this bill is a wolf in sheep’s clothing: a surveillance expansion bill masquerading as a reform bill. Unless amendments are adopted that would transform this bill, Congress should reject it and demand a bill that incorporates the robust privacy safeguards for Section 702 that privacy advocates have been calling for since before the Snowden disclosures.”

–Sharon Bradford Franklin, senior fellow, Open Technology Institute

  • “Speaker Ryan may start the new year with egg on his face, however… Members of Congress in both parties have expressed desire for reform and have voted for amendments to reform Section 702 in the past. If this bill is defeated on the floor — as it should be — Speaker Ryan will have no excuse except his own misunderstanding of the will of his caucus and this Congress.”

–Nathan White, senior legislative director, Access Now

  • “One ramification of the Supreme Court’s ruling could be that all U.S. businesses must have cloud email hosted in the U.S., which may be impractical, or more costly depending on the cloud email service providers. Given the pending May 2018 radical change of privacy laws driven by the General Data Protection Regulation, the Supreme Court’s ruling may make management of emails more complicated than ever.”

–Amanda Ciccatelli, reporter, Inside Counsel

  • “Privacy laws outside the EU and U.S. are also complicated, so the Supreme Court ruling may have very a complicated impact on cloud email services. A revamped or replaced SCA at this point is very unpredictable, but Congress could easily make things more complicated and require judicial interpretation.”

–Peter Vogel and Eddie Block, lawyers, Gardere Wynne Sewell LLP

  • “[The case’s ruling] will have far reaching implications for any organisation that manages and handles data, be they headquartered in the US or simply have a US base… Data and data management underpin the modern economy. Companies and their customers must have predictability and a clear legal framework on how that data is both managed and safeguarded.”

–Paul Sweetman, director of technology Ireland, Ibec

  • “Now it is time for Leader McConnell to do what Speaker Ryan did, and allow senators a chance to vote and offer amendments on the Section 702 reauthorization debate… The American public deserves a full and transparent debate, and members of the Senate deserve to have the same opportunity as did members of the House to discuss and amend legislation reforming this vital surveillance tool.”

–Joint statement by Sen. Patrick Leahy and Sen. Mike Lee

SOCIAL MEDIA HIGHLIGHTS