Executive Briefing October 13, 2017

National Cybersecurity Awareness Month Webinar

If you missed our webinar on Wednesday, here is a link to our webinars page where you can find it.


The Hill Opposition Mounts against Bill to Renew Surveillance Program

A carefully crafted compromise proposal to reform the NSA’s warrantless surveillance program is in trouble, with opposition coming from libertarian-leaning conservatives and members of the House Intelligence Committee. The House Freedom Caucus appears dissatisfied with the National Security Agency reform measure, which was drafted by a bipartisan group of Judiciary Committee lawmakers led by chairman Bob Goodlatte (R-Va.). Freedom Caucus members often find common ground with progressives on surveillance issues, potentially putting them in a position to decide the fate of the legislation.

The Hill GOP rep on responsible encryption: ‘You can call it whatever you want’

Rep. Will Hurd (R-Texas) on Thursday said he is unimpressed with the Department of Justice’s rebranding of the encryption debate as a matter of “responsible encryption.” “You can call it whatever you want, but make sure you have strong encryption,” he said at “The Cyber Frontier,” a series of talks put on in Washington by The Atlantic magazine.


New York Times Lawmakers Say They Plan to Release Facebook Ads Linked to Russia

WASHINGTON — Leaders of the House Intelligence Committee said on Wednesday that they planned to make public the thousands of Facebook ads linked to Russia that appeared during the 2016 presidential election campaign, the first indication that the ads would be released. The lawmakers told reporters about their plans after an afternoon meeting with Sheryl Sandberg, Facebook’s chief operating officer. They said the 3,000 ads would probably be released after a Nov. 1 hearing on the role of social media platforms in Russia’s interference in the election. That hearing, and a similar one that the Senate Intelligence Committee plans to hold with Facebook, Google and Twitter, will place Silicon Valley’s top companies under a harsh spotlight as the public perception of the giants shifts in Washington.

SCOTUSblog Relist Watch

SCOTUSblog published a blog by John Elwood, professor of law at University of Virginia School of Law’s Supreme Court litigation clinic, summarizing some of the cases relisted for today’s Supreme Court conference. Elwood highlights Microsoft’s warrant case as an “epic case” up for consideration, describing it as a “rare relist” that involves a case for which there is no circuit split.

The Nation In Facebook We Antitrust

Since Facebook is currently a de facto social utility, it’s tempting to propose that it be regulated, perhaps in a manner similar to the ways that the government has regulated telecommunications companies. For example, as Harold Feld of Public Knowledge has argued, Facebook could be required to show that it is not discriminating against particular classes of users or individuals when it comes to who it allows on the platform or how they’re permitted to use it. Thus, when Facebook fires up its voter megaphone, the company could be required to show technical auditors that it is indeed being used in a neutral way. Likewise, when Google or Amazon exploit their market dominance in Web searches to privilege their own products, an antitrust case could be made that they’re unfairly rigging the marketplace.

AP Vermont Gov. Signs Order Encouraging Cybersecurity

MONTPELIER, Vt. (AP) — Vermont Gov. Phil Scott says he wants the state to do more about cyber security. At the Statehouse on Tuesday, Scott signed an executive order creating the Governor’s Cyber Security Advisory Team. Scott, a Republican, said that since January there have been more than 3.3 million attacks on the state’s computers, none of which were successful. He says as cyber threats become increasingly complex and frequent, the state must have greater coordination, information sharing, preparation and emergency response capabilities.

Bloomberg Trump Is Warned His Intellectual-Property Probe Risks a Trade War With China

The Trump administration’s probe into China’s intellectual-property practices threatens to spark a trade war between the world’s two biggest economies, according to an official representing Chinese industry. “We are quite confused and greatly concerned about the investigation,” said Chen Zhou of the China Chamber of International Commerce. Any decision by the administration to impose unilateral penalties on China “may trigger a trade war,” Chen said Tuesday at a hearing held by the U.S. Trade Representative’s office.

Recode A Group of Silicon Valley Tech Experts Is Raising Money to Help 500 Democrats Win Elections in 2018

A group of well-wired tech engineers is trying to bring a Silicon Valley sensibility to hundreds of hardscrabble Democratic campaigns around the country next year — and they’re tapping the likes of Sam Altman, Chris Kelly and Chamath Palihapitiya for help.* The organization is called Tech for Campaigns — and the effort, profiled by Recode earlier this May, seeks to arm digitally deprived state and federal office-seekers with tools to connect with voters in the social media age. That comes in the form of placing volunteers, about 3,000 and counting, with candidates who need help on data analytics, paid ads, social strategy on Facebook and more.

Seeking Alpha Britain Considers Regulating Facebook and Google as News Publishers

Britain is considering classifying and regulating Facebook (NASDAQ:FB) and Google (GOOG, GOOGL) as news publishers, rather than platforms. “We are looking at the role Google and Facebook play in the news environment,” says a spokesman for Prime Minister Theresa May. “As part of that work we will look carefully at the roles, responsibility and legal status of the major internet platforms.”

The Washington Post Commit a crime? Your Fitbit, key fob or pacemaker could snitch on you.

The Washington Post published an article examining several cases in which investigators collected data stored on Fitbits, among other smart devices, that served as key, incriminating evidence in criminal investigations. The article includes comment from several academics and local law enforcement officials predicting a rise over the next few years for requests for data from personal smart-devices. The article drove follow-on coverage from the Daily Mail, which explored whether a ruling by the U.S. Supreme Court in Carpenter v. United States could authorize law enforcement to increase their warrantless requests for smart device data stored on corporate servers.

The Outline This is why tech companies won’t disclose content of Russian ads

The Outline published an article examining how ECPA is complicating the current investigation into Russian-bought ads on social media platforms during the 2016 U.S. Presidential election. The piece features comments by Albert Gidari, director of privacy at the Stanford Center for Internet and Society, that under ECPA, ads circulated through social networks are protected in the same way as private messages and items posted publicly on social networks. Gidari believes that because of protections granted under ECPA, Congress overstepped its authority by asking Facebook, along with other tech companies, to turn over such ads.


American Enterprise Institute (AEI)

  • Podcast on technological innovation: Editor Jim Pethokoukis wrote, “Technological innovation is already transforming the economy, and this change will accelerate in the future.” Pethokoukis was joined by Andrew McAfee, a principal research scientist at MIT, as he discussed “what these changes mean for business and society at large.” (AEI PODCAST – Ep. 82: How technology is changing business, By Jim Pethokoukis, October 10, 2017)


  • Blog post on FISA reauthorization: Vice president Jason Pye wrote, “FISA should be transparent enough that Americans can be certain that the law isn’t interpreted secretly by the government in a way that contradicts how citizens are led to believe it is being used.” He added, “The permanent reauthorization with no reforms that the Senate bill puts forth for FISA would be tragic for the privacy and rights of Americans in government surveillance.” (FREEDOMWORKS BLOG – FISA Reauthorization Bill Is a Mixed Bag, By Jason Pye, October 11, 2017) 

Information Technology Industry Council (ITI)

  • Testimony on digital trade: President and CEO Dean Garfield “urged Congress to pursue policies that support and promote the benefits of digital trade for American consumers, businesses, and the overall economy. In testimony before the House Energy and Commerce Subcommittee on Digital Commerce and Consumer Protection, Garfield described the wide-ranging implications of digital trade for the U.S. economy and outlined what the U.S. can do to maximize those benefits and maintain its leadership this area.” (ITI STATEMENT – ITI Urges U.S. Leadership on Digital Trade to Maximize Benefits, October 12, 2017)

Information Technology & Innovation Foundation (ITIF)

  • Testimony on investigation of Chinese “innovation mercantilism”: ITIF “applauded the Trump administration for pushing back against China’s systematic pattern of ‘innovation mercantilism’ in strategically important industries.” ITIF Vice President for Global Innovation Policy Stephen Ezell provided oral testimony “to an interagency committee conducting a Section 301 investigation into China’s policies and practices related to technology transfer, intellectual property, and innovation.” (ITIF STATEMENT – In Testimony for Section 301 Investigation, ITIF Commends Trump Administration for Undertaking Serious Investigation of Chinese “Innovation Mercantilism,” October 10, 2017)
  • Report on data innovation in the EU: Senior policy analyst Nick Wallace and vice president Daniel Castro used “32 different measurements to assess the state of data innovation in the 28 EU nations,” and concluded “with recommendations for policymakers on how to improve their country’s performance in data innovation,” noting that “governments need to prioritize three goals.” The three goals: “maximize the supply of reusable data,” “improve infrastructure that supports data innovation” and “develop data-science and data-literacy skills in workers.” (ITIF REPORT – The State of Data Innovation in the EU, By Nick Wallace and Daniel Castro, October 10, 2017)
  • Blog post on privacy: Research analyst Alan McQuinn argued, “Some people mistakenly believe that most privacy debates pit the interests of businesses or government versus those of consumers, where businesses gain when consumers lose…However, this is simply wrong. Many types of organizations, from businesses to non-profits to government agencies, collect, use, and share personal data, and both the organization and the individual benefit from these exchanges.” (ITIF BLOG – The Economics of “Opt-Out” Versus “Opt-In” Privacy Rules, By Alan McQuinn, October 6, 2017)

Internet Association

  • Blog post on cloud computing: The Internet Association wrote that “it was disappointing to see the Securities and Exchange Commission (SEC) recently issue a Request for Information that failed to even acknowledge the possibility of a cloud-first approach.” The group added, “As expectations rise and budgets shrink, agencies can no longer afford to simply default to yesterday’s technology. Public cloud solutions offer a compelling answer. Those planning IT expansions owe it to their internal stakeholders and to the taxpayer to closely consider them.” (INTERNET ASSOCIATION – Cloud First Must Be More Than A Slogan, October 6, 2017)


  • Blog post on International Day of the Girl: President and CEO Linda Moore wrote, “As it stands, there are 500,000 jobs in the U.S. requiring computer science education that are unfilled right now, and we are simply not training enough students to satisfy that demand.  Only one out of four K-12 schools teach any computer science. These alarming facts underscore the urgency with which we must act to make the right investments in STEM education to ensure companies can fill these critical labor shortages as soon as possible.” (TECHNET BLOG – “TEACHING GIRLS TO TECH” ON INTERNATIONAL DAY OF THE GIRL, By Linda Moore, October 12, 2017)


  • “When the Supreme Court decides a case like this, it has ripple effects throughout society. The real decision in this case is about what the third-party doctrine is going to look like in the 21st century. In the new world in which we live where companies have vast amounts of data, are we going to have a legal rule where the federal government can freely get all of that, or are we going to have a more nuanced approach that says the government can sometimes get that information based on certain protections.”

Wesley Hottot, lawyer, Institute for Justice

  • “The Trump administration has been pressing for a clean bill that would make Section 702 permanent without any changes. This seems unwise. After all the uproar in recent years following the Edward Snowden disclosures, the intelligence community should want a system that is firmly anchored in the trust of the American people and unambiguously endorsed by Congress. Privacy advocates want even tighter restrictions in the law, and we trust Congress will examine these ideas. But the goal should be to put this entire matter on a sustainable, bipartisan foundation so that the intelligence agencies can pursue their vital tasks knowing the rules.”

The Washington Post Editorial Board

  • “On the whole, it’s hard not to be disappointed in [the USA Liberty Act], even though it would undoubtedly constitute a significant improvement over the current state of the law.  The list of what it fails to address is too long, and the areas it does cover, it covers spottily.  At a time when Republicans are loudly complaining about the perils of the “deep state,” one would have hoped it would be politically possible to go further than this.”

Julian Sanchez, senior fellow, CATO Institute

  • “White House officials have vocally supported the clean reauthorization of Section 702 authorities. But for their words to mean anything to skeptical lawmakers, the White House must refute the outlandish allegations of politically motivated unmasking, as our national security professionals and congressional voices on both sides of the aisle have done already. That is the only way the White House can protect Section 702 and the security the indispensable tool affords all Americans.”

Ned Price, lecturer, George Washington University

  • ““In a world of truly ubiquitous connectivity where we are recording our heartbeat, our steps, our location. . .if all of that data is now available to law enforcement without a warrant, that is a big change. And that’s a big invasion of what most of us think our privacy should include.”

Andrew Ferguson, professor of law, University of the District of Columbia

  • “Intelligence gathering may need some greater degree of secrecy than other government functions but far too much latitude has been given in the name of national security. Intelligence agencies have been allowed to see themselves as above the law and beyond accountability to the people and their representatives. This has inevitably created a shadowy breeding ground for billion-dollar boondoggles, sweeping civil liberties violations, and institutional ineptitude that makes us all less safe.”

Jesselyn Radack, national security & human rights director, WHISPeR

  • “The approach taken in the recent past — negotiating with technology companies and hoping that they eventually will assist law enforcement out of a sense of civic duty — is unlikely to work.”

Deputy Attorney General Rod Rosenstein

  • “I don’t believe that Congress has any authority to ask for anything, because Congress passed ECPA and it did not exclude congressional subpoenas or otherwise, from the coverage.”

Albert Gidari, director of privacy, Stanford Center for Internet and Society

  • “FISA absolutely needs to be reformed and made to comply with the Constitution. The data collected under Section 702 is gathered under an almost limitless standard. We tolerate that standard because the targets are not U.S. citizens and are not located on American soil, even though they may be communicating with Americans. A constitutional problem arises, however, when we allow the Intelligence Community and domestic law enforcement to search and use the data collected on Americans without constitutional protections. Reform of FISA needs to prevent these searches and the use of this data in domestic crime. Without these reforms, the program does not comply with the Fourth Amendment.”

Sens. Ron Wyden and Rand Paul

  • “It’s called a back door because someone can sneak in” said Michelle Richardson, deputy director of the Freedom, Security and Technology Project at the Center for Democracy and Technology, which advocates for online civil liberties. “Even when the key sits in the company’s hands, that can still happen.”

Michelle Richardson, deputy director of the Freedom, Security and Technology Project, Center for Democracy and Technology

  • “You can call it whatever you want, but make sure you have strong encryption.”

Rep. Will Hurd

  • “I think it’s extremely concerning that the man responsible for prosecuting crimes on the federal level would expect the invasion of everyone’s privacy simply to make law enforcement’s job easier.”

Mike Spicer, founder, Initec

  • “It has become an indispensable tool by which we can determine and game information about threats to the United States, about threats to our troops, about weapons of mass destruction, proliferation, about cyberattacks, about any number of things that threaten the American way and the American people… So the reauthorization of this authority in incredibly critical.”

Director of National Intelligence Dan Coats