Blog Post

Input to the Commission on Enhancing National Cybersecurity

Christopher W. Folk

Internet of Things

The phrase “Internet of Things” was first used back in 1999 by Kevin Ashton while giving a presentation on radio frequency identification (“RFID”) at Procter & Gamble.[1]  With the advent of smartphones, implantable medical technology, smart appliances, self-driving cars, smart-wearable devices, drones, etc., the IoT has become a reality as we live in a world filled with “connected” devices.  Information flows into and out of these devices via various proprietary and open protocols and each of these information flows carries with it cybersecurity challenges.

Current and Future trends and challenges in the Internet of Things

As the size of devices decrease and their ubiquity increases it becomes increasingly difficult to “bake” in security protocols to tiny chipsets where cost and functionality are often primary drivers.  We live in a world where people just want their devices to function and to work with each other and security is often seen as a roadblock or hurdle which must be managed in order to achieve interoperability.  So long as security is an afterthought or an add-on and is not a seamless and cohesive element of a product or protocol users will continue to circumvent security and choose usability, and functionality over security.  This sets a dangerous precedent and may result in information leaks and exfiltration merely because the user “just wants it to work” and presumes that the device hardware and software will make everything “secure enough.”[2]

This is of even greater concern in the area of implantable medical devices where remote monitoring and control are possible. Here, these devices which are critical to basic life functions (e.g. a pacemaker with built-in defibrillator) are designed for near field communication and remote access capabilities so that health-care professionals can make changes without the need for a surgical procedure.  Therefore, the implementation of solid, robust security protocols in these devices could literally mean the difference between life and death.[3]  Additionally, the data that is generated by IoT devices is fast becoming the new currency as we dive deeper into and embrace the information age, individuals, companies, and governments are deeply invested in the harvesting and extraction of data that can be used to create relevant, and meaningful information.

Progress being made to address the challenges

In the realm of implantable medical devices, NIST revised the standards for infusion pump cybersecurity guidance in 2016.[4]  This was a good first step however it might be more prudent to take a step back and try to envision a world where information is the most paramount item and every precaution should be taken to 1) secure information flows; 2) establish trusted identities; and 3) permit information exchanges only between trusted identities.  The truth is, that is the world we live in, where information can be leveraged for a myriad of reasons and information then becomes the core needed to access command and control systems.

The most promising approaches to addressing the challenges

There has been generous debate with respect to encryption and the myriad issues that use of and obfuscation through it raise.  However, in the context of IoT devices, basic encryption should be viewed as the most basic and fundamental step.  This will not prevent every breach or attack but would serve to limit the vulnerabilities and should be baked into the IoT products.  It is no longer sufficient to ask “why would anyone want to access this” as we must now ponder “how and when will they try to access or manipulate this device?”  Furthermore, there has been some discussion that IoT devices should not actively listen on any ports and that communication should be initiated directly from the IoT device.  This would eliminate a huge vulnerability and would ensure that the IoT device has performed at least base-level trust in order to initiate communication and data exchange.  In so doing, the use of encrypted links and anti-spoofing protocols will also help maintain reliable and secure communication links from and to the IoT device to the “trusted” entities.

What can or should be done now or within the next 1 – 2 years to better address the challenges

In the short-term, it is vitally important that security is put in the same position of relevance as price, and performance.  Security has to have a place in the balancing equation so that companies can make conscious, well-reasoned decisions in the context of threats versus the bottom line.  Thus, a short-term solution could be to limit the protocols used by IoT devices so that only near-field communication is possible over very short distances.  This could decrease the ability of remote access or exfiltration while still balancing this with the need to input and extract information from IoT devices.  Additionally, standards must be developed in such seemingly innocuous areas such as units of measure and time.  With the worldwide production and use of IoT devices the lack of clearly defined standards could raise interoperability issues which will frustrate adoption and potentially prevent universal security protocols from being implemented.

What should be done over the next decade to better address the challenges

In the longer term scenario, IoT devices should be categorized and security applied accordingly.  Some IoT devices will pose minimal information and cybersecurity risks, such as smart-appliances; others will have greater cybersecurity needs (e.g. smart thermostats/HVAC controls which could significantly impact a residential or commercial user), while still others will be deemed critical (e.g. implantable medical devices, IoT components in vehicles and manned and unmanned systems). As above, if every IoT device minimally uses end-to-end encrypted communication links and also requires that all communication be initiated by the IoT device, that may address the majority of the needs for the lower tier devices (e.g. appliances).  Whereas, as one moves up the tiers towards the more critical IoT devices additional cybersecurity measures must be implemented.

IoT Device Categories:

  •      Tier I: Low Risk – devices such as smart appliances with access to and use of minimal information
  •      Tier II: Medium Risk – HVAC Controls, Home Monitoring Systems – devices that pose more significant risks to consumers and end-users
  •      Tier III; High Risk – implantable medical devices, manned/un-manned vehicle systems – significant risk to the population and/or end-users in the event of a security breach.  Information may also be particularly sensitive.

Here too, it will be essential that cybersecurity is the default and requires no continual user interaction.  In scenarios where the user is required to modify settings or update firmware, the device would be vulnerable and this should be the exception, not the norm in the world of IoT.  To effect this, a model such as that used by major software vendors that involve updates tied to hardware IDs would ensure that the IoT device communicates securely, receives update(s) and self-upgrades and installs them devoid of user interaction.  Given the criticality of some of these IoT devices, the software should be modularized such that security components can be updated independent of core OS functions.  Consequently, allowing for remote software/firmware updates should be handled similarly to the way major hardware and software vendors do this currently.  Software downloads and updates are linked to hardware IDs such that the IoT device software and firmware can be updated in a trusted exchange of information.  Furthermore, either on or off chip modularization should be implemented such that security functions are separated from core OS functions so that security-related updates can be automated and remain independent of actual device functions. This would be particularly important in sensitive applications such as implantable medical devices and when deployed within vehicle systems or in grid applications (any Tier III device).

Future challenges that may arise and recommended actions that individuals, organizations, and governments can take to better position themselves to meet those challenges

The growth rate and adoption of IoT devices is seemingly exponential as the number of applications where IoT can be introduced continues to rise.  That being the case it is of paramount importance that security considerations be examined now as even at this stage of the IoT movement, there are a staggering number of unsecured and potentially unsecureable IoT devices within the marketplace. Consequently, it will be necessary to develop standards and frameworks and to categorize IoT device types so that more critical uses are required to have greater security protocols active with controls in place to prevent circumvention by end-users.

Individuals: will have to take more active roles in order to ensure that they understand the role IoT devices play within their lives and also understand the inherent risks and agree to hold manufacturers free from liability with respect to IoT data breaches.  As litigation in the area of data breaches, continues to rise, a failure to absolve manufacturers of IoT data breach liability could prove disastrous to continued development and deployment efforts.

Organizations: in order to reduce liability organizations should take advantage of The Cybersecurity Information Sharing Act (CISA) of 2015 and enter into information-sharing agreements so that in the event that end-users or systems integrators have not limited companies’ liability the companies can obviate this by utilizing information sharing under CISA 2015 to remove or reduce their liability for incidents.[5]  Organizations will also need to ensure that their use of IoT is included within their IT policies and security protocols so that those IoT devices that are either nefarious or not yet in compliance (based on the suggestions in the previous sections) are unable to have a deleterious impact on an organization and are also unable to serve as conduits through which data exfiltration can occur.  Here, just as the case where the IoT device should be required to initiate communication, a trusted broker within the network should be implemented to ensure that information flows to/from IoT devices are both trusted and sanctioned.

Governments: need to take a much broader role for in most instances, just as with organizations they will have multiple functions, as either users, or regulators, or in some cases manufacturers of IoT devices.  Furthermore, governments have a far greater stake in a regulatory sense given the wide-ranging application of IoT devices within various branches of government, within critical infrastructure, as well as potentially the use of implantable IoT devices within key government personnel which raises national security considerations.  Therefore, government actors must be cognizant of the potential ramifications that a disruptive technology such as IoT may bring and standards and regulations must be developed and implemented to provide safeguards at multiple levels: 1) government and agencies therein; 2) grid and critical infrastructure; 3) in applications involving manned and unmanned systems; 4) within organizations – regulating the use and dissemination of information gather by or from IoT devices; 5) in consumer applications to help safeguard end-users.  To effectuate this, both the Executive Branch as well as the Legislature will need to understand the cybersecurity concerns with respect to IoT and will need to develop rules and regulations within the Administrative Agencies and statutes and directives within the Legislative branch to create a common, and cohesive approach towards cybersecurity in general and specifically in its application within the realm of IoT.  In so doing, the various agencies that have touch points (which ultimately may prove to be nearly every current Administrative Agency) will operate under a common theme with a common goal in mind.  Otherwise, a scattered and independently adopted approach will provide holes and vulnerabilities within the IoT cybersecurity framework which will encourage and promote exploits.  Ultimately, a lead agency should be designated or in the alternative a cabinet level position should be created solely focused on cybersecurity.  While the Cyberspace Policy Review conducted in 2009 concluded that an executive branch cybersecurity coordinator should be implemented, in 2016 this has still not taken place.[6]  In an effort to create a unified strategy with respect to cybersecurity this should be revisited as the various branches of government will necessarily end up looking to the executive branch to investigate, research, and report on the creation of a unified cybersecurity policy.

Critical infrastructure cybersecurity

Current and Future trends and challenges in critical infrastructure

The Department of Homeland Security includes a number of items within the critical infrastructure sector which include the following high-level areas:

  •      Chemical Sector
  •      Commercial Facilities Sector
  •      Communications Sector
  •      Critical Manufacturing Sector
  •      Dams Sector
  •      Defense Industrial Base Sector
  •      Emergency Services Sector
  •      Energy Sector
  •      Financial Services Sector
  •      Food and Agriculture Sector
  •      Government Facilities Sector
  •      Healthcare and Public Health Sector
  •      Information Technology Sector
  •      Nuclear Reactors, Materials, and Waste Sector
  •      Transportation Systems Sector
  •      Water and Wastewater Systems Sector

[7]  

As evidenced by the broad range of topic areas it is possible that the Executive branch could treat almost any incident as impacting critical infrastructure based on its inclusion within any of the expansive areas noted by DHS.  In the absence of a clear and hierarchical structure within which cybersecurity falls, a number of agencies could be involved including both DoD and civilian facing which has additional implications in the context of a response to a domestic-based cyber incident.

Progress being made to address the challenges

The fact that all things cyber are now at the forefront of media coverage more and more attention is being paid to this growing area and both the White House as well as legislators are beginning to take steps to better understand the implications of our current and future vulnerabilities in a cyber world.  If we confine the discussion merely to critical infrastructure with respect to energy, it becomes clear that the energy sector is vulnerable and these vulnerabilities have been exploited in the global context.  For instance, the targeting of Ukraine’s power grid in December of 2015 was in many respects a wake-up call for the Dept. of Energy.[8]  However, the Department of Energy’s $34M initiative to improve cybersecurity in critical infrastructure may be indicative of the relative lack of importance that is being applied to securing vital resources such as our grid infrastructure.[9]  Additionally, a report released by MIT in 2011 “The Future of the Electric Grid” underscores the potentially lethal ramifications of a cyberattack on the North American power grid.[10]  In discussions with high-ranking persons within the Utility Sector, it is clear that cybersecurity is of growing importance however it is unclear what if anything has actually been done beyond research and training to ensure that our grid infrastructure is protected against cyberattacks.

The most promising approaches to addressing the challenges

To begin, let us discuss approaches that are neither novel nor promising.  Namely, recent legislation introduced in the Senate in 2016 called for a return to analog devices in grid infrastructure in order to sidestep potential cybersecurity issues.[11]  A move such as this to regress to equipment from decades long since past, could represent a very limited and short-term solution to cybersecurity issues.  This, however, is neither a logical nor responsible approach towards securing and reducing the vulnerabilities facing our grid infrastructure.  The anticipated cost of moving to analog devices has been pegged at $10M and the process of identifying devices that could be replaced with analog versions would take nearly two years, hardly a worthwhile endeavor.

This is contrasted with most major utility companies which have, or are in the process of bringing security and specifically cybersecurity experts into their organizations.  Traditionally, as industries have increased their reliance on and use of technology those outside the core IT sector have paid scant attention to cybersecurity.  However, as we continue to see cyber incidents that target critical infrastructure these organizations are quickly realizing that their reliance on technology necessitates cybersecurity and that is promising given the enormous exposure facing these industries as they transition from mere users of technology to experts in the implications of said use.

What can or should be done now or within the next 1-2 years to better address the challenges.

Perhaps the most critical near-term initiative will involve a complete audit and assessment throughout our critical infrastructure entities to understand the following:

1) How do we define and characterize critical vs. standard infrastructure;

2) What vulnerabilities exist within the cyber context;

3) Within each sector, which agency(ies) have oversight authority;

4) Within each entity what has been done in terms of cybersecurity.

A comprehensive audit and assessment will provide a baseline within which a continuous improvement process should be initiated such that the assessment, feedback, and corrective action loop is repeated ad infinitum.  Given that this is within the short-term timeframe, merely completing the initial assessment should be finished within the 1-2 year timeframe.  This information though likely highly proprietary in nature should be shared with the agency that has regulatory oversight.

In addition to bringing in cybersecurity professionals and the addition of cyber experts within the C-Suite, those that provide critical infrastructure services are going to have to work together given the interconnected nature of infrastructure, such as the grid.  Within this short-term the implementation of fail-safes and the ability to segregate grids should be undertaken.  Where it is possible that an “event” could overload a portion of the grid and result in local outages that then proceed in a domino fashion to cause rolling blackouts throughout the grid, fail-safes should be developed to prevent such a scenario.  This is somewhat analogous to controlled burns and firestops that allow or even facilitate the loss of certain areas in order to forestall even greater and more widespread damage.  Here, an increased reliance on technology and smart devices could allow for more instantaneous information and the ability of integrated systems to develop a singular view of the entire grid infrastructure such that automated heuristic decisions could be implemented to shutdown interconnections and prevent a series of coordinated outages from overloading and disrupting the grid system.

Also, in the short-term, while the movement to an intelligent monitoring and management system is underway there will also need to be physical security to augment the virtual/cyber security.  Here an educated workforce, as well as an actual security presence will be necessary to help ensure that neither a cyber nor a physical attack could result in the degradation of the entire grid with the enormous resulting impacts.

What should be done over the next decade to better address the challenges

As a long-term solution, the use of artificial intelligence may supplant and eventually replace heuristic-based systems to monitor and manage the grid infrastructure.  The interfaces will have to be standardized so that all interconnections can be managed irrespective of the actual energy producer or the transmission medium.

As the autonomy and intelligence of the command and control systems increase, it may be possible to scale back the physical security presence.  Where an event at one or more physical locations could be automatically managed without intervention, the use of a local response force may be sufficient to preclude the use of a preventative force.

The use of tabletop exercises which simulate ongoing and coordinated attacks on multiple critical infrastructure entities will help ensure that various scenarios are researched and simulated so all of the touch points are fully exercised in a variety of scenarios.  It will not be sufficient for a single entity to operate in a vacuum given the interconnected nature of critical infrastructure, therefore, cooperation and coordination will be required in order to fully understand the potential impact that vulnerabilities pose in cases ranging from small-scale isolated incidents to large-scale, widespread intentional service disruptions.

Future challenges that may arise and recommended actions that individuals, organizations, and governments can take to better position themselves to meet those challenges

This is another situation in which there is asymmetry between those countries or entities that have the greatest reliance on technology and the actors that could potentially prove disruptive.  Where either a nation-state or a group operating in the middle of nowhere with a generator and a high-speed internet connection could potentially initiate a cyberattack against our critical infrastructure systems.  Our ability to use offensive cyber weapons to disrupt their entire system and or their internet connection pales in comparison to the amount of damage that such an incident could inflict on US critical infrastructure.

Individuals: In terms of critical infrastructure, the individual’s role is somewhat limited except in terms of those individuals that are in the workforce within said industries.  Thus, workforce education presents a challenge, as was theorized in the Stuxnet attack, merely bringing a drive in and plugging it into an air-gapped systems resulted in a catastrophic failure.  Education is vital so that individuals understand the vulnerabilities and work to mitigate those by practicing prudent and reasonable cybersecurity practices.

Organizations: these are essentially the “boots on the ground” they operate in the day-to-day operations and benefit from and incur the liability of their pervasive use of technology.  These entities must continue to assess their vulnerabilities, their adoption of new and emerging technologies and their ability to continue to provide critical services in the presence of and in spite of ongoing attack scenarios.

Governments: ultimately, government oversight is likely to be necessary in order to encourage private entities to co-operate with one another and engage in information sharing. Here, as with CISA 2015, providing incentives to entities to share information and develop repositories can be done by providing incentives in the form of complete or qualified immunity from civil liability arising from cyber incidents when the entities are leveraging information-sharing.  This may be a small price to pay in order to facilitate the open exchange of information between the players within the critical infrastructure area.  This is also something that only the government is in a position to provide and should do so in support of the greater good.

Cybersecurity workforce

Current and Future trends and challenges with the cybersecurity workforce

This is a significant issue both within the US and in the global context as well.  Current estimates indicate that there are over 200K unfilled jobs in the cybersecurity sector within the US today and an expectation that 1.5M jobs in this sector will be unfilled globally by 2019.[12]  While a number of institutions of higher learning have put together “cybersecurity” programs many of these merely include one or two courses in cybersecurity and are still primarily focused on general computer science principles.  The real impetus needs to be with K-12 institutions that are able to help young minds develop a cybersecurity perspective that pervades their daily lives and provides them with the necessary skill sets to maintain personal “cyber-safety” or to join the cybersecurity workforce either immediately upon completion of secondary education or post-university or certificate programs.  The challenges then are in getting traction within the K-12 institutions and in helping young students understand the rationale for gaining a better understanding of proper cyber-hygiene as well as the significant career possibilities that exist within this realm.

Progress being made to address the challenges

The advent of programs in post-secondary education is promising.  So too, are various K-12 initiatives being promoted by the National Integrated Cyber Education Research Center (NICERC) as well as the National Security Agencies (NSA) Gen-Cyber summer camps.  All of these are targeting educational opportunities to provide training and development both to generate interest in and ultimately consumption of cybersecurity training.

The most promising approaches to addressing the challenges

The fact that institutions are moving to address the growing need for a cybersecurity workforce is encouraging.  Attacking this from an educational perspective is a logical and reasonable approach to creating a cybersecurity workforce and offers both opportunities and outlets for individuals that have an interest within this discipline.  Additionally, the fact that many K-12 institutions have formally adopted Science, Engineering, Technology, and Math (STEM) programs demonstrates that K-12 is dynamic and willing to adopt new curriculum models that it deems relevant to the education of our youth.  Cybersecurity fits nicely within the STEM framework, the key will be to ensure that it receives equal footing with the STEM offerings and is not merely relegated to a subservient role within one of the existing STEM prongs.  Perhaps C-STEM would provide the proper recognition due the new cyber prong within the existing STEM framework.

What can or should be done now or within the next 1-2 years to better address the challenges

The continued expansion of intensive educational outlets such as the Gen-Cyber camps should be rapidly expanded both to provide exposure to and experience with cybersecurity but also should help target the immediate workforce needs by specifically targeting high school and college level juniors and seniors.  Since there are a wide-variety of open cybersecurity positions, the ability to extend information outreach and help recruit individuals into these unfilled jobs could have an extremely positive impact.  The immediate development of a workforce induction system that is roughly analogous to an apprenticeship program provides the ability to engage in on-the-job-training while evaluating and developing candidates for roles of increased responsibility.  This is a shorter-term solution that could be used to engage students that have interests in cyber and could be slotted into positions to help fill the currently 200,000 open cyber positions.

What should be done over the next decade to better address the challenges

The continued use of the aforementioned apprenticeship-type program could be enhanced by providing core curriculum changes throughout the US educational system to ensure that cybersecurity is a core subject and is similarly situated with subjects such as biology, English, physics, etc. The addition of standardized testing developed with industry input would also help to develop a workforce-ready pool of high school graduates.  While the traditional approach is to produce well-rounded individuals that are prepared to enter higher learning, the changing dynamics of the composition of US and worldwide job opportunities lends itself well to the adoption of industry involvement in determining which skills should be developed within the K-12 setting.[13]

Within advanced education, cybersecurity should become a discipline wholly distinct from computer science. This would allow students to focus on cybersecurity and to then specialize in specific areas (for instance, a cybersecurity major could include minors in computer science, law, and policy, government administration, business management, etc.).  The benefit here is that while cybersecurity is any many respects broad, the ability to develop a cyber workforce that is specifically tailored to certain areas would help reduce the transition period into the workforce and would also help organizations immediately leverage these newly minted cybersecurity experts within their specific industries (or in the public sector).

Additionally, displaced workers or mid-career persons should also be targeted as they could provide a rich pool of individuals that have broader life experiences and could provide a large pool of potential cyber workers.  This is an area where the current industry and government-expertise could serve as the basis for continued workforce development where only core development is needed as these individuals are either current or former workforce professionals with the ability to operate in such a setting.  With such enormous demand and a proper screening process, this targeted education could result in a near 100% placement rate which is far in excess of traditional workforce development programs that target displaced workers.

Future challenges that may arise and recommended actions that individuals, organizations, and governments can take to better position themselves to meet those challenges

With the anticipated shortfall in the supply of cybersecurity professionals, the ability to meet this demand will continue to be an issue.  The introduction of a cyber curriculum within the K-12 setting and also in higher learning will be a good step towards acknowledging and beginning to address this issue.  This coupled with an attempt to target individuals that have either been displaced or merely decided to discontinue searching for employment could have an extremely beneficial impact.  It could be possible to diminish the gap between the current supply of cyber professionals and the demand while simultaneously increasing the overall US workforce participation.

State and Local Government Cybersecurity

Current and Future trends and challenges in state and local government

As with nearly every other entity, State and Local governments (State_Local) find themselves embroiled in cybersecurity in spite of their general lack of knowledge or expertise in this area.  While most States and many localities have adopted cybersecurity policies the truth is that the public sector is having, even more, difficulty obtaining cyber talent as the private sector generally offers better pay, greater visibility and often is able to incentivize the “best and brightest”.  One potential workaround is the possibility of increasing educational opportunities for a cyber workforce and also tying educational grants to public-sector service commitments following training.[14]

Progress being made to address the challenges

State_Local governments seem to minimally grasp the importance of cybersecurity knowledge.  They are only just beginning to realize that all of the information they compile and store with respect to citizens could make them rich targets of opportunity.   Since understanding and acknowledgement is an important first-step the fact that many State_Local entities have reached this point marks positive, albeit minimal progress.

The most promising approaches to addressing the challenges

Since this is still very much in the nascent stage and even the Federal government has not really risen to the challenge, there seems to be an overall lack of promise within State_Local in rising to meet the cybersecurity challenges.  However, as stated above, the very fact that media attention has focused on cybersecurity issues and several municipalities have had issues in this area has raised awareness and State_Local discussion is taking place in the area of cybersecurity.

What can or should be done now or within the next 1-2 years to better address the challenges

A recurring theme: education and training.  It will be important to develop a framework for State_Local governments so that they understand what cybersecurity means at a high level, and that they also realize the types of information they collect, retain, and use, and what their responsibilities and liabilities are with respect to the collection, retention, and safeguarding of this data.  Additionally, it is impractical for local governments to procure and retain cybersecurity professionals, therefore State government should step in and identify and broker outsourcing using Virtual Chief Information Security Officers (CISO), and virtual Security Operations Centers (vSOC) that could be utilized by local governments.  In outsourcing, they may be able to take advantage of economies-of-scale and municipalities will not be put in a position where they have to evaluate and retain cybersecurity professionals when it is likely that no single person at that level of government has either the expertise or general knowledge required to understand their needs let alone has the ability to properly vet and assess potential candidates.

What should be done over the next decade to better address the challenges

Once additional steps are taken to develop a cybersecurity workforce and so long as local governments are able to utilize vSOCs for their cybersecurity needs that piece of the equation should be satisfied.  However, from a longer-term perspective, retaining local resources and the quest for autonomy may make a compelling argument for adding a CISO at the local level to maintain oversight of the vSOC.  This is likely not feasible in the short-term and even in the next decade may be unrealistic for all but the largest local government entities.

Here too, a continuous improvement loop should be implemented that includes assessment, feedback, and corrective action.  Training and education for local and state government employees and contractors will be essential for effective long-term management of cybersecurity issues.  While insider risks are pervasive across the landscape and ordinarily represent the greatest cybersecurity risk, within a local or state government this can be exacerbated by the hierarchical nature of most government organizations which is public knowledge and freely available.  Thus, social engineering or phishing campaigns can be augmented by open, and public organizational information that can be leveraged to identify relationships and would allow attackers to leverage valid employee credentials to gain unauthorized access.

Future challenges that may arise and recommended actions that individuals, organizations, and governments can take to better position themselves to meet those challenges

We have seen a rise in the “hacktivist” who is more interested in social change and awareness than in personal financial gain or mere curiosity.  Traditionally, hacktivists have targeted larger corporations or higher level government (e.g. federal), it is likely that hacktivism will extend its reach into State and Local governments as well. Consequently, it will be important for State and Local governments to be cognizant of the vulnerabilities that they face and the potential motivations. While organizations and individuals may face cyber-attacks that are focused on pecuniary gains, State and Local governments may be targets merely for their stance on certain issues, or as drivers for social change.  Consider the power that social movements such as the “hippies” could have had in a cyber world where a virtual sit-in could be performed as a distributed denial-of-service attack that prevents authorized access to resources and disrupts standard operations.  As protesters hold hands and unite to gain attention and direct others to their cause, so too could a cyber-attack against a State or Local government illicit empathy and give rise to coordinated incidents with more far-reaching implications.

Overarching Challenges

Emerging technology trends and innovations: their effects on both the digital economy as well as cybersecurity

The movement to a completely connected world is a testament to IoT and the vast amount of information flows within our daily lives.  This coupled with increased research directed at artificial intelligence in areas such as self-driving vehicles further underscores the movement to a truly digital economy.  An economy in which information is the universal currency and where the ability exists to extract and analyze data from across the globe, the vulnerabilities in a connected-world are quite staggering.  Consider the use of IoT devices that lack proper cybersecurity and can be leveraged in a sort of bot attack that allows data hops between IoT devices so that even air-gapped systems could prove vulnerable if persons with insulin pumps or defibrillators are in the vicinity.  As each of these IoT devices represents an active, open port through which traffic can be routed or information exfiltrated, the potential impacts are overwhelming.  So too, in the context of a generation of people that have known no other world than the one in which we currently exist, a world with always-on instant communication. For these people, their connection to technology is persistent and pervasive and they will take advantage of hacks, tricks, and tips to circumvent cybersecurity protection merely to stay online and connected in such trivial aspects as social media for instance.  Where these individuals lack a healthy respect for cyber hygiene we will continue to experience cybersecurity breaches.

Economic and other incentives for enhancing cybersecurity

As we continue to rely on technology for nearly every aspect of our lives and as we move to a “cash-free” society, the potential for disruption abounds.  Merely taking payment processing systems offline during the holiday season could result in significant issues for companies, suppliers, employees, local governments, all of which rely on instantaneous and continuous fund flows between institutions.  If you were to couple an outage for the major payment processers with a coordinated DDOS aimed at ATM networks during the post-Thanksgiving shopping period stores would be overwhelmed, customers would have meltdowns and in many areas local pockets of rioters and potentially looters would arise when faced with an inability to complete transactions.  This would overwhelm local law enforcement and would quickly reach critical mass with significantly far-reaching impacts.  Therefore, there are enormous economic incentives for enhancing cybersecurity when a country such as ours becomes reliant upon technology any scenario where technology fails due to a cyberattack would include short-term impacts but also longer-term due to a loss of trust and faith in the system.  This could have a ripple-effect within the economy.

There are of course myriad other incentives for enhancing cybersecurity.  One is the mere fact that our citizens’ information should be safeguarded and in a digital world more and more IP is also digital and a lack of cybersecurity could result in IP theft, and also PII on or citizens could be used to build dossiers in order for outside entities to exert internal influence within the US without ever having to physically enter our borders.  Thus there are National Security concerns, Corporate concerns, a potential reduction in incentives for companies to invest in research and development, the touch points are numerous and widespread.

Government-private sector coordination and cooperation on cybersecurity

CISA 2015 begins to address this by encouraging and promoting cybersecurity information sharing. This should be further expanded to allow government-private sector collaboration on efforts to promote greater cybersecurity within the US.  Increasing cyber-hygiene helps safeguard our data and our resources and leveraging expertise developed both in the government as well as the private sector is a sound approach towards improving our overall cybersecurity posture.  This should be done by continuing to incentivize and by building close working relationships so that the government and private industry can engage in a symbiotic relationship where not only does each party benefit, but so too does the country as a whole.

The role of the government in enhancing cybersecurity for the private sector

Given our internal policies with respect to cybersecurity, there are many agencies within the executive branch and the DoD that have developed extensive expertise in cybersecurity. Thus, one could argue that the government should be responsible for disseminating this information to the private sector in order to provide them with the copious amounts of information related to cybersecurity.  Certainly it makes economic sense to provide citizens and companies operating within the US with cybersecurity information and tools to allow them to take advantage of the taxpayer funded expertise that exists.

 

[1] Kathleen Aguilar, Getting up to Speed on the Internet of Things, ACC Docket, October 2015, at *27.

[2] Daniel E. Harmon, Keeping an Eye on the IOT in the Balance: Convenience vs. Privacy & Security Threats, Law. PC, Nov. 1 2015, at 1.

[3] Mathias Cousin, Tadashi Castillo-Hi, & Glenn Synder, Devices and Diseases: How the IoT is Transforming MedTech, Deloitte University Press (Sep. 11, 2015), http://dupress.com/articles/internet-of-things-iot-in-medical-devices-industry/.

[4] Marianne Kolbasuk McGee, Why NIST Is Revising Infusion Pump Cybersecurity Guidance (Mar. 7, 2016), http://www.healthcareinfosecurity.com/interviews/nist-revising-infusion-pump-cybersecurity-guidance-i-3094?rf=2016-03-09-eh&mkt_tok=3RkMMJWWfF9wsRonvq3Kd%2B%2FhmjTEU5z16esrWKC0hIkz2EFye%2BLIHETpodcMTcFqNb%2FYDBceEJhqyQJxPr3FKdENwM10RhPhDw%3D%3D.

[5] Christopher W. Folk, The Cybersecurity Information Sharing Act of 2015, Feb. 2., 2016, http://blog.cybersecuritylaw.us/2016/02/02/the-cybersecurity-information-sharing-act-of-2015/ .

[6] The Comprehensive National Cybersecurity Initiative, White House Briefing Room, https://www.whitehouse.gov/sites/default/files/cybersecurity.pdf (last visited September 8, 2016).

[7] The Department of Homeland Security: Critical Infrastructure Sectors, https://www.dhs.gov/critical-infrastructure-sectors (last visited Sept., 8, 2016).

[8] Christopher W. Folk, Cyber Round Up: … US Assisting Ukraine Investigate Electrical Grid Hack, http://blog.cybersecuritylaw.us/2016/01/20/cyber-round-up-japan-hosting-white-hat-hackers-to-test-security-systems-us-government-slow-to-upgrade-cybersecurity-protections/ (last visited Sept., 8, 2016).

[9] Christopher W. Folk, Cyber Round Up: DOE and MIT Sloan Partner up for Grid Security, http://blog.cybersecuritylaw.us/2015/10/23/cyber-round-up-doe-and-mit-sloan-partner-up-for-grid-security-dod-needs-to-focus-its-hiring-efforts-uscg-rdml-thomas-on-port-security/ (last visited Sept. 8, 2016).

[10] The Future of the Electric Grid, Massachusetts Institute of Technology, http://blog.cybersecuritylaw.us/wp-content/uploads/2015/10/Electric_Grid_Full_Report.pdf (last visited Sept., 8, 2016).

[11] Christopher W. Folk, Cybersecurity Law and Policy, Two Steps Forward – One Step Back, http://blog.cybersecuritylaw.us/2016/06/21/two-steps-forward-one-step-back-the-reintroduction-of-retro-devices-to-improve-grid-security/ (Jun 21, 2016).

[12] Steve Morgan, One Million Cybersecurity Job Opening in 2016, Jan 2., 2016, http://www.forbes.com/sites/stevemorgan/2016/01/02/one-million-cybersecurity-job-openings-in-2016/#7a183f997d27.

[13] The presumption here is that industry involvement in the K-12 system is largely atypical while higher-education in its self-sustaining interest necessarily works to develop curriculum and training that is reflective of the current or anticipated workforce needs.

[14] Bret Brasso, How State and Local Governments Can Solve Their CyberSecurity Staffing Shortage, Feb., 17, 2016, https://www.fireeye.com/blog/executive-perspective/2016/02/how_state_and_local.html.

Patent office workers bilked taxpayers millions by playing hooky, watchdog finds

Thomas Carlon

How accurate was the investigation that the inspector general conducted about the United States Patent and Trademark Office (USPTO)? The Washington Post states that employees of the USPTO billed taxpayers at least $18.3 million over the estimated actual cost of time worked.[1]

This information portrayed appears to not be fully accurate. The payment system set-up between Congress and the USPTO, is that all revenue for the USPTO are raised from fees the USPTO collects when patent or trademark applications are filed with the office.[2] The USPTO then deducts from the total revenue earned the amount needed to pay employees, utilities, etc. and the remainder is given back to Congress to be deposited into the US Treasury.[3]

It appears that the Washington Post intended to convey the message that the employees of the USPTO were overcompensated for their work, and in turn, did not return enough money to the US Treasury; as opposed to “billing” taxpayers as the article states.

CDA Section 230 Liability -Snapchat Faces Class Action Lawsuit

Justin Farooq

Over the last twenty years, an increasing number of claims have been brought against Internet websites that publish third party content, slowly changing the prevailing notion that such content is never subject to liability.[1] This upsurge in lawsuits comes at no surprise — greater accessibility to such online material, coupled with the proliferation of increasingly powerful, interactive online publishers, has increased exposure to an assortment of legal matters and raised the stakes in online publishing.[2]

Many of the lawsuits brought against online publishers claim violation of §230 of the Communications Decency Act of 1996 (CDA), which provides formidable immunity to online publishers.[3] When originally passed, §230 was intended to shield website owners from liability for illegal content on their websites by third parties in order to promote development of the early Internet, vigorous information sharing, and free speech.[4] The legislative rational behind the immunity provision was that while websites share some attributes to print works such as magazines, which are held liable for third-party content, they are more akin to telecom companies that operate as passive outlets of third-party communication, which are not liable.[5]  However, due to the evolving complexity of the Internet, this distinction between an active or passive conduit of third party information has become much harder to clearly define.

The vast majority of courts interpreting §230 have done so broadly, holding the immunity provision as an almost absolute bar on lawsuits against website owners for publishing questionable third-party content.[6]  Recently, however, this seemingly carte blanche immunity for online publishers has been under closer scrutiny.  In the intricate Internet landscape we live in today, websites are becoming not only the publisher of information, but also have significant power and control over the material that third parties post.

Within the past ten years, several judges have dissented with this broad interpretation of section 230, claiming this granting of broad immunity to online publishers has lead to websites carrying defamatory, illegal, or otherwise harmful postings without any recourse for victims.[7] We are no longer in the days of the early Internet where we need the CDA in order to promote vigorous sharing of information and protection of free speech.[8] Nor can we say that websites of this nature were part of the purpose of the CDA, which was to promote sharing of vital, helpful communications over the Internet for the greater good of society.[9] The potential for abuse simply outweighs the benefits imposed by a broad interpretation of the CDA’s immunity provision.[10]

The latest of such lawsuits involves a putative class action filed July 7, 2016 in California federal court.[11] The case involves a minor user of Snapchat Inc.’s photo messaging app.[12] Plaintff alleges that media published within the “Discover” section of Snapchat’s app reveals to minors sexually inappropriate and offensive material in violation of the CDA.[13]  The “Discover” section allows other media outlets, such as Buzzfeed and Cosmopolitan, to publish on the Snapchat app main page, and thus Snapchat has not only a large amount of control over which third-party media outlets can post, but also a great deal of influence over the type of content they ultimately post.[14]

Snapchat has approximately 150 million users and twenty three percent are between the ages of thirteen and seventeen.[15]  Snapchat does ask for the users birthday during registration since access is restricted to people older than thirteen.[16]   Nonetheless, there is no distinction in the videos available to minors and adults, and no language in the terms of service that notifies minor users of explicit content.[17] Snapchat’s own online community guidelines prohibit users from publicly displaying sexually explicit content.[18] The content Snapchat offers on Discover consistently breaches its own rules.

An intriguing layer about the lawsuit is that the plaintiff’s claim is founded on the infrequently cited CDA Section 230(d), a subsection that still remains to be litigated.[19] Basically, section 230(d) says that online interactive services such as Snapchat, when entering into an agreement with users, must alert such users of the availability of parental control safeguards.[20]  If victorious, this may necessitate changes to the terms of service of almost all interactive online publishers.  As the Internet further develops and online communication increases, more courts seem less eager to hand out immunity without close scrutiny.  It looks probable that as more content goes digital, the tendency to construe the scope of immunity a bit more tightly will remain.  It will be interesting to see how Snapchat will respond.

[1] Samuel J. Morley, How Broad Is Web Publisher Immunity Under §230 of the Communications Decency Act of 1996?, Fla. B. J., Feb. 2010, at 8.

[2] Id.

[3] 47 U.S.C.A. § 230 (West 1998).

[4] Id.

[5] Morley, supra note 1.

[6] See Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997).

[7] See Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1177 (9th Cir. 2008) (Dissent).

[8] Id.

[9] Id. at 1178.

[10] Id.

[11] Class Action Alleges Snapchat Exposes Minors To Adult Content, Lexis Legal News (July 8, 2016, 1:58 PM), http://www.lexislegalnews.com/articles/9659/class-action-alleges-snapchat-exposes-minors-to-adult-content.

[12] Id.

[13] Lexis Legal News, supra note 10.

[14] Id.

[15] Shayna Posses, Snapchat Exposes Minors To Explicit Content, Suit Says, Law 360 (July 7, 2016, 8:43 PM), http://www.law360.com/articles/815156/snapchat-exposes-minors-to-explicit-content-suit-says.

[16] Id.

[17] Id.

[18] Id.

[19] Jeffery Neuburger, Liability under CDA Section 230? Recent Lawsuit Tries to Flip the Script against Social Media Service, Proskauer (Sep. 8, 2016), http://newmedialaw.proskauer.com/2016/09/08/liability-under-cda-section-230-recent-lawsuit-tries-to-flip-the-script-against-social-media-service/#more-1387.

[20] Id.

The Cybersecurity Information Sharing Act of 2015

By: Christopher W. Folk

In the eleventh hour of the twelfth month in the year 2015, the Cybersecurity Information Sharing Act (“CISA”)  (Pub. Law No. 114-113)[1], was pushed through Congress as part of an omnibus spending bill that was subsequently signed by President Obama.[2] This bill has been hailed by its sponsors as long overdue and an important step in enhancing our nation’s cybersecurity; while privacy advocates have decried this as the government’s further encroachment on privacy rights.[3]  CISA 2015 is an expansive and wide-reaching law and consequently, our focus will be limited to the information sharing portion of this law.

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The “Digital Attorney”: Using Artificial Intelligence in Law Practice

Ashley Menard

Today, attorneys spend countless hours doing legal research on legal issues presented to them by their clients. Oftentimes, clients are unable or unwilling to pay for the amount of hours it takes attorneys to do adequate research in response to their legal needs. The answer to these problems may come in the form of artificial intelligence, which can be used to expedite legal research. In response to this problem, one computer scientist named Jimoh Ovbiagele has created what is known as ROSS Intelligence – an artificially intelligent “digital assistant” to assist attorneys.

ROSS Intelligence began as a research project at the University of Toronto in 2014. ROSS was built on IBM Watson, a cognitive system that can answer questions in natural language. The goal of ROSS is to act as an “Artificial intelligence lawyer that helps human lawyers research faster and focus on advising clients.” Today, ROSS acts as a legal research assistant that helps scale the abilities of lawyers through artificial intelligence technology.

ROSS works to quickly respond to questions posed after searching through legal documents. Attorneys can orally ask ROSS legal questions, and ROSS will respond while showing users what the citations are for its responses. ROSS gets its legal information from a legal publisher, although the name of the publisher has not yet been revealed. The more ROSS is used, the more it improves its responses. Also, if the laws change, ROSS will be able to track whether it affects the case cited. This will enable attorneys to focus on the individual facts of a client’s case, while spending less time on mundane tasks like sifting through legal documents.

Law firms have already jumped on the idea of using artificial intelligence for legal research. Prominent law firms such as Baker Hostetler, Latham & Watkins and Wisconsin’s von Brisen & Roper have begun licensing ROSS Intelligence. “We believe that emerging technologies like cognitive computing and other forms of machine learning can help enhance the services we deliver to our clients,” said Bob Craig, Baker & Hostetler’s chief information officer.

Obviagele believes that ROSS Intelligence will allow legal services to be delivered at a more affordable price. However, a concern is that ROSS Intelligence will begin to replace jobs in an already struggling legal market. In response to this concern, Obviagele emphasizes that ROSS cannot advise clients on what they should do. “We give lawyers the information; it’s their job to make the judgment call, which requires a lot of things computers can’t do,” Ovbiagele says. “A lot of people talk about Ross replacing jobs. Really, it just makes the jobs easier.”

As of May 2016, ROSS Intelligence had commercially rolled out its bankruptcy law module. Now, ROSS is building more legal practice modules into the ROSS system. It will only be a matter of time before ROSS Intelligence becomes commonplace in law firms across the United States.

Cybersecurity Giant Re-Emerges: McAfee is Back

Jonathan Ziarko

Six years ago, Intel took a big leap when it bought up McAfee, a powerhouse in creating computer security software, for $7.7 billion.[1] Intel took that company and turned it into Intel Security, but throughout the past few years as computer sales have slowly been dropping the company is beginning to switch directives to the cloud-based data centers.[2] On September 7, 2016, Intel announced its plans to sell 51% of Intel Security’s shares to TPG for $3.1 billion.[3] Intel saw an opportunity to make some money by selling the majority share in Intel Security to TPG and rebranding it back to McAfee. The sale will allow Intel to focus on other things while still giving them a stake in the cybersecurity industry. Christopher Young, the Senior Vice President and General Manager of the current Intel Security Group, announced in an open letter to the shareholders, that Intel and TPG are working together to hopefully create the “largest independent, pure-play cybersecurity companies in the industry”.[4] Mr. young continued on to speak to the company’s shareholders, consumers, and partners outlining his continued goals towards excellence in the field of cybersecurity and his hope to re-establish McAfee as one of the most trusted names in the industry of cybersecurity.[5] An industry that will only continue to grow. Intel of course will retain a 49% share in the new company.[6] The deal has not yet been closed but it is looking like it should close sometime in mid-2017.[7]

 

[1] Michael J. de la Merced & Quentin Hardy, Intel Sells a Majority Stake of Cybersecurity Unit to TPG, The New York Times Company (Sept. 7, 2016), http://www.nytimes.com/2016/09/08/business/dealbook/intel-sells-a-majority-stake-of-cybersecurity-unit-mcafee-to-tpg.html?ref=technology.

[2] Id.

[3] Stephanie Condon, Intel, TPG to form jointly owned cybersecurity company called McAfee, ZDNet (Sept. 7, 2016, 21:29 GMT), http://www.zdnet.com/article/intel-tpg-to-form-jointly-owned-cybersecurity-company-called-mcafee/.

[4] Letter from Christopher Young, Sr. Vice President & Gen. Manager, Intel Security Group, to Intel Security Stakeholders (Sept. 7, 2016), https://newsroom.intel.com/wp-content/uploads/sites/11/2016/09/CY-Letter-090716.pdf.

[5] Id.

[6] Id.

[7] Micheal J. de la Merced & Quentin Hardy, Supra note 1.

Anonymity for Anti-Discrimination: Airbnb’s Effort to Dismantle Worldwide Prejudice

Emma Fusco

Spanning across nearly 34,000 cities and 191 countries, studies have shown that despite the diversity of users on Airbnb, discrimination against race and gender are a continuing issue.[1]  Airbnb, the short-term rental site, has come across issues regarding discrimination by hosts.  A class action suit has been brought after chief plaintiff Gregory Selden, was denied service solely because of his race.[2]  To support his claim, a working paper by Harvard University has found it to be harder for users with African-American sounding names to rent rooms through the website versus users with more Caucasian sounding names.[3]

Airbnb’s plan of action to stomp out this discrimination is quite disheartening in our country’s time of racial reform.  The answer to this seems simple: take down photos of users and make names anonymous.  Airbnb’s answer? Taking away photos and making users anonymous resists the buildup of trust between the host and the renter, thus further heightening the anxiety of letting a stranger stay in his or her home.[4]  In order to be proactive on this issue, Airbnb has permanently banned those who violated the anti-discrimination policy, two hosts of which were removed for writing racist epithets to the user and another for refusing to let a transgender user rent.[5]

Although these actions help promote the anti-discrimination policy currently enacted by the online rental service, the company is taking this issue further from a technological standpoint.  The company is currently “examining its internal structures and technology, and its processes for identifying and handling discrimination incidents.”[6]  But what legal implications follow?

The legal issue here is very similar to the issues surrounding other businesses in the “sharing economy”.[7]  Are these private persons who are acting through a public service be considered public or private? If this service is determined to be a private service, does that give hosts the lawful option to freely discriminate or are hosts bound by other implications within the user contract?

There has been little development published by Airbnb regarding this issue and how the company plans to resolve it.

 

[1] Katie Benner, Airbnb Adopts Rules to Fight Discrimination by Its Hosts, N.Y. Times, Sept. 9, 2016, at A1.

[2] Katie Benner, Airbnb Vows to Fight Racism, but Its Users Can’t Sue to Prompt Fairness, N.Y. Times, June 20, 2016, at B1.

[3] Id.

[4] Mike McPhate, Discrimination by Airbnb Hosts Is Widespread, Report Says, The New York Times, http://www.nytimes.com/2015/12/12/business/discrimination-by-airbnb-hosts-is-widespread-report-says.html.

[5] Benner, supra on Sept. 9, 2016.

[6] Benner, supra, on June 20, 2016.

[7] Id.

 

Protecting Your Brand: An Introduction to The Lanham Act

Lishayne King

Innovations and advances today occur at much faster and more rapid rates than experienced in past decades. With the innovation of the Internet and the ease with which entities can create websites and brand names, access to information, products, and resources can be achieved with the click of a mouse. Protecting your words, products, and resources, however, can prove difficult without knowledge of the specific safeguards and defenses that you are entitled to under the law. One of the paramount mechanisms that individuals and entities can utilize in seeking to protect their trademarked information is The Lanham Act.

The Lanham Act is the chief source of protection for trademarked information under federal law. Two specific sections of The Lanham Act in particular, are essential in the enforcement of the act. Section 32, codified at 15 U.S.C. § 1114, protects against violations of a registered mark. Section 43(a), codified at U.S.C. § 1125(a), protects consumers and businesses from dishonest business practices. These sections together are designed to prevent the confusion that may arise when one entity utilizes another entity’s trademark while engaged in business.

A Case Study of Broadband Regulation: United States Telecom Association v. Federal Communications Commission

Nicholas Fedorka

A recent case was decided in the United States Court of Appeals for the District of Columbia Circuit that is creating ripples throughout the realm of administrative and utility law.  It was a direct response to the Federal Communications Commission (“FCC”) adoption of the “2015 Open Internet Order.”  This order reclassified broadband internet from an “information service” to a “telecommunication service” under the Telecommunications Act of 1996.  U.S. Telecomm. Ass’n  v. Fed. Commc’n  Serv., 825 F.3d 674, 678 (D.C. Cir. 2016).  This is a major step in broadband regulation because telecommunication services are subject to common carrier regulation under the Telecommunication Act.  Id.  The 2015 Open Internet Order consisted of three components: 1) Commission reclassified both fixed and mobile broadband as telecommunications services, 2) the commission forbears to include certain parts of the Telecommunications Act that it saw unnecessary, and 3) the commission promulgated five open internet rules that applied to both fixed and mobile broadband services.  Id. at 687.

Three separate groups of petitioners, including U.S. Telecommunications Association, argued against the FCC’s reclassification.  The DC Court of Appeals turned to the Chevron 2-part test of statutory interpretation to see if the FCC’s 2015 Open Internet Order is constitutional under the Telecommunications Act.   Id. at 699.  First, the court asked whether Congress has directly spoken to the precise question at issue and if it is clear then that is the end of that matter.  U.S. Telecom Association, 825 F.3d at 699.  If the Telecommunications Act of 1996 is silent or ambiguous, then the question is whether the agency’s answer is based on a permissible construction of the statute.  Id.  The court held that the statute was ambiguous but the agency’s answer is based on a permissible construction of the statute.  Id. at 700.  Furthermore, the court upheld the FCC’s decision to regulate on a “case-by-case basis” under the act.  Id. at 709.

It will be interesting to see how the FCC regulates broadband services on such a basis.  The idea of regulation by a federal agency within a particular field on a “case-by-case” basis falls within the constitutional law theory of conflict preemption.  If a state determines to regulate broadband internet outside the scope of the FCC’s 2015 Open Internet Order, it appears that the FCC will attempt to strike it down.  But there are still many questions that have yet to be answered.  Have individual State’s already started to regulate broadband internet providers?  Are they in line with the FCC’s Open Internet Order?  How much power do individual states have to regulate broadband providers?  What are the types of State regulation schemes that conflict with the FCC’s Open Internet order?  These questions seem to be unanswered in this unsettled area of the law.  

CDA Section 230 Liability -Snapchat Faces Class Action Lawsuit

Justin Farooq

Over the last twenty years, an increasing number of claims have been brought against Internet websites that publish third party content, slowly changing the prevailing notion that such content is never subject to liability.[1] This upsurge in lawsuits comes at no surprise — greater accessibility to such online material, coupled with the proliferation of increasingly powerful, interactive online publishers, has increased exposure to an assortment of legal matters and raised the stakes in online publishing.[2]

Many of the lawsuits brought against online publishers claim violation of §230 of the Communications Decency Act of 1996 (CDA), which provides formidable immunity to online publishers.[3] When originally passed, §230 was intended to shield website owners from liability for illegal content on their websites by third parties in order to promote development of the early Internet, vigorous information sharing, and free speech.[4] The legislative rational behind the immunity provision was that while websites share some attributes to print works such as magazines, which are held liable for third-party content, they are more akin to telecom companies that operate as passive outlets of third-party communication, which are not liable.[5]  However, due to the evolving complexity of the Internet, this distinction between an active or passive conduit of third party information has become much harder to clearly define.

The vast majority of courts interpreting §230 have done so broadly, holding the immunity provision as an almost absolute bar on lawsuits against website owners for publishing questionable third-party content.[6]  Recently, however, this seemingly carte blanche immunity for online publishers has been under closer scrutiny.  In the intricate Internet landscape we live in today, websites are becoming not only the publisher of information, but also have significant power and control over the material that third parties post.

Within the past ten years, several judges have dissented with this broad interpretation of section 230, claiming this granting of broad immunity to online publishers has lead to websites carrying defamatory, illegal, or otherwise harmful postings without any recourse for victims.[7] We are no longer in the days of the early Internet where we need the CDA in order to promote vigorous sharing of information and protection of free speech.[8] Nor can we say that websites of this nature were part of the purpose of the CDA, which was to promote sharing of vital, helpful communications over the Internet for the greater good of society.[9] The potential for abuse simply outweighs the benefits imposed by a broad interpretation of the CDA’s immunity provision.[10]

The latest of such lawsuits involves a putative class action filed July 7, 2016 in California federal court.[11] The case involves a minor user of Snapchat Inc.’s photo messaging app.[12] Plaintff alleges that media published within the “Discover” section of Snapchat’s app reveals to minors sexually inappropriate and offensive material in violation of the CDA.[13]  The “Discover” section allows other media outlets, such as Buzzfeed and Cosmopolitan, to publish on the Snapchat app main page, and thus Snapchat has not only a large amount of control over which third-party media outlets can post, but also a great deal of influence over the type of content they ultimately post.[14]

Snapchat has approximately 150 million users and twenty three percent are between the ages of thirteen and seventeen.[15]  Snapchat does ask for the users birthday during registration since access is restricted to people older than thirteen.[16]   Nonetheless, there is no distinction in the videos available to minors and adults, and no language in the terms of service that notifies minor users of explicit content.[17] Snapchat’s own online community guidelines prohibit users from publicly displaying sexually explicit content.[18] The content Snapchat offers on Discover consistently breaches its own rules.

An intriguing layer about the lawsuit is that the plaintiff’s claim is founded on the infrequently cited CDA Section 230(d), a subsection that still remains to be litigated.[19] Basically, section 230(d) says that online interactive services such as Snapchat, when entering into an agreement with users, must alert such users of the availability of parental control safeguards.[20]  If victorious, this may necessitate changes to the terms of service of almost all interactive online publishers.  As the Internet further develops and online communication increases, more courts seem less eager to hand out immunity without close scrutiny.  It looks probable that as more content goes digital, the tendency to construe the scope of immunity a bit more tightly will remain.  It will be interesting to see how Snapchat will respond.

 

[1] Samuel J. Morley, How Broad Is Web Publisher Immunity Under §230 of the Communications Decency Act of 1996?, Fla. B. J., Feb. 2010, at 8.

[2] Id.

[3] 47 U.S.C.A. § 230 (West 1998).

[4] Id.

[5] Morley, supra note 1.

[6] See Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997).

[7] See Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1177 (9th Cir. 2008) (Dissent).

[8] Id.

[9] Id. at 1178.

[10] Id.

[11] Class Action Alleges Snapchat Exposes Minors To Adult Content, Lexis Legal News (July 8, 2016, 1:58 PM), http://www.lexislegalnews.com/articles/9659/class-action-alleges-snapchat-exposes-minors-to-adult-content.

[12] Id.

[13] Lexis Legal News, supra note 10.

[14] Id.

[15] Shayna Posses, Snapchat Exposes Minors To Explicit Content, Suit Says, Law 360 (July 7, 2016, 8:43 PM), http://www.law360.com/articles/815156/snapchat-exposes-minors-to-explicit-content-suit-says.  

[16] Id.

[17] Id.

[18] Id.

[19] Jeffery Neuburger, Liability under CDA Section 230? Recent Lawsuit Tries to Flip the Script against Social Media Service, Proskauer (Sep. 8, 2016), http://newmedialaw.proskauer.com/2016/09/08/liability-under-cda-section-230-recent-lawsuit-tries-to-flip-the-script-against-social-media-service/#more-1387.

[20] Id.