All posts by Paul E. Paray

Blockchain, Digital Assets, DLT, Network Security, Risk Management

$600 Million Loss Shines a Light on DeFi Security

On August 10, 2021, Chinese cross-chain DeFi platform, Poly Network, was apparently hit with the exploit of a smart contract vulnerability in its “EthCrossChainManager” contract impacting three separate chains, including two leading DeFi blockchains – Ethereum and Binance Smart Chain, and numerous cryptocurrencies.   This latest exploit is part of a major trend in security incidents involving DeFi platforms.

Poly Network developers quickly asked for help on Telegram to block transfer of the stolen assets:   “We call on miners of affected blockchain and crypto exchanges to blacklist tokens coming from the above addresses.”  

In another August 10, 2021 post on Telegram, Poly Network also posted:  “If you are experiencing any difficulty due to the hack that just happened theres [sic] a compensation plan , connect your wallet and get your refund in minutes , our dev only lose but this did not affect any of our users.”  

It is not clear how this protocol platform would make all users whole.  

As a start, the ESL Poly Network team also posted the following open letter asking for the return of the stolen assets:

Not surprisingly, this plea was immediately derided:  “Imagine successfully stealing over $600m and have the people you stole from think there’s a chance you might be willing to return it with what amounts to a passive-aggressive post-it note on the fridge.”  

Notwithstanding the obvious desperation found in its letter, the Poly Network team may be on to something given this was apparently never really a “hack” – it was likely yet another person who exploited a vulnerability in a deployed smart contract.  As of August 11, 2021, $119 million in Binance pegged BUSD was returned by the hacker’s associated address to those 947,598 owners impacted by the exploit.  BUSD is a stablecoin used to trade crypto assets on the Binance chain.  And, another $134 million was also soon thereafter returned to other impacted owners.  According to Chainalysis, at total of $261 million in cryptocurrencies have been returned to date.

A review of the micro transactions found on Etherscan and BscScan indicates that the “hacker” has been testing literally thousands of ways to move the stolen assets.  In other words, the exploiter does not know what to do with the stolen booty.  A few posts back that up – including one where the “hacker” is allegedly asking for someone to instruct on how to circumvent miner scrutiny.

The “hacker” purportedly also posted:  “WHAT IF I MAKE A NEW TOKEN AND LET THE DAO DECIDE WHERE THE TOKENS GO.”  

As things continued going downhill, the claimed sole perpetrator of the exploit – again claiming such identity solely by virtue of using the perpetrator’s wallet address, allegedly came out as an innocent interloper:

Information posted in the form of a Q&A on an ETH transaction Private Note section goes into further detail:

It’s looking like these posts are all from the same exploiter.  A spreadsheet tracking the exploit – including related communications, can be found on Google docs.  Even if these posts are not genuine, chances are still high the exploit was performed by one or more persons who decided to offload some coin and ultimately decided to give back – as apparently already done to the tune of $261 million, whatever could not safely be absconded with using his/her/their current knowledge.  There were certainly many out there willing to provide the necessary crypto laundering assistance, but apparently the advice was not taken – the clearest signal this was committed by an “ethical” hacker.

Poly Network is at its essence an interoperability protocol used by and integrated with many DeFi projects so this exploit will have direct ripple effects well beyond the Poly Network.  The more indirect impact of this exploit is the slight chance it might be replicated elsewhere by others having the necessary domain knowledge to move stolen assets.  

The best way for investors to minimize the likelihood such failings will not impact them in the future is to seek out and only use DeFi platforms that rely on a holistic “security by design” architecture – something not easily found in a decentralized world. Not surprisingly, in a recent survey nearly 75% of institutional investors and wealth managers state that the security of virtual currencies is a “significant” hurdle stopping many individuals from entering the crypto asset space – let alone the more exotic DeFi domain where software vulnerabilities can still cause the exfiltration of $600 million in digital assets.  Beaches will always have little appeal to swimmers when there are known sharks in the water.

UPDATE: August 12, 2021

Except for $33 million in Tether stablecoins previously frozen by Tether, the entire amount taken was apparently returned. Reuters is reporting that this was done in return for an after-the-fact $500,000 “bug bounty”.

Privacy

Amazon Shrugs Off Largest Privacy Fine Ever

On July 29, 2021, Amazon disclosed in a regulatory filing that it sustained what is the largest privacy-related fine ever issued for violating EU privacy rules – a massive €746 million ($886 million) fine.  Amazon barely mentions the fine in its latest quarterly report:  “On July 16, 2021, the Luxembourg National Commission for Data Protection (the “CNPD”) issued a decision against Amazon Europe Core S.à r.l. claiming that Amazon’s processing of personal data did not comply with the EU General Data Protection Regulation. The decision imposes a fine of €746 million and corresponding practice revisions. We believe the CNPD’s decision to be without merit and intend to defend ourselves vigorously in this matter.”

This disclosure is actually related to a 2018 action brought against Amazon due to its targeted ad efforts – hardly a new action where talk of pursuing a defense makes any sense. Simply put, it is unclear why the filing references a vigorous defense – that time has long passed. Amazon must now appeal what it previously defended and lost – which may end up working out for the company given in recent decisions courts have overturned GDPR privacy fines. Still, the CNPD ruling was appreciated by the privacy group that brought suit given it dwarfs the previous record EU privacy fine of €50 million handed down to Google.

Until this action runs its full appellate course, there is not much solace that plaintiffs should derive from the fine – especially given that Amazon has had three $100 billion quarters in a row and this significant fine can easily be shrugged off from a materiality perspective.

Behavioral Advertising, Privacy, Social Media

Proposed New York Privacy Law Making Progress

On May 24, 2021, Senator Thomas’ S6701 – the proposed New York Privacy Act, had its third reading before the Senate.  As recounted in its Legislative Intent section:  “Algorithms quietly make decisions with critical consequences for New York consumers, often with no human accountability.  Behavioral advertising generates profits by turning people into products and their activity into assets. New York consumers deserve more notice and more control over their data and their digital privacy.”  

To that end, the proposed law will provide New York consumers with certain new rights, including  “clear notice of how their data is being used, processed and shared; the ability  to  access  and obtain a copy of their data in a commonly used electronic format, with the ability to transfer  it  between  services;  the ability  to  correct  inaccurate  data and to delete their data; and the ability to challenge certain automated decisions.”  

If passed, this bill will become one of the strongest – if not strongest, consumer privacy law in the country and deserves to be carefully watched.  Even though this bill may still be lacking a progressive Right of Compensation, the proposed law includes a private right of action coupled with a consumer agency enforcement mechanism – a groundbreaking backstop that will protect consumers much more so than those few currently enacted consumer privacy laws lacking in a private right of action. 

Digital Assets, Network Security, Privacy, Risk Management, Small Business

Exchanges May Crack Down on Ransomware OFAC Risk

On April 22, 2021, Chainalysis published its findings on the OFAC sanctions violation risk tied to ransomware payments.  According to Chainalysis, 15% of ransomware payments paid in 2020 were at risk of OFAC sanctions.  Even though lower than the measured risk from 2016 – 2018, last year’s numbers remain an uptick from 2019.  

Chainalysis discovered ransomware victims paid out in 2020 more than $50 million worth of cryptocurrency to addresses that carried sanctions – with mainstream exchanges receiving “more than $32 million from ransomware strains associated with sanctions risks.”  Given the public market embrace of crypto exchanges, it is very likely those exchanges seeking greater regulatory scrutiny will eventually implement curbs to address the OFAC October 2020 advisory – eventually making it more difficult for smaller businesses to satisfy ransomware demands.

Electronic Health Records, IT Consultants, Network Security, Privacy, Risk Management

Ransomware Payments Should be Self-Insured

According to Chainalysis, payments to ransomware gangs using cryptocurrency more than quadrupled in 2020, with less than 200 cryptocurrency wallets receiving 80% of funds.  And, Palo Alto Networks – which claims to use data from ransomware investigations, data-leak sites, and the Dark Web, reports that the average ransom paid by companies in 2020 jumped 171% to more than $312,000.  Despite being around for many years, the rise of ransomware has largely coincided with the diminished value derived from compromised personal data.

The REvil ransomware-as-a-service operation now picks up the phone to add a threatening personal touch to its exploits:  “Calling gives a very good result. We call each target as well as their partners and journalists—the pressure increases significantly.”  According to a published March 16, 2021 interview with a representative of REvil – also known as Sodinokibi, the group has “big plans for 2021.”  

Probably the more interesting point made by this REvil representative was the answer to the following question:  “Do your operators target organizations that have cyber insurance?”  The answer is not much of a surprise:  “Yes, this is one of the tastiest morsels. Especially to hack the insurers first—to get their customer base and work in a targeted way from there. And after you go through the list, then hit the insurer themselves.”   This is the first confirmation from an actual ransomware gang that they target cyber insurance policyholders.

Articles from the Associated Press and ProPublica years earlier suggest that cyber insurers were inadvertently driving up ransomware attacks but neither outlet provided any hard facts to back up their supposition.  Indeed, a leading broker took the natural counterpoint:  “[A]lthough no one wants to support cyber criminals, organizations are forced to weigh the option of paying ransoms against the risk of operational disruptions that could last weeks or months and cost far more.”  

It was never hard to imagine, however, that buying cyber insurance actually places a target on those companies who buy it and do not likely have the security resources necessary to stop ransomware gangs – especially given carriers may be inadvertently providing a roadmap to their house.  Indeed, last year one major cyber insurer was purportedly targeted by the Maze ransomware gang.   And, as of March 2021, there were at least two ongoing investigations involving attacks on major cyber insurers. Unless things change, it will only get worse for insurers and brokers given they are the new holders of the crown jewels.

One tactic that can impede the current claims challenge facing the industry is building on what was recently begun by AIG – a thought leader in this space for over two decades.  In January 2021, AIG became the first lead cyber insurer to require ransomware co-insurance across the board – mandating that insureds share in paying a ransom payment.  Following this lead, the larger markets began hardening on price and their underwriting requirements.  Other markets immediately began to take advantage – only temporarily repairing the holes in the dike.   As pointed out by Inside P&C:  “The retrenchment of capacity and continued upward pricing pressure also continues a reordering of the market in which some of the largest names in US cyber insurance cede market share to upstart InsurTechs.”  

Despite the fact cyber insurer MGAs are heavily funded and are now grabbing as much market share as they can, they still use paper backed by the largest reinsurers in the world – who frankly probably care more about their own profits rather than the market growth strategies of unrelated companies.  In other words, any retrenchment may also eventually hit the MGAs when treaties get renegotiated.   

Retrenchment is a good idea but will not be enough to fully address the problem. The best way to solve this problem is to do exactly what the FBI has said for years – do not pay the ransom.  An October 2020 OFAC Advisory buttresses this “do not pay” advice by warning insurers against making ransomware payments to those on the OFAC list. In other words, law enforcement would prefer that ransomware payments not be made and it may ultimately be in everyone’s best interest if such payments are self-insured – making it much less likely they will actually be paid.

This is not K&R coverage where lives are typically at stake.  Once the ransomware gangs recalibrate knowing there is no available insurance payment, the incidents will resemble earlier times, namely demands that are less frequent and for lower amounts.  These threat actors want to go in and out as fast as possible given they know that the data itself likely has very little real value on the Dark Web – it’s the urgent threat of release that has exploitive value.  If there is no expeditious insurance payment, the actual value of the target diminishes.

Insurance dollars are actually better spent helping insureds bolster their security rather than the coffers of criminals – especially because even with a payment there is no guarantee that data would be properly decrypted or that a Dark Web release or sale would not take place. There is much that can be done to assist insureds improve their risk profile and better avoid ransomware exploits. Some very basic steps include developing trusted partner relationships with vendors and law enforcement before an incident takes place; retaining a security expert to evaluate the current readiness profile; providing consistent education and training of staff; and developing or updating a Business Continuity Plan.  

On a more technical level, full and incremental backups should be consistently performed like your company’s life depended on it; weak passwords of service accounts should be removed; system logs should be maintained and monitored; employee access to sensitive data and information limited; operating systems and applications timely patched; users with admin privileges evaluated to ensure passwords are strong and secure; system safeguards such as Windows Defender Credential Guard deployed; port connections monitored and unnecessary ones removed, etc., etc., etc.  The relevant protocols all have a common goal – harden security sufficiently so that the bear decides to run after the slower runner.  If everyone ends up becoming a fast runner, the hungry bear will eventually tire of the chase and just eat something else for food.

With a robust cyber insurance policy in place, most every resource necessary to assist a ransomware victim is already available to an insured. By focusing on these other valuable first-party coverages, improving an insured’s risk management profile, and curtailing ever increasing payouts to criminals, the industry will continue with its meteoric rise.

Cyber Insurance

UPDATE: March 25, 2021

On March 24, 2021, CNA publicly disclosed that it sustained a cybersecurity attack. As of March 25, 2021, the following is the only information found on its website:

UPDATE: May 10, 2021

The day before the Colonial Pipeline ransomware attack went public, global insurer AXA announced it would cease writing cyber-insurance policies in France that reimburse policyholders for ransomware extortion payments. This is hopefully the start of a much larger trend.

UPDATE: May 12, 2021

On May 12, 2021, security experts labeled as “absolute stupidity” comments regarding the payment of ransomware that were emanating from the White House. A few days prior, the White House’s Deputy National Security Adviser for Cyber, Anne Neuberger, had given the private sector a complete free pass regarding the payment of ransoms: “And they have to just balance off, in the cost-benefit, when they have no choice with regard to paying a ransom.” Unfortunately, this position directly contradicts the long-standing position of the FBI and numerous other government agencies.

UPDATE: December 1, 2021

On November 18, 2021, North Carolina relied on its Operations Appropriations Act of 2021 to add a new article to Chapter 143 of the State’s General Statutes which now reads in part: “No State agency or local government entity shall submit payment or otherwise communicate with an entity that has engaged in a cybersecurity incident on an information technology system by encrypting data and then subsequently offering to decrypt that data in exchange for a ransom payment.” This is the first effort by a governmental entity to bar ransomware payments.

Behavioral Advertising, Social Media

Facebook’s Dominance in India May End in 2021

On April 19, 2021, arguments will be heard in a 2019 New Delhi action brought by World Phone Internet Services Private Limited, against Facebook, WhatsApp, the Government of India, and the regulator tasked with enforcing Internet telephony regulations in India.   World Phone is a licensed Indian provider of Internet telephony services.

India currently holds the honor of having the most Facebook and WhatsApp users worldwide.  Specifically, Facebook reached near 400 million users in India several months ago – which accounts for 28.4% of the entire country’s population.  And, WhatsApp is well beyond 400 million users given it last publicly disclosed that number three years ago.  Indeed, according to the Ministry of Electronics and Information Technology, WhatsApp now has 530 million users in the country.  

World Phone’s 2019 Petition alleges that Facebook messenger and WhatsApp are illegal services given they provide Indians with VoIP services without having the requisite underlying licenses or paying the required license fees and service taxes.  According to the Petition, licensed providers “have to adhere to various statutory regulations such as Quality of Service Regulations, Tariff Regulations and Consumer Protection Regulations. They also need to ensure emergency services, confidentiality of customer, privacy of communication, undergo regular audits and ensure proper lawful monitoring and interception.”  Facebook and WhatsApp comply with none of these regulatory requirements despite providing regulated services.  

Moreover, the Petition references the pertinent regulations that provide for “an amount of up to Rs. 50 Crore as penalty for any security breach caused due to any inadvertent inadequacy in the precautions taken by the licensee. If the security breach is caused as a result of a deliberate fault on the part of the licensee, then the penalty is an amount of Rs. 50 Crores for each breach. Besides penalty, criminal proceedings may also be initiated against the licensee. These measures keep the TSPs on their toes and ensure they adhere to the security and privacy requirements while providing Internet Telephony.”  Despite breaches that would have triggered these provisions, Facebook and WhatsApp have seen no regulatory enforcement actions filed against them.  

World Phone previously filed a similar legal action against Microsoft given its Skype product – India’s then dominant unlicensed VoIP service, caused World Phone harm by improperly competing without a license.  That action, however, was filed in the United States.  In a decision by Chief Judge Freda Wolfson of the District Court of New Jersey, the action was dismissed in May 2014 with World Phone explicitly directed to seek relief in India.  TI Investment Services, LLC, and World Phone Internet Services, Pvt. Ltd v. Microsoft Corporation, 23 F. Supp. 3d 451, 472 (D. N.J. 2014) (“If Plaintiffs wish to renew their suit, they should do so in the jurisdiction where they are alleged to have competed with Defendant, to have complied with regulatory laws, and to have suffered injury, and that is India.”). 

World Phone never needed to file suit in India given the subsequent appeal was settled between the parties.  Thereafter, Microsoft voluntarily chose to withdrew its unlicensed Skype services in India.  See NeoWin (October 6, 2014) (“Skype is either changing, or being forced to change, its strategy in India. The Microsoft service will no longer offer landline and mobile calls for Indian residents starting November 10th. This change came pretty much out of the blue and was announced by Skype on one of their support channels. . . Neither Microsoft nor Skype has offered any reason for this weird change but the company has offered to refund users who will be affected by this announcement.”); PC World (October 6, 2014) (“Skype appears to bow to Indian rules, ends in-country calls to local networks”); SIP Trunking Report (October 6, 2014) (“Some might argue the change has something to do with regulations that actually prohibit the use of VoIP services such as Skype to make calls on phones using the Internet.  . . . Since the law does not appear to have changed, some other consideration is at play.”).

In an Affidavit filed on July 20, 2020, there were two arguments made in opposition to World Phone’s application.  The first argument was that the Petition could not be decided because it was transferred to the Indian Supreme Court with other petitions involving Facebook and WhatsApp.  On its face, this argument made no sense given that the Transfer Order attached to the Affidavit did not list the World Phone Petition so the action was clearly not transferred.  Also, the transferred actions solely involve privacy issues.  Despite the fact those other matters also demonstrate the “digital colonialism” of Facebook and WhatsApp given they show how Indian users are treated differently from Europeans, they remain inapplicable to the World Phone Petition.

The second argument relied on a 2017 affidavit previously filed that claims the current regulatory body is “currently examining” over-the-top (OTT) services.  First, the services subject to the World Phone Petition are Internet telephony services and not mere OTT services.  And, despite it now being 2021, the agency still failed to address even the OTT services issues raised.  In fact, taking advantage of this longstanding lack of enforcement, WhatsApp is now moving aggressively to take advantage of its Indian market dominance in Internet telephony by moving into the desktop market.  

To defend against the World Phone Petition, Facebook and WhatApp hired two of the top attorneys in India – Mukul Rohatgi and Kapil Sibal.  Mukul Rohatgi – who is Facebook’s counsel, was in 2010 considered one of India’s top 10 lawyers.  He was also the 14th  Attorney General for India. Kapil Sibal – who represents WhatsApp, formerly served as the head of various ministries over the years – beginning with the Ministry of Science & Technology, then the Ministry of Human Resource Development followed by the Ministry of Communications & IT, and the Ministry of Law & Justice.  To date, neither attorney has formally filed any papers with the Court.

No matter what is eventually filed by Facebook or WhatsApp, World Phone’s argument could not be simpler – there are no “checks and balances” available to protect Indian citizens from the digital colonization of Facebook and WhatsApp so its Petition is likely all that stands between Facebook and WhatsApp executing on its apparent digital colonialization plan and ultimate “data oligarch” control of the Indian population.

If successful, World Phone would cause the cessation of unlicensed Facebook messenger and WhatsApp services in India as well as the imposition of penalties for prior non-compliance.   To the extent Facebook chooses not to play regulatory ball, it may end up doing what it has done in China since 2009, namely just go dark.

UPDATE: April 22, 2021

On April 22, 2021, Justice Navin Chawla – the Justice who previously was hearing the World Phone case, ruled against Facebook and WhatsApp and dismissed their pleas challenging an Order from the Competition Commission of India (CCI) directing a probe into WhatsApp’s new privacy policy. Justice Chawla previously reserved judgment on the case.

A new Justice in the World Phone case – Justice Prathiba M. Singh, ruled on April 19, 2021 that Facebook and WhatsApp were required to provide a responsive affidavit within six weeks and World Phone had four weeks thereafter to respond. Moreover, a new hearing date of August 26, 2021 was set by the Court. For the very first time, Facebook and WhatsApp will now be required to articulate a defense to a case that on its face is indefensible.

UPDATE: October 6, 2021

Despite being required to provide their responsive pleadings by May 31, 2021 and retaining some of the top Indian lawyers to defend this action for over eight months, Facebook and WhatsApp both filed their responses on August 20, 2021 – less than a week before the scheduled hearing.  World Phone filed its reply to the Facebook submission on August 25, 2021.

On August 26, 2021, Justice Rekha Palli granted World Phone its request for more time to file the WhatsApp response. As well, she scheduled a new hearing for December 6, 2021. On October 7, 2021, World Phone will file its response to the WhatsApp affidavit.

UPDATE: October 7, 2021

World Phone served its WhatsApp response on all parties and with the Court. This Rejoinder provides a detailed analysis of why the Court should stay the use of WhatsApp until in complies with applicable law. To that end, it is anticipated that the Court will grant the requested injunctive relief on December 6, 2021 as to both Respondent No. 3 (Facebook) and Respondent No. 4 (WhatsApp).

Relevant sections of this filed Rejoinder are extracted below.

In 2015 – long before Respondents No. 3 and 4 solidified their current monopoly positions in India, TRAI already recognized Respondents No. 3 and No. 4 were providing the top two mobile phone applications used in India. See Consultation Paper on Regulatory Framework for Over-the-top (OTT) services, para 2.39 at page 27 (27 March 2015) (Publicly available at https://trai.gov.in/sites/default/files/OTT-CP-27032015.pdf).

It is submitted that private monopolistic entities directly impacting the public interest are always subject to writ petitions. Zee Telefilms Ltd. & Anr v. Union of India & Ors., (2005) 4 SCC 649, para 158 (“A body discharging public functions and exercising monopoly power would also be an authority and, thus, writ may also lie against it.”) [emphasis added].  Given the strong public interest implicated by this Petition and Respondent No. 4’s exertion of monopoly power, the Petitioner’s writ Petition should proceed against all Respondents – including Respondent No. 4. 

The fact that the functionally equivalent Internet Telephony services of an Internet service provider (“ISP”) – an entity required to obtain a Unified License prior to providing such services, are provided by Respondent No. 4 un-hindered and without entering into a Unified License Agreement is well recognized and admitted by all Respondents.  Such unlicensed activity is in violation of Section 5 of the Indian Wireless Telegraphy Act, 1933; Sections 4 and 20A of the Indian Telegraph Act, 1885; Section 79 of the Information Technology Act, 2000; and the entire framework of the Telecom Regulatory Authority of India Act, 1997.

It is submitted that all such services  provided by Respondents No. 3 and No. 4 in India should be “licensed pursuant to an agreement with the Department of Telecommunications, Government of India (“DoT”)” notwithstanding,  considering such services “internet-based ‘over-the-top’ (“OTT”) services”.

It is submitted that the Respondent No. 3 by its own averments states that it provides unlicensed Internet Telephony Service/VoIP Calls.  Such Services are provided by the Petitioner by procuring a license from Respondent No. 2 and are governed by the Indian Wireless Telegraphy Act, 1933; the Indian Telegraph Act, 1885; the Information Technology Act, 2000; and the Telecom Regulatory Authority of India Act, 1997.  

It is further submitted that this uneven application has allowed Respondents No. 3 and No. 4 to dominate the market completely and totally – also damaging and putting out of business other Internet Telephony service providers who were once viable.  This market dominance has not gone unnoticed in the United States where an Amended Complaint was filed on 19 August 2021 by the US Federal Trade Commission. 

Respondent No. 4 currently publicly opposes the enforcement of any interception rule.  See “What is traceability and why does WhatsApp oppose it?” (Publicly available at https://faq.whatsapp.com/general/security-and-privacy/what-is-traceability-and-why-does-whatsapp-oppose-it) (“Some governments are seeking to force technology companies to find out who sent a particular message on private messaging services. This concept is called “traceability.” . . . WhatsApp is committed to doing all we can to protect the privacy of people’s personal messages, which is why we join others in opposing traceability.”) [emphasis added].  No matter what Respondent No. 4 does or does not do in this regard, it is submitted that the applicable Rules of interception of communication is dwarfed by the applicable financial commitments and vigorous checks and balances required under the Unified License Agreement and associated regulations which Respondent No. 4 should adhere to given the Internet Telephony/VoIP services it provides. 

The Hon’ble Supreme Court has recognized that

“it can very well be said that a writ of mandamus can be issued against a private body which is not a State within the meaning of Article 12 of the Constitution and such body is amenable to the jurisdiction under Article 226 of the Constitution and the High Court under Article 226 of the Constitution can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties.” Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657, para 32. 

It is submitted that the issues raised in this writ Petition concern existing legislation governing the services provided by the Petitioner and the Respondents No. 3 and No. 4.  Wherein the Petitioner is operating through the Unified License Agreement issued by Respondents No. 1 and No. 2, the Respondents No. 3 and No. 4 are providing the same services but circumventing the existing legislation and are completely unregulated/unlicensed.  This injustice can only be ruled upon by a Constitutional Court under Article 226 of the Constitution by the Hon’ble High Court and under Article 32 of the Constitution by the Hon’ble Supreme Court of India and not by the TDSAT.  Moreover, Petitioner submits that this Hon’ble Court respectfully should not rely on mere recommendations from TRAI.   

It is submitted that rather than simply ignoring applicable laws, other countries have sought to change their existing licensing regime.  For example, by suggesting that India should not be one of those countries having a licensing scheme for Internet Telephony such as “Korea, Singapore, Hong Kong, Philippines, Thailand, Ecuador, and Mexico”, Microsoft suggested a different approach:  “Microsoft respectfully requests that the TRAI propose a regulatory approach wherein PC to PC VoIP requires no license (and is permitted to be transmitted by ISPs over their networks, public or managed, without restriction), and that only two-way PC to PSTN calling (both inside and outside of India) requires a light-touch registration or minimal licensing obligation, accompanied by appropriate regulations deemed necessary to protect consumers or address a market failure.” Response To Telecom Regulatory Authority of India Consultation Paper, Microsoft Corporation India Private Limited, page 14 (September 2016) (Publicly available at https://www.trai.gov.in/sites/default/files/201609060217157734124Microsoft_Corporation_India_Private_Limited.pdf). 

Reliance JIO, suggested:  “The unrestricted Internet Telephony by the ISPs/ 0TTs may be allowed only if they migrate to the Unified License with Access services authorization or they offer this service under a commercial arrangement with an existing Access service provider.” Comments of Reliance Jio lnfocomm Limited on the issues raised in the Consultation Paper on Internet Telephony (VOIP) (Consultation Paper No 13/2016 dated 22.06.2016), 5 September 2016, at page 9 (Publicly available at  https://www.trai.gov.in/sites/default/files/201609060234264610172RJIO.pdf).  Further, Reliance JIO suggested that “[i]t should be the responsibility of the Access Service Provider offering Internet telephony in collaboration with the OTT provider or otherwise to ensure that the international internet telephony calls are terminated in India through a licensed ILDO.”  Id. at 13 [emphasis added]. 

Respondent No. 3’s current business partner, Reliance Jio, realized early on that a special “Facebook exception” was in its best interests.  See “Stop illegal routing of internet telephony calls:  COAI”, Economic Times (5 May 2016) (“The Cellular Operators Association of India (COAI) has urged the telecom department (DoT) to stop illegal routing of internet telephony calls, warning that a failure to do so would lead to a breach in telco licence conditions, pose security risks and cause sizeable losses to the national exchequer.   Newcomer Reliance Jio Infocomm is also a COAI member, but the GSM industry body in its letter said Jio held a divergent view on the matter.”) [emphasis added] (Publicly available at https://economictimes.indiatimes.com/tech/internet/stop-illegal-routing-of-internet-telephony-calls-coai/articleshow/52133359.cms).

Respondent No. 4 claims it is a “mere application provider” rather than Petitioner who is an “access provider”.  The submitted statement ignores Petitioner is most certainly both and to provide its Internet Telephony/VoIP services in India, Petitioner has fully complied with the existing applicable licensing regime for such services.  

Respondent No. 4 also submits that “the relevant regulatory authorities are seized of the issue and the consultation process is ongoing”. The Respondent No. 4 is misleading this Hon’ble Court wherein the reality is that the regulators have already spoken, and they will not do anything further to enforce the law as currently written. TRAI rather recommends that going forward “Market forces” should dictate a solution.   

Contrary to what is submitted by Respondent No. 4, there is no need for the creation of a new regime applying to “OTT services” and Petitioner is certainly not requesting the creation of such a new regulatory regime – especially given one is not needed.  The Petitioner through this writ Petition is only praying before this Hon’ble Court to enforce the Law/Regulations currently in place.

Respectfully, TRAI has long had an agenda to grow the Internet user base in India.  In 2010, TRAI recognized that the uptick in Internet users was below what was sought by it.  See  Recommendations on Spectrum Management and Licensing Framework, para 2.105 at page 104 (11 May 2010) (“Despite a token licence fee for ISP, the number of internet subscribers has grown from 5.14 million in September 2004 to only 15.24 million by the end of December 2009. Of this, the number of broadband subscribers is 7.83 million. These numbers are way below the target of 40 million and 20 million by the end of 2008 for internet and broadband subscribers respectively.”) (Publicly available at https://trai.gov.in/sites/default/files/FINALRECOMENDATIONS.pdf). To increase the number of Internet users in India, sometime after 2015, TRAI began tilting the scales in favor of OTTs and simply disregarded the current licensing regime when making recommendations.  These efforts have been very successful as shown by the hundreds of millions of customers Respondents No. 3 and No. 4 have accumulated since 2015. 

Without referencing the applicable laws and regulations, TRAI recently concluded:  “It is not an opportune moment to recommend a comprehensive regulatory framework for various aspects of services referred to as OTT services, beyond the extant laws and regulations prescribed presently. It may be looked into afresh when more clarity emerges in international jurisdictions particularly the study undertaken by ITU.”  TRAI Press Release Regarding Recommendations on “Regulatory Framework for Over-the-top (OTT) communication services” (14 September 2020) [emphasis added] (Publicly available at https://trai.gov.in/sites/default/files/PR_No.69of2020.pdf). See also TRAI Recommendations on Regulatory Framework for Over-The-Top (OTT) Communication Services, para 2.4(iii) at page 8 (“Since, ITU deliberations are also at study level, therefore conclusions may not be drawn regarding the regulatory framework of OTT services. However, in future, a framework may emerge regarding cooperation between OTT providers and telecom operators.  The Department of Telecommunications (DoT) and Telecom Regulatory Authority of India (TRAI) are also actively participating in the ongoing deliberations in ITU on this issue. Based on the outcome of ITU deliberations DoT and TRAI may take appropriate consultations in future.”) [emphasis added] (Publicly available at https://trai.gov.in/sites/default/files/Recommendation_14092020_0.pdf). 

The international ITU body, however, previously made it clear that it is not involving itself in India’s internal regulatory matters and is merely a spectator to such activities.  See ITU Economic Impact of OTTs Technical Report 2017, 5.2 India at 33 (“India is in the process of reassessing its rules on online services, including OTT services. . . . As noted in Section 4.2, voice and messaging services are permitted to be offered only by firms that hold a licence. Internet Protocol (IP) based voice and messaging services can also be offered by licensed network operators as unrestricted Internet Telephony Services; however, these services may not interconnect with traditional switched services. The dichotomy between regulated traditional services and largely unregulated OTT services leads to numerous anomalies.”) [emphasis added] (Publicly available at https://www.itu.int/dms_pub/itu-t/opb/tut/T-TUT-ECOPO-2017-PDF-E.pdf).   

As for the local ITU branch – the ITU-APT Foundation of India, that group has already sided with Respondent No. 4’s claim there is an “intelligible differentia” between its Internet Telephony services and Petitioner’s Internet Telephony services.  ITU-APT Foundation of India comments on TRAI OTT consultation (7 January 2019) at 3 (“The Consultation Paper (“CP”) draws parallels between the communication services offered by OTT service providers and TSPs.  However, we would like to submit that the services offered by them are widely different and cannot be compared.”) [emphasis added] (Publicly available at https://trai.gov.in/sites/default/files/ITUAPT08012019.pdf).  

This position is not surprising given that according to the ITU-APT Foundation of India:  “Facebook’s, [sic] one of our valued corporate member[sic] announce a major investment in Reliance Jio that would facilitate the ailing telecom Industry. The two companies said that they will work together on some major initiatives that would open up commerce opportunities for people across India.” ITU-APT Weekly News Summary [emphasis added] (Publicly available at https://itu-apt.org/itu-letter.pdf).   

Rather than rely on ITU, TRAI should have considered more the deliberations of the Confederation of Indian Industry (CII) – which recognizes that OTT providers are already governed by the present licensing regime.  See CII Response to TRAI Consultation Paper on Regulatory Framework for Over-The-Top (OTT) Communication Services at 6 (7 January 2019) (“Any new regulations for TSPs and OTTs should be considered taking into account the respective regulations govern the TSPs and the OTTs under the Telegraph Act, license, TRAI Act and the Information Technology Act. The Authority should consider new future fit frameworks that lightens the regulatory burden and adopts a progressive approach that allows all entities in the eco-system to proliferate and grow – offering maximum benefits to the consumers.”) [emphasis added] (Publicly available at https://trai.gov.in/sites/default/files/ConfederationofIndianIndustry08012019.pdf).  CII has long been a major force in advocating what is in the best interest of Indian businesses – and does not care about the interests of US-based monopolies:  “The journey began in 1895 when 5 engineering firms, all members of the Bengal Chamber of Commerce and Industry, joined hands to form the Engineering and Iron Trades Association (EITA). . . . Since 1992, through rapid expansion and consolidation, CII has grown to be the most visible business association in India.” [emphasis added] (Publicly available at https://www.cii.in/about_us_History.aspx?enc=ns9fJzmNKJnsoQCyKqUmaQ==).

It is submitted that a comprehensive licensing regime is already in place which covers not only the interception rules, penalties, security issues but also governs the license fees and tariffs and mode to operate among others.  It is submitted that the stand of Respondent No. 4 in regards to interception rules and end-to- end encryption claimed to be covered under the IT Act and other rules, which it publicly opposes, is just like crumbs from a pie wherein the Indian Wireless Telegraphy Act, 1933; the Indian Telegraph Act, 1885; the Information Technology Act, 2000; and the Telecom Regulatory Authority of India Act, 1997 provide a complete pie and once it is brought under such laws Respondent No. 4 will have to comply with all the rules and regulations at par with the Petitioner.

Petitioner and Respondent No. 4 are indeed “equals” in that they provide the same Internet Telephony/VoIP service while are treated “unequally” by Respondents No. 1 and No. 2. It is submitted that only the Petitioner is required to comply with the licensing regime applicable for providing such telephony services.

Individual citizens forming a legal entity or juristic person can invoke fundamental rights. It is submitted that the ameliorative relief sought by the Petitioner is issuance of writ by this Hon’ble Court that the applicable laws and regulations are complied with and enforced upon the unregulated/unlicensed Internet Telephony/VoIP Service Provider Respondent No. 4 herein.

It is denied that the issues raised by this Petition are being “considered and decided by DoT and TRAI, the regulatory authorities with the expertise and experience to address such issues.”   It has been over five years since the issue of an uneven level playing field was raised with Respondent No. 2 as regards Respondent No. 4.    

Petitioner through this writ Petition is praying that the existing laws and regulations are fairly applied and enforced as to all companies no matter how large and powerful they are.  It is humbly submitted that if the unlawful conduct uncovered by this writ Petition is not addressed by this Hon’ble Court, Respondent No. 4 will likely forever be left unchecked to do what it likes in India.

It is submitted that on 19 November 2019, the Minister of Home Affairs was asked “whether the Government does Tapping of WhatsApp calls and Messages in the country” and responded without answering the question but implied it was “tapping of WhatsApp calls and messages” by referencing the same interception rule mentioned by Respondent No. 4 in its submission. “Government Of India, Ministry Of Home Affairs, Lok Sabha, Unstarred       Question No: 351” (Publicly available at http://loksabhaph.nic.in/Questions/QResult15.aspx?qref=6696&lsno=17).   The Hon’ble Court has no way of knowing if Respondent No. 4 is helping law enforcement, exactly how Respondent No. 4 is helping law enforcement, or whether Respondent No. 4 could do more to help.

Whether or not Respondent No. 4 is consistent with its public pronouncements and does not actually access user accounts is actually of little importance – than that the Respondent No. 4 admittedly does not comply with the licensing requirements applicable to providers of Internet Telephony/VoIP services.   

It is denied that there is no financial loss to the national exchequer despite the complete failure to obtain any entry fee, payment of license fee, or goods and service tax from India’s largest operator of Internet Telephony services. A loss of income naturally results when licensing fees are not paid. See Cellular Operators Association of India (COAI) Counter Comments TRAI Consultation Paper on Internet Telephony Released, 22 July 2016, at 1 (“Internet Telephony provided by unlicensed entities besides being in violation of license will not only deprive the licensed operators of huge revenue but will also result in lesser payout to exchequer in the form of reduced license fee on revenues.”) [emphasis added] (Publicly available at https://www.trai.gov.in/sites/default/files/201609161151061091227COAI.pdf).   

It is denied that Respondent No. 4’s unregulated conduct actually “generates more revenue for the government by enhancing investments in data networks, and consequent increases in license fees.” [emphasis added].   Even the ITU-APT Foundation of India acknowledges that the infrastructure growth created by OTT providers happens in the USA and not in India.  See ITU-APT Foundation of India comments on TRAI OTT consultation (7 January 2019) at 5 (“It is estimated that OTT investments in infrastructure is fast growing, and the bigger OTT players invested 9% of their 2011-2013 revenues in networks and facilities in the US.  This trend can be replicated in India with the right regulatory environment which would recognize and incentivize greater investments rather than stifle the industry with arbitrarily applicable licenses.”) [emphasis added] (Publicly available at https://trai.gov.in/sites/default/files/ITUAPT08012019.pdf).  Both the ITU-APT Foundation of India and Respondent No. 4 are wrong, however, given that Respondent No. 2’s failure to enforce existing laws has already created the “right regulatory environment” for the bigger OTT players.  It is also clear neither Respondent No. 3 nor Respondent No. 4 have any intentions of building networks or facilities in India given they have withdrawn their prior physical presence in India and currently neither even have any office in India.

It is submitted that the question is not whether a licensing regime should apply to OTT’s when the existing regime already does apply, but the real question is whether the existing laws and regulations will be regulated and enforced by Respondents No. 1 and No. 2. 

It is submitted that the contents of this Petition seeks liberty of the Court to enforce the laws as written. It is denied that the Petitioner is seeking from the Hon’ble Court to “displace” regulatory authorities  but only to enforce existing law and regulations which are applicable to all providers of Internet Telephony/VoIP services,  even those who claim to  ride on the telecommunications rails built and maintained by other companies. 

It is denied that the Respondent No. 4 was singled out in the writ Petition.  Unlike Respondent No. 4, other similar service provider like “Skype” have near zero market share compared to Respondents No. 3 and 4.   It is submitted that Skype was once the undisputed dominant provider in India but after its corporate parent Microsoft was sued in 2014 by Petitioner, Skype removed the ability to call within India from Skype to mobiles and landlines. In the relevant case, the Hon’ble Court in the United States found that Petitioner was better served filing a writ petition in India rather than in the United States. TI Investment Services, LLC, World Phone World Phone Internet Service Pvt. Ltd. v. Microsoft Corp., 23 F. Supp. 3d 451, 472 (D. N.J. 2014) (“The Courts of India are better positioned to determine whether their own national laws have been violated, and, if so, what the antitrust consequences, if any, are in their national market. If Plaintiffs wish to renew their suit, they should do so in the jurisdiction where they are alleged to have competed with Defendant, to have complied with regulatory laws, and to have suffered injury, and that is India.”).

It is further submitted that unlike Microsoft and even Google, Respondent No. 4 flagrantly violates existing regulatory prohibitions by, for example, allowing Indian users of its free “WhatsApp Business” utilize their landline phone numbers for messaging with customers. See WhatsApp Business App Android Download Page (“You can use WhatsApp Business with a landline (or fixed) phone number and your customers can message you on that number.”) (Publicly available at https://play.google.com/store/apps/details?id=com.whatsapp.w4b&hl=en_IN&gl=IN).  As recognized even by TRAI, such unlicensed services run afoul of the existing licensing regime.  See Consultation Paper on Regulatory Framework for Over-the-top (OTT) services, para 2.40 at page 28 (27 March 2015) (“Under the current telecom licensing regime, voice and messaging services can be offered only after obtaining a license. Apart from traditional voice and messaging, IP based voice and messaging services can also be offered by TSPs as unrestricted Internet Telephony Services, which are permitted under the scope of the Unified Access Service (UAS) license in terms of the UAS Guidelines dated 14th December 2005. Similar provisions exist for Cellular Mobile Telephone Service (CMTS) and Basic Service Licences. However, the scope of the Internet Services Licence was restricted to Internet Telephony Services without connectivity to Public Switch Telephone Network (PSTN)/Public Land Mobile Network (PLMN) in India.”) [emphasis added] (Publicly available at https://trai.gov.in/sites/default/files/OTT-CP-27032015.pdf).   

It is denied that Respondent No. 4 can freely provide telecommunication services and ignore the Unified License Agreement because it relies on networks built by other companies. It is submitted that Respondent No. 4 at one point was building out its physical presence in India for regulatory reasons.  By way of background, on 6 April 2018, the Reserve Bank of India issued its Directive, Storage of Payment System Data, requiring that: “All system providers shall ensure that the entire data relating to payment systems operated by them are stored in a system only in India.”  Directive on Storage of Payment System Data, 6 April 2018, (Publicly available at https://www.rbi.org.in/scripts/NotificationUser.aspx?Id=11244&Mode=0).    

Soon thereafter Respondent No. 4 announced the appointment of Abhijit Bose as head of “WhatsApp India”– WhatsApp’s first full country team outside of California . . . based in Gurgaon.” Respondent No. 4’s company statement is no longer available on its website but press accounts of this statement can still be found online.  “WhatsApp appoints Abhijit Bose as head of WhatsApp India”, The Economic Times of India (21 Nov 2018) (Publicly available at https://economictimes.indiatimes.com/tech/internet/whatsapp-appoints-abhijit-bose-as-head-of-whatsapp-india/articleshow/66735848.cms). According to Mr. Bose’s November 2018 statement recounted by the India Times:  “WhatsApp can positively impact the lives of hundreds of millions of Indians, allowing them to actively engage and benefit from the new digital economy.” Id. The India Times also reported in that article: “Apart from the traceability request, the government had had asked WhatsApp to set up a local corporate presence. . . .” Id. After finding a way to maneuver around the Reserve Bank of India’s 2018 Directive, on 6 November 2020, Respondent No. 4 announced the launch of its payment platform without having any “local corporate presence” that would store “data related to payments”.  See “Send Payments in India with WhatsApp”, WhatsApp Blog (6 November 2020) (Publicly available at https://blog.whatsapp.com/send-payments-in-india-with-whatsapp). As with Respondent No. 3’s massive build out of its physical presence in India, Respondent No. 4’s “company statement” regarding the building of “WhatsApp India’s” physical presence in India is no longer found on Respondent No. 4’s website.  

More importantly, as also with Respondent No. 3, Respondent No. 4 now no longer has any physical presence in India – despite the country being Respondent No. 4’s largest country market.  And, without Respondent No. 4 having any physical presence in the country, Mr. Bose – still apparently head of “WhatsApp India”, announced in July 2020:  “Our collective aim over the next two to three years should be to help low-wage workers and the unorganised, informal economy easily accesses three products – insurance, micro-credit and pensions.” See “Facebook’s WhatsApp to partner with more Indian banks in financial inclusion push”, Reuters Article, (22 July 2020) (Publicly available at https://www.reuters.com/article/us-whatsapp-india-idUSKCN24N24E.  It is further submitted that Respondent No. 4 – who already dominants in Internet Telephony, messaging, and mobile payments plans on dominating  in providing access to “insurance, micro-credit and pensions”. It is submitted that this blatant form of digital colonialism should respectfully be rejected  by way of this present writ Petition

Respondent No. 4 submits it need not comply with the Unified License Agreement despite providing “telecommunication services” simply because it uses for free the networks built by others.  The relevant regulatory authorities have been made aware of the matters set forth in the Petition for over five years without enforcing public laws and their own regulations and is why DoT is named as Respondent No. 2 in this matter.  Last year alone, Respondent No. 3 generated revenues of more than US$85 billion and profits of more than US$29 billion.  These numbers will grow exponentially as the “free” unlicensed products currently offered to Indians become further monetized by Respondents No. 3 and No. 4. 

Other than the present writ Petition, there is no available “statutory remedy” that would otherwise cause the enforcement of applicable law.  It is respectfully submitted that the Hon’ble Court should intercede to ensure equal protection under the law. It is further humbly submitted that if the Hon’ble Court does not intercede to stop the digital colonialism of Respondents No. 3 and No. 4, the same will go forward unabated. Considering the foregoing facts and circumstances, it is therefore respectfully prayed to this Hon’ble Court to kindly allow the prayer of relief sought by the Petitioner, in the interest of justice, including enjoining Respondent No. 4 from providing Internet Telephony/VoIP services until such time as Respondent No. 4 is in full compliance with the applicable requirements for providing such services in the Union of India.

Accounting Firm, Electronic Health Records, Litigation Management, Network Security, Risk Management, Technology Law

B2 – B1 < (P x H)1 – (P x H)2

On February 16, 2021, The Sedona Conference (TSC) – a nonpartisan, nonprofit research and educational institute “dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation and intellectual property rights”, released its final “Commentary on a Reasonable Security Test“.  TSC is well known for previously helping Courts around the country determine the proper contours of e-discovery.  

Recognizing that cybersecurity reasonableness crosses both legal and technology domains, TSC sought a reasonableness test that would help bridge that divide.  Accordingly, the proposed test for reasonable security was designed to be consistent with “models for determining reasonableness that have been used in various other contexts by courts, in legislative and regulatory oversight, and in information security control frameworks.” The Sedona Conference, Commentary on a Reasonable Security Test, 22 SEDONA CONF. J. 345, 358 (forthcoming 2021).  To that end, this test is ultimately based on the landmark Learned Hand negligence test in United States v. Carroll Towing Co., 159 F.2d 169, 173 (2nd Cir. 1947).  

The Sedona Conference Reasonable Security Test consists of “B2 – B1 < (P x H)1 – (P x H)2” where B represents the burden, P represents the probability of harm, H represents the magnitude of harm, subscript 1 represents the controls (or lack thereof) at the time the information steward allegedly had unreasonable security in place, and subscript 2 represents the alternative or supplementary control.  22 SEDONA CONF. J. at 360.  

TSC’s Commentary should be carefully studied for numerous reasons, including the fact TSC applies it to actual recent enforcement actions and provides solid arguments for its judicial application.  No different than its highly cited e-discovery initiatives, this new TSC approach may very well be relied on by courts tackling the important question of what constitutes reasonable security in the context of a data breach litigation or enforcement action.

Behavioral Advertising, Media, Network Security, Privacy, Risk Management, Social Media

Data Privacy Day 2021

On January 28, 2021, the National Cybersecurity Alliance encouraged individuals this Data Privacy Day to “Own Your Privacy” by “holding organizations responsible for keeping individuals’ personal information safe from unauthorized access and ensuring fair, relevant and legitimate data collection and processing.”  Indeed, the NCSA recognizes “[p]ersonal information, such as your purchase history, IP address, or location, has tremendous value to businesses – just like money.”

The NCSA “data as money” perspective is not a new concept.  In fact, it was hoped that Data Privacy Day 2016 would usher in a system for consumers to easily monetize their private data – a hope that has yet to materialize five years later.   Still, in the same way a bank protects money, there can be no adequate privacy without adequate security.

Richard Clarke – a security advisor to four U.S. presidents, properly recognized in 2014:  “Privacy and security are two sides of the same coin.”  The ransomware epidemic of 2020 should inform everyone why Data Privacy Day 2021 solidly places privacy and security on the same level. There can be little respect for the privacy rights of consumers – whether monetized or not, without an adequate effort at securing such data.  Some companies such as Microsoft – last year’s champion of Data Privacy Day, recognize the need to continually push the security envelope in order to properly protect consumer privacy rights. Accordingly, these companies go the extra distance and often work hand-in-hand with law enforcement to take down online criminal enterprises such as Emotet.

Going forward in 2021, companies safeguarding consumer data must recognize that the lines have blurred between nation state APT attacks – focused on the slow espionage of large companies, and criminal enterprises looking for quick financial hits.  For example, the lateral movement hallmarks of an APT attack are now routinely used during Ryuk ransomware exploits.  Moreover, the recent SolarWinds Orion Platform exploit highlights the need to focus on supply chains when protecting consumer data.

Focused security efforts would quickly stop being left on corporate “to do” lists if there was an applicable federal law in place for companies nationwide – not just the hybrid privacy/security state laws now applicable to only some companies.  Unfortunately, despite high hopes in 2019, there was little bipartisan push for a federal privacy law these past few years.  That dynamic might change in 2021.  

Former California Attorney General Kamala Harris’s 2012 annual privacy report opens with the words:  “California has the strongest consumer privacy laws in the country.”  During her tenure, California enjoyed “a constitutionally guaranteed right to privacy, over seventy privacy-related laws on the books, and multiple regulatory agencies set up to enforce these laws.”   As the new year progresses, the current Vice President may very well prod Congress for the sort of California “privacy pride” she once enjoyed on a state level. Given the current one-party rule, there is certainly no longer any excuse available to politicians looking to continue kicking the “federal privacy law can” around Capital Hill.

Blockchain, Digital Assets, DLT, Intellectual Property, Technology Law

The DeFi End Game

A skilled chess player will tell you the best way to study chess at a high level is to first study endgames and truly learn the power of each piece.  Memorizing book openings generally comes last.  If one wants to learn about the insurance industry, first take a job in the claims department.  In a similar way, students of disruptive technologies benefit from first learning their “end game”.  

Blockchain is one disruptive technology that still has not fully discovered its business sea legs.  The purported proxy for blockchain – Bitcoin, recently hit all-time highs so naturally on January 3, 2021 a forecaster placed a ten-year target of $1 million on this speculative asset.   Every good bubble requires inflating and the very speculative Bitcoin bubble currently being massively inflated by hedge fund money is no different.   

Bitcoin’s bubble ascension does not mean, however, the seismic blockchain and distributed ledger technology (DLT) shifts taking place over the past five years in the financial industry have been illusory or should be ignored.  As previously recognized, “acceptance of blockchain technology by the financial industry will be indelible proof those mistakes of 1995 made by retail sales and marketing companies will not be repeated by the financial industry.” 

Over the past several years, financial titans have reluctantly come out swinging in favor of convertible virtual currency (CVC) transactions.  For example, most US PayPal customers now have the ability to buy, sell and hold four different cryptocurrencies – BTC, ETH, LTC, and BCH, and use them as a funding source with the company’s 26 million merchants.  Presently, PayPal’s maximum dollar amount for weekly CVC purchases is $20,000 but even that relatively high consumer amount will likely change upwards as Paypal moves up the financial transaction food chain – with Paypal’s Venmo next in line.

The largest bank in the United States – J.P. Morgan Chase, launched its JPM Coin in 2019, and in October 2020 set up an entirely new business, Onyx, as an umbrella for its blockchain and CVC initiatives – including JPM Coin.  According to Jamie Dimon, Chairman and CEO of J.P. Morgan:  “Onyx is at the forefront of a major shift in the financial services industry. This new business unit reflects J.P. Morgan’s commitment to innovation as we continue to build cutting-edge technology that delivers a better, faster and more inclusive financial system.” On December 10, 2020, J.P. Morgan announced it completed a live, blockchain-based intraday repo transaction using JPM Coin.  And, Visa has filed a patent application for what may seem perfunctory, namely recording digital currencies on a blockchain.

Apart from these blockchain-based efforts, there is a whole category of blockchain initiatives that will forever fundamentally alter the broader financial sector – to the likely chagrin of PayPal, J.P. Morgan, and Visa. The banner name for these new blockchain and DLT initiatives is “DeFi”, or decentralized finance.

In December 2019, the entire Total Value Locked (TVL) in the DeFi market was worth less than $700 million, by the end of December 2020 it grew to $14 billion, and as of January 5, 2021 the total TVL in DeFi was at over $19 billion and growing – representing a staggering growth trajectory.  The TVL in the DeFi market represents all DeFi projects but is largely driven by the lending platform MakerDAO – a decentralized credit platform supporting Dai, a stablecoin pegged to the US dollar.  Decentralized exchanges (DEXes) such as Uniswap largely make up the remaining bulk of projects.  DEXes enforce trading rules and execute trades without charging the high fees normally associated with alternative investment trades.   

A commitment of $19 billion to DeFi initiatives may seem miniscule compared to, for example, the over $6 trillion in foreign exchange trades conducted each day.   On the other hand, each DeFi transaction potentially empowers individuals while at the same time weakening the grip over the monetary system currently held by central banks and finance intermediaries – a true game changer by any measure.

Generally relying on the public Ethereum blockchain platform, most DeFi projects deploy smart contracts to automate what previously required human intervention – obviating the need for central authorities such as banks or intermediaries.  DeFi Pulse nicely showcases the benefits of DeFi by describing it as “money Legos” and giving the following example:

Compound is a money market or, in other words, a lending service on Ethereum. When you supply DAI to Compound, you receive cDAI tokens which represent both your DAI in Compound and any interest you’ve earned from lending. Since cDAI is a token, you can send, receive, or even use cDAI in other smart contracts. Money Legos in action: ETH into MakerDAO to mint DAI tokens, DAI being supplied to Compound, cDAI tokens can be used in other DApps.  For example, you can swap ETH for cDAI on a DEX and instantly start earning interest for just holding cDAI. And because you choose how you interact with smart contracts on the blockchain, you can use a DEX aggregator like DEX.AG to compare and trade at the best prices across all the popular DEXes, all within seconds.

In 2021, crowdfunding will help fund some of the DeFi startups looking to eventually disintermediate the more traditional financial firms these startups would otherwise approach for financing.   As of November 2020, online platforms can raise up to $5 million in seed capital in a State-preempted manner – with previous platforms raising hundreds of millions of dollars using the prior SEC Regulation Crowdfunding cap of $1.07 million.  Even though a typical crowdfunding online platform itself breaks away from traditional centralized banking platforms its success is not relevant for purposes of the DeFi initiatives potentially opened up by Regulation Crowdfunding.  What may be more relevant are the new ideas coming to market without the latent influence of legacy financing.  

Before widespread adoption of any DeFi product is even feasible, however, regulatory scrutiny will be needed to protect consumers onboarding these new DeFi applications.   Given that a CVC wallet is the exit ramp for many DeFi initiatives, it is no surprise that has been an area of regulatory interest.  For example, the US Treasury’s Financial Crimes Enforcement Network (‘‘FinCEN’’) recently proposed a rule that would require banks and money service businesses to file a report with FinCEN containing information related to a customer, their CVC transaction, and counterparty (including name and physical address) “if a counterparty to the transaction is using an unhosted or otherwise covered wallet and the transaction is greater than $10,000.” FinCEN is issuing regulations on transactions using digital currency wallets because the growth of individual CVC transactions will continue unabated.  

While providing a suggested Token Safe Harbor Proposal, SEC Commissioner Hester M. Peirce offered an excellent analysis of the “regulatory Catch 22” faced by decentralized networks looking to comport with SEC regulatory law. In addition to Commissioner Peirce’s forward thinking, the SEC also recently set free its FinHub as a separate office to assist blockchain and DLT innovators.  

Despite these technology-forward initiatives, the SEC continues placing an exclamation point on its regulatory reach. For example, the SEC last month shook the Ripple world by claiming in a lawsuit Ripple’s XRP token –  used by financial institutions around the globe, was an unregistered security.  It also ended the year by filing a Cease and Desist Order against ShipChain on similar grounds. These sort of efforts convey US regulators still corralling the blockchain stallion – albeit primarily through the Howey door. Disruptive DeFi initiatives should remain undeterred.

More urgent concerns for the DeFi community are coding bugs, double-spend exploits, traditional hacks, and any number of faulty implemented software functions caused when smart contracts fail to undergo adequate audits.  Despite only losing $50 million in 2020, malicious actors will certainly begin seeing a larger target over DeFi’s head as its growth continues.  Moreover, given most DeFi projects run on Ethereum, there are future threats not even widely discussed – such as those potentially arising from miners who map out transactions on a blockchain for a fee and who are no longer satisfied with just receiving their fees.

All of these potential risks – whether regulatory, technological, malicious, or competitive, however, remain dwarfed by the potential upside found in a successful, widely-adopted DeFi application or protocol.  One likely key to success is to replicate what companies such as PayPal chose to do – take a widely used existing tool and deploy into it a profitable new way that allows for flexibility with actual autonomy and consumer self-determination.  DeFi will ultimately go nowhere if it only brings into the fold insiders stuck in Moore’s early adopter phase.  

Moreover, no open-source project can ascend until a large enough market believes the tradeoffs between ease of use, financial benefits, and utility ring strongly in its favor.  For example, despite having a strong web server market position, a Linux desktop will never really threaten Microsoft’s foothold until the relevant commercial and consumer markets believe a Linux desktop truly meets all of their needs. 

Similarly, DeFi will never gain a foothold reaching above the “PayPalJPMVisa” mountain peak until at least one DeFi application checks all the relevant boxes for a sizable enough market.  It may be a decade before a DeFi project reaches that vantage point – with the classic Amazon vs. Sears endgame likely being studied along the way. 

Behavioral Advertising, Media, Privacy, Social Media

Apple’s Consumer Data Aspirations

In a November 19, 2020 letter to various non-profit groups, Apple reaffirmed its commitment to the App Tracking Transparency (ATT) permission feature first announced in June 2020:   “We developed ATT for a single reason:  because we share your concerns about users being tracked without their consent and the bundling and reselling of data by advertising networks and data brokers.”  Slated for release in 2021, the ATT feature requires permission before certain data is accessed by advertisers, namely the identifier for advertisers (IDFA).  Using the ATT feature, consumers will allow or reject tracking on an app-by-app basis.

The IDFA groups different users by similar search or browsing activity in an effort to limit advertisers from reverse engineering personally identifiable information. As described by Apple:   “We create segments, which are groups of people who share similar characteristics, and use these groups for delivering targeted ads. Information about you may be used to determine which segments you’re assigned to, and thus, which ads you receive. To protect your privacy, targeted ads are delivered only if more than 5,000 people meet the targeting criteria.”

When touting its alleged “privacy forward” ATT feature, Apple threw down yet another privacy gauntlet against Facebook:  “Facebook executives have made clear their intent is to collect as much data as possible across both first and third party products to develop and monetize detailed profiles of their users, and this disregard for user privacy continues to expand to include more of their products.”  Letter, dated November 19, 2020.

in a November 20, 2020 statement sent to Business Insider, Facebook counterpunched:  “The truth is Apple has expanded its business into advertising and through its upcoming iOS 14 changes is trying to move the free internet into paid apps and services where they profit. . . They claim it’s about privacy, but it’s about profit. . . This is all part of a transformation of Apple’s business away from innovative hardware products to data-driven software and media.”  

In other words, Facebook suggested that Apple plans on using its dominant market position to prioritize its own data collection efforts while making it difficult for competitors to use the same data.   Two months earlier, Facebook informed its business partners that it would “not collect the identifier for advertisers (IDFA) on our own apps on iOS 14 devices. . . . We may revisit this decision as Apple offers more guidance.”

Surprisingly, Facebook may actually have a point or two regarding Apple’s aspirations.  On November 16, 2020, a group led by privacy activist Max Schrems filed complaints in Germany and Spain over Apple’s online tracking tool claiming a breach of the EU’s e-Privacy Directive.   

According to the German Complaint: 

Apple defines the IDFA as “an alphanumeric string unique to each device, that you [the third party app developer] only use for advertising. Specific uses are for frequency capping, attribution, conversion events, estimating the number of unique users, advertising fraud detection, and debugging”.  [This IDFA] is “is very similar to a cookie: Apple and third parties (e.g. applications providers) can access this piece of information stored on the users’ device to track their behaviour, elaborate consumption preferences and provide relevant advertising. . . In practice, the IDFA is like a “digital license plate”. Every action of the user can be linked to the “license plate” and used to build a rich profile about the user. Such profile can later be used to target personalised advertisements, in-app purchases, promotions etc. When compared to traditional internet tracking IDs, the IDFA is simply a “tracking ID in a mobile phone” instead of a tracking ID in a browser cookie.

According to Reuters, Apple immediately disputed these claims, stating they were “factually inaccurate”.   Apple curiously also said to Reuters that it “does not access or use the IDFA on a user’s device for any purpose”.  Such a statement is curious only because on its face it means nothing when one considers the fact Apple allows “segmented” use and access to this “license plate” data.   By creating an “identifier for advertisers” form of digital “license plate”, Apple most certainly uses the IDFA by proxy every time one of its ad partners uses it.

Moreover, days before its public Facebook spat, Apple was called out by a cybersecurity expert for perceived privacy shortcomings in Gatekeeper – the Apple system used for managing third-party application security.  Pointing to flaws in how Gatekeeper relays and stores unencrypted information, Jeffrey Paul concluded:  “Apple knows when you’re at home. When you’re at work. What apps you open there, and how often. . . . This data amounts to a tremendous trove of data about your life and habits, and allows someone possessing all of it to identify your movement and activity patterns.”

According to a November 15, 2020 editorial in Apple Insider, these perceived risks were illusory.   According to the editorial, “there’s not really much utility in knowing just what app is being launched, realistically speaking.”  And to boot, “ISPs could have that data if they wanted to without the limited info that Apple’s Gatekeeper may provide.”  

By claiming others could gather even more data and that the data in question does not have “much utility”, the editorial did not provide any real refutation of Jeffrey Paul’s basic concerns. Instead, the writer for Apple Insider hopes for the best:  “There’s not even the prospect of Apple pulling a Google and using this data, as Apple has been a voracious defender of user privacy for many years, and it is unlikely to make such a move.”  In other words, just trust Apple to do the right thing.

The very next day Apple actually did do the right thing and stopped collecting IP addresses related to Gatekeeper’s developer checks – likely in difference to Jeffrey Paul’s research.  The  Apple Support Update released on November 16, 2020 states:  “To further protect privacy, we have stopped logging IP addresses associated with Developer ID certificate checks, and we will ensure that any collected IP addresses are removed from logs.  In addition, over the the [sic] next year we will introduce several changes to our security checks:   A new encrypted protocol for Developer ID certificate revocation checks; Strong protections against server failure; [and] A new preference for users to opt out of these security protections.”  These new safeguards address the exact issues raised by Jeffrey Paul in his blog.

Apple’s aspirations regarding consumer data control will likely cause it to continue butting heads with social media platforms guarding their data oligarchies and privacy advocates protecting consumers. As the world’s largest market cap company, however, Apple may be uniquely positioned to take on such challenges.  Unfortunately, governmental intervention may be the only viable check on Apple should the company ever fully stray from its prior data privacy commitments. Given the current dysfunctional political environment, Apple likely has a long runway should regulators ever come knocking.