⚡NIMITZ TECH NEWS FLASH⚡

“Cyberspace Under Threat in the Era of Rising Authoritarianism and Global Competition”

Senate Committee on Foreign Relations, Subcommittee on East Asia, the Pacific, and International Cybersecurity Policy

September 24, 2024 (recording linked here)

HEARING INFORMATION

Witnesses and Written Testimony (linked):

• Ms. Laura Cunningham: President, Open Technology Fund

• Mr. David Kaye: Clinical Professor of Law, University of California

• Mr. Jamil N. Jaffer: Founder and Executive Director, National Security Institute

HEARING HIGHLIGHTS

IN THEIR WORDS

SUMMARY OF OPENING STATEMENTS FROM THE COMMITTEE

• Chairman Van Hollen opened by emphasizing the need to address threats to cyberspace and internet freedom, particularly in light of rising authoritarianism and global competition. The Chairman reflected on the optimism surrounding the internet's democratizing power at the beginning of the century, citing its role in various movements against oppressive governments. However, he noted the subsequent backlash from authoritarian regimes, which have increasingly deployed technologies for surveillance, censorship, and control, resulting in a decline in global internet freedom. He urged for decisive action to counter these trends, highlighting the necessity for stronger internet freedom initiatives, protection for activists, and responsible use of advanced technologies.

• Ranking Member Romney expressed his concerns regarding the threats posed by technology, particularly in the context of cyber intrusion and warfare between free nations and authoritarian states. He conveyed skepticism about the ability to prevent authoritarian regimes from exploiting technological advancements, suggesting that these regimes would always find ways to utilize available tools. The Ranking Member cited examples of how oppressive governments, like Russia, disregard international norms and sanctions, continuing their harmful activities. He underscored the importance of the United States developing superior technologies to counter those of authoritarian regimes while fostering a commitment to freedom and human rights in an increasingly complex technological landscape

SUMMARY OF WITNESS STATEMENTS

• Ms. Laura Cunningham, President, The Open Technology Fund (OTF), highlighted the rising threat of digital authoritarianism, noting that approximately two-thirds of the global population lives under internet censorship. She emphasized that authoritarians are increasingly using advanced technologies to enhance repression rather than fostering democratic freedoms. The Open Technology Fund (OTF), created with bipartisan support, aims to combat this by providing open-source tools for secure internet access. She pointed out that online censorship facilitates government accountability erosion and misinformation. Over the past decade, more than 110 countries have received control technologies from China or Russia, contributing to global repression. She argued for increased investments in internet freedom technologies, better coordination among civil society organizations, and engagement from the private sector to counter this authoritarian trend.

• Mr. David Kaye,Clinical Professor of Law, University of California, focused on the dangers posed by commercial mercenary spyware, which governments use to monitor individuals, including journalists and activists. He highlighted the need for strict oversight and regulations governing the use of surveillance technologies. He suggested that Congress codify existing executive orders and explore legal remedies for victims of spyware, as well as conditioning U.S. cooperation with governments on their adherence to human rights standards. He warned that the demand for spyware is growing, especially with advancements in AI, and urges the development of global norms to address this challenge.

• Mr. Jamil N. Jaffer, Founder and Executive Director, National Security Institute, discussed the ongoing threats posed by authoritarian regimes, particularly from countries like China, Russia, Iran, and North Korea. He emphasized their efforts to export repression through technology and influence. He cited the pervasive use of Chinese technology, particularly in telecommunications, and the potential risks posed by platforms like TikTok, which serve as conduits for Chinese propaganda and data collection. He called for legislative action to combat these threats, including partnerships with American investors to promote technologies that align with democratic values, as well as urging more rapid action from allies to remove compromised technology.

SUMMARY OF Q and A

• Chairman Van Hollen initiated a discussion on the importance of finding competitive substitutes to companies like Huawei and ZTE. He emphasized the need for bipartisan support in providing alternatives to these companies. He first directed a question to Ms. Cunningham, asking about the role of the Open Technology Fund (OTF) in helping dissidents overcome censorship in countries like China. Ms. Cunningham explained that the OTF invests in anti-censorship tools, such as VPNs, and privacy-enhancing technologies to support civil society and journalists worldwide. She noted a significant increase in demand for OTF-supported VPNs, which had surged by over 500% in the last two years. However, she highlighted a critical challenge in that the OTF is outspent compared to countries like China and Iran, which invest billions in technologies that support censorship. She also pointed out that OTF's VPNs play a crucial role in delivering independent information to users, particularly noting their collaboration with Radio Free Europe, which relies on OTF's tools to reach its Farsi audience. The Chairman further inquired about the role of private internet service companies in aiding authoritarian regimes. Ms. Cunningham cited the Apple App Store as a key example, stating that Apple has removed independent news apps and internet freedom technologies at the request of the Chinese government. She stressed the need to increase transparency and impose costs on companies that collaborate with oppressive regimes, ensuring that Chinese citizens can access the information they need. The Chairman expressed appreciation for Ms. Cunningham's insights and highlighted the importance of addressing these issues, especially if new companies were to replace those like Apple without facing penalties for their entry into other markets.

• Ranking Member Romney opened the discussion by expressing skepticism about the effectiveness of the U.S. response to authoritarian regimes like those led by Xi Jinping and emphasized the need for the U.S. to take stronger actions against digital authoritarianism. He asserted that norms and expressions of concern are unlikely to deter such regimes and called for a technological response, particularly targeting companies like Huawei and TikTok. He sought confirmation from Mr. Jaffer regarding his assessment. Mr. Jaffer agreed with the Ranking Member’s assessment, stating that merely sending strongly worded letters would not be sufficient. He emphasized the importance of providing access to information for those in authoritarian countries and urged for investment in U.S. technology to maintain global leadership in AI. Mr. Jaffer noted that the U.S. must avoid overregulation and focus on economic liberty to combat authoritarianism effectively.

• Sen. Helmy referred to the necessity for the U.S. to enhance its technological capabilities to compete with the People's Republic of China (PRC). He asked Mr. Jaffer about the U.S. cyber deterrence strategy in light of existing legal and normative gaps concerning adversaries' behaviors. Mr. Jaffer responded that the U.S. has the capacity for significant pushback in the cyber domain, citing the massive theft of intellectual property as a reason for a more aggressive stance. He claimed the existing norms are not being effectively utilized by the U.S.

  Sen. Helmy then inquired about the future administrations' ability to address commercial spyware used by authoritarian regimes. Mr. Kaye acknowledged the concern regarding Chinese repression and highlighted the spread of cheap digital tools that extend beyond authoritarian states. He pointed out that Congress has begun to take steps to mitigate the threats posed by foreign commercial spyware, suggesting that operationalizing norms could yield further progress.

• Sen. Ricketts addressed the realities of cyber warfare and the resilience of Ukraine against Russian cyber operations. He asked Mr. Jaffer why Russia has not been successful in crippling Ukraine's cyber capabilities. Mr. Jaffer attributed Ukraine's success to prior preparations and strengthening their defenses with American technology. He suggested that the Russians failed to embed themselves deeply within Ukrainian networks and noted the importance of public-private partnerships for better cybersecurity. Sen. Ricketts sought to understand what lessons adversaries like Russia might draw from their experience in Ukraine regarding cyber strategies. Mr. Jaffer replied that adversaries would learn the importance of ensuring deep integration and readiness before launching cyber operations. He posited that this could be particularly relevant for China in a potential Taiwan scenario. Sen. Ricketts reiterated this point, asking if the Chinese might also learn to establish deeper cyber networks before acting against Taiwan. Mr. Jaffer confirmed this notion, emphasizing that China recognizes the need to prepare their cyber capabilities to counter U.S. intervention effectively.

• Chairman Van Hollen initiated the discussion by focusing on the challenges posed by commercial spyware markets, particularly regarding how technologies developed in countries like India, Italy, and Israel are being sold to oppressive regimes. He referenced a recent report by the Atlantic Council about these threats to national security and human rights. He asked Mr. Kaye to elaborate on the effectiveness of penalties imposed by the Biden administration on these companies and suggest additional measures that could be taken. Mr. Kaye responded that the penalties imposed through Congressional law and actions by the administration have begun to show early evidence of impact on commercial spyware companies. He emphasized that a global solution is needed, highlighting the necessity for international collaboration in combating this issue. Mr. Kaye suggested that Congress might explore legal remedies for victims of transnational repression to allow them to take legal action against offending states.

• The Ranking Member raised concerns about the definition of a free and open internet, questioning how to handle misinformation while maintaining that freedom. He noted the potential overwhelming nature of information online and asked Mr. Kaye for his insights on how to approach disinformation without infringing on free speech. Mr. Kaye acknowledged the complexity of the question, stating that while freedom of opinion and expression are fundamental rights, tackling disinformation poses a risk of enabling authoritarian censorship. He noted the importance of maintaining access to diverse information while also advocating for international human rights that extend online. The Ranking Member interjected, expressing frustration about the lack of recourse individuals have against online slander and misinformation due to anonymity on the internet. He asked Mr. Kaye and others if social media companies should be required to disclose the identities of those posting harmful content. Mr. Kaye suggested looking to the European Digital Services Act as a model for transparency and risk assessment, noting the need for mechanisms for individuals to appeal harms caused by misinformation while balancing free speech.

  Mr. Jaffer cautioned against fully adopting European regulatory approaches, arguing that they could stifle innovation. He emphasized the importance of protecting anonymous speech, noting that U.S. oversight mechanisms differ significantly from those in authoritarian regimes. Mr. Jaffer stressed that while rules may be necessary for disclosure, the fundamental distinction between U.S. and authoritarian practices should be recognized.

• Sen. Ricketts opened by asking Mr. Jaffer for specific steps the U.S. should take to push back against adversaries like Russia, China, and Iran. Mr. Jaffer emphasized that the U.S. had historically accepted cyber attacks and theft of intellectual property without significant retaliation, which encouraged further aggression. Mr. Jaffer argued that the U.S. must publicly define its red lines and capabilities, as a lack of clarity allows adversaries to test boundaries without fear of repercussions. He discussed the importance of cyber capabilities, suggesting that while the U.S. should employ cyber attacks as a deterrent, it should also consider sanctions and other measures. Regarding the vulnerability of U.S. systems compared to Ukraine, Mr. Jaffer cited rapid innovation in the U.S. that often neglects security, regulatory fears from private industries, and challenges in public-private collaboration. He called for increased funding for cyber defense, encouraging the government to engage with startups and emerging technologies rather than relying solely on established defense contractors. Finally, Mr. Jaffer warned against adopting overly stringent European regulations, which could stifle U.S. innovation, particularly in the field of artificial intelligence. He advocated for a balanced approach that promotes security without hindering technological advancement.

• The Chairman initiated the discussion by thanking Mr. Jaffer for his earlier mention of protecting American intellectual property (IP). He referenced his past legislative efforts, specifically the Protecting American Intellectual Property Act, aimed at providing the U.S. government with better tools to address patterns of IP theft by foreign actors. He expressed agreement with Mr. Kaye regarding the importance of international norms and emphasized the need for the U.S. to raise both the costs and benefits for other countries to adhere to standards regarding digital practices. Mr. Kaye confirmed that as of the latest count, 21 countries, including the U.S., had signed a resolution aimed at promoting stricter export controls on commercial spyware, which is often misused by authoritarian states. He noted that effective implementation of these commitments is crucial and highlighted Poland's recent accountability measures regarding past spyware abuses as a positive example.

  The Chairman then inquired about the U.S. response to countries that do not participate in these agreements. Mr. Kaye suggested that while imposing conditions on relationships related to technology use can be challenging, the U.S. has the ability to leverage its influence to encourage compliance based on fundamental human rights norms.

  The Chairman shifted the conversation to mass surveillance tools, particularly facial recognition technology, and asked for insights into regulatory guardrails. Mr. Kaye advocated for a national privacy law in the U.S. to protect individuals against the misuse of such technologies. Mr. Jaffer responded that while privacy laws are important, they have not effectively curtailed mass surveillance, and emphasized that reducing investment in surveillance technology by adversarial nations is essential. He advocated for ethical investment practices among companies to starve authoritarian regimes of capital for surveillance technologies.

  The Chairman raised concerns about the UN's new cybercrime treaty, originally proposed by Russia, which may empower authoritarian regimes. Mr. Kaye reiterated that the U.S. should promote the existing Budapest Convention, which offers stronger protections for human rights than the new draft treaty, and suggested abstaining from supporting the latter. Ms. Cunningham stressed the need for both technological and normative investments to counter the influence of authoritarian states like China and Russia in shaping international norms and standards. Mr. Jaffer expressed agreement with Mr. Kaye and Ms. Cunningham, highlighting the oddity of the U.S. engaging with a treaty process that conflicts with established frameworks like the Budapest Convention. He also underscored the importance of collaboration between government and industry in standard-setting bodies. The Chairman sought confirmation on whether they would recommend abstaining or opposing the treaty. Mr. Jaffer clarified that he would vote against it.

  The Chairman concluded the hearing, inviting witnesses to address any overlooked issues and make recommendations for Congress. He highlighted the importance of international standard-setting bodies in establishing rules for technology use, particularly in relation to normative battles against authoritarianism. Ms. Cunningham emphasized the need for a dual approach: investing in technologies that protect human rights and developing norms to counteract authoritarian influence. She stressed that countries like China and Russia are exporting not only technology but also ideologies that could undermine democratic values globally. Ms. Cunningham urged greater U.S. engagement in international standard-setting bodies, particularly the IETF, to ensure a robust presence against authoritarian narratives. Mr. Kaye agreed with Ms. Cunningham, reinforcing the alignment between human rights and national security. He called for increased resources for the UN Human Rights Council and other international forums, and suggested that U.S. engagement can lead to significant changes in both norms and laws. Mr. Jaffer shifted the focus to the positive impact of technology, and argued that American innovations have raised global living standards and created opportunities even in repressive regimes. While acknowledging the challenges posed by technology, he believed that advancements like AI can drive economic growth and democratic values. Mr. Jaffer advocated for setting and enforcing international norms, and emphasized the U.S. responsibility to promote freedom and opportunity worldwide.

  The Chairman agreed that technology has potential benefits and underscores the need for a balanced approach to maximize positive outcomes while minimizing harm.