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Thursday, February 18th, 2021 @ 06:15 PM
Contributed by: Andy Updegrove
Views: 53

Courtesy Douglas W. Jones/Wikimedia Commons - Creative Commons CC0 1.0 Universal Public Domain DedicationIt’s been fifteen years since the federal best practices standard for voting machines was last amended. Since then, we’ve seen Russian interference in the 2016 elections and allegations of fraud in the 2020 contest. Clearly, strong standards are needed to bolster both the integrity of voting machines as well as the public’s confidence in their security. A new draft of the Voluntary Voting Systems Guidelines – the most used benchmark for voting equipment in the United States – is intended to address those needs. But, according to several articles (e.g., posted by the Bloomberg and the AP news services) that appeared in the week before the new Guidelines were to be adopted, a crucial change was made to the document that threatened to undermine both of these important goals.

There’s just one problem: according to the Election Assistance Commission (EAC), the body charged by Congress since 2002 with creating and maintaining strong voter security guidelines, there hadn’t been any change at all to the proposed amendments previously posted for public comment – only a clarification. After the articles appeared, the EAC issued a detailed rebuttal supporting their case. That response, however, received less attention in the press.

Leaving aside the kerfuffle over timing, the question remains whether the revised Guidelines has a crucial flaw. The back story goes as follows.

Friday, January 8th, 2021 @ 11:18 AM
Contributed by: Russ Schlossbach
Views: 23

DOJ%20Logo140.pngNew guidance from the U.S. Department of Justice provides additional insights for standards development organizations, open source foundations, trade associations, and the like (Organizations) seeking to build or improve internal antitrust compliance programs. 

Read on if you're interested in developing or improving your own Organization's antitrust compliance program.

Wednesday, October 21st, 2020 @ 12:56 PM
Contributed by: Andy Updegrove
Views: 174

EC LogoAre there political dimensions to open source software and hardware? Americans might be surprised to see such a question, given Washington’s almost complete indifference to the dramatic rise of these approaches to technology development. But that’s not the case in many other parts of the world, and particularly in Europe, where the European Commission (EC) and the governments of many constituent nations have taken great interest in not only promoting the uptake of open source software, and, more recently hardware, but pursuing these same priorities in their procurement decisions and establishment of inter-country communication platforms and protocols.

This process continues, and you can have an impact on future decision making by participating in a survey commissioned by the EC to guide its ongoing open source policy development.

Wednesday, August 5th, 2020 @ 03:31 PM
Contributed by: Andy Updegrove
Views: 175

Dept.%20of%20Commerce%20Seal%20140.pngSince May of 2019, standards setting organizations (SSOs) and U.S. companies have been struggling with the blowback from the decision by the U.S. Department of Commerce (DoC) to add Huawei and scores of its affiliated companies to the “Entity List” maintained by the U.S. Bureau of Industry and Security. In June of 2020, the DoC then released a long awaited “Interim Final Rule,” providing a safe harbor for U.S. companies and Huawei et al. to work together on standards. Until August 17, the DoC is accepting recommendations to improve the Interim Final Rule from interested parties. We have prepared detailed feedback which we will be submitting on behalf of Gesmer Updegrove LLP, multiple clients, and any other SSOs and interested parties that may wish to lend their support. 

The concerns addressed in these comments arise from the fact that U.S. law prevents U.S. companies from disclosing a broad range of technology to companies on the Entity List, and that’s what usually happens during standards development. Those who disclose covered technology in violation of the rules can incur criminal liability.

Monday, July 6th, 2020 @ 01:22 PM
Contributed by: Russ Schlossbach
Views: 458

James Joyce Birth Certificate - Courtesy Wikimedia Commons/O'Dea at Wikimedia Commons, CC BY-SA 4.0Of the fundamental structural questions that drive discussions within the open source community, two that continually spur fervent debate are (a) whether software code should be contributed under a Contributor License Agreement (“CLA”) or a Developer Certificate of Origin (“DCO”), and (b) whether code developed by an employee or independent contractor should be contributed under a CLA signed by the developer as an individual or by her employer under a corporate CLA.  

Are there any clear answers to these questions? As so often is the case, the answer to that question is, "it depends."

Tuesday, June 16th, 2020 @ 03:37 PM
Contributed by: Andy Updegrove
Views: 672

Dept.%20of%20Commerce%20Seal%20140.pngThe long face-off between the Trump administration and Huawei involving standards development has finally been resolved. Well, yes and no, on which more below.

Initially the issue was whether standards setting organizations (“SSOs”) would be able to permit the Chinese 5G technology company and scores of its affiliates (collectively, “Huawei”) to participate in their working groups. But over time, the political landscape shifted – many of the SSOs where the action was taking place took the position that their processes were sufficiently open to make the issue moot. But some of the most active American technology companies came to a different conclusion, thereby making it impossible for them to participate without risking liability to their own government (more details can be found here).

Monday, June 8th, 2020 @ 02:41 PM
Contributed by: Andy Updegrove
Views: 354

The Declaration of Independence, by John Turnbull, courtesy Wikimedia CommonsThe first assertion of liberty in the U.S. Declaration of Independence reads as follows:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Is there any American that would stand up and say – no – that’s wrong? It’s impossible to imagine.

And yet…

Tuesday, May 12th, 2020 @ 04:29 PM
Contributed by: Andy Updegrove
Views: 312

Dept.%20of%20Commerce%20Seal%20140.pngRegular readers will know that the addition of Huawei and scores of its subsidiaries to the U.S. Bureau of Industry and Security Entity List last May has had a serious impact on standards setting organizations (SSOs). Specifically, the related rules bar companies from disclosing certain types of U.S. origin technology to companies on the Entity List, and technology is exactly what is disclosed in the course of standards development. Due to a lack of guidance from the Department of Commerce, SSOs have been left wondering whether they can allow Huawei and its subsidiaries (collectively, “Huawei”) to participate in their technical activities. When they decide that the answer is yes, U.S. companies must then decide whether they read the regulatory tea leaves the same way. Many have not.

Over the past two weeks the situation has taken a more hopeful turn. The impetus for this change has a lot to do with the law of unexpected consequences – in this case, the results of the Department of Commerce refusing to provide the type of certainly that the private sector needs when political winds shift.

Wednesday, April 15th, 2020 @ 09:22 AM
Contributed by: Andy Updegrove
Views: 688

Huawei%20Logo%20140.png

A few weeks ago it seemed likely that the US Department of Commerce, Bureau of Industry and Security (“BIS”), would issue new guidance that might free standards setting organizations (SSOs) from the difficult position they have found themselves in for almost a year. But that didn’t happen. Instead, most SSOs have concluded that they still cannot allow Huawei and its affiliated companies to return to the working groups that are creating the essential standards that will make the roll-out of 5G networks become possible.

How much does that matter in the context of the overall U.S.-Chinese confrontation? The answer is a great deal, as continuing to bar Huawei and other Chinese telecom giants from standards development may weaponize the patent portfolios of those companies in a way that could prove disastrous for the U.S. and other Western nations.

Wednesday, March 25th, 2020 @ 09:16 AM
Contributed by: Russ Schlossbach
Views: 304

DoJ%20Logo%20140.pngIt’s well recognized by courts and regulators in many countries that standard setting among competitors can be procompetitive and good for consumers.  As noted by the 5th Circuit Court in 1988, “it has long been recognized that the establishment and monitoring of trade standards is a legitimate and beneficial function of trade associations . . . [and] a trade association is not by its nature a ‘walking conspiracy’, its every denial of some benefit amounting to an unreasonable restraint of trade.”(1)

But regulatory sands can shift, and especially at a time when broad and dramatic changes (political and otherwise) seem to be the rule rather than the exception, it makes sense for collaborative organizations to keep vigilant, and to review their policies and procedures on a regular basis to help ensure antitrust compliance.