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Speaker 1
This is the data privacy detective. Today we're going to talk about 5G and what it means for our privacy. And with this is Sohan Dasgupta so hot. Thank you so much for joining me today from your office in Washington DC.

00;00;22;22 - 00;00;35;01
Speaker 2
Thank you for having me, Joe. I'm very grateful to be here and honored to join the firm in the DC office and very excited about participating in this podcast with you today.

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Speaker 1
So John, you're the former deputy general counsel of the US Department of Homeland Security. We're also special counsel to the U.S. Department of Education. You're an attorney by background, was probably one of the few people who have a graduate degree, both from Oxford and Cambridge, and you lecture globally about national security and other matters. I know recently you've been talking before the parliaments in Hungary and Guatemala and Romania, and now you're an attorney with Frost Brown Todd, a law firm in in 15 cities.

00;01;12;23 - 00;01;42;04
Speaker 1
So thanks for being our tour guide today about 5G. Now, now 5G. Let's for our listeners, 5G really doesn't mean anything other than fifth generation. This is the fifth generation of mobile networking and it has to do with an enormous increase in speed much faster than 4G. And that should improve the quality and immediacy of our use of smartphones and other mobile technology.

00;01;42;04 - 00;01;58;07
Speaker 1
All great news. But so what we're going to talk about, what does it mean for our data privacy and for our own privacy? And so let me start with the word later. SI So on what is latency and why is that important to understanding?

00;01;58;17 - 00;02;38;21
Speaker 2
5G Well, thank you again for the for the kind words and the introduction. Joe, I'm very grateful to you. So latency is basically the delay between the transmittal of data and its execution. Latency means refers to the time it takes between between the command being given and the execution happening. So in in, in certain cultures, there's a, there's a moniker called Tube Light and Tube refers to Tube Light.

00;02;39;03 - 00;03;16;04
Speaker 2
Tube light and Tube Light basically refers to how long it takes for someone to process some kind of information and execute that command. That's essentially what latency is, and it's regarded as the most vital metric under five g as well as earlier iterations, 3G, 4G, so on and so forth. And because with 4G networks, for example, the latency is just under 100 milliseconds, whereas under 5G that could fall to less than five milliseconds.

00;03;16;08 - 00;03;58;12
Speaker 2
You can you can imagine how much faster the processing of an execution of technological minds will happen. And in the eyes of many people in the in the technology space, the 4G to 5G pace of acceleration would be Titanic. Now, 5G is expected to improve the bandwidth, capacity and reliability of wireless broadband services. Its long run objective is to meet increasing data and communication requirements and including the capacity for tens of billions of connected devices that will that will constitute the Internet of Things.

00;03;58;22 - 00;04;09;18
Speaker 2
And ultra low latency is required for critical time sensitive and speedy communications and faster speeds to support emerging technologies.

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Speaker 1
So, right, you mentioned this, the Internet of Things now, which is in the at the edge of it is in is data infrastructure. Now, they're together in virtual real time. So your your Fitbit is is broadcasting health data and it just doing its virtual real time. It could be with your doctor or hospital or somebody you don't want to have it.

00;04;32;25 - 00;04;48;01
Speaker 1
That's just one example. Or you're in your automobile and you're moving along and you're, you know, 65 miles an hour is not good enough. And you start going 80 and suddenly that's immediately transmitted is data that I mean, this is what we're talking about, a very different world.

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Speaker 2
Absolutely. Absolutely. And the impact will be enormous. The economic impact would be significant as well. It's indirect effects are expected to add about one $1 trillion to $1.2 trillion just to the US GDP as well as generate 3 million to 3.6 million additional jobs over the next decade. And, you know, the the the the significance and impact of of latency alone as one of the five G features and characteristics is expected to be of Titanic and enduring.

00;05;27;14 - 00;05;46;16
Speaker 1
Yeah. For example, you are walking down the aisle of your favorite grocery store and buy pretty easy. Now if you're all hooked up, they'll say, by the way, there's a, you know, your favorite brands on sale down there is a coupon you get, you know, all these things. It just is terrific, isn't it? But now what are the risks?

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Speaker 1
What are some of the risks? So I know of 5G being ubiquitous.

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Speaker 2
Yes. The risks are manifold to start with the use of 5G components manufactured by untrusted companies like the United States government has been expected to name various Chinese equipment providers. And so 5G technology, space actors and entities to be such trying to be such and trusted companies, they could expose certain entities risks introduced by malicious software malware as it's commonly known, and malicious hardware, counterfeit components, component flaws that derive from deficient manufacturing and maintenance processes and data that travels overseas through untrustworthy networks might also be compromised.

00;06;42;22 - 00;07;05;11
Speaker 2
Another risk is that 5G is going to use more parts, more components than previous generations of wireless networks have done. And the implication of this is that the proliferation of 5G infrastructure may well provide and is expected to provide malicious actors, sinister actors with more attack vectors and a greater number and volume of vulnerabilities.

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Speaker 1
So it's.

00;07;06;15 - 00;07;07;08
Speaker 2
Another arms.

00;07;07;08 - 00;07;35;11
Speaker 1
Race in the in the tech space since the Chinese government it's ransomware hackers from Russia or wherever they may be or are just in malware providers, bad actors and other need to have, from their perspective, legitimate reasons to be snooping on Americans. But from our point of view is that us people, not things we would want. Well, how can these risks the risk side of 5G be mitigated?

00;07;36;18 - 00;08;21;17
Speaker 2
And, you know, there might be new vulnerabilities, untrusted companies might be less willing to take part in interoperability efforts. And then there's a national security angle to it as well. Yes, there's military and sensitive aspects of the national security apparatus may well be compromised. And, you know, we'll get into that later with syphilis. But some of the ways to mitigate the risk are continuing engagement with the private sector on mitigating activity, mitigating so such risks monitoring which sinister entities there are in order to identify in order to identify them and to preclude them from from happening.

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Speaker 2
Our technological structure, the grid as it's known, encouraging continued development of trusted, trusted 5G technology services products as well as future generations of communications technologies. 5G is not going to be the end. There's going to be 6 to 7 G and so on, promoting international standards and processes that are open, transparent, effective and equitable to trusted companies limiting or at least managing the adoption of 5G equipment with potential vulnerabilities as have to them, and ensuring robust security capabilities for 5G applications and services.

00;08;57;29 - 00;09;26;06
Speaker 2
Making wireless services more accessible by expanding 5G reach something that I know that many members of the Federal Communications Commission are indeed working on. And there's been a significant amount of impetus from some the Hill. And finally incentivizing robust domestic production of semiconductors, advanced microelectronics related technologies so that we are not limited to certain exclusive sources of supply.

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Speaker 2
And that's not just domestic production, but it's also reassuring to perhaps Central America in other parts of the world and all of that is that that entire compass and composite of of mitigation strategies they attend the tactical advantage, technological independence and hopefully enhance security and prosperity for the free world.

00;09;51;15 - 00;10;06;29
Speaker 1
Yes, indeed. And you've mentioned the grid, for example. And so what are some of the other major technological spaces that will affect those for good and bad, as you put it? And, you know, what are some of the spaces we really have to concentrate on?

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Speaker 2
Absolutely. And some of those spaces are information technology, menu and manufacturing. They're expected to be two of the highest contributors to the U.S. GDP. And because of the impact of 5G, 5G is also expected to lead to a roster of critical services from autonomous systems, including vehicles. So the car industry, remote surgery, so the medical industry and pharmaceutical industry and the biotechnology space, remote monitoring, telemedicine to helping build smart city features such as traffic signals and water supplies.

00;10;46;12 - 00;11;20;26
Speaker 2
So the entire public service sector would be affected automated manufacturing and technological advances in that space to enhance transportation endeavors. All of that are expected to be affected. The largest immediate gains, JO, from 5G. 5G would go into the information technology. As I mentioned already, the construction and manufacturing sectors of the economy and for the as far as the Internet of Things is concerned, connected vehicles, smart city industry 4.0.

00;11;20;26 - 00;11;33;05
Speaker 2
They are believed to have the potential to be extraordinarily transformative for industries and drive competitive advantage into the into the next decade.

00;11;33;22 - 00;11;41;09
Speaker 1
Right. The site will in fact, improve efficiency and the economy. As you've mentioned, many of the things. And so we'll have to.

00;11;41;09 - 00;11;41;17
Speaker 2
Be the.

00;11;42;01 - 00;12;12;21
Speaker 1
Bedside in all these years. Well, let's let's talk national security for a bit from a U.S. perspective, what what can the US government do to respond to the risks of a55g? You've mentioned China. We won't pick on China, but certainly it's a very different country with a very different view of how to how information about people should or should be accessed by government and used by it from a Chinese perspective for its own reasons, but very different from how we view it.

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Speaker 1
So how can the US government respond to this?

00;12;16;28 - 00;13;10;13
Speaker 2
So the US government through the Department of the Treasury, they have what's called the Office of Foreign Assets Control and they OFAC, OFAC and AfPak is intimately involved with the process this of sanctions issuing sanctions. It's a it's really an intelligence community wide enterprise, but much of it is reposed in and led by both factors. And so with regard to sanctions, they are they are greatly interested in tracking the artificial intelligence of 5G semiconductor related enterprises about biotechnology software and and other issues.

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Speaker 2
The the White House has been intimately involved with issuing executive orders, preventing US persons from purchasing and selling publicly traded securities and what it calls crises. That's Chinese military industrial complex companies, 59 of them, while we assign victims for proven glory, China mobile costar and so on and so forth.

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Speaker 1
Major, major companies.

00;13;37;09 - 00;13;51;18
Speaker 2
Major companies, major companies in that in that part of the world and in that overall space, then you have you've got the Department of Commerce, Joe, which has the Bureau of Industry and Security.

00;13;51;23 - 00;13;54;17
Speaker 1
And there we're talking export controls. Right.

00;13;54;17 - 00;14;28;04
Speaker 2
They're talking we're talking export controls where they are implementing multilateral agreements. There's one that involves about 40 plus nations of the European Union to control certain software that could be abused for biological weapons purposes. And their main endgame, if you will, is to coordinate and maintain export controls on a list of equipment, software and technology, among other among other things that could be used in chemical or biological weapons programs.

00;14;28;29 - 00;15;02;03
Speaker 2
And also in addition to in addition to this, we have security equipment and other security equipment that is very interesting because starting in the middle of 2020, the Federal Communications Commission issued orders designating Huawei and ZTE as national security threats and prohibited the use of universal service funds to buy communication and equipment, communications equipment and services from Lori and ZTE, as well as other high risk suppliers.

00;15;03;00 - 00;15;35;29
Speaker 2
That said, the Secure Equipment Act, which was enacted last year, actually suggests an enduring US government strategy to restrict the domestic use of technology produced by lobbies, ZTE and certain Chinese security camera companies. And it enlists the FCC as a help in doing so. Now this law requires the FCC to clarify that it will no longer review or approve any authorization for equipment on that covered list.

00;15;35;29 - 00;16;03;01
Speaker 2
And this obviously includes the Chinese telecommunications and security camera companies and some of those companies should come as no great surprise to you are always ZTE, Hydra, Communications Corp, Hangzhou, Vision and Dollar. And FCC is also permitted to retroactively revoke authorizations previously granted to equipment on the on the covered list and the not.

00;16;03;19 - 00;16;26;11
Speaker 1
So hun, if I may, that's going to work both ways. It's kind of a way for the U.S. government to prevent very proprietary and important technology being shared with these Chinese companies. You have to get also vice versa. The use of these companies offerings can be restricted. So it's a two way street, right?

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Speaker 2
Absolutely. So you are you are entirely correct that it's a two way street. And it you know, this this this will have that kind of bilateral and transformative impact. Oh.

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Speaker 1
Yeah. You mentioned earlier CFTC. Yes, yes. And what is that? And what would play with 5G?

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Speaker 2
So since this is, you know, it's an inter-agency working group of the US government that determines whether a wide variety of proposed transactions involving foreign entities wishing to acquire parts of U.S. businesses poses adequate national security risk to be stopped or to have mitigation measures imposed out that are imposed on them in order to abate or ameliorate the risk situation and could.

00;17;22;13 - 00;17;31;07
Speaker 1
Actually stop with the President's action. A Yes or purchased by a foreign company, the US company.

00;17;31;07 - 00;18;22;02
Speaker 2
The President of the United States is allowed to block it. And that there is there's some question as to whether there is any judicial review of of the president's action and the the current prevailing view in the D.C. Circuit U.S. Court of Appeals for the District of Columbia Circuit is that the substantive determination that the president makes is not is not susceptible of judicial review, but there is some amount of due process to be to be to to to be observed in ensuring that the president has considered what of the appropriate factors.

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Speaker 2
So, you know, notice an opportunity to be heard and other elements of due process that that that are that are in play now.

00;18;31;03 - 00;18;52;25
Speaker 1
When CFIUS is a process. Yeah. So there is, there's thought involved processes involved and we'll see how the courts deal with it. But in general, would you agree that the courts are very reluctant to to invade the president, the executives, the authority to decide what's in the national security interest in the United States?

00;18;53;12 - 00;19;13;10
Speaker 2
That's exactly right, Joe. Because of Article two, Section one, clause one, the executive vesting clause commits the entirety of the executive power of the United States to the president. And, of course, there are certain carve outs. But what what? Leaving such a.

00;19;13;15 - 00;19;14;23
Speaker 1
Declaration of war.

00;19;15;14 - 00;19;58;22
Speaker 2
And so on and so forth. But overall, this belongs to the president. And some have believed that even the commander in chief powers and so on, they all militate in favor of deference to the executive with regard to national security. So courts are both in theory and in practice, very reluctant to wade into that now. But returning to Sophia, so a little bit before 19, before a 2018 statute called the Foreign Investment Risk Review Modernization Act of 2018 was enacted far as as it's called, suffuses jurisdiction has was limited to transactions that could result in foreign control of any U.S. business.

00;19;59;03 - 00;21;04;14
Speaker 2
Now former and these particular regulations have conferred additional authority on us to review and in fact participate in blocking to new categories of transactions. One is certain non-controlling investments in U.S. businesses involve critical technology, critical infrastructure or sensitive personal data. What's called U.S. businesses for technology, infrastructure and data. And the second category is certain real estate transactions and from the critical technology perspective, that would include certain nuclear related software, tech, technological facilities, equipment, parts, components, emerging and foundational technologies, defense articles, defense services on the U.S. munitions list, various other factors like other industries like aircraft, engine engineer, engine parts, manufacturing, computer storage, electronic computer manufacturing, nanotechnol, biotechnology, petrochemical manufacturing, television broadcasting and so on and

00;21;04;14 - 00;21;37;17
Speaker 2
so forth, as well as semiconductor and related device manufacturing, aeronautical nautical system manufacturing. And along those lines, for critical infrastructure, we're talking about telecommunications, power, oil and gas. So the energy sector, finance, defense, industrial base, rail lines that are part of the Pentagon's strategic rail corridor network. And as far as finally, the sensitive data is concerned, identifiable data is about ten categories, including financial data.

00;21;37;17 - 00;22;12;05
Speaker 2
Consumer data, held geolocation data, biometric enrollment and critically job data contained in an individual's application for U.S. government personal security status. So all the TCI information, that's top secret information and all of that data is subject to form and therefore surface services, review and data. And to the extent that 5G intersects with that data, all of this would be profoundly implicated.

00;22;12;05 - 00;22;31;01
Speaker 2
And vendors, what vendors working in that data and vendors trying to engage in some kind of an act, some kind of a business arrangement, an acquisition, a merger, whatever, with a foreign entity would be should take heed of of that of that concept.

00;22;31;21 - 00;23;03;17
Speaker 1
Right. And as the data increasingly moves those by speed and by volume, it's not just the critical infrastructure, it's things like. President Trump issued an order that took take shouldn't give the Chinese government access to U.S. users of TikTok. The court set that aside for First Amendment reasons, but but it it's back in the hopper and to the Biden administration and U.S. military, for example, is not supposed to use TikTok.

00;23;04;07 - 00;23;23;07
Speaker 1
It's an example of how something you wouldn't think just, you know, videos of cats and dogs doing strange things would have any national security implication. But it does. So we're in a different world. Well, let's close with this. So for each of us, we have to give our for our own individual privacy. There are things we can do.

00;23;23;08 - 00;23;40;27
Speaker 1
We can check our privacy settings more carefully. We we can decide when GPS will really be on or off, as we're changing location there, things like that, we can do. What Top Tips do you have in closing for individuals about 5G?

00;23;42;15 - 00;24;21;25
Speaker 2
I think that I think that protecting one's data privacy is very important, appreciating, reading the fine print and appreciating how, you know which equipment provider of something is coming from is very important, particularly as you look at certain industries like information technology, manufacturing, health care, agriculture, places that use cryptocurrency, blockchain, bitcoin, artificial intelligence more prevalently than others of taking those kinds of security risks, whether you're an individual or whether you're a company.

00;24;22;22 - 00;24;35;19
Speaker 2
And and working with the appropriate government agencies or contractors in that regard to mitigate the risk would be would be greatly desirable.

00;24;36;02 - 00;24;51;06
Speaker 1
Extremely important. Well, so thank you so much for taking us on a tour of TG and certainly will have wonderful aspects to it. But like most things, there's a dark side and there's protection to be had. Thank you for joining us today. So on.

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Speaker 2
Aggregate, having been an honor.

00;24;54;26 - 00;25;02;19
Speaker 1
As always, I'll close by reminding us that all protecting your personal data begins with you.