Wednesday, December 15, 2021

Sometimes government regulation isn’t such a bad thing

My previous post pointed out a contradiction between two of the components of the draft IoT device labeling program that NIST is developing, which will be finalized in guidance due on February 6, 2022. Those components were NIST’s desire for a binary label (i.e. a seal of approval), and their desire to have outcomes-based criteria for that label, which IMO preclude a binary yes-or-no decision on which devices should receive the label.

But there’s another contradiction in what NIST is suggesting for the program, which is much more fundamental and has to do with how the program will be run. In the Discussion Draft they put out recently on this subject (and to some degree in the web workshop they had last week), they stated (page 1) their philosophy for the program very elegantly:

NIST will identify key elements of labeling program in terms of minimum requirements and desirable attributes – rather than establishing its own program; it will specify desired outcomes, allowing providers and customers to choose best solutions for their devices and environments. One size will not fit all, and multiple solutions might be offered by label providers.

What’s not to like about this? As a former student of Milton Friedman (a few years ago) at the University of Chicago, I’m all for letting markets determine for themselves how commerce should be conducted. But this assumes that no individual player in the market has the power to impose costs on other players, that can’t be fully compensated through the legal system.

Friedman had a great illustration for this principle: If a truck owned by Commonwealth Edison (the electric utility in Chicago, now part of Exelon, Inc.) hits my car, I have the right (or really my insurance company does) to sue them for the full damages; the damages can be clearly identified and quantified. However, if ComEd pollutes the air in Chicago (at the time they operated a couple big coal-fired plants just 4 or 5 miles from the U of C) and my daughter later develops asthma[i], it’s not at all clear that the asthma was ComEd’s fault.

Plus, ComEd can certainly argue that, while their coal plants might have increased my child’s chances of getting asthma, there are many other contributors to air pollution as well. Who could possibly sort all of these contributions out and determine the precise value of each source’s contribution to my daughter’s asthma? In cases like this, markets alone can’t assure fair outcomes for all participants. Government needs to step in.

In Friedman’s example, environmental regulations are required to prevent the pollution that could lead to my daughter getting asthma – and if ComEd doesn’t follow those regulations to a T, this fact allows me to sue ComEd for the cost of her asthma (although such suits are usually big class actions nowadays), without having to prove a specific connection between the pollution and the asthma. That is, regulations set boundaries for actors in free markets. To quote Robert Frost, “Good fences make good neighbors.”

This is all a roundabout way of saying that, while it’s great to set up a regulatory program - as NIST wants to do - in which the rules and their implementation are left up to the participants in the program, there needs to be some government entity that in the end ensures the rules are fair ones and they’re enforced fairly.

What bothered me about NIST’s idea for governance of the IoT device labeling program is that they seem to want to turn the entire program over to one or more “consumer labeling scheme owners”. How they’ll be chosen, how many there will be (one? Twenty?), as well as how the boundaries will be set between them, aren’t specified (at least they aren’t yet).

Even more importantly, the parameters of the program will be up to the scheme owners. To quote NIST (page 2), “The scheme owner would be responsible for tailoring the product criteria, defining conformity assessment requirements, developing the label and associated information, and conducting related consumer outreach and education.” In other words, there aren’t any real limits on the program a scheme owner can put together, other than that a) they have to use the criteria that NIST has identified (in the Discussion Draft), and b) the label needs to be binary. So what would happen if a scheme owner:

1.      Decides to assess devices against the criteria as leniently as possible (see my previous post, where I discussed the impossibility of performing a true binary assessment based on outcomes-based criteria), while at the same time charging high fees for assessments? The message will be clear to IoT device manufacturers: “The price this scheme owner charges me for the assessment is high, but I’m sure they’ll give me a label. It’s much better giving this scheme a shot, rather than going to a different scheme owner, who might really assess the device and not give me the label if they think I’m deficient.”

2.      Decides not to bother with the “consumer outreach and education” part? After all, the entities that are going to pay the fees to the scheme owner are the manufacturers, not the consumers. Given that there will probably be a lot of consumers who initially are willing to fork over an extra $10-$20 for a security camera that carries a cybersecurity label, why not charge a high assessment fee to manufacturers that see the importance of getting a label immediately, so they can sell to these early adopters? Then close up shop and let another scheme owner do the hard work of outreach and education, to grow the market further?”

3.      Decides to poach another scheme owner’s market? Let’s imagine that one scheme owner has had success providing labels for baby monitors; now they decide they ought to try their hand at a labeling scheme for smart appliances, despite not knowing anything about home appliances. But there’s already another scheme owner doing well in that market, and they’re not at all pleased at the idea of having an organization with no experience in appliances jump into that market and perhaps hand out meaningless labels, just so they can collect the assessment fees. NIST specifically points out that they don’t want to see consumers getting confused by multiple labels for similar products, but that’s exactly what would be the outcome in this case. Who is going to mediate this dispute?

During the web workshop, I asked in the chat how the scheme owners will make money. That didn’t get answered in the workshop, and it doesn’t seem to me that the NIST staff members who are developing the guidance for the IoT device labeling program have even asked themselves that question. But they really should. If you want to have private industry develop and run a regulatory program, you need to make sure you understand how they will make money doing this; if they can’t make money by what we’d consider “legit” means, they’ll find other means to make it. Those “other means” are likely to involve the scheme owners doing things that are unfair to other scheme owners, to manufacturers, and potentially to consumers as well, as shown in the three hypothetical examples above.

Yet preventing these abuses will require some power higher than the device owners to set and enforce rules. Let’s be clear: at a minimum, some government agency needs to police the device labeling program so that it operates fairly for all, even though the specific details of how the program will work are left up to the scheme owners.

In the web meeting, the presenters made clear – as I knew already – that NIST doesn’t run programs like this and isn’t a regulator. But how about another federal agency? In fact, the Executive Order, in the paragraph that orders the IoT device labeling program (which I quoted near the beginning of my last post), states that the Director of NIST should coordinate “with the Chair of the Federal Trade Commission” in developing the program and the criteria. Yet I haven’t seen or heard one word about the FTC, or any other agency, being involved with this program. Sure, NIST isn’t a regulator, but that doesn’t mean they can’t find a regulator within the government to set and enforce rules for this program.

So how about turning over implementation of the device labeling program to the FTC? They’re great at writing and enforcing rules. This doesn’t mean that NIST’s ideas need to go out the window. In general, I like the idea of having multiple scheme owners providing label schemes for different markets; and I also like the idea that the scheme owners should be free to construct their own programs.

But just like any other economic activity, there need to be government-enforced rules to make sure everyone is treated fairly. Anyone is free to build cars or trucks in whatever way they see fit. However, they all have to follow the safety standards set by the National Highway Traffic Safety Administration (NHTSA). When they advertise their car, they have to make true statements in their ads, or the FTC will come down on them. And when they communicate with shareholders, they need to follow the information disclosure guidelines set by the Securities and Exchange Commission (SEC). All this regulation obviously hasn’t prevented companies like Tesla and Rivian from producing innovative new cars and trucks that consumers and businesses want to buy.

So I like NIST’s ideas for allowing experimentation – and even competition - by the scheme providers. But make no mistake: This is a regulatory program. The EO ordered the government to develop a program to raise the level of cybersecurity in consumer IoT devices by creating a precious commodity – the label – that device manufacturers will desire because they know that a label will increase their sales. And even more importantly, not having a label might cause a manufacturer to go out of business.

NIST, please turn the implementation and operation of the IoT device labeling program over to a regulator to ensure it’s successful. I can guarantee it will fail if you don’t do that. Good fences make good neighbors.

P.S. My client Red Alert Labs will submit both this post and the previous one (slightly edited) to NIST as comments on the Discussion Draft paper.

Any opinions expressed in this blog post are strictly mine and are not necessarily shared by any of the clients of Tom Alrich LLC. Nor are they shared by the CISA’s Software Component Transparency Initiative, for which I volunteer as co-leader of the Energy SBOM Proof of Concept. If you would like to comment on what you have read here, I would love to hear from you. Please email me at tom@tomalrich.com.


[i] To be honest, Friedman didn’t talk about asthma as the consequence of pollution. He talked about someone’s shirt collar getting soiled. Unfortunately, Friedman tended to minimize damages that could be caused by businesses. This tendency got worse later on, especially in his Newsweek columns, where he started publishing ideas not based on economic analysis but on his personal opinions, while at the same time leaving the impression that they were based on such analysis (more specifically, the statements were based on assumptions that he didn’t make clear, such as the assumption that pollution, while definitely harmful, doesn’t really threaten health). Today, most of the politicians who quote him have no knowledge at all of what he wrote as an economist, and base their polemics entirely on those columns and a couple cringeworthy books like Free to Choose.

No comments:

Post a Comment