' UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`
`
`In the Matter of
`
`Washington, DC.
`
`CERTAIN IOT DEVICES AND,
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`Inv. No. 337—TA-1094
`
`COMPONENTS THEREOF (IOT, THE
`INTERNET OF THINGS) — WEB
`APPLICATIONS DISPLAYED ON A WEB
`BROWSER
`
`.
`
`-'
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`ORDER NO. 1:
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`PROTECTIVE ORDER
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`1
`
`(January 23, 2018)
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`WHEREAS, documents and information may be sought, produced or exhibited by and
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`among the parties to the above captioned proceeding, which materials relate to trade secrets or
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`other Confidential research, development or commercial informmion, as such terms are‘ used in
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`the Commission's Rules, 19 C.F.R. § 210.5;
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`IT IS HEREBY ORDERED THAT:
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`1. Confidential business information is information which concerns or relates to the trade
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`secrets, processes, operations, style of work, or apparatus, or to the production, sales, shipments,
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`purchases, transfers, identification of customers, inventories, amount or source of any income,
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`profits,
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`losses, or expenditures of any person,
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`firm, partnership, corporation, or other
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`organization, or other information of commercial value, the disclosure of which is likely to have
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`the effect of either (i) impairing the Commission's ability to obtain such information as is
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`necessary to perform its statutory functions, or (ii) causing substantial harm to the competitive
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`position of the person, firm, partnership, corporation, or other organization from which the
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`information was obtained, unless the Commission is required by law to disclose such
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`

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`information. The term “confidential business information”? includes “proprietary information”
`. within the meaning of section777(b) ofthe Tariff Act of -1 930 (19 U.S.C. § 1677f(b)).
`.
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`I
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`2(a). Any infOrniation submitted, in pre hearing discovery or in a pleading, motion, or
`response to a motion either voluntarily or pursuant to order, in this investigation, which is
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`asserted by a supplier to contain or constitute confidential business information shall be so
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`designated by such'supplier in writing, or orally at a deposition, conference or hearing, and shall
`be segregated from other information being submitted. Documents shall be clearly and
`prominently marked on their
`face with the legend:
`"CONFIDENTIAL BUSINESS
`
`INFORMATION, SUBJECT TO PROTECTIVE ORDER," or a comparable notice.
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`Such
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`information, whether submitted in writing or in oral testimony, shall be treated in accordance
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`with the terms of this protective order.
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`(b). The Administrative Law Judge or the Commission may determine that information
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`alleged to be confidential is not confidential, or that its disclosure is necessary for the proper
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`disposition of the proceeding, before, during or after the close of a hearing herein.
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`If such a
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`determmation is made by the Administrative Law Judge or the Commission, opportunity shall be
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`provided to the supplier of such information to argue its confidentiality prior to the time of such
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`ruling.
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`3.
`In the absence of written permission from the supplier or an order by the Commission
`or the Administrative Law Judge, any confidential documents or business information submitted
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`in accordance with the provisions 'of paragraph 2 above shall not be disclosed to any person other
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`, than:
`(i) outside counsel for parties to this investigation, including necessary secretarial and
`support personnel assisting such counsel; (ii) qualified persons taking testimony involving such
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`documents or information and necessary stenographic and clerical personnel
`_ 2 -
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`thereof;
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`(iii)
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`technical experts and-their staff who. are employed for the purposes of this litigation (unless they
`__ are otherwise employed by, consultants to, or otherwise affiliated with a non-governmental
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`I
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`party, or are employees of any domestic or foreign manufacturer,‘ wholesaler, retailer, or
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`distributor of the products, devices or component parts which are the subject of this
`investigation), (iv) the Commission, the Administrative Law Judge, the Commission staff, and
`personnel of any governmental agency as authorized by the Commission; (v) the Commission, its
`employees and Offices, and contract personnel (a) for developing or maintaining the records of
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`this investigation or related proceedings, or (b) in internal
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`investigations, audits, reviews,
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`evaluations relating to the programs, personnel, and operations of the Commission including
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`under to 5 U.S.C. Appendix 3; and (vi) US. government employees and contract personnel,
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`solely for cybersecurity purposes.1
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`4. Confidential business information submitted in accordance with the provisions of
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`paragraph 2 above shall not be made available to any person designated in paragraph 3(i)2‘ and
`(iii) unless he or she shall have first read this order and shall have agreed, by letter filed with the
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`Secretary of this Commission:
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`(i) to be bound by the terms thereof; (ii) not to reveal such
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`confidential business information to anyone other than another person designated in paragraph 3;
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`and (iii) to utilize such confidential business information solely for purposes of this investigation.
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`The letter shall also include the following acknowledgement:
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`, acknowledge that information submitted
`I, the undersigned, on behalf Of
`for purposes of this Investigation may be disclosed to and used:
`
`
`
`(i) by the Commission, its employees and Offices, and contract personnel (a) for
`_ developing or maintaining the records of this or a related proceeding, or (b) in
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`' See Commission Administrative Order 16-01 (Nov. 7, 2015).
`2 Necessary secretarial and support personnel assisting counsel need not sign onto the protective order themselves
`because they are covered by counsel’s signing onto the protective order.
`-3-
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`

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`internal investigations, audits, reviews, and evaluationsrelating to the programs,
`' personnel, and operations of the Commission including under 5 U. S. C. Appendix
`3mm by U.S. government employees
`and contract I personnel,
`solely for
`
`I understand that all contract personnel will
`cybersecurity purposes.
`appropriate nondisclosure agreements.
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`sign
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`5. If the Commission or the Administrative Law Judge orders, or if the supplier and all
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`parties to the investigation agree, that access to, or dissemination of information submitted as
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`confidential business information shall be made to persons not included in paragraph 3 above,
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`such matter shall only be accessible to, or disseminated to, such persons based upon the
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`conditions pertaining to, and obligations arising from this order, and such persons shall be
`considered subject to it, unless the Commission or the Administrative Law Judge finds that the
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`information is not confidential business information 'as defined in paragraph 1 thereof.
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`.
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`6.
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`(a). Any confidential business information submitted to the Commission or the
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`Administrative Law Judge in connection with a motion or other proceeding Within the purview
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`of this investigation shall be submitted under seal pursuant .to paragraph 2 above. Any portion of
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`a transcript
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`in connection with this
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`investigation containing any confidential business
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`information submitted pursuant to paragraph 2 above shall be bound separately and filed under
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`seal. When any confidential business information submitted in accordance with paragraph 2
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`above is included in an authorized transcript of a deposition or exhibits thereto, arrangements
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`shall be made with the court reporter taking the deposition to bind such confidential portions and
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`separately label
`them “CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO
`PROTECTIVE ORDER.” Before a court reporter or translator receives any such information, he
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`or she shall have] first read this order and shall have agreed in writing to be bound by the terms
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`thereof. Alternatively, he or she shall sign the agreement included as Attachment A hereto.
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`-4-
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`I Copies Vof each such signed agreement shallvbe provided to the supplier of such confidential
`business information and the Secretary of the Commission.
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`‘Submitters3 are strongly encouraged to encrypt nonpublic documents that are
`3
`(b).
`electronically transmitted to'
`the Commission to protect your sensitive information from
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`unauthorized disclosure. The USITC secure drop-box system and the Electronic Document
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`Information System (EDIS) use Federal
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`Information Processing Standards (FIPS) 140-2
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`cryptographic algorithms to encrypt data in transit. Submitting your nonpublic documents by a
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`means that does not use these encryption algorithms (such as by email) may subject your firm’s p
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`nOnpublic information to unauthorized disclosure during transmission. If you choose a non--
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`encrypted method of electronic transmission, the Commission warns you that the risk of such-
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`possible unauthorized disclosure is assumed by you and not by the Commission.
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`7. The restrictions upon, and obligations accruing to, persons who become subject to this
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`order shall not apply to any information submitted in accordance with paragraph 2 above to
`which the person asserting the confidential status thereof agrees in writing, or the Commission or
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`the Administrative Law Judge rules, after an opportunity for hearing, was publicly known at the
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`time it was supplied to the receiving party or has since become publicly known through no fault
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`_ of the receiving party.
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`8. The Commission, the Administrative Law Judge, and the Commission investigative
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`" attorney acknowledge that any document or information submitted as confidential business
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`information pursuant to paragraph 2 above is to be treated as such within the meaning of 5
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`U.S.C. § 552(b)(4) and 18 U.S.C. § 1905, subject to a contrary ruling, after hearing, by the
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`3 “Submitters” of confidential business information are the same as “suppliers” of confidential business information
`as that term is used in the context of this order. See Commission Administrative Order 16-01 (Nov. 7, 2015).
`-5-
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`Commission or its Freedom of Information Act Officer, or the Administrative Law Judge. When
`such information is made part of a pleading or is offered into the evidentiary record, the data set
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`.
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`forth in 19 C.F‘.R. §'-201.6 must be provided except during the time that the proceeding is
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`pending before the Administrative Law Judge. During that
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`time,
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`the party offering the
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`confidential business. information must, upon request, provide a statement as to the claimed basis
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`for its confidentiality.
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`9. Unless a designation of confidentiality has been withdrawn, or a determination has
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`been made by the Commission or the Administrative Law Judge that information designated as
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`confidential, is no longer confidential, the Commission, the Administrative Law Judge, and the
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`Commission investigative attorney shall take all necessary and proper steps to preserve the
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`confidentiality of, and to protect each supplier's rights with respect to, any confidential business
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`information designated by the supplier in accordance with paragraph 2 above, including, without
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`limitation:
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`(a) notifying the supplier promptly of (i) any inquiry or request by anyone for the
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`substance of or access to such confidential business information, other than those authorized
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`pursuant to this order, under the Freedom of Information Act, as amended (5 U.S.C. § 552) and
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`(ii) any proposal to redesignate or make public any such confidential business information; and
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`(b) providing the supplier at least seven days after receipt of such inquiry or request within which
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`to take action before the Commission,
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`its Freedom of Information Act Officer, or the
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`Administrative Law Judge, or otherwise to preserve the confidentiality of and to protect its rights
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`in, and to, such confidential business information. .
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`10. If while an investigation is before the Administrative Law Judge, a party to this order
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`‘
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`who is to be a recipient of any business information designated as confidential and submitted in
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`accordance with paragraph 2 disagrees with respect to such a designation, in full or in part, it
`_ 6 _
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`shall notify the supplier in writing, and they will thereupon confer as to the status of the subject "
`information proffered within the context of this order.
`If prior to, or at the time of such a7
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`conference, the supplier withdraws its designation of such information as being subject to-this
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`order, but nonetheless submits such information for purposes of the investigation; such supplier
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`shall express the withdrawal, in writing, and serve such withdrawal upon all parties and the
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`Administrative Law Judge. If the recipient and supplier are unable to concur upon the status of
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`the subject information submitted as confidential business information within ten days from the
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`date of notification of such disagreement, any party to this order may raise the issue of the
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`designation of such a status to the Administrative Law Judge who will rule upon the matter. The
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`Administrative Law Judge may sua sponte question the designation of the confidential status of
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`any information and, after opportunity for hearing, may remove the confidentiality designation.
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`11. No less than 10 days (or any other period of time designated by the Administrative
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`Law Judge) prior to the initial” disclosure to a proposed expert of any confidential information
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`submitted in accordance with paragraph 2, the party proposing to use such expert shall submit in
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`writing the name of such proposed expert and his or her educational and detailed employment
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`history to the supplier.
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`If the supplier objects to the disclosure of such confidential business
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`information to such proposed expert as inconsistent with the language or intent of this order or
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`on other grounds, it shall notify the recipient in writing of its obj e-ction and the grounds therefore
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`' prior to the initial disclosure. If the dispute is not resolved on an informal basis within ten days
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`of receipt of such notice of objections, the supplier shall submit immediately each objection to
`the Administrative Law Judge for a ruling.
`If the investigation is before the Commission-the
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`matter shall be submitted to the Commission for resolution. The submission of such confidential
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`business information to such proposed expert shall be withheld pending the ruling of the
`_ 7 _
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`CommissiOn or the Administrative Law Judge. The terms of this paragraph shall be inapplicable
`to experts Within the Commission or to experts from other governmental agencies who are
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`consulted with or used by the Commission.
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`‘12.
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`If confidential business information submitted in accordance with paragraph 2' is
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`disclosed to any person other than in the manner authorized by this protective order, the party
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`responsible for the disclosure must
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`immediately bring all pertinent facts relating to such
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`disclosure to the attention of the supplier and the Administrative Law Judge and, without
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`prejudice to other rights and remedies of the supplier, make every effort to prevent further
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`disclosure by it or by the person who was the recipient of such information.
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`13. Nothing in this order shall abridge the right of any person to seek judicial review or
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`toxpursue other appropriate judicial action with respect to any ruling made by the Commission,
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`its Freedom of Information Act Officer, or the Administrative Law Judge concerning the issue of
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`the status of confidential business information.
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`14. Upon final termination of this investigation, each recipient of confidential business
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`information that is subject to this order shall assemble and return to the supplier all items
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`containing such information submitted in accordance with paragraph 2 above,
`including all
`copies of such matter iwhich may have been made. Alternatively, the parties subject to this order
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`may, with the written consent of the supplier, destroy all items containing confidential business
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`information and certify to the supplier (or his counsel) that such destruction has taken place.
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`This paragraph shall not apply to the Commission, including its investigative attorney, and the
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`Administrative Law Judge, which shall retain such material pursuant to statutory. requirements
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`and for other recordkeeping purposes, but may destroy such material (including electronic media
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`containing such information) in its possession which it regards as surplusage.
`_ 8 _
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`Notwithstanding the above paragraph, confidential business information may be
`_ transmitted to aidistrict court pursuantto Commission Rule 216.5(c),
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`If any confidential business informw‘on which is supplied in accordance -with ‘
`15.
`paragraph 2 above is supplied by 1a nonparty to this investigation, such a nonparty shall be
`considered a "supplier" as that term is used in the context ofthis order.
`16. ‘ Each nonparty supplier shall be provided: a copy of this order by the party seeking ‘
`information from said supplier".-
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`17. The Secretary shall serve a copy of this order upon all parties;
`
`
` Charles E.
`
`
`
`ullock
`
`Chief Administrative Law Judge
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`

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`,
`.
`I Attachment A
`NCNDISCLOSUREg‘AGREEMENT FOR REPORTER/STENOGRAPHEIUTRANSLATOR
`I,
`, do solemnly swear or affirm-that I will not divulge .
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`any information communicated to me in any confidential portion of the investigation or hearing
`
`in the matter of Certain
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`, Investigation No. 337-TA-
`
`
`
`, except as permitted in the
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`protective order issued in this case.
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`I will not directly or indirectly use, or allow the use of such
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`information for any purpose other than that directly associated with my official duties in this
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`case.
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`Further, I will not by direct action, discussion, recommendation, or suggestion to any
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`person reveal the nature or content of any information communicated during any confidential
`portion of the investigation or hearing in this case.
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`I also affirm that I do not hold any position or official relationship with any of the
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`participants in said investigation.
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`I am aware that the unauthorized use or conveyance of information as specified above is
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`a Violation of the Federal Criminal Code and punishable by a fine of up to $10,000,
`imprisonment of up to ten (‘10) years, or both.
`‘
`
`
`
`Signed
`
`Dated
`
`
`
`Firm or affiliation
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`-10-
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`

`

`
`
`
`
`UNITED STATES INTERNATIONAL TRADE COMIVIISSION
`
`WASHINGTON, DC 20436
`
`ADMINISTRATIVE ORDER: 16-01
`
`DATE: November 7, 2015
`
`SUBJECT: Acknowledgement and Disclaimer Provisions Regarding Disclosure of Confidential
`Business Information or Business Proprietary Information
`
`1. PURPOSE: This order establishes procedures for Commission personnel to follow in using
`acknowledgement and disclaimer provisions regarding the cybersecurity—related disclosure of
`confidential business information (CB1) or business proprietary information (BPI). The
`statutes governing CB1 and BPI generally prohibit the Commission from disclosing CB1 and
`BPI to persons outside certain classes of individuals for certain purposes without the consent
`of the information’s submitter. The acknowledgement provision is designed to seek consent
`to permit disclosure to certain other classes of persons for other Specified purposes,- including
`cybersecurity purposes, while complying with statutory requirements. The disclaimer
`provision is also designed to urge the submission of nonpublic documents using encrypted
`methods and notify the submitter that it assumes the risk of unauthorized disclosure if a non—
`encrypted method is used.
`
`2. REFERENCES
`
`a. Statutes imposing restrictions on the disclosure of CB1 and BPI, including 18 U.S.C. §
`1905; 19 U.S.C. §§ 1332(g), 1337(n), 1677f(b)(1)(A).
`
`b. Section 201.6 of the Commission’s Rules of Practice and Procedures (19 CPR. § 201.6).
`
`3. ACKNOWLEDGEMENT AND DISCLAIMER PROVISIONS
`
`a. The acknowledgement provision reads as follows:
`
`I, the undersigned, acknowledge that information submitted in response to this request for
`information and throughout this investigation or other proceeding may be disclosed to
`and used:
`
`

`

`(i) by the COmmiSsion, its employees and Offices, and contract personnel (a) for
`developing or maintaining the records of this or a related proceeding, or (b) .in internal
`investigations, audits, reviews, and evaluations relating to the programs, personnel, and
`operations of the Commission including under 5 U.S.C. Appendix 3; or
`(ii) by US. government employees and contract personnel, solely for cybersecurity
`purposes. I understand that all contract personnel will sign appropriate nondisclosure
`agreements.
`
`. The disclaimer provision reads as follows:
`
`Submitters are strongly encouraged to encrypt nonpublic documents that are
`electronically transmitted to the Commission to protect your sensitive information from
`unauthorized disclosure. The USITC secure drop-b-ox system and the Electronic
`Document Information System (EDIS) use Federal Information Processing Standards
`(FIPS) 140-2 cryptographic algorithms to encrypt data in transit. Submitting your
`nonpublic documents by a means that does not use these encryption algorithms (such as
`by email) may subject your firm’s nonpublic information to unauthorized disclosure
`during transmission. If you choose a non-encrypted method of electronic transmission,
`the Commission warns you that the risk of such possible unauthorized disclosure is
`assumed by you and not by the Commission.
`
`The acknowledgement and disclaimer provisions must be included in all protective orders
`issued in section 337 proceedings and in all Commission requests for CBI or BPI,
`including:
`
`i.
`
`ii.
`
`in questionnaires and instructionbooklets, as appropriate, in import injury
`investigations and reviews and in industry and economic analysis
`proceedings; and
`in protective orders issued in section 337 proceedings, and in any other
`appropriate mechanisms for submission of CBI to be determined by the
`Commission’s Administrative Law Judges.
`
`.
`
`In the acknowledgement provision, the phrase “internal investigations, audits, reviews,
`and evaluations relating to the programs, personnel, and operations of the Commission”
`does not include statutory Commission proceedings (viz, proceedings under our statutory
`authorities, such as 19 U.S.C. §§ 1332, 1337, 2252, and Title VII. ofthe TariffAct of
`1930 (19 U.S.C. §§ 1303, 1516A, 1671-1677n)).
`
`The acknowledgement provision does not permit CBI or BPI submitted in a statutory
`Commission proceeding to be disclosed or used in any other proceeding, with two
`exceptions. In the case of proceedings under Title VII of the Tariff Act of 1930, the
`Commission and its investigative staff may use BPI in other proceedings involving the
`same or similar merchandise pursuant to the authorization in the questionnaire form. In
`the case of proceedings under section 337 of the Tariff Act of 1930, use of CBI or BPI is
`permitted in related proceedings as defined in Commission Rule 210.3.
`
`

`

`:e.
`
`In the acknowledgement provision, the phrase “cyberSecurity purposes” means “detecting,
`preventing, analyzing, investigating, responding to, and reporting on cyber vulnerabilities,
`misconfigurations or inappropriate permissions on networks, or known or suspected
`malicious cyber activity.”
`'
`
`f. ProtectiveOrders1n section 337 proceedings also must include a statement that thirdparty
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`suppliers of CBI should be given a copy of the protective order.
`
`This order supersedes Administrative Order 97-06 and remains in effect until superseded or
`rescinded.
`
`By order of the Chairman:
`
`14m1awEmmer-
`
`Meredith M. Broadbent
`
`

`

`CERTAIN IOT DEVICES AND COMPONENTS THEREOF
`
`'
`
`Inv. N0. 337-TA—1094
`
`,
`(IOT, THE INTERNET OF THINGS) -WEB
`APPLICATIONS DISPLAYED ON A WEB BROWSER
`
`Certificate of Service — Page 1
`
`1, Lisa R. Barton, hereby certify that the attached ORDER NO. 1 has been served by
`hand upon the Commission Investigative Attorney, Jeffrey Hsu, Esq., and the following parties
`as indicated, on January 23, 2018.
`
`
`
`Lisa R. Barton, Secretary
`US International Trade Commission
`
`500 E Street SW, Room 112
`Washington, DC 20436
`
`On Behalf of Complainants Lakshmi-Arunachalam, Ph.D.;
`Wechhange, Inc.:
`
`Dr. Lakshmi Arunachalam
`222 Stanford Ave.
`Menlo Park, CA 94025
`
`Respondents:
`
`Apple Inc.
`1 Inifinite LOOp
`Cupertino, CA 95014
`
`.
`
`‘
`
`'
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`.
`
`'
`
`CI Via Hand Delivery
`El Via; Express Delivery
`ErVia First Class Mail
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`El Other:
`
`I
`
`El Via Hand Delivery
`E] Via Express Delivery
`12(Via First Class Mail
`
`'
`
`D Other:
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`Facebook, Inc.
`1 Hacker Way
`M61110 Park, CA 94025
`
`'
`»
`
`»
`
`»
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`.
`
`.
`
`-
`
`»
`
`El Via Hand Delivery
`Cl Via Express Delivery
`ErVia First Class Mail
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`CI Other:
`
`Samsung Electronics America, Inc.
`85 Challenger Road,
`Ridgefield Park, NJ 07760
`
`-
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`~
`
`F
`
`D Via Hand Delivery
`I] Via ExpreSs Delivery
`El Via First Class Mail
`
`|:| Other:
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`

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`CERTAIN IOT DEVICES AND COMPONENTS THEREOF ‘
`(IOT, THE INTERNET OF THINGS) -WEB
`APPLICATIONS DISPLAYED ON A-WEB BROWSER
`
`Inv. No. 337-TA—1094
`,
`
`Certificate of Service — Page 2
`
`Samsung Eleetronics Co., Ltd.
`129, Samsung-r0, Yeongtong-gu, Suwon-si,
`Gyeonggl-do '
`Korea
`
`I
`
`'
`
`.
`
`Cl Via Hand Delivery
`[3 Via Express Delivery
`ErVia First Class Mail
`1:] Other:
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`_
`
`