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DERBY-PIE Trademark Owner Can’t Stop Newspaper from Discussing Other Derby Pies

In Rupp v. Courier-Journal, Inc., decided yesterday by the Sixth Circuit (opinion by Judge Eugene Siler joined by Judges Eric Clay and Richard Griffin), the Louisville Courier-Journal published these articles:

This led to a trademark lawsuit by Alan Rupp, who “owns DERBY-PIE®, a federal trademark for a ‘well-known chocolate nut pie'”; but the Sixth Circuit rejected the claim:

“The touchstone of [trademark infringement] liability … is whether the defendant’s use of the disputed mark is likely to cause confusion among consumers regarding the origin of the goods offered by the parties.” “[T]he likelihood of confusion analysis … involves a preliminary question: whether the defendants ‘are using the challenged mark in a way that identifies the source of their goods.’ If they are not, then the mark is being used in a “‘non-trademark” way’ and trademark infringement laws … do not even apply.” …

In evaluating whether the Courier-Journal is liable for trademark infringement for using “Derby pie” in its two articles, the question is whether the Courier-Journal used “Derby pie” in a trademark way, i.e., in a way to identify the sources of the pie recipe advertised in the first article and the macarons in the second article. In short, “[i]f [the Courier-Journal is] only using [Rupp’s] trademark in a ‘non-trademark’ way—that is, in a way that does not identify the source of [the pie recipe and macarons]—then trademark infringement and false designation of origin laws do not apply.”

The second article at issue here is a biographical piece about a Louisville baker who makes various flavors of macarons, one of which is “Derby Pie[.]” Since the article is an in-depth look at the story of an independent, small business owner, i.e., a baker, who makes “Derby Pie” flavored macarons, not pies, a reader could not possibly “notice [Rupp’s trademark] … and then think that the [‘Derby Pie’ macaron] may be produced by the same company (or a company affiliated with the company) that makes [DERBY-PIE®].”

“Derby Pie[,]” like “Mint Julep” and “Peach Tea” as used in the article, informs the reader of the general flavor, not the origin, of the macaron. Importantly, the origin of the “Derby Pie” macaron is explicitly identified as the independent baker discussed in the article, not Rupp (or Kern’s Kitchen, which appears to be the company that actually makes the DERBY-PIE®)—”Derby Pie” cannot be said to identify the source of the macaron when the actual source of the macaron is explicitly identified in that article. Nor can it be said that an association between Rupp and the “Derby Pie” macaron was suggested. Although Rupp’s complaint states he “ha[s] applied … DERBY-PIE® to various products sold on a nationwide basis[,]” he has never specifically asserted that he (or Kern’s Kitchen) produces macarons, nor has he alleged error in the district court’s finding that “[a] DERBY-PIE® is a pie[,]” not a macaron.

Similarly, “Derby pie” as used in the first article does not denote the recipe for the DERBY-PIE® but a recipe for a “Derby pie”: “‘It happens all the time,’ says [counsel for Rupp]. People say Derby-Pie® as shorthand for chocolate nut pie the way they say Xerox when what they mean is copy or copier.” As used in the article, “Derby pie” simply informs the reader of the type of pie—a chocolate-walnut pie—that the reader can make from the recipe provided. Rupp’s own evidence indicates that “Derby pie” can be used in this way, similar to the way that “Chess pie” would be used were that phrase trademarked. Such a non-trademark use of “Derby pie” is also supported by the fact that the Courier-Journal, like it did in the second article, twice identified the source of the recipe as Captain’s Quarters (restaurant), not Rupp (or Kern’s Kitchen).

Nor can it be said that an association between Rupp and the “Derby pie” recipe was suggested. The “Derby pie” described in the first article is “sufficiently different” from DERBY-PIE®. An exhibit submitted by Rupp himself in support of his response to the Courier-Journal’s motion to dismiss notes that “Derby-Pie contains no bourbon ….”  Although just a difference of one ingredient, Rupp’s own evidence reveals that no reader of an article describing a “Derby pie” with bourbon, especially one called a “state original[,]” would associate such a pie with DERBY-PIE®. And, the recipe does not simply differ from DERBY-PIE® in the addition of one ingredient, but it is also missing a key ingredient present in DERBY-PIE®—vanilla….

In sum, because (1) the Courier-Journal identified the specific sources of the pie recipe and macaron in its articles; (2) these products are “sufficiently different” from products designated by DERBY-PIE®, meaning there could be no risk of misassociation between the independent baker/Captain’s Quarters and Rupp/Kern’s Kitchen; and (3) the Courier-Journal has used the phrase “Derby pie” in a “wholly descriptive manner[,]” we can assuredly say that the Courier-Journal did not use “Derby pie” in a trademark way.

The district court further justified such a conclusion by pointing to the structure of the phrase “Derby pie” as used in the first article. Because the first article was published “[o]n the same day as the 2017 Kentucky Derby,” the district court found that “the headline … uses ‘Derby’ to modify ‘pie,’ not to identify the source of the product as DERBY-PIE®. This is analogous to using ‘Derby’ to modify ‘horse,’ ‘hat,’ or ‘party’ and does not constitute an impermissible use of the Mark.” In other words, the district court recognized that the Courier-Journal’s use of “Derby pie” in its first article is a typical play on words seen in newspapers that, here, both tips off the reader to the generic flavor of pie discussed and the event celebrated by the making of that pie. In neither of these ways, however, is the phrase used to designate the product as DERBY-PIE®….

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Trump Will Adopt Biden Plan for Speeding Up COVID-19 Vaccinations

VaccineFlagSergeiBabenkoDreamstime

Last week, President-elect Joe Biden announced that his incoming administration would not keep COVID-19 vaccines idling in freezers as boosters for folks who have already been inoculated with the first of two doses. Instead, his team would release all doses now and count on future production to provide the second doses in the coming weeks. This way, far more people could get some initial protection from the virus—a particularly timely consideration, as diagnosed COVID-19 cases have been soaring throughout the U.S. Additionally, it is urgent to get more Americans vaccinated as soon as possible before the spread of a much more contagious variant makes the pandemic even worse.

Much to their credit, Trump administration officials will reportedly announce later today that they will adopt the Biden administration’s vaccine rollout plan in which doses currently being reserved will be made available almost immediately. In addition, instead of insisting on the complicated recommendations which prioritize groups such as health care workers, nursing home residents, and a variety of “essential workers” for vaccination, the Trump administration will urge states to make vaccinations available to Americans aged 65 and older. If the goal is to dramatically reduce mortality and stress on the health care system, this makes sense since this age group accounts for around 80 percent of COVID-19 deaths and 45 percent of hospitalizations.

In the meantime, as Pfizer/BioNTech and Moderna continue to ramp up their vaccine production, fingers are crossed that the Johnson & Johnson one-shot COVID-19 vaccine will prove effective and become available in the next few weeks. If approved, the company says that it is “on track” to deliver hundreds of millions of doses in the first half of 2021.

 

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Trump Will Adopt Biden Plan for Speeding Up COVID-19 Vaccinations

VaccineFlagSergeiBabenkoDreamstime

Last week, President-elect Joe Biden announced that his incoming administration would not keep COVID-19 vaccines idling in freezers as boosters for folks who have already been inoculated with the first of two doses. Instead, his team would release all doses now and count on future production to provide the second doses in the coming weeks. This way, far more people could get some initial protection from the virus—a particularly timely consideration, as diagnosed COVID-19 cases have been soaring throughout the U.S. Additionally, it is urgent to get more Americans vaccinated as soon as possible before the spread of a much more contagious variant makes the pandemic even worse.

Much to their credit, Trump administration officials will reportedly announce later today that they will adopt the Biden administration’s vaccine rollout plan in which doses currently being reserved will be made available almost immediately. In addition, instead of insisting on the complicated recommendations which prioritize groups such as health care workers, nursing home residents, and a variety of “essential workers” for vaccination, the Trump administration will urge states to make vaccinations available to Americans aged 65 and older. If the goal is to dramatically reduce mortality and stress on the health care system, this makes sense since this age group accounts for around 80 percent of COVID-19 deaths and 45 percent of hospitalizations.

In the meantime, as Pfizer/BioNTech and Moderna continue to ramp up their vaccine production, fingers are crossed that the Johnson & Johnson one-shot COVID-19 vaccine will prove effective and become available in the next few weeks. If approved, the company says that it is “on track” to deliver hundreds of millions of doses in the first half of 2021.

 

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No, Those Viral Videos Don’t Prove That the Capitol Rioters Are Being Added to the No-Fly List

reason-flight attendant

Democrats are urging the federal government to do everything in its power to prevent people present at Wednesday’s riot on Capitol Hill from ever boarding a plane again, including adding their names to the FBI’s infamous no-fly list. A number of misleading viral videos on social media have meanwhile given the impression that this crackdown on participants in last week’s “Stop the Steal” rally-turned-riot is well underway.

On Monday, Reps. Peter DeFazio (D–Ore.) and Rick Larsen (D–Wash.)—both members of the House Committee on Transportation and Infrastructure—penned a letter urging Federal Aviation Administration (FAA) head Stephen Dickson to use whatever powers he has to “detect instances in which those connected with last Wednesday’s attack or their sympathizers may attempt to travel by air again to Washington, D.C.” and to “prevent seditionists from jeopardizing aviation safety if they do board aircraft.”

That would include slapping passengers who interfere with flight attendants with the maximum allowable $35,000 in civil fines and potentially referring these unruly flyers to the Justice Department for criminal prosecution, their letter reads.

DeFazio and Larsen also asked Dickson to work with airlines to “limit the chance that the Nation’s commercial airline system could be used as a means of mass transportation to Washington, D.C., for further violence in connection with the inauguration.”

Their letter comes just a few days after Rep. Bennie Thompson (D–Miss.) issued a statement demanding that the FBI and Transportation Security Administration (TSA) add anyone who’d even entered the Capitol building during Wednesday’s riot to the no-fly list.

“I am urging the [TSA] and the [FBI] to use their authorities to add the names of all identified individuals involved in the attack to the federal No-Fly List and keep them off planes,” said Thompson, who chairs the House Committee on Homeland Security, in a press release. “This should include all individuals identified as having entered the Capitol building—an intrusion which threatened the safety of Members of Congress and staff and served as an attack on our Nation.”

On the very day of the riot, the Association of Flight Attendants-CWA (AFA) similarly demanded that protesters who were present at the Capitol be barred from flying.

“Some of the people who traveled in our planes yesterday participated in the insurrection at the Capitol today,” said AFA President Sara Nelson. “Acts against our democracy, our government, and the freedom we claim as Americans must disqualify these individuals from the freedom of flight.”

Viral videos on social media meanwhile purport to show Trump supporters being booted from flights or prevented from boarding because of their participation in Wednesday’s riot. Often these videos are accompanied by captions saying those being kicked off planes have been added to the no-fly list. The #noflylist hashtag went viral on Twitter on Monday.

A few of these videos—like one tweeted out by Bishop Talbert Swan that’s garnered just under 900,000 views—are several years old and have nothing to do with the events at the Capitol on Wednesday.

Other videos instead show people who’ve been kicked off flights for not wearing masks and/or engaging in disruptive behavior, including one popular clip showing a weeping man in an airport complaining about being labeled a terrorist.

On Thursday, 14 passengers on an Alaska Airlines flight from Washington, D.C. to Seattle were banned from future flights by the airline after refusing to wear masks. That ban is in effect so long as the airline requires passengers to wear masks, according to USA Today.

In a Monday evening statement, TSA spokesperson Robert Langston said that people on the no-fly list can’t be issued boarding passes, and that a boarding pass is needed to get past airport security checkpoints.  Thus, people already in their seats or at the gate—like most of these supposed rioter in these viral videos—are probably not getting the boot for being on the no-fly list.

The FBI’s Terrorist Screening Center is responsible for maintaining the federal government’s No Fly List. Agencies like TSA then use that list to vet passengers trying to board planes.

When asked by Reason whether those present at the Capitol during Wednesday’s riot had been added en masse to the no-fly list, a TSA spokesperson said that “for security reasons we do not discuss the details other than to confirm that there are always multiple layers of security in place” and that “we will accommodate FBI requests and congressional authorizations related to no fly lists.”

The FBI declined to comment for this story.

It’s obviously within airlines’ purview to kick off customers who are disruptive or violate company policies about wearing masks on flights. But trying to add people who were merely present at the Capitol last Wednesday to the FBI’s no-fly list, as Democrats are requesting, raises some serious civil liberties concerns, says Patrick G. Eddington, a research fellow at the Cato Institute.

“Clearly, anyone with an outstanding arrest warrant for the commission of a federal crime would absolutely qualify for inclusion on the official ‘No Fly’ list,” Eddington tells Reason. But “if the person in question entered the Capitol without actually committing a violent act, property destruction, etc., I think putting that person on the “No Fly” or TSA’s “Quiet Skies” selectee list would be wholly incompatible with the [Fourth] Amendment.”

Eddington notes that the FBI has a long history of placing people on the no-fly list who’ve never been accused of a crime. A simple typo can see a person wind up on the list. Up until a few years ago, the government wouldn’t even confirm whether someone had been placed on the no-fly list, let alone offer reasons for why his right to fly was being restricted.

The American Civil Liberties Union (ACLU) has challenged the constitutionality of the no-fly list in multiple lawsuits with mixed success.

In 2014, the group scored an initial victory when a U.S. district court told the federal government it had to tell people if they were on the no-fly list and give them an opportunity to challenge their placement there.

In 2019, the U.S. Court of Appeals for the 9th Circuit sided with the government in another lawsuit brought by the ACLU in which the group argued the government’s new system of notifying people and allowing them to challenge their placement on the no-fly list was still falling short of what the Constitution requires.

After the Pulse nightclub shooting in Orlando, lawmakers from both parties floated proposals to prevent people on the no-fly list from possessing firearms.

“Our nation’s watchlisting system is error-prone and unreliable because it uses vague and overbroad criteria and secret evidence to place individuals on blacklists without a meaningful process to correct government error and clear their names,” said the ACLU at the time in opposition to those efforts.

“I realize that feelings are running very high right now as a result of the insurrectionist mob assault on the Capitol,” says Eddington. “But it’s exactly in times of stress like this that lawmakers and the public usually make bad, constitutionally-violative choices, which is why cooler heads and common sense need to prevail here.”

But with even more “Stop the Steal”-type events planned in D.C. for President-elect Joe Biden’s inauguration, there’s a real possibility that more violence will only cement lawmakers’ desire to redirect blunt war-on-terror-era tools to combat the threat posed by right-wing street mobs.

History would suggest the cooler heads are at a disadvantage in resisting this.

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No, Those Viral Videos Don’t Prove That the Capitol Rioters Are Being Added to the No-Fly List

reason-flight attendant

Democrats are urging the federal government to do everything in its power to prevent people present at Wednesday’s riot on Capitol Hill from ever boarding a plane again, including adding their names to the FBI’s infamous no-fly list. A number of misleading viral videos on social media have meanwhile given the impression that this crackdown on participants in last week’s “Stop the Steal” rally-turned-riot is well underway.

On Monday, Reps. Peter DeFazio (D–Ore.) and Rick Larsen (D–Wash.)—both members of the House Committee on Transportation and Infrastructure—penned a letter urging Federal Aviation Administration (FAA) head Stephen Dickson to use whatever powers he has to “detect instances in which those connected with last Wednesday’s attack or their sympathizers may attempt to travel by air again to Washington, D.C.” and to “prevent seditionists from jeopardizing aviation safety if they do board aircraft.”

That would include slapping passengers who interfere with flight attendants with the maximum allowable $35,000 in civil fines and potentially referring these unruly flyers to the Justice Department for criminal prosecution, their letter reads.

DeFazio and Larsen also asked Dickson to work with airlines to “limit the chance that the Nation’s commercial airline system could be used as a means of mass transportation to Washington, D.C., for further violence in connection with the inauguration.”

Their letter comes just a few days after Rep. Bennie Thompson (D–Miss.) issued a statement demanding that the FBI and Transportation Security Administration (TSA) add anyone who’d even entered the Capitol building during Wednesday’s riot to the no-fly list.

“I am urging the [TSA] and the [FBI] to use their authorities to add the names of all identified individuals involved in the attack to the federal No-Fly List and keep them off planes,” said Thompson, who chairs the House Committee on Homeland Security, in a press release. “This should include all individuals identified as having entered the Capitol building—an intrusion which threatened the safety of Members of Congress and staff and served as an attack on our Nation.”

On the very day of the riot, the Association of Flight Attendants-CWA (AFA) similarly demanded that protesters who were present at the Capitol be barred from flying.

“Some of the people who traveled in our planes yesterday participated in the insurrection at the Capitol today,” said AFA President Sara Nelson. “Acts against our democracy, our government, and the freedom we claim as Americans must disqualify these individuals from the freedom of flight.”

Viral videos on social media meanwhile purport to show Trump supporters being booted from flights or prevented from boarding because of their participation in Wednesday’s riot. Often these videos are accompanied by captions saying those being kicked off planes have been added to the no-fly list. The #noflylist hashtag went viral on Twitter on Monday.

A few of these videos—like one tweeted out by Bishop Talbert Swan that’s garnered just under 900,000 views—are several years old and have nothing to do with the events at the Capitol on Wednesday.

Other videos instead show people who’ve been kicked off flights for not wearing masks and/or engaging in disruptive behavior, including one popular clip showing a weeping man in an airport complaining about being labeled a terrorist.

On Thursday, 14 passengers on an Alaska Airlines flight from Washington, D.C. to Seattle were banned from future flights by the airline after refusing to wear masks. That ban is in effect so long as the airline requires passengers to wear masks, according to USA Today.

In a Monday evening statement, TSA spokesperson Robert Langston said that people on the no-fly list can’t be issued boarding passes, and that a boarding pass is needed to get past airport security checkpoints.  Thus, people already in their seats or at the gate—like most of these supposed rioter in these viral videos—are probably not getting the boot for being on the no-fly list.

The FBI’s Terrorist Screening Center is responsible for maintaining the federal government’s No Fly List. Agencies like TSA then use that list to vet passengers trying to board planes.

When asked by Reason whether those present at the Capitol during Wednesday’s riot had been added en masse to the no-fly list, a TSA spokesperson said that “for security reasons we do not discuss the details other than to confirm that there are always multiple layers of security in place” and that “we will accommodate FBI requests and congressional authorizations related to no fly lists.”

The FBI declined to comment for this story.

It’s obviously within airlines’ purview to kick off customers who are disruptive or violate company policies about wearing masks on flights. But trying to add people who were merely present at the Capitol last Wednesday to the FBI’s no-fly list, as Democrats are requesting, raises some serious civil liberties concerns, says Patrick G. Eddington, a research fellow at the Cato Institute.

“Clearly, anyone with an outstanding arrest warrant for the commission of a federal crime would absolutely qualify for inclusion on the official ‘No Fly’ list,” Eddington tells Reason. But “if the person in question entered the Capitol without actually committing a violent act, property destruction, etc., I think putting that person on the “No Fly” or TSA’s “Quiet Skies” selectee list would be wholly incompatible with the [Fourth] Amendment.”

Eddington notes that the FBI has a long history of placing people on the no-fly list who’ve never been accused of a crime. A simple typo can see a person wind up on the list. Up until a few years ago, the government wouldn’t even confirm whether someone had been placed on the no-fly list, let alone offer reasons for why his right to fly was being restricted.

The American Civil Liberties Union (ACLU) has challenged the constitutionality of the no-fly list in multiple lawsuits with mixed success.

In 2014, the group scored an initial victory when a U.S. district court told the federal government it had to tell people if they were on the no-fly list and give them an opportunity to challenge their placement there.

In 2019, the U.S. Court of Appeals for the 9th Circuit sided with the government in another lawsuit brought by the ACLU in which the group argued the government’s new system of notifying people and allowing them to challenge their placement on the no-fly list was still falling short of what the Constitution requires.

After the Pulse nightclub shooting in Orlando, lawmakers from both parties floated proposals to prevent people on the no-fly list from possessing firearms.

“Our nation’s watchlisting system is error-prone and unreliable because it uses vague and overbroad criteria and secret evidence to place individuals on blacklists without a meaningful process to correct government error and clear their names,” said the ACLU at the time in opposition to those efforts.

“I realize that feelings are running very high right now as a result of the insurrectionist mob assault on the Capitol,” says Eddington. “But it’s exactly in times of stress like this that lawmakers and the public usually make bad, constitutionally-violative choices, which is why cooler heads and common sense need to prevail here.”

But with even more “Stop the Steal”-type events planned in D.C. for President-elect Joe Biden’s inauguration, there’s a real possibility that more violence will only cement lawmakers’ desire to redirect blunt war-on-terror-era tools to combat the threat posed by right-wing street mobs.

History would suggest the cooler heads are at a disadvantage in resisting this.

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Millions of Users Are Flooding Encrypted Apps After Social Media Purges

ibpremium894464

Encrypted apps are seeing a surge in downloads, with Signal installs reaching a record high for the company. “Signal saw approximately 7.5 million installs globally through the Apple App Store and Google Play store between Jan. 6 and Jan. 10,” notes CNBC. “That’s 43 times the number from the previous week. It is [the] highest week or even monthly install number for Signal in the app’s history.” Over the same period, 5.6 million people reportedly downloaded Telegram.

These are global download numbers, so we should be careful assigning a too United States-centric cause for them. But the U.S. alone provides multiple plausible reasons why more people might be turning to the privacy of encrypted chats like Signal and Telegram.

Twitter has been booting a ton of accounts in the past week (including @RealDonaldTrump). Many mainstream social media platforms have been extra jumpy about potential conspiracy theories and misinformation, and Parler is temporarily down after Amazon canceled its web hosting account for allegedly not cracking down on this sort of content enough. Meanwhile, federal agencies, local cops, members of the media, and citizen spies have all been combing social sites for evidence of involvement in the Capitol riot or future far-right organizing. Is it any wonder people might be fleeing for less public (and less accessible to officials, even with a court order) alternatives?

And does anyone think the Capitol and U.S. statehouses are now safer, QAnon conspiracies less likely to flourish, or election fraud fever dreams less likely to stir action now that they’ve been driven to less visible platforms with a smaller chance of pushback from dissenting voices, outside discovery, or platform moderation?

“On Telegram, where members of the Proud Boys and other militia groups host popular channels, there have been calls for people to organize for marches on state capitol buildings on Saturday (Jan. 16),” notes The New York Times:

On one Telegram channel, which has over 20,000 followers, addresses were posted for those buildings, as well as the addresses for tech companies, including Facebook, Twitter, Apple and Google.

Members of the Boogaloo movement, another far-right group, have also organized on Telegram and Signal for rallies on Sunday (Jan 17). On 4chan and other messaging groups fliers were posted calling for another march on Washington, D.C., on Jan. 20. In comments under those posts, people have voiced support for targeting various news organizations like The New York Times and CNN.

Encrypted platforms certainly aren’t just for people plotting something nefarious, of course. The apps are very popular among journalists. They’re an economical alternative to text messaging for people with international contacts. And so on.

There are all sorts of benign reasons why these apps might be experiencing a surge right now in particular. For instance, users are reportedly fleeing Facebook-owned WhatsApp over concerns about the company’s privacy policy changes.

Other platforms are losing users due to state censorship and meddling.

WeChat—an app immensely popular in China and among Chinese immigrants elsewhere—is also suffering from a host of issues, including alleged shadowbanning on behalf of Chinese state forces and a simultaneous attempt by the Trump administration to ban it from the U.S.

The situation shows the futility of trying to fix social and political issues by threatening tech platforms that won’t hide evidence of them. The issues and the ideas driving them don’t go away, they just go underground. And the only way to reach them there is to undermine privacy protections for political dissidents from authoritarian regimes, journalists, whistleblowers, all sorts of political organizers, and literally everyone else in the process.

FREE MINDS

Decriminalize prostitution to stop police violence, say sex worker advocates. “More researchers are making the case to decriminalize sex work, joining calls by other advocates who say doing so might improve public health outcomes,” writes Chelsea Cirruzzo at U.S. News & World Report.

Tamika Spellman, a policy and advocacy associate with HIPS, says her worst interactions while she was a sex worker were with the police.

“Everywhere that I have been across the country I have been sexually assaulted by the police,” says Spellman, who is Black and transgender. “It was more frequent here in the District of Columbia.”

“Sex work needs to be decriminalized,” she says. Without doing so, she adds, “violence flourishes.”

ELECTION 2020

The Supreme Court has rejected more challenges to the 2020 election results:

The U.S. Supreme Court on Monday steered clear of more cases involving bids by President Donald Trump and some Republican allies to overturn his election loss and turned away a Democratic effort to expand mail-in voting in Texas.

The justices, as expected, declined to expedite consideration of eight Trump-related cases including three filed by his campaign challenging the election results in Wisconsin and Pennsylvania, two of the states he lost to Democratic President-elect Joe Biden. It already was clear that the court had no intention to intervene because it had not acted before Congress last week certified Biden’s victory in the Nov. 3 election.

QUICK HITS

  • The U.S. has seen around 1.4 million new COVID-19 infections in the past week. The country “averaged more than 3,000 Covid-19 deaths per day” over the past week, notes CNN. “And Monday marked the seventh day in a row the country reported more than 200,000 new Covid-19 infections.”
  • Acting Secretary of Homeland Security Chad Wolf has resigned after multiple courts said his tenure wasn’t legally authorized. “His resignation ensures that the department will have its sixth leader under Trump, who last week withdrew Wolf’s nomination to the Senate,” reports Buzzfeed News. “Pete Gaynor, the acting head of FEMA, will now lead the DHS until the Biden administration takes over next week.”
  • Gene Healy, author of The Cult of the Presidency: America’s Dangerous Devotion to Executive Power and “a long proponent of impeaching more presidents,” makes the case for impeaching Trump.
  • Sedition charges are almost always a terrible idea, warns J.D. Tuccille.
  • Wyoming is getting a Libertarian Party legislator:

  • Young Americans for Liberty (YAL) responds to the multiple allegations of sexual harassment and misconduct, as well as official indifference to it, levied against its leadership and staff. YAL President Cliff Maloney and Vice President of Grassroots Justin Greiss have been placed on administrative leave by the organization’s board.

 

  • U.S. Rep. Pramila Jayapal (D–Wash.) tested positive for COVID-19 yesterday, a result she attributes to “being locked down in a secured room at the U.S Capitol where numerous Republican lawmakers recklessly refused to wear masks in the moments after the January 6 attack.”

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Millions of Users Are Flooding Encrypted Apps After Social Media Purges

ibpremium894464

Encrypted apps are seeing a surge in downloads, with Signal installs reaching a record high for the company. “Signal saw approximately 7.5 million installs globally through the Apple App Store and Google Play store between Jan. 6 and Jan. 10,” notes CNBC. “That’s 43 times the number from the previous week. It is [the] highest week or even monthly install number for Signal in the app’s history.” Over the same period, 5.6 million people reportedly downloaded Telegram.

These are global download numbers, so we should be careful assigning a too United States-centric cause for them. But the U.S. alone provides multiple plausible reasons why more people might be turning to the privacy of encrypted chats like Signal and Telegram.

Twitter has been booting a ton of accounts in the past week (including @RealDonaldTrump). Many mainstream social media platforms have been extra jumpy about potential conspiracy theories and misinformation, and Parler is temporarily down after Amazon canceled its web hosting account for allegedly not cracking down on this sort of content enough. Meanwhile, federal agencies, local cops, members of the media, and citizen spies have all been combing social sites for evidence of involvement in the Capitol riot or future far-right organizing. Is it any wonder people might be fleeing for less public (and less accessible to officials, even with a court order) alternatives?

And does anyone think the Capitol and U.S. statehouses are now safer, QAnon conspiracies less likely to flourish, or election fraud fever dreams less likely to stir action now that they’ve been driven to less visible platforms with a smaller chance of pushback from dissenting voices, outside discovery, or platform moderation?

“On Telegram, where members of the Proud Boys and other militia groups host popular channels, there have been calls for people to organize for marches on state capitol buildings on Saturday (Jan. 16),” notes The New York Times:

On one Telegram channel, which has over 20,000 followers, addresses were posted for those buildings, as well as the addresses for tech companies, including Facebook, Twitter, Apple and Google.

Members of the Boogaloo movement, another far-right group, have also organized on Telegram and Signal for rallies on Sunday (Jan 17). On 4chan and other messaging groups fliers were posted calling for another march on Washington, D.C., on Jan. 20. In comments under those posts, people have voiced support for targeting various news organizations like The New York Times and CNN.

Encrypted platforms certainly aren’t just for people plotting something nefarious, of course. The apps are very popular among journalists. They’re an economical alternative to text messaging for people with international contacts. And so on.

There are all sorts of benign reasons why these apps might be experiencing a surge right now in particular. For instance, users are reportedly fleeing Facebook-owned WhatsApp over concerns about the company’s privacy policy changes.

Other platforms are losing users due to state censorship and meddling.

WeChat—an app immensely popular in China and among Chinese immigrants elsewhere—is also suffering from a host of issues, including alleged shadowbanning on behalf of Chinese state forces and a simultaneous attempt by the Trump administration to ban it from the U.S.

The situation shows the futility of trying to fix social and political issues by threatening tech platforms that won’t hide evidence of them. The issues and the ideas driving them don’t go away, they just go underground. And the only way to reach them there is to undermine privacy protections for political dissidents from authoritarian regimes, journalists, whistleblowers, all sorts of political organizers, and literally everyone else in the process.

FREE MINDS

Decriminalize prostitution to stop police violence, say sex worker advocates. “More researchers are making the case to decriminalize sex work, joining calls by other advocates who say doing so might improve public health outcomes,” writes Chelsea Cirruzzo at U.S. News & World Report.

Tamika Spellman, a policy and advocacy associate with HIPS, says her worst interactions while she was a sex worker were with the police.

“Everywhere that I have been across the country I have been sexually assaulted by the police,” says Spellman, who is Black and transgender. “It was more frequent here in the District of Columbia.”

“Sex work needs to be decriminalized,” she says. Without doing so, she adds, “violence flourishes.”

ELECTION 2020

The Supreme Court has rejected more challenges to the 2020 election results:

The U.S. Supreme Court on Monday steered clear of more cases involving bids by President Donald Trump and some Republican allies to overturn his election loss and turned away a Democratic effort to expand mail-in voting in Texas.

The justices, as expected, declined to expedite consideration of eight Trump-related cases including three filed by his campaign challenging the election results in Wisconsin and Pennsylvania, two of the states he lost to Democratic President-elect Joe Biden. It already was clear that the court had no intention to intervene because it had not acted before Congress last week certified Biden’s victory in the Nov. 3 election.

QUICK HITS

  • The U.S. has seen around 1.4 million new COVID-19 infections in the past week. The country “averaged more than 3,000 Covid-19 deaths per day” over the past week, notes CNN. “And Monday marked the seventh day in a row the country reported more than 200,000 new Covid-19 infections.”
  • Acting Secretary of Homeland Security Chad Wolf has resigned after multiple courts said his tenure wasn’t legally authorized. “His resignation ensures that the department will have its sixth leader under Trump, who last week withdrew Wolf’s nomination to the Senate,” reports Buzzfeed News. “Pete Gaynor, the acting head of FEMA, will now lead the DHS until the Biden administration takes over next week.”
  • Gene Healy, author of The Cult of the Presidency: America’s Dangerous Devotion to Executive Power and “a long proponent of impeaching more presidents,” makes the case for impeaching Trump.
  • Sedition charges are almost always a terrible idea, warns J.D. Tuccille.
  • Wyoming is getting a Libertarian Party legislator:

  • Young Americans for Liberty (YAL) responds to the multiple allegations of sexual harassment and misconduct, as well as official indifference to it, levied against its leadership and staff. YAL President Cliff Maloney and Vice President of Grassroots Justin Greiss have been placed on administrative leave by the organization’s board.

 

  • U.S. Rep. Pramila Jayapal (D–Wash.) tested positive for COVID-19 yesterday, a result she attributes to “being locked down in a secured room at the U.S Capitol where numerous Republican lawmakers recklessly refused to wear masks in the moments after the January 6 attack.”

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Embattled Administration Pushes Midnight Controls on Financial Tech

bitcoinsanddollars_1161x653

Well, that was quite a week, wasn’t it? As I write, it’s a little unclear who is running the country right now, as the putative executive does not seem to be doing much executing—let alone communicating—these days. What is clear is that the real engine of the state, the administrative apparatus, is still chugging along just fine. Unelected bureaucrats continue to roll out significant regulations not only during a lame duck period, but amidst an apparent regime crisis to boot.

Even during normal times, outgoing administrations push through last-minute rules while they still have power. These are called “midnight regulations,” and they often include particularly sweeping and onerous rules that might not otherwise pass muster. You can view the midnight regulation phenomenon easily on a graph: like clockwork, rules will spike in the last year of an administration.

It’s easy to see why midnight regulations occur. An administration will only be in power for so much longer. They want to be able to push whatever last effort controls they can before they are pushed out the door. Since they don’t have much time, the rules will tend to be sloppy and receive less vetting than they otherwise would. And because the declining regime will really want to make things stick, they may reach farther than they did before they were racing against the clock. It’s “one more good one for the road” thinking.

It’s a bit remarkable to see midnight regulations still being promulgated during an apparent crisis of regime legitimacy, however. The chaos is not stopping government bodies from rolling out new controls on technology.

The most egregious is probably the Treasury Department’s proposed expansion of financial surveillance on cryptocurrency. The rules would require warrantless data collection on the senders and recipients of cryptocurrency transactions over $3,000 when involving users that choose to host their own wallets.

Expanding government financial surveillance is obviously horrible for privacy. It also saddles cryptocurrency users with a massive security risk. Just a few weeks ago, we learned that the Treasury Department had succumbed to a major cyberattack. The government can’t keep its systems secure, yet it wants to have access to even more of our data. Want to keep data safe? Don’t collect it in the first place.

Not only is this proposal an inconsistent expansion of the already constitutionally-questionable Bank Secrecy Act, what I call “the PATRIOT Act for money,” it afforded an insulting fifteen days over the Christmas break for the millions of affected cryptocurrency users to comment on the controls.

Even worse, the Treasury Department apparently miscalculated the comment deadline given the number of days they had afforded the public. Rather than openly admitting their mistake and advertising that the public would have three extra days to comment, the agency just quietly changed the due date on the Federal Register website.

The cherry on top: the Treasury Department may not even have the authority to issue these rules in the first place according to the very statutes it invokes in its own proposal. Peter Van Valkenburgh and Jerry Brito of Coin Center point out that the Treasury Department may be making up powers out of thin air that rightfully are vested in Congress. Not only is this a midnight regulation, it’s a midnight power grab.

The administration has also pushed through midnight controls on foreign technology companies during its maimed duck period. There was the post-election order to de-list certain Chinese companies from the New York Stock Exchange that was a-go, then reversed, and then eventually reinstated over the holiday break. On the same week that the Capitol melted down, the White House banned Chinese payment apps like Alipay and WeChat Pay for the financial surveillance risk it posed to Americans.

The concerns that underlie these rules are not misguided. It is true that the Chinese Communist Party has close connections with some of its largest companies and that its influence can be wielded against Americans.

One problem is that these rules are shaped by midnight thinking. The China hawks in the Trump administration probably hope to head off the policies of the more China-friendly Biden administration. These last-minute rules might put up some temporary barriers, but because they are so rushed, they are almost surely not the best ways to achieve the intended aims.

Consider the Chinese financial app ban. It’s ironic that the U.S. government would ban certain apps for financial surveillance risks at the same time that it proposes midnight controls on cryptocurrency technologies to expand financial surveillance. It’s not even a question about whether it’s better that the American or Chinese government has your financial data: the Chinese could (and maybe already have) hacked the financial datasets that American banks and agencies are required to store. In other words, the rule is more about geopolitical maneuvering than an earnest attempt to protect Americans from financial surveillance risks.

Not all of the last-minute rules from the waning Trump administration have been bad. Personnel, as they say, is policy. The Office of the Comptroller of the Currency has been a rare bright spot for forward-looking financial technology policy. Two days before the Capitol siege, acting director Brian Brooks issued a letter giving the green light to banks to use public blockchains and “stablecoins,” or cryptocurrencies pegged to some external value like the dollar, to store or validate payments.

This is a great idea on its own merits. Public blockchains can provide cheap, efficient, and secure settlement for banks. But the timing of this ruling may have been motivated by the acting director’s waning chances for re-appointment before January 20. Additionally, allies of the incoming administration have virtually declared war on stablecoins through such measures as the STABLE Act, which could make it illegal to run certain kinds of cryptocurrency nodes. This is the policy calculus of a power transition.

There is a deeper irony that has revealed itself in this crisis of regime legitimacy. The president and his supporters find themselves virtually locked out of the public sphere through a series of deplatformings by vendors and service providers. Even when an outer party member does manage to “build their own Twitter,” they quickly discover that hosts, payment processors, and even domain services refuse to support their alternatives.

This deplatforming trend will continue and expand against more groups globally; others will seek to wield this power for their own advantage. Trusted third parties are security holes.

Bitcoin, and other distributed technologies that have been targeted by the Trump administration, were created specifically to provide a censorship resistant means to send data and money online. Trump and his supporters should hope that these cryptocurrency controls don’t take hold: their continued operations online may soon depend on distributed tech like Bitcoin.

from Latest – Reason.com https://ift.tt/3qei7CM
via IFTTT

Embattled Administration Pushes Midnight Controls on Financial Tech

bitcoinsanddollars_1161x653

Well, that was quite a week, wasn’t it? As I write, it’s a little unclear who is running the country right now, as the putative executive does not seem to be doing much executing—let alone communicating—these days. What is clear is that the real engine of the state, the administrative apparatus, is still chugging along just fine. Unelected bureaucrats continue to roll out significant regulations not only during a lame duck period, but amidst an apparent regime crisis to boot.

Even during normal times, outgoing administrations push through last-minute rules while they still have power. These are called “midnight regulations,” and they often include particularly sweeping and onerous rules that might not otherwise pass muster. You can view the midnight regulation phenomenon easily on a graph: like clockwork, rules will spike in the last year of an administration.

It’s easy to see why midnight regulations occur. An administration will only be in power for so much longer. They want to be able to push whatever last effort controls they can before they are pushed out the door. Since they don’t have much time, the rules will tend to be sloppy and receive less vetting than they otherwise would. And because the declining regime will really want to make things stick, they may reach farther than they did before they were racing against the clock. It’s “one more good one for the road” thinking.

It’s a bit remarkable to see midnight regulations still being promulgated during an apparent crisis of regime legitimacy, however. The chaos is not stopping government bodies from rolling out new controls on technology.

The most egregious is probably the Treasury Department’s proposed expansion of financial surveillance on cryptocurrency. The rules would require warrantless data collection on the senders and recipients of cryptocurrency transactions over $3,000 when involving users that choose to host their own wallets.

Expanding government financial surveillance is obviously horrible for privacy. It also saddles cryptocurrency users with a massive security risk. Just a few weeks ago, we learned that the Treasury Department had succumbed to a major cyberattack. The government can’t keep its systems secure, yet it wants to have access to even more of our data. Want to keep data safe? Don’t collect it in the first place.

Not only is this proposal an inconsistent expansion of the already constitutionally-questionable Bank Secrecy Act, what I call “the PATRIOT Act for money,” it afforded an insulting fifteen days over the Christmas break for the millions of affected cryptocurrency users to comment on the controls.

Even worse, the Treasury Department apparently miscalculated the comment deadline given the number of days they had afforded the public. Rather than openly admitting their mistake and advertising that the public would have three extra days to comment, the agency just quietly changed the due date on the Federal Register website.

The cherry on top: the Treasury Department may not even have the authority to issue these rules in the first place according to the very statutes it invokes in its own proposal. Peter Van Valkenburgh and Jerry Brito of Coin Center point out that the Treasury Department may be making up powers out of thin air that rightfully are vested in Congress. Not only is this a midnight regulation, it’s a midnight power grab.

The administration has also pushed through midnight controls on foreign technology companies during its maimed duck period. There was the post-election order to de-list certain Chinese companies from the New York Stock Exchange that was a-go, then reversed, and then eventually reinstated over the holiday break. On the same week that the Capitol melted down, the White House banned Chinese payment apps like Alipay and WeChat Pay for the financial surveillance risk it posed to Americans.

The concerns that underlie these rules are not misguided. It is true that the Chinese Communist Party has close connections with some of its largest companies and that its influence can be wielded against Americans.

One problem is that these rules are shaped by midnight thinking. The China hawks in the Trump administration probably hope to head off the policies of the more China-friendly Biden administration. These last-minute rules might put up some temporary barriers, but because they are so rushed, they are almost surely not the best ways to achieve the intended aims.

Consider the Chinese financial app ban. It’s ironic that the U.S. government would ban certain apps for financial surveillance risks at the same time that it proposes midnight controls on cryptocurrency technologies to expand financial surveillance. It’s not even a question about whether it’s better that the American or Chinese government has your financial data: the Chinese could (and maybe already have) hacked the financial datasets that American banks and agencies are required to store. In other words, the rule is more about geopolitical maneuvering than an earnest attempt to protect Americans from financial surveillance risks.

Not all of the last-minute rules from the waning Trump administration have been bad. Personnel, as they say, is policy. The Office of the Comptroller of the Currency has been a rare bright spot for forward-looking financial technology policy. Two days before the Capitol siege, acting director Brian Brooks issued a letter giving the green light to banks to use public blockchains and “stablecoins,” or cryptocurrencies pegged to some external value like the dollar, to store or validate payments.

This is a great idea on its own merits. Public blockchains can provide cheap, efficient, and secure settlement for banks. But the timing of this ruling may have been motivated by the acting director’s waning chances for re-appointment before January 20. Additionally, allies of the incoming administration have virtually declared war on stablecoins through such measures as the STABLE Act, which could make it illegal to run certain kinds of cryptocurrency nodes. This is the policy calculus of a power transition.

There is a deeper irony that has revealed itself in this crisis of regime legitimacy. The president and his supporters find themselves virtually locked out of the public sphere through a series of deplatformings by vendors and service providers. Even when an outer party member does manage to “build their own Twitter,” they quickly discover that hosts, payment processors, and even domain services refuse to support their alternatives.

This deplatforming trend will continue and expand against more groups globally; others will seek to wield this power for their own advantage. Trusted third parties are security holes.

Bitcoin, and other distributed technologies that have been targeted by the Trump administration, were created specifically to provide a censorship resistant means to send data and money online. Trump and his supporters should hope that these cryptocurrency controls don’t take hold: their continued operations online may soon depend on distributed tech like Bitcoin.

from Latest – Reason.com https://ift.tt/3qei7CM
via IFTTT

Embattled Administration Pushes Midnight Controls on Financial Tech

bitcoinsanddollars_1161x653

Well, that was quite a week, wasn’t it? As I write, it’s a little unclear who is running the country right now, as the putative executive does not seem to be doing much executing—let alone communicating—these days. What is clear is that the real engine of the state, the administrative apparatus, is still chugging along just fine. Unelected bureaucrats continue to roll out significant regulations not only during a lame duck period, but amidst an apparent regime crisis to boot.

Even during normal times, outgoing administrations push through last-minute rules while they still have power. These are called “midnight regulations,” and they often include particularly sweeping and onerous rules that might not otherwise pass muster. You can view the midnight regulation phenomenon easily on a graph: like clockwork, rules will spike in the last year of an administration.

It’s easy to see why midnight regulations occur. An administration will only be in power for so much longer. They want to be able to push whatever last effort controls they can before they are pushed out the door. Since they don’t have much time, the rules will tend to be sloppy and receive less vetting than they otherwise would. And because the declining regime will really want to make things stick, they may reach farther than they did before they were racing against the clock. It’s “one more good one for the road” thinking.

It’s a bit remarkable to see midnight regulations still being promulgated during an apparent crisis of regime legitimacy, however. The chaos is not stopping government bodies from rolling out new controls on technology.

The most egregious is probably the Treasury Department’s proposed expansion of financial surveillance on cryptocurrency. The rules would require warrantless data collection on the senders and recipients of cryptocurrency transactions over $3,000 when involving users that choose to host their own wallets.

Expanding government financial surveillance is obviously horrible for privacy. It also saddles cryptocurrency users with a massive security risk. Just a few weeks ago, we learned that the Treasury Department had succumbed to a major cyberattack. The government can’t keep its systems secure, yet it wants to have access to even more of our data. Want to keep data safe? Don’t collect it in the first place.

Not only is this proposal an inconsistent expansion of the already constitutionally-questionable Bank Secrecy Act, what I call “the PATRIOT Act for money,” it afforded an insulting fifteen days over the Christmas break for the millions of affected cryptocurrency users to comment on the controls.

Even worse, the Treasury Department apparently miscalculated the comment deadline given the number of days they had afforded the public. Rather than openly admitting their mistake and advertising that the public would have three extra days to comment, the agency just quietly changed the due date on the Federal Register website.

The cherry on top: the Treasury Department may not even have the authority to issue these rules in the first place according to the very statutes it invokes in its own proposal. Peter Van Valkenburgh and Jerry Brito of Coin Center point out that the Treasury Department may be making up powers out of thin air that rightfully are vested in Congress. Not only is this a midnight regulation, it’s a midnight power grab.

The administration has also pushed through midnight controls on foreign technology companies during its maimed duck period. There was the post-election order to de-list certain Chinese companies from the New York Stock Exchange that was a-go, then reversed, and then eventually reinstated over the holiday break. On the same week that the Capitol melted down, the White House banned Chinese payment apps like Alipay and WeChat Pay for the financial surveillance risk it posed to Americans.

The concerns that underlie these rules are not misguided. It is true that the Chinese Communist Party has close connections with some of its largest companies and that its influence can be wielded against Americans.

One problem is that these rules are shaped by midnight thinking. The China hawks in the Trump administration probably hope to head off the policies of the more China-friendly Biden administration. These last-minute rules might put up some temporary barriers, but because they are so rushed, they are almost surely not the best ways to achieve the intended aims.

Consider the Chinese financial app ban. It’s ironic that the U.S. government would ban certain apps for financial surveillance risks at the same time that it proposes midnight controls on cryptocurrency technologies to expand financial surveillance. It’s not even a question about whether it’s better that the American or Chinese government has your financial data: the Chinese could (and maybe already have) hacked the financial datasets that American banks and agencies are required to store. In other words, the rule is more about geopolitical maneuvering than an earnest attempt to protect Americans from financial surveillance risks.

Not all of the last-minute rules from the waning Trump administration have been bad. Personnel, as they say, is policy. The Office of the Comptroller of the Currency has been a rare bright spot for forward-looking financial technology policy. Two days before the Capitol siege, acting director Brian Brooks issued a letter giving the green light to banks to use public blockchains and “stablecoins,” or cryptocurrencies pegged to some external value like the dollar, to store or validate payments.

This is a great idea on its own merits. Public blockchains can provide cheap, efficient, and secure settlement for banks. But the timing of this ruling may have been motivated by the acting director’s waning chances for re-appointment before January 20. Additionally, allies of the incoming administration have virtually declared war on stablecoins through such measures as the STABLE Act, which could make it illegal to run certain kinds of cryptocurrency nodes. This is the policy calculus of a power transition.

There is a deeper irony that has revealed itself in this crisis of regime legitimacy. The president and his supporters find themselves virtually locked out of the public sphere through a series of deplatformings by vendors and service providers. Even when an outer party member does manage to “build their own Twitter,” they quickly discover that hosts, payment processors, and even domain services refuse to support their alternatives.

This deplatforming trend will continue and expand against more groups globally; others will seek to wield this power for their own advantage. Trusted third parties are security holes.

Bitcoin, and other distributed technologies that have been targeted by the Trump administration, were created specifically to provide a censorship resistant means to send data and money online. Trump and his supporters should hope that these cryptocurrency controls don’t take hold: their continued operations online may soon depend on distributed tech like Bitcoin.

from Latest – Reason.com https://ift.tt/3qei7CM
via IFTTT