Lindsey

The White House’s consequential decision to set a lower “discount rate,” explained.

Last week, the Office of Management and Budget (OMB) — the White House office in charge of implementing the president’s vision — made a little-noticed policy move that could have huge implications.

In a circular that updated previous guidance on regulatory analysis, OMB lowered the “discount rate” for the future.

I know that’s a deeply wonky collection of words, so let me break it down.

The discount rate basically tells us how to value the future versus the present — and thus has tremendous implications for the policies we enact today. That’s essentially what OMB is saying with a lower discount rate: that we, the people of this moment, need to value future generations more when making policy.

Another way to think about it: Say that the government is choosing between two infrastructure policies. One will deliver benefits to the public sooner — it’s expected to be worth $50 to each taxpayer in two years. The other will deliver larger benefits, but take longer to pay out — it’s expected to be worth $100 to each taxpayer, but not for another 10 years.

Which of these is a “better” policy?

Discount rates, explained

Economists attempt to answer this question with the discount rate, which is basically a factor for how to calculate the value of future money in the present day.

If you would rather have $100 now than $110 next year, that money is worth 10 percent more to you in the future, because you’ll take a 10 percent discount rate to have it now.

If it’s generally true of you that you’d pay $100 now for no less than $110 next year, then you’ll prefer the project with the public benefits that will be worth $50 to each taxpayer in two years over the project that’ll be worth $100 to each taxpayer in 10 years.

But if your discount rate is much lower — say, if you would be willing to pay $100 now for $102 next year — then you’d probably prefer the policy that delivers larger benefits in the longer term.

High discount rates mean that we, as a society, are willing to trade off the future for the present: that we’ll generally prefer policies that benefit us now over policies with long-term benefits that won’t be realized immediately. Low discount rates mean that we, as a society, are willing to make investments that won’t be realized for a long time.

So what discount rate to use in public policy analysis is a fairly important question.

Using interest rates to decide how much we care about the future

Financial markets need to answer the question, “How much is money later worth right now?” all the time, because they buy and sell government and corporate bonds with payouts at various points in the future, and which are bought and sold on the open market.

Discount rates aren’t the same thing as market interest rates, but there’s reason to think of market interest rates as the best way we have of answering what would otherwise be a bit of an unanswerable philosophical question.

Buying a 10-year government bond is a way of getting more money in the future in exchange for having less money now, so the interest that people demand on those bonds approximates how much they need to be paid later to give up money right now.

“Discount rates should be based on market prices, specifically interest rates, because those reflect the alternative choices that agents have for moving resources between the present and future,” Harvard economist Jason Furman, former chair of the Council of Economic Advisers under President Obama, argued recently.

Interest rates (that is, the inflation-adjusted return on a 10-year Treasury bond) fluctuate. But a 30-year average of interest rates shows that they’re steadily falling. In 2010, a 30-year average of real interest rates was at about 4 percent. Now, that average is 1.7 percent, and projected to fall further.

When regulators make decisions that require a cost-benefit analysis, they use a discount rate that’s based on these interest rates — a rate that OMB sets. The discount rate they currently use is 3 percent, which was selected 20 years ago, based on a 30-year average of the inflation-adjusted return on a 10-year Treasury at the time.

This week, the White House announced an update that, if finalized after a public comment period, will set the figure at 1.7 percent.

Technicalities that really matter

This may all seem fairly in the weeds. But these small decisions affect how huge amounts of money get spent. Projects get approved, or die, on the basis of cost-benefit analyses that have for the last two decades used a 3 percent interest rate.

There are potentially a lot of future-oriented projects that pass a cost-benefit analysis at a 1.7 percent interest rate and not at a 3 percent interest rate. Three percent might not sound steep, but it adds up.

To take one example of how incremental changes to the discount rate can be hugely consequential: The social cost of carbon is the number policymakers use to estimate the damage caused to the future by carbon emissions today. Under a discount rate of 5 percent, the social cost of one metric ton of emission in 2025 is $17; under a 3 percent discount rate, it’s $56; under a 2.5 percent discount rate, it’s $83. Just a small shift to a lower discount rate significantly changes what trade-offs we are willing to make — because with a lower discount rate, we care more about the effects of carbon on the world our grandchildren live in.

Beyond the discount rate discussion, there’s some really good stuff in the analysis published by the OMB. For the first time, its discussion of how to set discount rates includes a discussion of catastrophic risks — that is, risks that imperil our whole civilization, like a devastating pandemic or nuclear war — and allows regulators to take the effects of disaster on future generations into account while setting policy.

It also allows for regulators to take into account the effects of their policies on people in other countries — a low-key momentous shift. Meanwhile, in the discussion of long-term discounting, OMB cites moral philosopher Derek Parfit’s Reasons and Persons. It’s a degree of consideration of the ethical implications of these regulatory changes which I didn’t expect, and was pleasantly surprised by.

Overall, I think the changes proposed will make it much easier for regulators to consider the full scope, and full stakes, of their choices.

We all have an instinct that it’s worth, sometimes, investing now for a better future, planting trees whose shade we will never sit in, thinking harder about what world we’ll leave our grandchildren.

The details of implementing that can easily get intimidating. Most people don’t have any intuitions about whether to use a 10-year or a 30-year rolling average of real interest rates to set the government’s standards for a cost-benefit analysis.

But it’s in these government standards that many of our society’s real priorities get set — and this OMB’s move on the discount rate amounts to a declaration that we need to value the future even more when making policy today.

A version of this story was initially published in the Future Perfect newsletter. Sign up here to subscribe!

Read 5 remaining paragraphs | Comments

You might recall that the FCC under both Trump and Biden has made a big deal about forcing U.S. telecoms to rip out Huawei gear from their networks, under the allegation that the gear is used to spy on Americans (you’re to ignore, of course, that the United States spies on everyone, constantly, and has broadly supported backdooring all manner of sensitive telecom products globally).

The efforts aren’t going so hot. U.S. ISPs that began yanking cheaper Chinese gear out of the networks say they’re only getting about forty percent of the money they need from the government to actually complete the job, (including destroying the gear so it’s not re-used):

Congress last year allocated about $1.9 billion for its Secure and Trusted Communications Networks Reimbursement Program, widely known in the telecom industry as the “rip and replace” program because participants are charged with ripping out Huawei and ZTE equipment and replacing it with “trusted” equipment from companies such as Ericsson, Nokia and Mavenir. However, dozens of mostly smaller US network operators participating in the effort believe that far more funding is needed – roughly $3.1 billion more – to finish the job.

While bigger ISPs can eat the costs of completely revamping their networks in this fashion, it’s a bigger issue for smaller ISPs already struggling to get by. Only $41 million of this $1.9 billion effort had been doled out as of the beginning of this year, and participants in the program say program administrator’s decision to only answer questions via email has slowed things down further.

Add to this COVID-era supply chain and labor issues, and actually doing what the government planned has proven both costly and cumbersome. Michigan Senator Gary Peters and FCC Commissioner Geoffrey Starks recently penned an editorial begging Congress for the money to complete the job, though this is the same Congress that just let the FCC’s spectrum auction authority lapse for no coherent reason.

While getting Chinese-made gear out of U.S. networks isn’t a terrible idea, you can see how the U.S. government may not be competent enough to actually walk the talk.

Clearly nobody really planned this “rip and replace” effort out well enough to actually fund it. And confirming that ISPs spend money sensibly and ethically also isn’t really the FCC’s strong suit.

This is of course all being overshadowed by the great TikTok moral panic of 2023, which sucked most of the oxygen policy out of the room, despite the fact that a ban of the social media app wouldn’t actually accomplish all that much. FCC Commissioners like Brendan Carr have gotten oodles of cable TV news attention for freaking out about TikTok, yet he’s been relatively quiet on this issue he actually regulates.

Meanwhile these expensive, incomplete efforts to combat Chinese surveillance of Americans still can’t seemingly convince Congress to actually pass a privacy law or regulate data brokers, something Chinese intelligence easily exploits. So yes, an impressive job all around.

Read 11 remaining paragraphs | Comments

Ever since Tesla first made the news, I had thought it would be a great car to own. The last few years have really disabused me of that notion, given the serious questions raised about the integrity of the company’s CEO. But even so, I’m pretty shocked by this latest Reuters report detailing how Tesla employees regularly would not only view images from Tesla’s built in cameras, but also make jokes and memes out of them and share them around the office.

This is the kind of behavior you’d expect in an late 90s dot com bubble era startup before it got serious, but Tesla is big enough and prominent enough that it is seriously troubling to learn it does not have basic controls to prevent this sort of privacy invasion:

But between 2019 and 2022, groups of Tesla employees privately shared via an internal messaging system sometimes highly invasive videos and images recorded by customers’ car cameras, according to interviews by Reuters with nine former employees.

Some of the recordings caught Tesla customers in embarrassing situations. One ex-employee described a video of a man approaching a vehicle completely naked.

Also shared: crashes and road-rage incidents. One crash video in 2021 showed a Tesla driving at high speed in a residential area hitting a child riding a bike, according to another ex-employee. The child flew in one direction, the bike in another. The video spread around a Tesla office in San Mateo, California, via private one-on-one chats, “like wildfire,” the ex-employee said.

Other images were more mundane, such as pictures of dogs and funny road signs that employees made into memes by embellishing them with amusing captions or commentary, before posting them in private group chats. While some postings were only shared between two employees, others could be seen by scores of them, according to several ex-employees.

Serious, professional companies put in place controls and security systems to prevent this sort of thing, because if they don’t, everyone knows what will happen — which is exactly what appears to have happened in the Elon Musk-led company.

I guess it shouldn’t be a surprise at all that a company run by a guy with the maturity of a insecure 15-year-old would not really give two shits about people’s privacy and make jokes and pass around private videos. Of course, fair play: it looks like the Tesla employees also spied on Elon Musk’s own garage.

The boss’s lax attitude towards anyone else’s rights or concerns seems to have trickled down to his employees:

Two ex-employees said they weren’t bothered by the sharing of images, saying that customers had given their consent or that people long ago had given up any reasonable expectation of keeping personal data private.

Indeed, the Reuters report seems to suggest that the boss’s obsession with memes and stupid, sophomoric jokes was encouraged among the young people at the office:

Tesla staffed its San Mateo office with mostly young workers, in their 20s and early 30s, who brought with them a culture that prized entertaining memes and viral online content. Former staffers described a free-wheeling atmosphere in chat rooms with workers exchanging jokes about images they viewed while labeling.

According to several ex-employees, some labelers shared screenshots, sometimes marked up using Adobe Photoshop, in private group chats on Mattermost, Tesla’s internal messaging system. There they would attract responses from other workers and managers. Participants would also add their own marked-up images, jokes or emojis to keep the conversation going. Some of the emojis were custom-created to reference office inside jokes, several ex-employees said.

One former labeler described sharing images as a way to “break the monotony.” Another described how the sharing won admiration from peers.

“If you saw something cool that would get a reaction, you post it, right, and then later, on break, people would come up to you and say, ‘Oh, I saw what you posted. That was funny,’” said this former labeler. “People who got promoted to lead positions shared a lot of these funny items and gained notoriety for being funny.”

Literally: the privacy of Tesla owners is a joke to Tesla employees. Thankfully, at least some people who worked there had a conscience.

“It was a breach of privacy, to be honest. And I always joked that I would never buy a Tesla after seeing how they treated some of these people,” said one former employee.

Another said: “I’m bothered by it because the people who buy the car, I don’t think they know that their privacy is, like, not respected … We could see them doing laundry and really intimate things. We could see their kids.”

One former employee saw nothing wrong with sharing images, but described a function that allowed data labelers to view the location of recordings on Google Maps as a “massive invasion of privacy.”

Later on in the story, we get at least a few more Tesla employees with a conscience:

In interviews, two former employees said in their normal work duties they were sometimes asked to view images of customers in and around their homes, including inside garages.

“I sometimes wondered if these people know that we’re seeing that,” said one.

“I saw some scandalous stuff sometimes, you know, like I did see scenes of intimacy but not nudity,” said another. “And there was just definitely a lot of stuff that like, I wouldn’t want anybody to see about my life.”

As an example, this person recalled seeing “embarrassing objects,” such as “certain pieces of laundry, certain sexual wellness items … and just private scenes of life that we really were privy to because the car was charging.”

And, clearly, someone who saw all this reported it to the Reuters journalists.

This does raise questions about whether or not this use of the images and videos violates various regulations around data protection and privacy. While the US doesn’t have a federal privacy law, there are some state privacy laws in effect that this might violate, and the FTC usually doesn’t take kindly to the idea that data is used for purposes that the consumer did not realize they were consenting too. And it seems like the head of the FTC is already none too pleased with Elon Musk.

But, of course, there may be more serious problems in the EU where this would likely raise some big GDPR concerns. While I have many issues with the GDPR, at the very least this seems like exactly what that law is supposed to prevent.

Incredibly, the article ends by noting top performing data labelers could win the use of a Tesla for a day or two (it’s not like Tesla paid its data labelers enough to afford its cars themselves), but some of those who won felt uncomfortable claiming the prize, as they worried about invasions of their own privacy.

I often think that many of the privacy concerns people discuss regarding the internet are totally overblown. People don’t mind sharing certain data in exchange for something valuable, but the key elements for dealing with privacy is that users should (1) understand the trade-offs involved, with knowledge of what data they’re giving up and what concrete benefit they’re getting in exchange, and (2) they should have some control and visibility into that data to make sure that the trade-offs remain aligned.

I can’t see how Tesla employees making memes of the images and videos they took inside people’s garages of occasionally intimate and private situations, even when the car is off, meets any of those criteria.

Georgetown Heritage will resume its public boat rides along the C&O Canal on May 5. That’s two years earlier than previously reported last fall, when it was still unclear whether a tentative multi-year restoration project along the canal would have to cancel this entire season. While that project, spearheaded by the National Park Service, is […]

The post C&O Canal Boat Tours Are Back for the Season Starting May 5 first appeared on Washingtonian.

Rising demand has collided with restricted supply — with consequences for millions of patients.

Six months after the Food and Drug Administration first announced a shortage of the ADHD drug Adderall and its generic variations, a steady stream of reports shows patients are still struggling to obtain a medication that can be essential for leading a normal and productive life.

Adderall might seem like just one of many drugs that it’s been increasingly difficult to get. Drug shortages are becoming increasingly common in the United States, and on average, lasting longer. Typically, these shortages are, essentially, a supply chain problem: When one drug company experiences a shortage because of supply problems with raw materials, for example, there is little capacity in the market to make up for that shortfall.

But the explanation for the persistent Adderall shortage is more complicated. While it began with manufacturing problems, the picture has muddied over the past few months. Currently, four different companies are reporting shortages of the drug. Their reasons include a shortage of its active ingredient due in part to the unusual way in which Adderall is regulated, and an increase in demand.

Drug shortages are almost always the result of too little supply, not too much demand. But while artificial limits on supply are undoubtedly contributing to the shortage, the growing demand for Adderall is unique. As the medical science on ADHD has evolved, doctors now better understand how ADHD manifests at different ages and are better able to identify when a patient may be dealing with the disorder and, therefore, when Adderall or another stimulant medication may be an appropriate treatment.

For most medical conditions, an increase in the number of people diagnosed would not create new barriers (other than market constraints) to manufacturing more medications for the people who need treatment. But what’s different about ADHD is that the first-line treatment is a stimulant drug with the potential for misuse or addiction — and so it’s a matter not just for pharmaceutical companies but for law enforcement. The Drug Enforcement Agency has hedged on the side of keeping production of these drugs down to limit the potential for abuse.

The fear is that Adderall would follow the same path as opioid painkillers: careless overprescribing would lead to an epidemic of drug addiction — this time, to stimulants.

The current shortage is the result of rising demand colliding with restricted supply, with consequences for millions of patients.

“People are raising the question, ‘Why is Adderall being put in the same category as the opiates?’” Dr. Max Wiznitzer, who advises the ADHD advocacy group CHADD and practices in the Cleveland area, told me. “It’s not where the science is. They’re so stuck on what it has been, they’re not necessarily asking themselves where the science is pointing now.”

The Adderall shortage could be an opportunity to change how the country at large views this condition and the medication to treat it. But institutional inertia, and the shadow of the opioid crisis, is standing in the way.

How has our understanding of ADHD evolved?

The modern scientific understanding of ADHD is commonly associated with George Still, a British pediatrician who in a series of lectures in 1902 described children who were showing symptoms of hyperactivity, impulsivity, and inattention and referred to their condition as a “defect of moral control.” The children were said to suffer from poor academic performance and other behavioral problems.

In the following decades, medical science’s understanding of the disorder advanced from blaming “moral defects” to brain damage to understanding that a deficit of certain neurotransmitters, particularly dopamine, contributes to the disorder’s telltale symptoms.

“As time went on, we had science tell us, it wasn’t that people were doing something wrong,” Wiznitzer said. “It was a product of how their brains were built.”

As ADHD became more widely accepted as a distinct clinical disorder, rather than a result of poor parenting or a byproduct of another condition, the medical community began investigating more treatments. Ritalin had first been approved by the FDA in the 1950s, but it requires more frequent dosing to have a sustained effect.

Adderall was approved in 1996 and would soon become the most commonly prescribed treatment for ADHD, though Ritalin and several other drugs remain in use. A few years later, an extended-release version of the drug — intended to be less prone to abuse — was put on the market.

According to the Centers for Disease Control and Prevention (CDC), approximately 6 million children ages 3 to 17 (about 9.8 percent of children in the United States) have been diagnosed with ADHD as of 2019. Boys are about twice as likely to be diagnosed with the condition as girls.

National surveys have varied in their estimates of how many US adults have ADHD, with figures ranging from 1 to 4 percent, but the trend is consistent: The share who have been diagnosed is going up. A new estimate published in 2022 by researchers from the Oregon Health and Science University put the percentage of the total US population with ADHD at 3.5 percent.

According to IQVIA, a health care data and analytics company, about 41.4 million prescriptions for Adderall were dispensed in the US in 2021. Not every prescription is for a unique individual, but those data suggest that millions of Americans are relying on the drug to moderate their ADHD symptoms.

But that suddenly became more difficult when, in October 2022, the Adderall shortage began.

How does the federal government limit Adderall production?

The reasons for drug shortages can be difficult to divine. Manufacturers are not mandated to report the reasons for a drug shortage and any public information they do provide can be vague.

That has proven true with the Adderall shortage too. However, experts say that the role of the federal government in regulating one of Adderall’s active ingredients makes this shortage distinct.

One of the active ingredients in Adderall is amphetamine, and therefore the drug is regulated as a controlled substance under federal law. Its potential for abuse has long been recognized, with the cliche example being college students taking the drug to help them study. A 2018 study by federal researchers found that about 5 million Americans misused a prescribed stimulant, of which Adderall is the most common, at least once in the past year; about 400,000 misused stimulant drugs frequently enough to be characterized as having a disorder. (About 2.7 million people in the US report they have an opioid use disorder.)

To mitigate the potential for abuse, the Drug Enforcement Administration sets production limits for Adderall and its generic competitors. In order to produce the drugs legally, pharmaceutical manufacturers must obtain approval from the government and comply with regulations for the medication’s manufacturing, distribution, and dispensing.

The DEA also sets annual production quotas for Adderall, as with other controlled substances that have recognized medical uses, based on estimates of legitimate medical and scientific needs, as well as the potential for diversion and abuse. However, those quotas are not well understood; while the agency announced in 2019 that it was allowing for more production of Adderall, given the apparent growing need in the patient population, we still don’t know exactly how much production has been authorized or the limits set for individual companies.

“The DEA gives the companies a set amount of raw material ‘quota’ to manufacture these products, but we don’t know which company gets how much,” said Erin Fox, a pharmacist at the University of Utah and leading expert on US drug shortages. “Some companies say they’re short, but DEA says that they haven’t used it all, so lots of finger-pointing.”

Indeed, the companies that produce Adderall and its generic version have cited both a shortage of the active ingredients and an increase in demand to explain their ongoing shortages. But another factor, new limits on the dispensing of the drug at US pharmacies, is making the situation worse.

In 2022, drug distributors reached a settlement with most states over their role in the proliferation of prescription opioids that helped create an addiction and overdose epidemic. Bloomberg reported this week that, as part of that settlement, secret limits were placed on the dispensation of controlled substances last July. That has in turn prevented pharmacists from filling the prescription of every patient who comes to their pharmacy with an Adderall order.

According to Bloomberg, in essence, manufacturers are supposed to limit a pharmacy’s supply of drugs covered by the Controlled Substances Act, which includes opioids as well as stimulants. Pharmacists can only fill a certain number of prescriptions over a set period. But there has been widespread confusion over these rules because the pharmacists themselves don’t know what the limits are or when they are approaching them. Sometimes, they won’t know their access to Adderall has been cut off until trying to fill a prescription.

In theory, that information is hidden to prevent anyone from gaming the system. But in practice, it has made it harder for patients to get access to the medicines they need during a six-month shortage.

“I understand the intention of this policy is to have control of controlled substances so they don’t get abused, but it’s not working,” Richard Glotzer, an independent pharmacist in Millwood, New York, told Bloomberg. “There’s no reason I should be cut off from ordering these products to dispense to my legitimate patients that need it.”

Doctors have found workarounds. Certain dosages (such as 7.5mg versus 15) are more plentiful. Some physicians have also opted for immediate-release versions of the drug instead of the extended-release doses that are chiefly in short supply. And for some of those patients, those creative solutions may work. But that may not be true for everybody: Wiznitzer told me that, on the day of our interview, a mother had come into his practice and asked that her child be returned to his older medication, currently still experiencing a shortage, as soon as possible.

Some manufacturers report they expect to have production back on track by the end of April or in May. But the fact that a drug depended upon by millions of Americans could, at best, experience more than half a year of shortages has left experts wondering why more couldn’t be done to provide relief sooner.

How can the government make sure Adderall is available to those who need it?

The ongoing shortage has brought the DEA’s limits on Adderall production under scrutiny. Though the current shortage was officially recognized in October 2022, the agency did not alter its plans for production quotas in 2023 in a December 2022 bulletin, to the bafflement of some outside observers.

Maia Szalavitz, a leading commentator on substance abuse issues, suggested in a column published last month in the New York Times that oversight of the drug should be shifted from the DEA, which approaches the issue through a law-enforcement lens, to the Food and Drug Administration. She advocated specifically for increasing production quotas and for revisiting the opioid settlements that have added to the regulatory red tape that may limit legitimate access to the drug for patients who need it.

These artificial limits on production, however well-intentioned, are at least partly to blame for the persistent shortage of the past six months. Lawmakers are pressing the DEA to do what it can to alleviate the problem. The solution seems simple — allow more of the drug to be produced — though that also has potential downsides.

Illicit use of prescription stimulants is a real problem. Some of the doctors I spoke to did not want to comment on the record about any changes to federal Adderall regulations, given its sensitive nature. There are several hundred thousand people in the US who are abusing stimulants like Adderall habitually. Prescription stimulants can be deadly, though they have historically accounted for a small percentage of all overdose deaths.

Regulations should reflect the relative risks. “Stimulants like Adderall and Ritalin are nowhere near as addictive or lethal as Fentanyl or other opioids,” Linda Schmidt, a child and adolescent psychiatrist at Oregon Health and Science University, told me.

The question is how to calibrate government oversight to balance the risks to public health versus the risks to patients who can’t access the medications they need. Some experts believe the current system is too overloaded toward preventing abuse, and the current shortage is a consequence of that misalignment.

It would certainly be possible to monitor for Adderall diversion without subjecting it to the same restrictions as opioids. Wiznitzer pointed out that, under Ohio laws, physicians are required to check the state’s prescription drug monitoring database once a month for patients who are prescribed opioids, but only once a year for patients who are prescribed stimulants.

Most of the policy discussion during the shortage has focused on questions of how to loosen up the supply of Adderall.

The other factor driving the shortage, the increase in demand, is more complicated. During the pandemic, it became easier for doctors to prescribe controlled substances without an in-person visit. There have been examples, as Vox’s Sara Morrison previously reported, of “sketchy as hell” startups pushing Adderall on social media sites like TikTok. The DEA has proposed new rules to require an in-person consultation before the prescription of a drug like Adderall.

But that plan has been criticized by some as putting patients at risk who may rely on telemedicine for legitimate reasons. Wiznitzer pointed out that a virtual visit, in which a doctor can observe a child in their natural habitat, can be more revealing than an office visit.

This law enforcement mindset is at the heart of the critique from Szalavitz and others. The DEA approaches its role in regulating Adderall as primarily one of law enforcement, with the emphasis being placed on preventing abuse as much as possible. That may be an understandable — if misguided, in the eyes of some — legacy of the opioid epidemic.

“Perhaps in response to its failure to prevent the rise in prescription opioid misuse, the D.E.A. may be trying to avert a repeat crisis by keeping stimulant manufacturing quotas tight,” Szalavitz wrote in the Times.

But the crisis of the past six months has also shown the potential risk of the current approach: In the richest country in the world, desperate patients can’t get a medicine they need.

Read 20 remaining paragraphs | Comments

Walt Disney World announced Thursday morning that new annual pass sales are coming back!

The Disney Incredi-Pass, Disney Sorcerer Pass and Disney Pirate Pass will resume new sales and can be purchased online beginning on April 20! The quantity of passes will be limited and passes, or a pass type, may become unavailable for purchase at any time.*

Eligible DVC Members will have the opportunity to purchase the DVC Disney Sorcerer Pass online beginning April 13 as part of their Membership Magic benefits.**

Disney has also announced that along with feedback they’ve received, Passholders will now receive access to select Disney PhotoPass benefits (age restrictions apply) and, beginning April 18, Annual Passholders can visit the theme parks after 2 p.m. without needing a park reservation, except on Saturdays and Sundays at Magic Kingdom Park. Pass blockout dates continue to apply.

OFFICIAL DETAILS FROM DISNEY:

*Passes are subject to the Walt Disney World® Resort Annual Pass Terms and Conditions. All offerings are subject to change or cancellation without notice.

**To purchase the Disney Sorcerer Pass, Disney Vacation Club Members must be eligible for Membership Extras. Membership Extras is an incidental benefit – these offers are subject to availability, change or termination and may require a fee. General terms & conditions of the program are in the Membership Extras Acknowledgement and Disclosure Statement. Program terms and conditions are subject to change without notice.

If there is one aspect of trademark law that should be the most understandable for business leaders and their lawyers, if not for the general public, it’s that you generally cannot get trademarks on purely descriptive terms. Yes, you can name your product Coca-Cola and get a trademark on that term, but you cannot get a trademark on “cola” or “soda” and threaten or sue everyone else who uses it to describe their own products. Simple, right?

It appears that Chipotle doesn’t get it. The burrito house chain recently sued a rival, Sweetgreen, over the latter’s sale of chipotle chicken burrito bowls.

In a lawsuit filed Tuesday, Chipotle said that Sweetgreen’s “Chipotle Chicken Burrito Bowl” is being marketed in a “very similar and directly competitive” manner that is similar to Chipotle’s chicken burrito bowl. Sweetgreen released the salad last week, with a press release saying that the new menu item uses “chipotle spices.”

Chipotle argues that the Sweetgreen salad not only has similar ingredients, including chicken, a grain base (i.e. rice) and black beans, but also took issue with Sweetgreen’s marketing because it accuses its rival of “making prominent use of the famous Chipotle trademark” in ads.

I can assure you this is all excessively stupid. First, the recipe conversation is absolutely a non-starter. What Chipotle is describing are the contents of a burrito, but in a bowl. That’s as available for protection under trademark law as the contents of a club sandwich, which is to say not at all.

As for the use of a similar trademarked term, yeah it’s similar, but it’s also purely descriptive. Sweetgreen is advertising a “chipotle chicken burrito bowl,” which consists of chicken in chipotle spices and burrito ingredients in a bowl. That’s as descriptive as it gets. The fact that Chipotle decided to name itself after a flavor doesn’t in any way preclude Sweetgreen from selling and advertising this product. To suggest otherwise would be absurd.

Chipotle also accused Sweetgreen of using a “font nearly identical” to Chipotle’s on its website promoting the new salad. Some of Sweetgreen’s ads, also use color that’s “nearly identical” to Chipotle’s trademarked Adobo Red.

That’s a stretch as well. These are directly from Chipotle’s filing. First, here is an exampe of its own mark.

And now for the filing’s examples of the infringing uses.

And:

In the second example, the colors are similar, but two caveats. First, Sweetgreen’s name is on the sign, which presumably sits just outside a Sweetgreen location, so I’m not sure where the public confusion would occur. Second, both entities chose shades of that color almost certainly for the most obvious reason: a chipotle pepper is a smoked pepper typically kept in adobo sauce. That sauce is roughly the colors that are being used here.

In other words, Chipotle is mostly suing as a result of its own original sin: it chose a name for itself that can be used as well to describe a sort of food or flavor on offer. I don’t expect this suit to get very far, though that may not be the point. Sweetgreen is much smaller than Chipotle and this may simply be a bullying attempt by the latter.

by Jeff Ernsthausen

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

Flush with $80 billion in new funding, the IRS is aiming to ramp up audits of wealthy taxpayers and large corporations, according to a strategic operating plan it released Thursday. The 150-page plan also includes a lengthy list of proposed changes intended to improve customer service, upgrade the agency’s notoriously outdated computer systems, boost hiring and even “explore making it easier” to file tax returns directly with the IRS for free.

Until a spurt of funding during the early pandemic and then the passage of the Inflation Reduction Act, the IRS had been hobbled by a decade of budget cuts, causing audit and enforcement rates to plummet. As the report notes: “Taxpayers earning $1 million or more were subject to an audit rate of just 0.7% in 2019 — a sharp decline from 7.2% in 2011. We will increase enforcement for high-income and high-wealth individuals to help ensure they are paying the taxes they owe.” It cites employment taxes, excise taxes, and estate and gift taxes as areas of focus. The plan promises to comply with a Treasury Department directive not to increase audit rates for small businesses and people making $400,000 or less.

ProPublica has been chronicling the tax agency’s woes for almost five years, first in a series titled “Gutting the IRS,” which examined the slashing of its budget and its consequences in reduced enforcement, as well as in decreased volume and quality of audits of the rich. ProPublica also published articles that showed how a person making $20,000 was more likely to be audited than a person making $400,000 and a map that revealed the geographic overlay of poverty, race and high audit rates.

ProPublica followed its first IRS series with “The Secret IRS Files,” a second multiyear series that has explored how the U.S. tax system favors the rich, including how its focus on income allows people with massive wealth to sidestep taxes on an epic scale — to the point where some of the wealthiest people, such as Jeff Bezos, had years in which they paid no federal tax.

In comments to The Washington Post about the new IRS plan, Deputy Treasury Secretary Wally Adeyemo said: “One of the things that people talk about when they say that the tax code is unfair is, if you’re low-income, you’re more likely to be audited than if you’re wealthy. ... That is not consistent with tax fairness.”

The plan, released by recently confirmed IRS Commissioner Daniel Werfel, aligns with the remarks made by President Joe Biden in his most recent State of the Union address: “I think a lot of you at home agree with me that our present tax system is simply unfair,” Biden said. He reiterated his proposal for what he calls his billionaire minimum tax, which would mandate a 20% minimum levy on income, including unrealized capital gains, for people with a net worth of $100 million or more.

The IRS plan also includes an initiative to “study the feasibility” of allowing taxpayers to file directly with the agency. That study will likely face opposition from companies such as Intuit, the maker of the widely used TurboTax software. In another series, “The TurboTax Trap,” ProPublica documented in exhaustive detail multiyear efforts taken by tax prep companies to undercut free tax-filing.

Sen. Ron Wyden, D-Ore., chair of the Senate Finance Committee, applauded the IRS plan. “The bulk of this funding,” he noted in a statement, “will go toward building up the IRS’s capacity to root out cheating by sophisticated, wealthy individuals and companies with highly complex structures.” (The Inflation Reduction Act legislation directed an additional $45.6 billion to IRS enforcement, through September 2031, on top of its previously allotted budget.)

Republicans were less enthusiastic, calling the plan “big government at its worst,” among other things. In January, House Republicans renewed their attempts to reduce the agency’s funding.

Help Us Report on Taxes and the Ultrawealthy

Do you have expertise in tax law, accounting or wealth management? Do you have tips to share? Here’s how to get in touch. We are looking for both specific tips and broader expertise.

by Kathleen McGrory and Neil Bedi

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

For decades, chemical companies fought attempts to ban asbestos, claiming they needed the potent carcinogen to manufacture chlorine. As recently as last April, in fact, the CEO of one of the last major companies still clinging to the toxic substance argued for it to remain legal. Acceptable alternatives “do not exist,” Olin Corp. CEO Scott Sutton told regulators.

In a dramatic turnaround, Olin said on Tuesday that it would support a federal ban on the deadly mineral.

ProPublica’s reporting changed the national conversation on asbestos, challenging a long-standing and successful industry argument that chlorine companies kept their employees safe. Late last year, ProPublica revealed that workers across the country had been exposed to the substance, including those at an Olin facility in Alabama who said they could “see it all the time” and weren’t given protective gear when they worked around it. (Olin did not return repeated calls or emails from ProPublica seeking comment on those findings.)

“I just wish they had stopped sooner,” Andy Lang, a contract pipefitter who worked at the plant in McIntosh, Alabama, told ProPublica on Wednesday. “I wish they had stopped years ago. I’m thinking about the people in my neighborhood like my sister.”

Lang’s sister, Bertha Reed, was a plant employee who worked a number of jobs and spent time around asbestos. Reed, who never smoked, died of lung cancer in 2017. It’s unclear what caused the cancer, but Lang blames the substances his sister was exposed to in the plant.

Andy Lang visits the gravesite of his sister, Bertha Reed. (Rich-Joseph Facun, special to ProPublica)

In a letter to the Environmental Protection Agency this week, Sutton said Olin would endorse a proposed ban if the companies were given seven years to phase out asbestos materials already in use. Companies apply the mineral to thick metal screens used in the production process to keep explosive chemicals from mixing. Sutton said workers would not have to apply new asbestos to screens during the last five years of the phase-out period, minimizing the potential for exposure.

“Additionally, no asbestos imports into the U.S. are required past today,” he added.

Olin did not reply to ProPublica’s questions on Wednesday.

The EPA said that it would consider Olin’s letter and other comments it has received, and that it was “moving expeditiously” to finalize its ban this year. The agency opened a new public comment period on the ban to account for new information, including ProPublica’s reports on the dangers at asbestos-dependent chlorine plants. That period ends April 17.

Olin’s letter marks a turning point in the battle over asbestos in the United States.

The U.S. has lagged behind dozens of other countries that outlaw asbestos, which is known to cause deadly cancers like mesothelioma. To this day, the U.S. continues to let chlorine companies import hundreds of tons annually.

Last year, ProPublica found that chlorine companies had spent decades lobbying against a ban. Behind the scenes, industry representatives pushed for regulatory exemptions, marshaled pro-business lawmakers to make their talking points and found support from 12 prominent attorneys general who said a ban was a “heavy and unreasonable burden.”

Supporters of a ban heralded Olin’s new position.

“We are deeply encouraged that Olin Corporation has stepped forward to publicly say they are committed to ending asbestos use in the chlor-alkali industry,” said Linda Reinstein, the co-founder of the Asbestos Disease Awareness Organization, in a statement on Wednesday.

The EPA still needs to address resistance from the rest of the chemical industry.

The American Chemistry Council, a powerful trade association that lobbies for chlorine companies, has pushed for its members to be exempted from the ban and said it would be impossible to transition to newer asbestos-free technology in less than 15 years.

In a statement provided to ProPublica on Wednesday, the group said its 15-year timeline was based on limited contractor resources, supply chain disruptions and regulatory approval cycles, among other factors.

“We continue to hold this position and therefore oppose calls to implement unrealistic timetables and deadlines,” the statement said.

OxyChem, another major producer of chlorine, did not respond to requests for comment from ProPublica. Last year, workers from its recently shuttered plant in Niagara Falls, New York, described conditions that experts called “totally unacceptable,” “fraught with danger” and “like something that maybe would happen in the 1940s or the 1950s.” At the time, OxyChem said ProPublica’s reporting on the plant was inaccurate, but it would not say what specifically was incorrect.

Hanging over the EPA is the agency’s failure to ban asbestos in 1989. Back then, the asbestos industry successfully overturned a ban by arguing in a lawsuit that it was too burdensome. Advocates and experts are now watching to see if history will repeat itself.

Last week, citing ProPublica’s reporting, lawmakers renewed efforts to write an asbestos ban into federal law, a measure that would be more difficult to challenge in court.

by Perla Trevizo, ProPublica and The Texas Tribune, and Suzy Khimm, NBC News

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

This article is co-published with The Texas Tribune, a nonprofit, nonpartisan local newsroom that informs and engages with Texans. Sign up for The Brief Weekly to get up to speed on their essential coverage of Texas issues.

This article was also produced in partnership with NBC News.

BETHESDA, Md. — The federal government is moving forward with sweeping new regulations to make portable generators safer, citing the increasing number of deaths they cause and the failure of manufacturers to protect consumers.

On Wednesday, the Consumer Product Safety Commission voted unanimously to advance a proposal that would require portable generators to emit less carbon monoxide and to shut off automatically when the deadly gas reaches a certain level. The invisible and odorless gas emitted by the devices claims an average of 85 lives a year, making generators one of the deadliest consumer products the CPSC regulates.

If the proposal is finalized, it will be the first time that the federal government will require companies to manufacture generators that protect consumers against carbon monoxide poisoning — the most significant step that the agency has taken after decades of studying the hazard.

“This issue has been going on for too long, and too many people have been dying each year,” CPSC Chair Alexander Hoehn-Saric said shortly after Wednesday’s vote. “It’s a tremendous step forward.”

The agency’s proposal comes in the wake of an investigation by NBC News, ProPublica and The Texas Tribune that revealed the lack of safeguards underpinning the worst carbon monoxide poisoning event in U.S. history. In Texas, at least 19 residents died from carbon monoxide poisoning and more than 1,400 others were treated in emergency rooms during a winter storm that pummeled the state in 2021, the news organizations found. At least 10 of those deaths involved generators.

“The importance of safety for portable generators will only grow as demand for them grows in the face of extreme weather events,” Commissioner Mary Boyle said during Wednesday’s meeting.

The Portable Generator Manufacturers’ Association, the industry’s largest trade group, said the agency had “no legal authority” to implement the rule that it is proposing, pointing to safeguards that the industry has created.

“There is a voluntary consumer product safety standard that is effective at preventing deaths and injuries and will have substantial compliance by the industry,” Joseph Harding, the group’s technical director, said in a statement ahead of the vote. The industry group declined to comment afterward.

Under federal law, once manufacturers propose voluntary safety standards, the CPSC can only create mandatory ones if it can prove that the industry’s approach doesn’t work or that not enough manufacturers have adopted it.

Created in 2018 to ward off the federal government’s last attempt to intervene, the trade group’s safety standards are more lenient than what the agency is now proposing: They do not restrict how much carbon monoxide generators can emit and have a higher threshold for automatically shutting off the device.

In 2022, two months after the news organizations ​​detailed the deadly cost of the government’s failure to regulate portable generators, the agency concluded that the industry’s efforts were inadequate. It found that less than a third of companies embraced the voluntary safeguards and that manufacturers had not done enough to prevent carbon monoxide poisoning.

“This problem will not correct itself. In fact, we expect incidents with consumers dying or being injured will likely increase,” Janet Buyer, a CPSC engineering project manager, told the commissioners during a recent meeting, urging them to adopt more stringent safeguards.

Buyer pointed to a Louisiana incident, reported by the news organizations, following Hurricane Ida in 2021: A woman and her two children were killed by carbon monoxide from a portable generator that was placed outside, with the exhaust inches from their back door and pointing inside.

The Portable Generator Manufacturers’ Association has disputed that the device was at fault, saying the user did not appear to have followed warning label instructions. Harding later said one of the labels on the machine directed users to point “engine exhaust away from occupied structures.”

But Buyer said it is not uncommon for carbon monoxide from generators to filter into homes — a scenario that happened 63 times in the aftermath of Hurricane Ida in the New Orleans area. The generator in the case that she highlighted had an automatic shut-off sensor, but it’s unclear whether it activated. That’s why mandatory standards are necessary, Buyer said.

The Portable Generator Manufacturers’ Association also disputed the CPSC’s conclusion that few manufacturers are adopting the voluntary standards. An estimated 60% of available generators will have such safety features by the third quarter of 2023, Susan Orenga, executive director of the trade group, said in a statement.

The public has 60 days to comment on the CPSC’s proposed rule, which the agency can modify in response. The commission will vote on the final version in September.

On Tuesday, DC Health announced the launch of harm reduction vending machines throughout the city. The free vending machines offer Narcan, the naloxone nasal spray that can reverse opioid overdoses. The machines also have Fentanyl test strips, Covid test kits, hygiene kits, and wound-care kits.  According to the DC Office of the Chief Medical Examiner, […]

The post DC Health Is Deploying Narcan Vending Machines to Prevent Opioid Overdose Deaths first appeared on Washingtonian.

Read 23 remaining paragraphs | Comments

We’ve already covered how Florida man Governor Ron DeSantis flipped out that Disney, the largest employer in his state, offered some mild criticism over one of his unconstitutional censorship bills, and decided to retaliate by (1) removing the stupid questionable “theme park exemption” his office had directly worked with Disney to insert into his unconstitutional social media bill and (2) move to take control over the special board that that had been set up decades ago, giving Disney effective control over everything around Disney World.

Now, to be clear, the whole setup of what’s called the “Reedy Creek Improvement District” was quite sketchy. And there are plenty of legitimate reasons to do away with it. But doing good things for bad reasons is still bad, and when it’s done in retaliation for speech criticizing the governor, it’s unconstitutional.

Either way, DeSantis needs more culture war battles to constantly fight if he’s going to keep his name in the headlines for his 2024 Presidential hopes, so of course he was going to keep up with the plan. A month ago, DeSantis basically replaced all the members of the Reedy Creek board with his own lackeys.

But, in a move that will surprise absolutely no one who has been following Disney’s legal shenanigans for decades (i.e., anyone who follows copyright…), Disney’s lawyers don’t fuck around.

Earlier this week it came out that right before the handover in power, the old (Disney controlled) board effectively voted to strip itself of nearly all of its power… and to give it to Disney, effectively forever.

I mean, it’s evil, but also somewhat brilliant in its audacity.

And, while Team DeSantis is crying foul about how this was done in secret, it turns out that they held a public vote on the matter the day before DeSantis initiated his takeover. If DeSantis and friends had, you know, been actually paying attention, they might have noticed, rather than only finding out after being installed into an effectively empty, ceremonial role.

As Joe Patrice, over at Above the Law, notes, Disney’s lawyers are better than Ron DeSantis’ lawyers. And, part of it is in the way that they tried to make this transfer of power last: they say it will be “effective in perpetuity.”

But! One of those legal terms that gets thrown here and there more for being “legalistic sounding” rather than something that actually comes up all that often is the “rule against perpetuities” which is pretty much what it says on the tin: says you can’t create a perpetual interest in property that outlives anyone living at the time of the deal. Wikipedia’s summary is actually pretty good here:

The rule against perpetuities is a legal rule in the common law that prevents people from using legal instruments (usually a deed or a will) to exert control over the ownership of private property for a time long beyond the lives of people living at the time the instrument was written. Specifically, the rule forbids a person from creating future interests (traditionally contingent remainders and executory interests) in property that would vest beyond 21 years after the lifetimes of those living at the time of creation of the interest, often expressed as a “life in being plus twenty-one years”. In essence, the rule prevents a person from putting qualifications and criteria in a deed or a will that would continue to affect the ownership of property long after he or she has died, a concept often referred to as control by the “dead hand” or “mortmain“.

The new agreement Disney cooked up more or less first tries to ignore that, but then says that if it comes up, the deal basically lasts right up until the latest date possible under the rule of perpetuities: 21 years after a relatively newborn infant dies. And… they chose all of the grandchildren of King Charles.

No. Really. It’s right there.

That says:

Term. This Declaration shall be deemed as of the Effective Date and continue to be effective in perpetuity unless all or certain portions of the provisions of this Declaration are expressly terminated as provided elsewhere herein; provided, however, that if the perpetual term of this Declaration is deemed to violate the “Rule Against Perpetuities,” or any similar law or rule, this Declaration shall continue in effect until twenty one (21) years after the death of the last survivor of the descendants of King Charles III, King of England living as of the date of this Declaration….

It’s a nice touch to cover all of Charles’ grandkids as a hedge in case any of them die young.

DeSantis is not happy about this, and you can actually understand why. I mean, this whole setup is bullshit. But, then again, so was his retaliation move. And the original Reedy Creek setup. All of it is bullshit. Up and down the stack.

There are no winners here, only assholes and losers.

But, it’s pretty rich to see DeSantis lose his mind over being outplayed like this.

Of course, this isn’t over yet. DeSantis’ lackey, Florida Attorney General Ashley Moody is already demanding records from the February 8th meeting where all this went down with no one noticing.

We have no love for Disney over here at Techdirt. The company has long been terrible and problematic, in part because of it’s ridiculously aggressive lawyering. This really seems like one of those situations where it would be nice if both of them could lose in the most embarrassing manner possible.

Still, all this makes me wonder what kind of bullshit Disney’s lawyers are going to pull on December 31st as the clock ticks down to Mickey Mouse entering the public domain…

Read 5 remaining paragraphs | Comments

Read 7 remaining paragraphs | Comments

Read 6 remaining paragraphs | Comments

Read 6 remaining paragraphs | Comments

Read 14 remaining paragraphs | Comments

The FTC wants to make it easier for you to cancel that gym membership, among other things.

Everything is a subscription these days. And sometimes, those subscriptions are really hard to cancel — intentionally so. Sneaky companies know that the harder it is to stop paying for their services, the more money they’ll get from people who either didn’t know they were signing up for a paid service in the first place or don’t have the time to cancel it.

The Federal Trade Commission announced today that it’s proposing a “click to cancel” rule, which would force businesses to make it just as easy to sign off as it was to sign up.

If the rule gets approved, that means no more in-person visits, handwritten letters, or waiting on hold for hours to cancel. No more manipulative designs that trick consumers into paying for services. No more being forced to endure various sales pitches and pleas before you can finally cancel your subscription or membership. These are some of the most popular complaints the FTC gets, the agency said, and what it hopes the click to cancel rule will fix.

“I’m sure this is an experience that all of you can relate to, where you tried to cancel a subscription and the company has made you jump through an endless number of hoops,” FTC chair Lina Khan said in a call with reporters. “Companies should not be able to manipulate consumers into paying for subscriptions that they don’t want.”

You can probably relate to that: Gym memberships are notoriously difficult to end. Free trials, as you surely know, aren’t so free. And monthly subscriptions you didn’t even know you subscribed to sure get expensive when you don’t realize you’ve been paying for them.

The click to cancel rule, which is just a notice of proposed rulemaking for now, will amend and update the existing negative option rule, which, Khan said, typically applied to businesses that sent consumers products and then charged them if they didn’t send those products back quickly. But these days, the business model has shifted from physical products you get in the mail to ongoing subscriptions for access to products or services. The agency believes its rules should be updated accordingly.

“We’ve seen a dramatic growth in subscription-based business models over the last few years, which just underscores the urgency here,” Khan said.

In addition to requiring businesses to make it as easy to cancel as it is to sign up, the rule would also mean new requirements that businesses better inform consumers that they’re signing up for a paid service. They would also have to get users’ express consent to pay for that service and remind them before those services are automatically renewed. They must also spell out how long a free trial will last so a customer knows how and when to cancel it before the free part ends. Businesses would be allowed to offer consumers various special offers or discounts to try to get them to maintain their subscriptions, but only if the customer agrees to see or hear them.

Finally, the rule would give the FTC the authority to get civil penalties from offenders and redress for consumers.

Businesses that engage in these practices surely won’t like this new rule, but they shouldn’t be surprised to see it. The FTC signaled that it would be looking at negative option marketing back in October 2021, and it’s been investigating how to deal with dark patterns, or web designs meant to trick or manipulate consumers into choosing what the website wants them to, since before Khan even got there. President Biden has made protecting consumers from deceptive business practices like junk fees one of his administration’s initiatives.

Again, because this is a notice of proposed rulemaking, it’s not yet final, and it will take several months before it’s approved — assuming it’s approved at all.

Read 12 remaining paragraphs | Comments

Earlier this month a homophobic smear campaign seeded in the press by the likes of AT&T, Comcast, and News Corporation successfully killed the FCC nomination of popular reformer Gigi Sohn. The goal: to keep the FCC in perpetual partisan gridlock, preventing the agency from making any decisions deemed even remotely controversial by the media and telecom giants the agency is supposed to regulate.

With Sohn’s nomination killed, it could take the better part of the rest of the year to appoint and confirm a third Democratic FCC Commissioner, assuming one gets appointed at all. If and when that candidate does get seated, they’ll have very little time before the next presidential election to implement any major policies. As such, the FCC will very likely focus on politically safer fare.

That means meaningful reforms that are popular among consumers, like the restoration of net neutrality, or the restoration of media consolidation limits, are all but doomed (for now):

Now, the White House has been forced to start over, prolonging a vacancy that continues to obstruct the administration’s broadband agenda. The White House hasn’t announced a new nominee or when they’re hoping to confirm someone, but it’s unlikely that Biden would pick someone as critical of cable companies as Sohn. Republicans and “dark money” groups have already proved that they’re willing to spend millions to block progressive nominees. With so little time left in Biden’s first term, stakeholders may even try to thwart a more moderate nominee, especially if there’s an opportunity to continue the stalemate past the 2024 election.

Even if Sohn was appointed, I wasn’t entirely sure that FCC boss Jessica Rosenworcel actually had the backbone to revisit the net neutrality fight. If you’re a career politician with an eye on a lucrative post-FCC career, there’s not a lot of political upside in upsetting top telecom donors. Former FCC boss Tom Wheeler embraced net neutrality only in part because he was retiring and had nobody left to impress.

With the FCC effectively lobotomized, states and municipalities have effectively given up on coherent federal leadership on issues like telecom policy. Instead they’re redirecting the conversation back to where it probably should have been all along: the perils of unchecked telecom monopolization, and the need to build cohesive, locally-owned and operated alternatives to monopoly power.

As we’ve long noted, net neutrality rules were just imperfect, stopgap protections to try and protect consumers (and competitors) from monopoly power. If you bring real competition to bear on entrenched monopolies like AT&T and Comcast, net neutrality rules become less important as unethical ISPs would be punished by customer defections to competitors.

(That’s not to say federal consumer protection isn’t important, but it’s hard to watch the agency over the last twenty years and not come away with the sense that the activist battle against entrenched telecom giants has been a profound failure, and is in dramatic need of new, creative tactics.)

The problem: with state and federal policymakers under the sway of entrenched monopolies, it’s very difficult to implement cohesive federal policies that bring competition to bear against monopolies.

Enter a huge boom in community-owned and operated broadband networks, whether they’re cooperatives, municipalities, city-owned utilities, or public/private partnerships. These projects are an organic, grass roots response to federal regulatory capture and monopolization, which is why monopolies have tried so hard to outlaw them with shitty, protectionist state laws.

Again, net neutrality was important. Title II classification of ISPs (which provides the FCC the authority to hold Comcast accountable) remains important. Having competent federal regulators step in to address widespread market harms in the wake of market failure is important.

But in the absence of that, and given the public’s weariness in retreading the complicated, wonky world of net neutrality policy, it’s probably time to shift the policy focus back to the roots of the real problem: mindless consolidation and unchecked telecom monopoly power.

83 million Americans live under a broadband monopoly. It’s clear the federal government is too corrupt and captured to do much about it. As a rightward-lurching court system seeks to lobotomize the federal regulatory state entirely, the onus will increasingly be thrown at the feet of state and local leaders to build meaningful alternatives to monopoly power on a block by block basis.

Read 1 remaining paragraphs | Comments

Ah, mission creep. The government loves it. Keeps people employed, keeps citizens on their toes, keeps privacy-focused sites in business, etc.

In 2017, the DHS began quietly rolling out its facial recognition program, starting with international airports and aimed mainly at collecting/scanning people boarding international flights. Even in its infancy, the DHS was hinting this was never going to remain solely an international affair.

It made its domestic desires official shortly thereafter, with the TSA dropping its domestic surveillance “roadmap” which now included “expanding biometrics to additional domestic travelers.” Then the DHS and TSA ran silent for a bit, resurfacing in late 2022 with the news it was rolling out its facial recognition system at 16 domestic airports.

As of January, the DHS and TSA were still claiming this biometric ID verification system was strictly opt-in. A TSA rep interviewed by the Washington Post, however, hinted that opting out just meant subjecting yourself to the worst in TSA customer service. Given the options, more travelers would obviously prefer a less brusque/hands-y trip through security checkpoints, ensuring healthy participation in the TSA’s “optional” facial recognition program.

A little more than two months have passed, and the TSA is now informing domestic travelers there will soon be no way to opt out of its biometric program. (via Papers Please)

Speaking at an aviation security panel at South by Southwest, TSA Administrator David Pekoske made these comments:

“We’re upgrading our camera systems all the time, upgrading our lighting systems,” Pekoske said. “(We’re) upgrading our algorithms, so that we are using the very most advanced algorithms and technology we possibly can.”

He said passengers can also choose to opt out of certain screening processes if they are uncomfortable, for now. Eventually, biometrics won’t be optional, he said.

“Eventually” is a rather vague timeframe. ASAP would be the TSA’s preference. TSA chief Pekoske likes it because, like the head of any sizable entity, the possibility of providing even fewer people with employment opportunities appeals to him. According to his comments at the panel, the TSA expects passenger loads to increase about 4% a year. The use of this tech means the TSA won’t have to hire more agents to handle the increase in workload.

But Pekoske is not just a guy who likes seeing fewer people employed. He’s also a salesman. Biometrics may be faster than interacting with humans during identity validation, but it’s a tradeoff not everyone wants to make. Pekoske buries the problematic aspects of biometric harvesting in exchange for domestic travel “privileges” by claiming this is all about making things better for passengers.

“It’s critically important that this system has as little friction as it possibly can, while we provide for safety and security,” Pekoske said.

Yes, you’ll get through screening a little faster. Unless the AI is wrong, in which case you’ll be dealing with a whole bunch of new problems most agents likely won’t have the expertise to handle. Pekoske claims this version is the best version of its facial recognition tech, making a completely unbelievable claim the new tech “hasn’t found any problems with passengers with darker complexions.” It may have fewer problems, but even the best facial recognition AI is still less accurate when dealing with anyone other than white males.

More travelers. Fewer agents. And a whole bunch of screens to interact with. That’s the plan for the nation’s airports and everyone who passes through them.