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Emily Baker-White has quite the story over at Forbes, revealing how ByteDance, the Chinese company that owns TikTok, apparently planned to have its “Internal Audit and Risk Control” department spy on the location of some American citizens:

The team primarily conducts investigations into potential misconduct by current and former ByteDance employees. But in at least two cases, the Internal Audit team also planned to collect TikTok data about the location of a U.S. citizen who had never had an employment relationship with the company, the materials show. It is unclear from the materials whether data about these Americans was actually collected; however, the plan was for a Beijing-based ByteDance team to obtain location data from U.S. users’ devices.

[….]

But the material reviewed by Forbes indicates that ByteDance’s Internal Audit team was planning to use this location information to surveil individual American citizens, not to target ads or any of these other purposes. Forbes is not disclosing the nature and purpose of the planned surveillance referenced in the materials in order to protect sources. TikTok and ByteDance did not answer questions about whether Internal Audit has specifically targeted any members of the U.S. government, activists, public figures or journalists.

Given the near non-stop moral panics about TikTok from the past few years, I’m am absolutely sure that this will be used (yet again) to argue that TikTok is somehow uniquely problematic, when the reality (yet again) is that what it’s doing is really no different than what a ton of American internet companies already do and have done in the past. Baker-White, who is one of the best reporters on this beat, makes that clear in her reporting:

ByteDance is not the first tech giant to have considered using an app to monitor specific U.S. users. In 2017, the New York Times reported that Uber had identified various local politicians and regulators and served them a separate, misleading version of the Uber app to avoid regulatory penalties. At the time, Uber acknowledged that it had run the program, called “greyball,” but said it was used to deny ride requests to “opponents who collude with officials on secret ‘stings’ meant to entrap drivers,” among other groups.

[….]

Both Uber and Facebook also reportedly tracked the location of journalists reporting on their apps. A 2015 investigation by the Electronic Privacy Information Center found that Uber had monitored the location of journalists covering the company. Uber did not specifically respond to this claim. The 2021 book An Ugly Truth alleges that Facebook did the same thing, in an effort to identify the journalists’ sources. Facebook did not respond directly to the assertions in the book, but a spokesperson told the San Jose Mercury News in 2018 that, like other companies, Facebook “routinely use[s] business records in workplace investigations.”

So, rather than making this a big thing about “oh no TikTok/China bad,” this should be a recognition that Congress should stop bickering about stupid stuff, and that includes pushing silly performative legislation, and come up with an actual federal privacy law that gives the public greater ability to protect their own privacy from all sorts of companies.

But, of course, that would take competence, and probably wouldn’t be useful for grandstanding or headlines… so it’ll never happen.

Of course, there are questions about what this means regarding TikTok’s widely discussed plans to separate US user data from ByteDance’s peeking eyes. I thought Oracle was supposed to protect us from all this, right? Right?

Two new museums may soon be bound for the National Mall: the National Museum of the American Latino, and the Smithsonian American Women’s History Museum. The Smithsonian Institution just identified two potential sites for the museum concepts, which were authorized by Congress in 2020. Since then, the Smithsonian Institution and Baltimore-based architecture firm Ayers Saint […]

The post Smithsonian Picks National Mall Sites for American Latino and Women’s History Museums first appeared on Washingtonian.

The CDC is getting close to recommending it to prevent STIs like chlamydia and syphilis.

Years after it was first proven to work, a new tool for preventing sexually transmitted infections (STIs) is now closer than ever to entering mainstream medicine.

That tool is doxyPEP, an antibiotic that works like a morning-after pill — but instead of preventing pregnancy within hours of unprotected sex, it prevents STIs like chlamydia and syphilis. Ever since a 30-person trial first suggested hope for the strategy in 2015, people worldwide have begun trying doxyPEP for themselves, often without the approval or supervision of a medical provider.

Its use is gaining traction in the US. Last year, the San Francisco health department became the first authority in the US to recommend doxyPEP for men with recent STIs — especially syphilis — and for those who’ve had recent sex with men or trans women.

And its use is likely to expand. On October 2, the Centers for Disease Control and Prevention (CDC) published draft guidelines intended to educate health care providers on why, how, and when to prescribe doxyPEP to patients. (People can submit comments on the guidelines until November 16, and a final version will likely be published months down the road.) If they remain unchanged, the CDC’s guidelines could result in many more doxyPEP prescriptions for gay men, trans women, and those in their sexual networks — especially those at highest risk of getting infected with a bacterial STI.

Sexually transmitted infections have been rising in recent years, with syphilis in particular spreading explosively, and doxyPEP could help turn back the tide. Rising STI rates are costing dollars and lives: The CDC estimates that the US spent $1.1 billion on bacterial STIs in 2018, and 166 infants died in 2021 as a consequence of a syphilis epidemic affecting women of childbearing age.

Why did it take so long for the CDC to get behind doxyPEP? The major obstacle has been the fear that doing so would touch off a perilous game of infectious disease whack-a-mole — that in trying to mitigate one public health crisis, we’ll worsen another one.

Doxycycline, the medication in doxyPEP, is an antibiotic. Worldwide antibiotic resistance is a major problem — and doxyPEP runs the hypothetical risk of exacerbating it. Disease-causing bacteria can evolve resistance when exposed to certain antibiotics, becoming more dangerous.

Among the experts I spoke to last fall, shortly after San Francisco’s endorsement of doxyPEP, there was no consensus about how to balance the risks of antibiotic resistance with the risks of STI infections. Some said dwelling too much on the resistance risk would deny marginalized groups the preventive options they need.

“For some reason, with gay men’s sexual health, we are always placing these theoretical risks higher than what’s actually happening in the community,” said David Holland, an infectious disease doctor and public health expert at Emory University, during a talk at a medical conference in October 2022.

On the other hand, many experts were still cautious. “We just want to be very, very careful that before we start really ramping up the use of doxycycline, we are being thoughtful about the potential ramifications, and that we really are looking at the data to make sure to understand how to optimize use,” said Philip Chan, a Brown University infectious disease doctor who directs the largest sexual health clinic in Rhode Island, in an interview last fall.

DoxyPEP is making its way into the minds of providers and the hands of patients, even as debate continues about how to ensure it does more good than harm. Here’s why the drug isn’t the silver bullet it might seem to be, and why it’s nevertheless a source of hope for so many.

Clinical trials suggest doxyPEP would work to reduce STIs — although it’s only been proven in men who have sex with men

Doxycycline has plenty of street cred in the STI world. A week’s worth of the medication is the first-line treatment of choice for chlamydia, and a two-week course is the best syphilis treatment choice for people allergic to penicillin. (Doxycycline also sometimes works against gonorrhea, although the germ’s growing resistance to the medication means it is no longer recommended as a treatment for that infection.)

In contrast, doxycycline PEP is for preventing infection, not for treating it. “PEP” stands for post-exposure prophylaxis: The idea is that if a person takes a single dose of the medication soon enough after unprotected sex, any bacteria that might cause an STI would be killed before entrenching enough to cause a full-blown infection.

This “morning-after” approach to preventing STIs isn’t a brand new strategy: In the 1940s, the US Navy studied whether penicillin taken after sex prevented gonorrhea infection in men (it worked, at least for a time), and other trials studied the antibiotic minocycline for the same purpose in the 1970s. There’s also HIV PEP — distinct from PrEP — which has been incredibly effective at preventing infection after exposure to the virus by needlesticks (usually in health care settings) or during sex. HIV PEP contains antivirals that, like doxyPEP, help stop an infection before it has time to settle into the body.

The data to support doxycycline as PEP for STIs comes from two clinical trials in humans —one conducted in France, published in 2017, and one conducted in Seattle and San Francisco and published in April.

Both trials studied the drug’s use in men who have sex with men and trans women — populations who were chosen because they have the highest risk of infection, and therefore the highest likelihood of being helped by doxyPEP. The American trial studied the protective effects in both people with and without HIV infection, while the French trial included only people without HIV infection.

People who enrolled in the trials were randomly assigned to two groups: One group was given doxycycline pills and instructed to take two within 24 hours of unprotected sex, while the other group didn’t receive any drug. In both studies, everyone who participated was offered comprehensive services — education, condoms, and HIV PrEP counseling — aimed at reducing health risks during sex.

In both trials, doxyPEP was very effective in reducing bacterial STIs. The pill reduced infections by half in the French trial and by two-thirds in the American trial — such high efficacy that investigators stopped the trial early because it would have been unethical to continue not offering doxyPEP to people.

Notably, doxycycline didn’t have the same preventive oomph against all STIs. Protection against chlamydia and syphilis was strong in both studies, but in the trial conducted in France, doxyPEP offered little to no protection from gonorrhea infection. In the US, the results were better, with a 55 percent drop in gonorrhea cases among study participants taking doxyPEP.

The big difference in the US and French results is probably due to differences in gonorrhea’s resistance to doxycycline: While about half of all gonorrhea in France doesn’t respond to doxycycline, that proportion is closer to one-fifth in the US. (Notably, gonorrhea has been evolving resistance to antibiotics pretty much since antibiotics were developed — so its doxycycline resistance is really more indicative of gonorrhea’s resistance to a host of drugs than suggestive of a doxycycline problem specifically.)

A trial in Kenya to determine whether doxyPEP works as well in cisgender women as in the groups that have already been studied has yielded disappointing results: At a conference earlier this year, investigators presented data showing inconsistent effects on STI rates in women. (Notably, syphilis transmission in the study population was much lower than it is in American women.)

Although doxycycline isn’t a perfect preventive drug, it could help a lot, experts say. Even if it were only used in men who have sex with men and their sexual networks, doxyPEP would benefit everyone at risk for STIs, said Jeffrey Klausner, an infectious disease doctor at the University of Southern California specializing in sexually transmitted infections. That’s because it would reduce transmission among the people at highest risk for repeated infections, making onward transmission through other sexual networks less likely.

DoxyPEP would be a no-brainer — if it weren’t for antibiotic resistance

Even though doxycycline still has a few hoops to jump through before the CDC officially recommends it as STI prevention, sexual health providers can and do prescribe it that way. Doxycycline is a Food and Drug Administration-approved drug, and providers can prescribe it for uses beyond what it’s been approved for (known as “off label” prescribing).

As of last fall, about 10 percent of men who have sex with men in Europe and Australia were using the medication, often purchasing it from online pharmacies or sources that don’t require a prescription, and Facebook groups for HIV PrEP users teemed with testimonials and advice.

Plus, doxycycline is already used as a post-exposure pill — just not for STIs. The CDC recommends a single dose of the medication after a tick bite in areas with lots of Lyme disease, and one or more doses after exposure to water contaminated with the bacteria that causes leptospirosis, an infection that can lead to kidney and liver damage and even death.

If rising STI rates are such a public health emergency, why isn’t doxyPEP a slam-dunk?

One concern is doxycycline’s side effects. The drug causes digestive symptoms in anywhere between 4 percent and one-third of people who take it regularly, and has been linked to skin sensitivity in anywhere between 7 percent and one-fifth of people who take the medication. The American study looked for signs that drug-related discomfort was enough to stop people from using it, and found encouraging results: Not one of more than 500 study participants stopped taking the drug because of problems tolerating its side effects.

The much bigger worry is that doxyPEP could add fuel to another five-alarm public health fire: antibiotic resistance, which the World Health Organization has called one of the top 10 threats to global public health. Using antibiotics intermittently, or not taking enough of them when an infection is brewing, can be a recipe for producing so-called “superbugs,” germs that evolve to evade common antibiotics. The way this happens: If a group of germs doesn’t get completely saturated with an antibiotic, only the strongest ones — that is, those that would only be killed by much larger doses of the antibiotic — survive. Eventually, their offspring may be entirely resistant to that antibiotic.

(There’s no parallel risk with HIV PrEP because the antiviral medicine it involves doesn’t really have an effect on pathogens other than HIV. However, in the early days of HIV PrEP — since proven to be spectacularly effective at preventing HIV — health authorities were likewise hesitant to embrace it due to resistance fears that ended up being unfounded.)

The US-based trial is still evaluating the effect of doxycycline on antibiotic resistance in germs in the genital, respiratory, and digestive tracts of its 500-odd study participants.

When I spoke with her last fall, Annie Luetkemeyer, an infectious disease doctor and STI researcher at the University of California San Francisco who co-led the US study, said there isn’t any data suggesting that doxycycline is turning lots of microbial bad guys into broadly resistant supervillains. However, determining the drug’s potential to wreak resistance havoc isn’t as easy as just studying its effects on a few hundred individuals, said Chris Kenyon, an infectious disease doctor at the Institute of Tropical Medicine in Antwerp, Belgium, who specializes in antibiotic resistance among sexually transmitted pathogens, in a late-2022 interview.

If scientists really wanted to understand doxycycline’s resistance-creating potential, Kenyon said, they’d conduct huge studies that track people over several years — something like a study in a dozen cities, involving thousands of people. They’d look for patterns: Does more use of the drug lead to more signals of antibiotic resistance? Although studies like that exist for other antibiotics, we don’t have them for doxycycline, he said.

What we do have are studies of much smaller groups of people that show, on an individual level, that doxycycline can induce resistance among certain dangerous germs.

The drug has for decades been prescribed for people to use for months or even years at a time to prevent acne and malaria, and for maintaining chronic infections. A review of studies suggests that people who take long-term doxycycline brew a harder-to-treat version of Staphylococcus aureus, a potentially disease-causing bacteria in the nose.

That review also hinted that long-term doxycycline use leads people to develop resistant bacteria in the mouth and the gut. While some of these changes were reversible, none of the studies were designed to show what they meant in the long term, after those resistant germs had a chance to spread to others.

If doxycycline resistance were to occur and spread on a larger scale, it could render the medication less effective against important germs on a global level. Doxycycline is currently used to treat pneumonia and other infections everywhere, but especially in low-income countries — so removing it from the world’s antibiotic toolbox would be a big blow to global health.

The amount of doxycycline the world currently uses is a fraction of what it would end up using if doxyPEP is widely prescribed; in that case, doxycycline use would increase at least 800-fold over current consumption, according to Kenyon’s back-of-the-envelope calculations.

“It’s a massive exposure,” Kenyon said — and the chance that exposure would induce widespread resistance to doxycycline and other antibiotics is “staggeringly high.” But the data to prove that just doesn’t exist yet.

There is no perfect road ahead

This data vacuum lands differently for different experts. On one hand, said Kenyon, infectious disease doctors like him who see lots of untreatable infections may approach the strategy with more caution. “I would love it to be safe because I’m an STI physician,” he said. “But I don’t want to be telling my patients, ‘Look, this is a wonder medicine,’ until we’ve really nailed that. And I don’t think we’ll be in that place for years.”

But providers in the HIV PrEP world and the many people eager to take doxyPEP say its benefits can’t wait that long.

Sexually transmitted infections take an emotional toll on the communities where they take hold. Among men who have sex with men and their sexual networks, doxyPEP has some of the same potential that HIV PrEP did to restore a waning sense of agency, said Luetkemeyer.

“PrEP is exactly where we need to look for what this holds for us,” she said. Especially for people with HIV or taking PrEP, doxyPEP has people “finally feeling like they got a little bit of control and dignity in their lives,” she said.

“That’s a big thing.”

Update, October 13, 8:50 am ET: This story, originally published on October 25, 2022, has been updated to note the CDC’s new draft guidelines on doxyPEP.

Governments set up rules governing how they govern. Then they ignore them. So, what’s the point? Is it a nod to decorum before the proverbial government party guest throws up in the bathtub and hits on your mom?

If the law says an entry order or warrant is needed to enter people’s homes to investigate alleged crimes against children and you choose to ignore that law, that should make you a lawbreaker. Instead, it just makes you a child protective services investigator.

An investigation by ProPublica has found that these orders are almost never obtained. Instead, investigators simply exploit the ignorance of those targeted, bullying their way past their thresholds to perform warrantless searches of people’s homes.

By law, ACS [Administration for Children’s Services] caseworkers are not allowed to enter and search a home without either permission to enter or an entry order, which is the legal equivalent of a search warrant, unless a child is in imminent danger. But many parents don’t know that they have the right to deny these government agents or don’t push back for fear of losing their children, according to parents and their advocates. And caseworkers frequently say things that are coercive and manipulative in order to get inside homes without going to a judge, according to interviews with more than three dozen former ACS workers, New York City Family Court judges, parents, children and attorneys.

How often is this requirement ignored? Pretty much all the time. ProPublica found that in New York, ACS engaged in more than 56,000 cases a year over the last decade. In the average year over the same time span, it only obtained 94 warrants/entry orders: less than 0.2% of the total cases.

While it’s certainly true not all open cases result in home searches, home entries are extremely common. Home visits are a requirement in most states when a case is opened, which means investigators will make an appearance at people’s homes at least once, if not multiple times, before the investigation concludes.

The data obtained by ProPublica says investigators almost never obtain these orders. The statements made by agencies contacted by ProPublica back up these findings: warrants are the exception, even if they’re supposed to be the rule.

[I]n a ProPublica and NBC News survey that drew detailed responses from 40 state child welfare agencies, all said they would only obtain a warrant or court order to search a home — or call the police for help — in rare cases when they are denied entry. None said they keep any data on how often they get an entry order.

This adds up to millions of warrantless entries to homes every year, performed by agencies that rely on coercion and ignorance to gain entry. When a cop tries to enter a home, most people know they need a warrant to do it. That information has long been mainstream, thanks to decades of TV cop shows. But when a child protective services investigator shows up, people aren’t aware they are government employees performing criminal investigations and need to have the same paperwork to gain entry.

And it’s possibly more intrusive than a search by police officers. Child protective services investigators do things like look in the refrigerator (to gauge the supply of food), consider full trash bags or dirty rooms to be criminal evidence, strip search children, paw through drawers and medicine cabinets, and ask a barrage of extremely personal questions.

All of this intrusion adds up to very little actionable information, however. Homes and lives are at least temporarily turned upside down, with every intimate aspect opened up to investigators, for a net gain in child safety that’s barely measurable.

Less than 4% of the agency’s more than 56,000 cases each year end up revealing a safety situation requiring the removal of a child from a home, according to data provided by an ACS spokesperson.

ACS almost always obtains consent to enter homes, as noted above. Only 0.2% of cases involve court orders or warrants. ACS wards off scrutiny by refusing to track how often parents consent or object to home entries. And it has lobbied against proposals that would provide better protection for parents when confronted by government investigators.

ACS has also fought proposed legislation that would require caseworkers to give a Miranda-style warning to parents at their front door, informing them of their right to remain silent, to refuse entry and to speak to a lawyer or have one present.

Even law enforcement officers are astonished by what ACS investigators get away with.

Shamus Smith, an NYPD officer for more than a decade who is now a professor at John Jay College of Criminal Justice, said that while on patrol he frequently used to get calls to assist ACS. “We didn’t necessarily understand the powers and privileges they had,” he said, expressing amazement that caseworkers could comb through whatever they wanted within a home as if they had a “blank check” instead of a warrant — and no deterrent if they overstepped. “What the hell does ACS have that we don’t?” Smith said.

Well, the one thing ACS has that the NYPD doesn’t is an extreme amount of leverage. ACS investigators can remove children from homes without a court order, something that is implied, if not explicitly stated, when parents refuse entry.

The ACS also has plenty of ignorance to exploit. Parents often don’t know their rights in situations like these. But, worse than that, former ACS investigators interviewed by ProPublica said they “didn’t even know it was a thing” that parents had the constitutional right to refuse entry without a court order.

The ACS itself remains willfully ignorant, stating that its work does not have Fourth Amendment implications, claiming its work is completely separate from the criminal justice system. It could not be more wrong. The Fourth Amendment applies to the entire government. Court precedent quoted by ProPublica says entry orders from family courts are the “equivalent to search warrants.” And ACS is definitely in the criminal justice business because cases of neglect or abuse are criminal acts punishable by jailing and fines.

What’s been observed in New York City is not an aberration. ProPublica spoke to 40 different state agencies — all of which said they would only obtain a court order if they were refused entry, rather than making the initial approach with the proper paperwork in hand. None of these agencies tracked how often court orders were needed or could provide data showing how often they were refused entry.

There’s an ongoing Fourth Amendment crisis here. And the most immediate fix would be to make parents more aware of their rights in these situations — something at least one agency continues to agitate against. These agencies know how they should approach this job, especially considering how invasive their investigations are. But they choose to ignore this because it’s just so much easier to bully people into “agreeing” to have their rights violated.

When you’re used to looking at the world through a certain lens, such as a certain rectangular geographic projection, your mental model tends to mirror the view. John Nelson goes over a handful of misconceptions, through the eyes of North Americans.

Tags: geography, John Nelson, mistakes

Are people happy at work? The American Time Use Survey asks people to score their happiness from 0 to 6, where 0 is not happy at all and 6 is very happy. Here’s how people answered

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The Fifth Circuit’s opinion in Community Financial v. CFPB is completely incoherent.

Three judges appointed by former President Donald Trump handed down an astonishing decision on Wednesday, effectively holding that the Consumer Financial Protection Bureau, the federal agency charged with protecting consumers from a wide range of predatory activity by lenders and other financial services, is unconstitutional and must be stripped of its authority.

The decision by the conservative United States Court of Appeals for the Fifth Circuit relies on a novel reading of an obscure provision of the Constitution, and is entirely at odds with a Supreme Court decision that rejects the Fifth Circuit’s reading of that provision. This is not unusual behavior from the Fifth Circuit, which often reads the Constitution in novel and unexpected ways that benefit political conservatives and the Republican Party.

Indeed, Judge Cory Wilson admits in the court’s new opinion in Community Financial Services v. CFPB that “every court to consider” the arguments presented in this case has deemed the CFPB to be “constitutionally sound.”

Should the three Trump judges’ decision stand, it would effectively neutralize much of the federal government’s ability to fight financial fraud — although that outcome probably is not likely given that the Fifth Circuit’s decision is such an outlier. As Wilson explains, the CFPB assumed enforcement authority “over 18 federal statutes” when it was formed nearly a dozen years ago, and these statutes “cover everything from credit cards and car payments to mortgages and student loans.”

Meanwhile, the agency also enforces a “sweeping new proscription on ‘any unfair, deceptive, or abusive act or practice’ by certain participants in the consumer-finance industry.” All of these consumer protections could evaporate if the Fifth Circuit’s decision earns the favor of the Supreme Court.

The CFPB is constitutional

The judges’ decision in Community Financial Services v. CFPB, turns on the somewhat unusual way the CFPB is financed.

Most federal agencies receive an annual appropriation from Congress that may be altered each year during legislative negotiations over federal spending. Many agencies, however, have separate funding sources, such as the ability to collect fees or assessments from the entities they regulate, and do not rely on the annual appropriations process to fund their operations.

This arrangement, where an agency has a continuous funding source regardless of what Congress decides to do in annual debates over federal spending, is particularly common among financial regulatory agencies. The Federal Reserve, the Federal Deposit Insurance Corporation, the Federal Housing Finance Agency, the National Credit Union Administration, and the Office of the Comptroller of the Currency are all financed outside of the annual appropriations process. So is the CFPB.

Nothing in the Constitution prevents Congress from funding agencies in a variety of ways. Congress could fund an agency through an annual appropriation, or a five-year appropriation, or a 500-year appropriation. It may also authorize the agency to collect fines or fees to fund its operations.

The Constitution does provide that “no money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” But, as the Supreme Court held in Cincinnati Soap Co. v. United States (1937), this provision “means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.” Thus, if the federal government wants to spend its money, Congress must pass a law permitting it to do so.

But Congress did pass a law creating the CFPB and its financing structure, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, which provides that the Federal Reserve shall transfer up to 12 percent of its “total operating expenses” to the CFPB each year, upon the CFPB’s request.

Because this funding mechanism was enacted by Congress, it is constitutional.

The Fifth Circuit imposed a novel limit on how Congress may fund federal agencies

The Fifth Circuit’s reasoning in Community Financial is difficult to parse, but the three judges essentially argue that the CFPB is unconstitutional because its funding passes through the Federal Reserve — another agency that is not funded through the annual congressional appropriations process — before arriving at the CFPB.

Wilson’s opinion describes this funding structure as “double-insulated funding” because the CFPB’s money passes through two agencies that are not subject to annual appropriations, and he claims that this kind of funding structure is “unique.” He also deems this somewhat unusual funding structure to be problematic because none of the other agencies that are insulated from the annual appropriations process wield “enforcement or regulatory authority remotely comparable to the authority the [CFPB] may exercise throughout the economy.”

That last statement is doubtful, given that one of the other agencies that are insulated from annual appropriations is the Federal Reserve itself, the agency that controls the US money supply and that has such extraordinary power over the global economy that markets rise and fall based on merely on investors’ conjectures about what the Federal Reserve might do in the future.

In any event, the Constitution does not say that “double-insulated” agencies are unconstitutional. It also does not say that Congress must fund powerful agencies differently than it funds less powerful agencies. It only says that Congress must pass a law funding an agency before that agency may spend money to carry out its functions.

And, in this case, Congress enacted such a law.

While the last decade hasn’t been what you’d call great for consumer rights in the U.S. (especially in sectors like telecom), one bright spot has been the mainstreaming of “right to repair” standards. What began as some nerdy fringe policy activism among those eager to repair their own tractors, has very quickly become a mainstream policy issue, thanks in no small part to activists and the Biden administration.

Things shifted greatly last year when President Biden formally included some right to repair measures in a broad executive order demanding the FTC craft stricter rules targeting efforts to hamstring independent and consumer repair options. The FTC has been busy ever since, dinging companies like Weber and Harley Davidson for things like voiding warranties if users should have things they own independently repaired.

This week, the FTC moved the line further along with an announcement that it’s considering including some right to repair messaging into U.S. energy savings guidelines. More specifically, the agency is seeking comment on a plan to expand existing energy conservation stickers (the kind often seen on appliances) to emphasize independent repair options over replacement:

“We look forward to hearing from the public on our initiative to reduce energy costs, promote competition, and strengthen repairability,” said Samuel Levine, Director of the FTC’s Bureau of Consumer Protection. “As prices rise, the Commission will continue to take aggressive action to protect consumers’ pocketbooks and strengthen their right to repair their own products.”

Not too surprisingly, right to repair activists see this as a small but important step toward reminding Americans that one of the best energy conservation efforts involves repairing what they own instead of getting caught in a wasteful product upgrade cycle often encouraged by manufacturers:

“Repairing a product instead of replacing it is one of the best ways to cut down the environmental impact of our appliances. Including repair requirements as part of the Energy Guide program is the right thing for the planet and important for consumers,” Nathan Proctor, PIRG’s Senior Right to Repair Campaign Director, said in a press release after the announcement.

Once live, consumers will be able to submit their comments over at the FTC regulation website. The notice of proposed rulemaking itself can be found here.

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Viral illnesses similar to the flu are on the rise in DC, according to the CDC. The public health agency’s weekly influenza surveillance map reports that influenza-like illness activity is “very high” in the District, although Virginia and Maryland are still seeing low to moderate cases. Still, whatever illness is going around is most likely […]

The post Flu-Like Viruses Are Surging in DC first appeared on Washingtonian.

J.R.R. Tolkien’s “Lord of the Rings” is one of the best-known and best-loved modern works of literature, not least thanks to Peter Jackson’s films based on the cycle. Given that popularity, it’s no surprise that there was interest in creating adaptations of other Tolkien works. The result is “The Lord of the Rings: The Rings of Power”. According to Wikipedia:

Amazon bought the television rights for The Lord of the Rings for US$250 million in November 2017, making a five-season production commitment worth at least US$1 billion. This would make it the most expensive television series ever made.

A post on ScreenRant explains:

Tolkien chronicled tens of thousands of years of stories occurring prior to The Lord of the Rings. Some of these stories were referenced in The Hobbit or The Lord of the Rings trilogy, including the Appendices at the end of The Return of the King, but most of what’s known about that additional canon comes from other works by Tolkien published after his death, such as The Silmarillion, which The Rings of Power isn’t allowed to use for its own story.

The reason, of course, is copyright, because Amazon only has the rights to use “The Lord of the Rings” books, which include the appendices mentioned above. As the ScreenRant article notes, this has forced the team behind “The Rings of Power” to come up with clever but rather convoluted solutions in order to explain key elements of the earlier Tolkien world, without drawing on forbidden materials like “The Silmarillion“.

Some Tolkien fans are not happy about those divergences, but few are aware that copyright is to blame. The saga about new adaptations of the Tolkien epics is a perfect illustration of how copyright is not something that helps people to create, but can act as a serious obstacle to it that must be circumvented.

Follow me @glynmoody on Twitter, or Mastodon. Originally posted to Walled Culture.

Metro announced today that the Silver Line extension will be ready to open by Thanksgiving—with a catch: The six new stations won’t be in service until more 7000-series trains return to the tracks. Following a derailment last October, all of the 7000-series trains were taken off the tracks—almost 60 percent of Metro’s fleet. A year […]

The post Metro’s Silver Line Extension Will Be Ready by Thanksgiving—but It Won’t Have Enough Trains first appeared on Washingtonian.

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by Renee Dudley and Daniel Golden

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Investigating cybercrime was supposed to be the FBI’s third-highest priority, behind terrorism and counterintelligence. Yet, in 2015, FBI Director James Comey realized that his Cyber Division faced a brain drain that was hamstringing its investigations.

Retention in the division had been a chronic problem, but in the spring of that year, it became acute. About a dozen young and midcareer cyber agents had given notice or were considering leaving, attracted by more lucrative jobs outside government. As the resignations piled up, Comey received an unsolicited email from Andre McGregor, one of the cyber agents who had quit. In his email, the young agent suggested ways to improve the Cyber Division. Comey routinely broadcast his open-door policy, but senior staff members were nevertheless aghast when they heard an agent with just six years’ experience in the bureau had actually taken him up on it. To their consternation, Comey took McGregor’s email and the other cyber agents’ departures seriously. “I want to meet these guys,” he said. He invited the agents to Washington from field offices nationwide for a private lunch. As news of the meeting circulated throughout headquarters, across divisions and into the field, senior staff openly scorned the cyber agents, dubbing them “the 12 Angry Men,” “the Dirty Dozen” or just “these assholes.” To the old-schoolers — including some who had risked their lives in service to the bureau — the cyber agents were spoiled prima donnas, not real FBI.

The cyber agents were as stunned as anyone to have an audience with Comey. Despite their extensive training in interrogation at the FBI Academy in Quantico, Virginia, many were anxious about what the director might ask them. “As an agent, you never meet the director,” said Milan Patel, an agent who attended the lunch. “You know the director, because he’s famous. But the director doesn’t know you.”

You also rarely, if ever, go to the J. Edgar Hoover Building’s seventh floor, where the executive offices are. But that day, the cyber agents — all men, mostly in their mid-30s, in suits, ties and fresh haircuts — strode single file down the seventh-floor hall to Comey’s private conference room. Stiffly, nervously, they stood waiting. Then Comey came in, shirt sleeves rolled up and bag lunch in hand.

“Have a seat, guys,” he told them. “Take off your coats. Get comfortable. Tell me who you are, where you live and why you’re leaving. I want to understand if you are happy and leaving, or disappointed and leaving.”

Around the room, everyone took a turn answering. Each agent professed to be happy, describing his admiration for the bureau’s mission.

“Well, that’s a good start,” Comey said.

Then sincerity prevailed. For the next hour, as they ate their lunches, the agents unloaded.

They told Comey that their skills were either disregarded or misunderstood by other agents and supervisors across the bureau. The FBI had cliques reminiscent of high school, and the cyber agents were derisively called the Geek Squad.

“What do you need a gun for?” SWAT team jocks would say. Or, from a senior leader, alluding to the physical fitness tests all agents were required to pass, “Do you have to do pushups with a keyboard in your backpack?” The jabs — which eroded an already tenuous sense of belonging — testified to the widespread belief that cyber agents played a less important role than others in the bureau.

At the meeting, the men also registered their opposition to some of the FBI’s ingrained cultural expectations, including the mantra that agents should be capable of doing “any job, anywhere.” Comey had embraced that credo, making it known during his tenure that he wanted everyone in the FBI to have computer skills. But the cyber agents believed this outlook was misguided. Although traditional skills, from source cultivation to undercover stings, were applicable to cybercrime cases, it was not feasible to turn someone with no interest or aptitude in computer science into a first-rate cyber investigator. The placement of nontechnical agents on cyber squads — a practice that dated to the 1990s — also led to a problem that the agents referred to as “reeducation fatigue.” They were constantly forced to put their investigations on hold to train newcomers, both supervisors and other cyber agents, who arrived with little or no technical expertise.

Other issues were personal. To be promoted, the FBI typically required agents to relocate. This transient lifestyle caused family heartache for agents across the bureau. One cyber agent lamented the lack of career opportunities for his spouse, a businesswoman, in far-flung offices like Wichita. The agents told Comey they didn’t have to deal with “the shuffle” around the country for professional advancement because their skills were immediately transferable to the private sector and in high demand. They had offers for high-profile jobs paying multiples of their FBI salaries. Unlike private employers worried about staying competitive, the FBI wasn’t about to disrupt its rigid pay scale to keep its top cyber agents. Feeling they had nothing to lose, the agents recommended changes. They told Comey that the FBI could improve retention by centralizing cyber agents in Washington instead of assigning them to the 56 field offices around the country. That made sense because, unlike investigating physical crimes like bank robbery, they didn’t necessarily need to be near the scene to collect evidence. Plus, suspects were often abroad.

Most important, they wanted the bureau’s respect.

Comey listened, asked questions and took notes. Then he led them to his private office. They glanced around, most of them knowing they were unlikely to be granted such access to power again. Comey’s desk featured framed photos of his wife and children, and the carpet was emblazoned with the FBI’s seal. The agents had such respect for the bureau that they huddled close so that no one had to step on any part of the seal.

Perhaps the most striking feature of the office was the whiteboard that sprawled across one of the walls. On it was an organizational chart of the bureau’s leadership with magnets featuring the names and headshots of FBI executives and special agents in charge of field offices. Many were terrorism experts who had risen through the hierarchy in the aftermath of the Sept. 11, 2001, attacks.

Comey was sympathetic to his visitors and recognized the importance of cyber expertise to the FBI’s future. At the same time, he wasn’t going to overhaul the bureau and alienate the powerful old guard to please a group of short-timers.

“Look, I know we’ve got a problem with leadership here,” Comey told the cyber agents as they studied the whiteboard, according to agents who were there. “I want to fix it, but I don’t have enough time to fix it. I’m only here for a limited amount of time; it’s going to take another generation to fix some of these cultural issues.” But the agents knew the FBI couldn’t afford to wait another generation to confront escalating cyberthreats like ransomware. Ransomware is the unholy marriage of hacking and cryptography. Typically, the attackers capitalize on a cybersecurity flaw or get an unsuspecting person to open an attachment or click a link. Once inside a computer system, ransomware encrypts the files, rendering them inaccessible without the right decryption key — the string of characters that can unlock the information — for which a ransom is demanded.

Although attacks were becoming more sophisticated, bureau officials told counterparts in the Department of Homeland Security and elsewhere in the federal government that ransomware wasn’t a priority because both the damages and the chances of catching suspects were too small. Instead of aggressively mobilizing against the threat, the FBI took the lead in compiling a “best practices” document that warned the public about ransomware, urged prevention and discouraged payments to hackers. Through an intermediary, Comey, fired from his FBI position by then-President Donald Trump in 2017, declined to comment on the meeting. The FBI acknowledged but did not respond to written questions.

To FBI leadership, ransomware was an “ankle-biter crime,” said an agent who attended the meeting with Comey.

“They viewed it as a Geek Squad thing, and therefore they viewed it as not important,” he said.

Many of the issues the FBI cyber agents raised during their meeting with Comey were nothing new. In fact, the bureau’s inertia in tackling cybercrime dated all the way back to a case involving the first documented state-sponsored computer intrusion.

In 1986, Cliff Stoll was working as a systems administrator at the Lawrence Berkeley National Laboratory when his boss asked him to resolve a 75-cent shortfall in the accounting system the lab used for charging for computing power. Stoll traced the error to an unauthorized user and ultimately unraveled a sprawling intrusion into computer systems of the U.S. government and military. Eventually, the trail led to German hackers paid by the Soviet Union’s intelligence service, the KGB. Stoll immortalized his crusade in the 1989 book “The Cuckoo’s Egg.” In the course of his investigation, he tried seven times to get the attention of the FBI but was rebuffed each time.

“Look, kid, did you lose more than a half million dollars?” the FBI asked him.

“Uh, no,” Stoll replied.

“Any classified information?”

“Uh, no.”

“Then go away, kid.”

Stoll later spoke with an Air Force investigator who summed up the FBI’s position: “Computer crimes aren’t easy — not like kidnapping or bank robbery, where there’s witnesses and obvious losses. Don’t blame them for shying away from a tough case with no clear solution.”

It wasn’t until almost a decade later that the federal government took its first significant step to organize against cyberthreats. After the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, the Clinton administration called together a dozen officials from across the government to assess the vulnerability of the nation’s critical infrastructure. Since essential services such as health care and banking were moving online, the committee quickly turned its attention from physical threats, like Timothy McVeigh’s infamous Ryder truck, to computer-based ones.

The group helped establish what became known as the National Infrastructure Protection Center in 1998. With representatives from the FBI, the Secret Service, intelligence agencies and other federal departments, the NIPC was tasked with preventing and investigating computer intrusions. The FBI was selected to oversee the NIPC because it had the broadest legal authority to investigate crime.

Turf battles broke out immediately. The National Security Agency and the Pentagon were indignant about reporting to the FBI about sophisticated computer crimes that they believed the bureau was incapable of handling, said Michael Vatis, then a deputy U.S. attorney general who led the effort to launch the center.

“They said: ‘Oh, no, no, no. It can’t be the FBI,’” Vatis recalled. “‘All they know how to do is surround a crime scene with yellow tape and take down bad guys. And they’re notorious for not sharing information.’”

Meanwhile, infighting over resources roiled the FBI. “You had a lot of old-line people arguing about whether cybercrime was real and serious,” Vatis said. “People who came up through organized crime, or Russian counterintelligence. They were like: ‘This is just a nuisance from teenagers. It’s not real.’”

At the time, only a couple of dozen FBI agents had any experience or interest in investigating computer crime. There weren’t nearly enough tech-literate agents to fill the scores of new job openings in the NIPC. Needing warm bodies, the FBI summoned volunteers from within its ranks, regardless of background. Among them was the New Orleans-based agent Stacy Arruda. During her first squad meeting in 1999, as her supervisor talked about “Unix this, and Linux that,” she realized she was in over her head.

“Arruda, do you have any idea what I’m talking about?” the supervisor asked her.

“Nope.”

“Why are you nodding and smiling?”

“I don’t want to look stupid.”

It was an easy admission because most of the new NIPC agents were similarly uninformed about the world they would be investigating.

When the bureau ran out of volunteers to join the NIPC, agents were “volun-told” to join, Arruda said. That’s what happened to Scott Augenbaum. He said he was assigned to the NIPC because he was the only agent in his Syracuse, New York, office “who had any bit of a technology background,” meaning he “could take a laptop connected to a telephone jack and get online.” He was disappointed by the assignment because it was “not the cool and fun and sexy job to have within the FBI.” His friends in the bureau teased him. “They told me, ‘This cyber thing is going to hurt your career.’”

Following the Sept. 11, 2001, terrorist attacks, FBI Director Robert Mueller created the bureau’s Cyber Division to fight computer-based crime. The division took over the NIPC’s investigative work, while prevention efforts moved to the Department of Homeland Security, which was established in November 2002. The DHS, however, put the computer crime prevention mission on hold for years as it focused instead on deterring physical attacks.

To ramp up the new division, the FBI put a cyber squad in each field office and launched a training program to help existing agents switch tracks. It also benefited from the “patriot effect,” as talented computer experts who felt a call to service applied. Among them were Milan Patel and Anthony Ferrante, two of the agents who would attend the meeting with Comey.

Fresh out of college, Ferrante was working as a consultant at Ernst & Young on 9/11. From his office in a Midtown skyscraper, he watched the towers fall. In the days that followed, he resolved to use his computer skills to fight terrorism. While pursuing a master’s degree in computer science at Fordham University, he met with an FBI recruiter who was trying to hire digital experts for the new Cyber Division. The recruiter asked Ferrante what languages he knew.

“HTML, JavaScript, C++, Business Basic,” he answered.

“What are those?” the perplexed recruiter responded. “I mean, Russian, Spanish, French.”

It wouldn’t be the last time Ferrante felt misunderstood by the bureau. When he arrived at Quantico in 2004, he found himself in a firearms class of about 40 new agents-in-training. There, the instructor asked: “Who here has never shot a gun?”

With his gaze cast downward as he concentrated on taking notes, Ferrante raised his hand. The room became silent. He looked around and saw he was the only one. Everyone stared.

“What’s your background?” the instructor asked.

“I’m a computer hacker,” Ferrante said.

On a campus that recruits jokingly referred to as “college with guns,” his answer was not well received. The instructor shook his head, rolled his eyes and moved on.

Patel arrived at the FBI Academy in 2003 with a college degree in computer science from the New Jersey Institute of Technology. From Quantico, he was assigned to a cyber squad in New York, where his new boss didn’t quite know what to do with him. The supervisor handed him a beeper, a Rand McNally map and the keys to a 1993 Ford Aerostar van that “looked like it was bombed out in Baghdad,” Patel said. Another agent set him up with a computer running a long-outdated version of Windows.

“Oh my God, this is like the Stone Age,” he thought. As time went on, Patel discovered how cumbersome it was to brief supervisors about cyber cases. Since many of them knew little about computers, he had to write reports that he considered “borderline childish.”

“You had to try to relate computers to cars,” he said. “You’re speaking a foreign language to them, yet they’re in charge, making decisions over the health of what you do.”

Patel realized that most of his Cyber Division colleagues, like Arruda and Augenbaum, didn’t have a technical background. The bureau tried to turn traditional law enforcement officers into tech specialists while passing over computer scientists who could not meet its qualifications to become agents. “Is the person who can do 15 pull-ups and run 2 miles around the track in under 16 minutes the same guy that you want decrypting ransomware?” Patel said. “Typically people who write code and enjoy the passion of figuring out malware, they’re not in a gym cranking out squats.”

Some agents ended up in the Cyber Division because it had openings when they graduated from Quantico, or because it was a stop on the way to a promotion. In a popular move, many senior agents and supervisors pursued a final assignment in the division before becoming eligible for retirement at age 50, knowing it made them more attractive to private-sector employers for their post-FBI careers.

“On a bureau cyber squad, you typically have one or two people, if you’re lucky, who can decrypt and do network traffic analysis and programming and the really hard work,” Patel said. “And you’ve got two or three people who know how to investigate cybercrime and have a computer science degree. And the rest — half of the team — are in the cyber program, but they don’t really know anything about cyber.” Some of those agents made successful cases anyway, but they were the exception.

Despite the internal headwinds, Patel worked on some of the bureau’s marquee cybercrime cases. He led the investigation into Silk Road, the black-market bazaar where illegal goods and services were anonymously bought and sold. As part of a sprawling investigation into the dark web marketplace, law enforcement located six of Silk Road’s servers scattered across the globe and compromised the site before shutting it down in October 2013. Ross Ulbricht, of San Francisco, was later found guilty on narcotics and hacking charges for his role in creating and operating the site. He is serving two life sentences plus 40 years in prison. Patel was nominated for the FBI Director’s Award for Investigative Excellence; he became a Cyber Division unit chief, advising on technology strategy. Then, shortly after the Dirty Dozen meeting with Comey, he left the FBI for a higher-paying job in the private sector.

Ferrante was selected for the FBI’s Cyber Action Team, which deployed in response to the most critical cyber incidents globally. As a supervisory special agent, he became chief of staff of the FBI’s Cyber Division. After the meeting with Comey, Ferrante remained in the FBI for another two years. He left in 2017 to become global head of cybersecurity for FTI Consulting, where he worked with companies victimized by ransomware.

He kept tabs on the bureau’s public actions in fighting the crime. Despite occasional successes, he said in 2021 that he was disappointed by the small number of ransomware-related indictments in the years that followed Comey’s 2015 gathering.

“They would work cases, but those cases would just spin, spin, spin,” Ferrante said. “No, they’re not taking it seriously, so of course it’s out of control now because it’s gone unchecked for so many years. … Nobody understood it — nobody within the FBI, and nobody within the Department of Justice. Because they didn’t understand it, they didn’t put proper resources behind it. And because they didn’t put proper resources behind it, the cases that were worked never got any legs or never got the attention they deserved.”

By 2012, FBI leadership recognized that most crimes involved some technical element: the use of email or cellphones, for example. So that year, it began to prioritize hiring non-agent computer scientists to help on cases. These civilian cyber experts, who worked in field offices around the country, did not carry weapons and were not required to pass regular physical fitness tests. But respect for the non-gun-carrying technical experts was lacking. This widespread condescension was reflected in a nickname that Stacy Arruda, the early NIPC agent who went on to a career as a supervisor in the Cyber Division, had for them: dolphins.

“Someone who is highly intelligent and can’t communicate with humans,” said Arruda, who retired from the FBI in 2018. “When we would travel, we would bring our dolphins with us. And when the other party started squeaking, we would have our dolphins squeak right back at them.”

If agents like Patel and Ferrante had a hard time winning the institutional respect of the FBI, it seemed almost impossible for the dolphins to do so. They worked on technical aspects of all types of cases, not just cyber ones. Yet, despite the critical role they played in investigating cyber cases — sometimes as the sole person in a field office who understood the technical underpinnings of a case — these civilian computer scientists were often regarded as agents’ support staff and treated as second-class citizens.

Randy Pargman took a circuitous route to becoming the Seattle field office’s dolphin. As a kid in California, Pargman regularly hung out with his grandma, who was interested in technology. She bought magazines that contained basic code and helped Pargman copy it onto their Atari video game console. It was his introduction to computer programming. Later, as a teenager, Pargman was drawn to a booth of ham radio enthusiasts at a county fair and soon began saving up to buy his own $300 radio. It was the early 1990s, before most home users were online, so Pargman was thrilled when he used the radio to access pages from a library in Japan and send primitive emails.

After high school, Pargman put his radio skills to work when he became a Washington State Patrol dispatcher. Although it wasn’t a part of the job description, he created one computer program to improve the dispatch system’s efficiency and another to automate the state’s process for investigating fraud in vehicle registrations. The experience led him to study computer science at Mississippi State. In the summer of 2000, while still in college, Pargman completed an FBI internship, an experience that left him with a deep appreciation for the bureau’s mission. So, following brief stints working for the Department of Defense and as a private sector software engineer once he graduated, he applied to become an agent. He was hired in 2004, around the same time as Patel and Ferrante.

Like those two agents, Pargman was shocked by the digital Stone Age he found himself in upon arriving. At the FBI Academy, a computer instructor gave lessons on typing interviews and reports on WordPerfect, the word processing platform whose popularity had peaked in the late 1980s. To Pargman, even more outrageous than the FBI’s use of WordPerfect was the notion that agents would need instruction on such a basic program. The first week of class, the instructor delivered another surprise.

“OK, who are the IT nerds in here?” he asked.

After Pargman and a classmate raised their hands, the instructor addressed them directly.

“You’re not going to be working on cybercrimes. You’re going to be working on whatever the bureau needs you to do.”

The other tech-savvy recruit later confided to Pargman that he was dropping out of the FBI Academy to return to private industry. “This is not what I thought it was going to be,” he said.

Pargman was similarly torn. He believed in the FBI’s mission but wanted to work solely on cybercrime. Like Ferrante, he didn’t have experience with guns, and he was unsure about how he would handle that aspect of the job. He faced a reckoning when an FBI speaker led a sobering session about the toughest aspects of working for the bureau, from deadly force scenarios to the higher-than-average rates of suicide and divorce among agents.

After consulting with FBI counselors and a bureau chaplain, Pargman decided he didn’t want to become an agent. Instead, he stayed in the FBI as a civilian, working as a software developer at the FBI Academy. Eight years later, when the FBI launched the computer science track, Pargman eagerly applied. He became the Seattle field office’s dedicated computer scientist in October 2012.

“This is why I had gotten into the FBI to begin with,” Pargman said. “I can concentrate just on cybercrime investigations and not have to deal with the whole badge and gun.”

Once Pargman got to Seattle, he began to dream big. His vision: The FBI could model its Cyber Division after one of the world’s most successful computer crime-fighting law enforcement organizations, the Dutch High Tech Crime Unit. He knew how traditional and hidebound the bureau was, how different from the HTCU and its innovative culture. But, ever idealistic, he hoped that the HTCU’s remarkable track record would persuade the FBI to adopt elements of the Dutch approach.

Pargman had long been familiar with the HTCU’s reputation for arresting hackers and disrupting their infrastructure. When he met a Dutch officer through an FBI program for midcareer professionals, he asked her the secret to the HTCU’s success. Her response was straightforward: the HTCU was effective because it paired each traditional police officer with a computer scientist, partnerships that had been a founding priority of the unit. While the HTCU computer scientists weren’t required to pass police exams, meet physical fitness requirements, or handle weapons, they nonetheless were entitled to the same rank and promotions as their traditional counterparts. They also were not obligated to pivot to noncomputer work during their police careers.

The density of computer science experts in the HTCU astounded Pargman, who thought it was brilliant. He suggested the Dutch approach to managers in the FBI’s Operational Technology Division, which oversaw the new computer science track. They laughed.

“We can’t get funding for that many computer scientists,” one contact told him. “That would be crazy.”

Pargman acknowledged that, since the FBI’s Cyber Division was much larger than the Dutch Police’s HTCU, establishing a one-to-one partnership was a stretch. Yet the FBI’s setup all but ensured that its drastically outnumbered computer scientists would not find a collective voice, as the tech experts had done in the HTCU. As Pargman dug into cyber investigations in Seattle, he learned that the bureau’s staffing imbalance was straining its cyber experts, both civilian computer scientists and technically advanced agents like Patel and Ferrante.

Many of the cyber agents Pargman worked with in Seattle had prior careers as accountants, attorneys or police officers. To get acquainted with the digital world, they took crash courses offered by the SANS Institute, the bureau’s contractor for cybersecurity training; popular offerings included Introduction to Cyber Security and Security Essentials Bootcamp. From an institutional perspective, learning on the job to investigate computer crime was no different from learning on the job to investigate white-collar or gang crime. But FBI leadership didn’t take into account something that early leaders in the Dutch HTCU knew from the unit’s start: It’s not easy to teach advanced computer skills to someone who has no technical background.

Cyber agents routinely came to Pargman with basic tasks such as analyzing email headers, the technical details stored within messages that can contain helpful clues.

“This is easy, you need to learn how to do this,” Pargman told one agent. He produced the IP address from the headers.

“What does that mean?” the agent responded. “What is this IP address?”

Pargman had to make the time to help because, if he didn’t, the agent might do something embarrassing, like attempt to subpoena publicly available information “because they just didn’t know any better.”

In the FBI, investigations into specific ransomware strains were organized by field office. For example, Springfield, Illinois, investigated complaints involving a strain called Rapid, while Anchorage, Alaska, investigated those related to Russia-based Ryuk, one of the first ransomware gangs to routinely demand six-figure payments and to carefully select and research its targets. From time to time, Pargman learned of victim complaints to the Seattle office about emerging ransomware strains. Since cases weren’t assigned directly to computer scientists, he pushed the agents to take them on. “Oh boy, here’s one that nobody is working,” he told one colleague.

“Let’s jump on this.”

“That sounds amazing,” the agent responded. “But I’ll be so busy with that case that I won’t get to do anything else.”

In the early days of ransomware, when hackers demanded no more than a few hundred dollars, the FBI was uninterested because the damages were small — not unlike Cliff Stoll’s dilemma at Berkeley. Later, once losses grew to hundreds of thousands or even millions of dollars, agents had other reasons to want to avoid investigating ransomware. In the FBI, prestige springs from being a successful “trial agent,” working on cases that result in indictments and convictions that make the news. But ransomware cases, even with the enthusiastic support of a computer scientist like Pargman, were long and complex, with a low likelihood of arrest.

The fact that most ransomware hackers were outside the United States made the investigative process challenging from the start. To collect evidence from abroad, agents needed to coordinate with federal prosecutors, FBI legal attachés and international law enforcement agencies through the Mutual Legal Assistance Treaty process. Seemingly straightforward tasks, such as obtaining an image of a suspicious server, could take months. And if the server was in a hostile country such as Iran or North Korea, the agents were out of luck. Aware of this international labyrinth, even some federal prosecutors discouraged agents from pursuing complex cyber investigations.

During Pargman’s time as Seattle’s computer scientist, the field office took on a number of technically sophisticated cases. He was especially proud of one that led to the Justice Department’s indictment, unsealed in 2018, of hackers accused in the notorious Fin7 attacks. They breached more than 100 U.S. companies and led to the theft of more than 15 million customer credit card records. But during his seven years in Seattle, the office never got a handle on ransomware.

“If you spend all of your time chasing ransomware, and for years you never make a single arrest of anybody, you’re seen as a failure,” Pargman said. “Even if you’re doing a ton of good in the world, like sharing information and helping protect people, you’re still a failure as an investigator because you haven’t arrested anybody.” Despite its own inaction, the FBI feuded with the other federal agency responsible for investigating ransomware: the Secret Service. Although the Secret Service has been guarding presidents since 1894, its lesser-known mission of combating financial crimes dates back even longer — to the day in April 1865 that Abraham Lincoln was assassinated. Before heading to Ford’s Theatre, Lincoln signed legislation creating the agency and giving it the mandate to fight counterfeit currency. As financial crime evolved and moved online, the Secret Service and the FBI squabbled over cases. Although it, too, had a federal mandate to fight computer crime, the Secret Service was sometimes bigfooted by the FBI, said Mark Grantz, who was a supervisory special agent for the Secret Service in Washington.

“They’d say: ‘Yeah, we’ve got a case on that already. We were looking at him five years ago. Give us everything you’ve got and we’ll go from there.’ That was their M.O.,” Grantz said. It left him wondering: “You haven’t touched that case in five years, why are you asking me for my case file?”

Grantz led an investigation into a ransomware attack in January 2017, eight days before Donald Trump’s inauguration. The strike disabled computers linked to 126 street cameras in a video surveillance system monitoring public spaces across Washington, D.C., including along the presidential parade route. Instead of paying the five-figure ransom, the district scrambled to wipe and restart the cameras, which were back online three days before the swearing-in. Assisted by other law enforcement organizations, the Secret Service traced the hack to two Romanians, who were arrested in Europe, extradited to the United States and found guilty on wire fraud charges — an uncommon U.S. law enforcement success against ransomware operators.

Other Secret Service investigations sometimes stalled because agents had to rotate away for protective detail. “That’s where it gets frustrating,” Grantz said. “You’d train someone. They’d do digital forensics for five years. They’d get really good at it. And then you’d send them off to do presidential detail.”

Randy Pargman also grew frustrated by the FBI’s reluctance to engage meaningfully with private-sector cybersecurity researchers like the Ransomware Hunting Team. An elite, invitation-only group of tech wizards in seven countries, the team has uncovered keys to hundreds of ransomware strains, saving millions of individuals, businesses, schools and other victims from paying billions of dollars in ransom. When the FBI did connect with experts in the private sector, sensitive information typically flowed only in one direction — to the bureau.

Following large cyberattacks against U.S. targets, the FBI routinely affirmed its commitment to public-private partnerships to help prevent and gather intelligence on such strikes. But some agents believed the rhetoric was hollow, comparing it to public officials’ offering “thoughts and prayers” after mass shootings. The reality was that many people in the FBI had a deep distrust of private-sector researchers.

“There’s this feeling among most agents that if they share even a little bit of information with somebody in the private sector, that information will get out, broadcast over the internet — and the bad guys will definitely read it, and it will destroy the whole case,” Pargman said.

Even though he couldn’t work on ransomware cases, Pargman found ways to feel fulfilled in his job, including by helping organizations defend themselves against impending cyber intrusions. He examined malware command-and-control servers obtained through the MLAT process, then alerted potential victims to imminent attacks. “That was a really good feeling because we stopped a ton of those intrusions,” he said. FBI leadership rewarded his efforts: Pargman earned both the FBI Director’s Award for Excellence in Technical Advancement and the FBI Medal of Excellence.

But he grew tired of his subordinate role as an “agent helper,” and he thought about how things would be different if the FBI were more like the Dutch HTCU. In the bureau, he couldn’t be promoted since Cyber Division leadership roles were open only to agents. And while agents could retire at 50 with full pensions, he had to wait until age 62, and would receive less money. In 2019, Pargman resigned from the FBI, telling his supervisor he wanted to be in a role where he could enact changes rather than just suggest them.

“I love working for the FBI,” he told his supervisor. “It’s very meaningful and fulfilling. But there is no leadership spot for me to go to, only because I’m not an agent. So you cannot be upset that I’m going to get a job where I can be a leader, and make changes, and create a team to do big things.”

When it came to ransomware, the FBI didn’t have a lengthy roster of achievements to boast about. It would not be until after the May 2021 attack on the Colonial Pipeline, which shuttered gas stations across the Southeast, that the FBI would prioritize the ransomware threat and embrace assistance from private researchers like the Ransomware Hunting Team. But even with its new emphasis on ransomware, the FBI didn’t undertake fundamental reforms to expand its roster of cyber experts. It still wanted its cyber agents to be athletic college graduates with relevant job experience, who also had to be willing to shoot a gun, relocate their families and pivot away from investigating cybercrime as needed.

The bureau’s reluctance to adapt disappointed some former agents. “I think the next generation of cyber people in the bureau should be the type of people who want to be cyber first, and not agents at all,” said Patel, one of the agents who attended the 2015 meeting with Comey. “The bureau needs expertly trained technical programmers, cybersecurity engineers, that know how to write code, compile, dissect and investigate — and it has nothing to do with carrying a gun.”

Excerpted from “The Ransomware Hunting Team: A Band of Misfits’ Improbable Crusade to Save the World from Cybercrime” by Renee Dudley and Daniel Golden. Published by Farrar, Straus and Giroux. Copyright © 2022 by Renee Dudley and Daniel Golden. All rights reserved.

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Late last year, we noted how the FAA and the FCC (the agency that actually knows how spectrum works) had gotten into a bit of an ugly tussle over the FAA’s claim that 5G could harm air travel safety.

The FAA claimed that deploying 5G in the 3.7 to 3.98 GHz “C-Band” would cause interference with certain radio altimeters. But the FCC conducted its own study showing minimal issues, and pointed to the more than 40 countries have deployed 5G in this bandwidth with no evidence of harm. Lifelong wireless spectrum policy experts like Harold Feld also blogged about how this was a an overheated controversy, and any real harm could be mitigated.

It didn’t much matter. It didn’t take long before the news wires were filled with reports about how 5G was going to be a diabolical public safety menace when it came to air travel. In part, thanks to folks at the FAA, who leaked scary stories to outlets like the Wall Street Journal.

A year later, and a new NTIA study has found that yeah, most of the potential harm 5G can cause to altimeters can be mitigated with some software updates and careful strategizing of tower placement around airports, just as the FCC and numerous other countries had already stated years earlier:

Researchers found that 5G transmissions stay safely within their assigned frequencies and mostly don’t point signals skyward where aircraft operate, according to the report released Tuesday, the first of several from the government on the new high-speed mobile phone service.

There is a “low level of unwanted 5G emissions” in frequencies used by so-called radar altimeters — which calculate a plane’s distance from the ground and are critical to landing in low visibility — the National Telecommunications and Information Administration said in the report.

The findings offer the the strongest indication to date that the patches being applied to some aircraft models should work well to protect them. 

The fact that this always was a minor, fixable problem probably won’t get anywhere near the coverage you saw last year when countless news outlets proclaimed that airliners could soon start falling from the sky thanks to 5G. This was also a weird instance where the FAA failed to cooperatively heed the insights of the FCC, the one regulator specifically tasked with understanding how wireless spectrum actually works.

by Heather Vogell, ProPublica, with data analysis by Haru Coryne, ProPublica, and Ryan Little

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On a summer day last year, a group of real estate tech executives gathered at a conference hall in Nashville to boast about one of their company’s signature products: software that uses a mysterious algorithm to help landlords push the highest possible rents on tenants.

“Never before have we seen these numbers,” said Jay Parsons, a vice president of RealPage, as conventiongoers wandered by. Apartment rents had recently shot up by as much as 14.5%, he said in a video touting the company’s services. Turning to his colleague, Parsons asked: What role had the software played?

“I think it’s driving it, quite honestly,” answered Andrew Bowen, another RealPage executive. “As a property manager, very few of us would be willing to actually raise rents double digits within a single month by doing it manually.”

The celebratory remarks were more than swagger. For years, RealPage has sold software that uses data analytics to suggest daily prices for open units. Property managers across the United States have gushed about how the company’s algorithm boosts profits.

“The beauty of YieldStar is that it pushes you to go places that you wouldn’t have gone if you weren’t using it,” said Kortney Balas, director of revenue management at JVM Realty, referring to RealPage’s software in a testimonial video on the company’s website.

The nation’s largest property management firm, Greystar, found that even in one downturn, its buildings using YieldStar “outperformed their markets by 4.8%,” a significant premium above competitors, RealPage said in materials on its website. Greystar uses RealPage’s software to price tens of thousands of apartments.

RealPage became the nation’s dominant provider of such rent-setting software after federal regulators approved a controversial merger in 2017, a ProPublica investigation found, greatly expanding the company’s influence over apartment prices. The move helped the Texas-based company push the client base for its array of real estate tech services past 31,700 customers.

The impact is stark in some markets.

In one neighborhood in Seattle, ProPublica found, 70% of apartments were overseen by just 10 property managers, every single one of which used pricing software sold by RealPage.

To arrive at a recommended rent, the software deploys an algorithm — a set of mathematical rules — to analyze a trove of data RealPage gathers from clients, including private information on what nearby competitors charge.

For tenants, the system upends the practice of negotiating with apartment building staff. RealPage discourages bargaining with renters and has even recommended that landlords in some cases accept a lower occupancy rate in order to raise rents and make more money.

One of the algorithm’s developers told ProPublica that leasing agents had “too much empathy” compared to computer generated pricing.

Apartment managers can reject the software’s suggestions, but as many as 90% are adopted, according to former RealPage employees.

The software’s design and growing reach have raised questions among real estate and legal experts about whether RealPage has birthed a new kind of cartel that allows the nation’s largest landlords to indirectly coordinate pricing, potentially in violation of federal law.

Experts say RealPage and its clients invite scrutiny from antitrust enforcers for several reasons, including their use of private data on what competitors charge in rent. In particular, RealPage’s creation of work groups that meet privately and include landlords who are otherwise rivals could be a red flag of potential collusion, a former federal prosecutor said.

At a minimum, critics said, the software’s algorithm may be artificially inflating rents and stifling competition.

“Machines quickly learn the only way to win is to push prices above competitive levels,” said University of Tennessee law professor Maurice Stucke, a former prosecutor in the Justice Department’s antitrust division.

RealPage acknowledged that it feeds its clients’ internal rent data into its pricing software, giving landlords an aggregated, anonymous look at what their competitors nearby are charging.

A company representative said in an email that RealPage “uses aggregated market data from a variety of sources in a legally compliant manner.”

The company noted that landlords who use employees to manually set prices “typically” conduct phone surveys to check competitors’ rents, which the company says could result in anti-competitive behavior.

“RealPage’s revenue management solutions prioritize a property’s own internal supply/demand dynamics over external factors such as competitors’ rents,” a company statement said, “and therefore help eliminate the risk of collusion that could occur with manual pricing.”

The statement said RealPage’s software also helps prevent rents from reaching unaffordable levels because it detects drops in demand, like those that happen seasonally, and can respond to them by lowering rents.

RealPage did not make Parsons, Bowen or the company’s current CEO, Dana Jones, available for interviews. Balas and a Greystar representative declined to comment on the record about YieldStar. The National Multifamily Housing Council, an industry group, also declined to comment.

Proponents say the software is not distorting the market. RealPage’s CEO told investors five years ago that the company wouldn’t be big enough to harm competition even after the merger. The CEO of one of YieldStar’s earliest users, Ric Campo of Camden Property Trust, told ProPublica that the apartment market in his company’s home city alone is so big and diverse that “it would be hard to argue there was some kind of price fixing.”

What role RealPage’s software has played in soaring rents — which in the decade before the pandemic nearly doubled in some cities — is hard to discern. Inadequate new construction and the tight market for homebuyers have exacerbated an existing housing shortage.

But by RealPage’s own admission, its algorithm is helping drive rents higher.

“Find out how YieldStar can help you outperform the market 3% to 7%,” RealPage urges potential clients on its website.

Few tenants know that such software, owned by a privately held company, has had a hand in rent increases across the country.

In Boston, renter Kaylee Hutchinson said she was puzzled when her landlord — unbeknownst to her, a RealPage client — told her days into the first pandemic lockdowns that her rent was going up. Building staff insisted that the market rate for her apartment was 6.5% higher than she was paying, despite her protests that people were fleeing the city.

Kaylee Hutchinson’s landlord, who uses RealPage’s pricing software, told her rent was going up at the start of the pandemic even as many people were fleeing the city. (Philip Keith, special to ProPublica)

A few weeks later, she and her fiancé saw a newly vacant unit in their building advertised online for less. One of their landlord’s policies permitted moving to another unit owned by the company, so they did.

Hutchinson, who is an analyst for the police department, wondered if a computer algorithm was behind building staff’s inflexibility. “It was pretty obvious they should have been dropping prices,” she said. “They were digging their heels in.”

Hutchinson said she watched apartments in her building sit vacant at prices that didn’t make sense to her.

“A normal mom-and-pop landlord, they’re worried about having a good tenant and protecting their interest in the agreement,” Hutchinson said. “These companies, they’ll just replace you.”

The Origins of YieldStar

One of YieldStar’s main architects was a business executive who had personal experience with an antitrust prosecution.

A genial, self-described “numbers nerd,” Jeffrey Roper was Alaska Airlines’ director of revenue management when it and other major airlines began developing price-setting software in the 1980s.

Competing airlines began using common software to share planned routes and prices with each other before they became public. The technology helped head off price wars that would have lowered ticket prices, the Department of Justice said.

The department said the arrangement may have artificially inflated airfares, estimating the cost to consumers at more than a billion dollars between 1988 and 1992. The government eventually reached settlements or consent decrees for price fixing with eight airlines, including Alaska Airlines, all of which agreed to change how they used the technology.

At one point, federal agents removed a computer and documents from Roper’s office at the airline. He said he and other creators of the software weren’t aware of the antitrust implications. “We all got called up before the Department of Justice in the early 1980s because we were colluding,” he said. “We had no idea.”

When Roper returned to the United States in the early 2000s after a stint in central and eastern Europe, he said, he discovered the apartment rental industry was so far behind technologically that it resembled the emerging markets he’d just left.

Apartment managers were “basically pricing their product on a paper napkin,” said Roper, who eventually formed his own company.

Old computers and manual recordkeeping were mainstays of the industry. Leasing agents gauged how their buildings compared by calling up competitors. “This was just a ripe business,” with lots of money and lots of opportunities for technological improvement, Roper said.

RealPage hired Roper as its principal scientist in 2004 to improve software it had bought from Camden Property Trust, a large investor-backed owner and manager of apartment buildings.

Roper quickly realized he required data — a lot of data — to get the algorithm working properly. He began building a “master data warehouse” that pulled in client data from other RealPage applications, such as those for leasing managers.

A proof-of-concept version of the software had performed well in tests at townhouses Camden offered for rent in its home city of Houston.

At the time, the street behind Camden’s townhouses was shut down while a grocery store was being built. Leasing staff wanted to discount rent for the townhouses because of the nuisance, said Kip Zacharias, who worked with Camden as a consultant.

Instead, YieldStar suggested boosting rents. “We were like, ‘Guys, just try it,’” Zacharias said.

The units ended up renting for significantly more than staff had expected, he said. “That was kind of the eureka moment,” Zacharias said. “If you’d listened to your gut, you would have lowered your price.”

The practice of lowering rent to fill a vacancy was a reflex for many in the apartment industry. Letting units sit empty could be costly and nerve-wracking for leasing agents.

Such agents sometimes hesitated to push rents higher. Roper said they were often peers of the people they were renting to. “We said there’s way too much empathy going on here,” he said. “This is one of the reasons we wanted to get pricing off-site.”

Unimpeded by human worries, YieldStar’s price increases sometimes led to more tenants leaving.

Camden’s turnover rates increased about 15 percentage points in 2006 after it implemented YieldStar, Campo, the company’s CEO, told a trade publication a few years later. But that wasn’t a problem for the firm: Despite having to replace more renters, its revenue grew by 7.4%.

“The net effect of driving revenue and pushing people out was $10 million in income,” Campo said. “I think that shows keeping the heads in the beds above all else is not always the best strategy.”

(Reminded of that quote, Campo told ProPublica it “sounds awful” and doesn’t reflect how he or Camden views renters today. “We fundamentally believe our customers are the most important part of our business,” he said. “We’re not about pushing people out.”)

Hiking rents at the same time benefited all landlords, the industry learned. “A rising tide lifts all boats,” one real estate executive and revenue management proponent told the industry publication Yield Pro in 2007.

One of the greatest threats to a landlord’s profit, according to Roper and other executives, was other firms setting rents too low at nearby properties. “If you have idiots undervaluing, it costs the whole system,” Roper said.

Jeffrey Roper helped develop YieldStar, which uses an algorithm to suggest prices for apartments across the country. (Shelby Tauber for ProPublica)

Roper wasn’t the only technologist working on an apartment pricing algorithm. Donald Davidoff, the primary developer of rival software called Lease Rent Options, or LRO, said he designed his program differently, to head off any concerns about collusion.

Instead of relying on a digital warehouse that includes competitor data, Davidoff used a complex formula and public market data to steer LRO’s algorithm. The system relied on incremental price shifts to manage demand for apartments, said Davidoff, an MIT-educated former rocket engineer. “That’s not dissimilar to changing a trajectory of a rocket through inflection of a nozzle,” he said — making small changes that can dramatically alter something’s course over time.

Davidoff said he was careful to avoid features that might run counter not only to anti-discrimination laws, such as the Fair Housing Act, but also those that bar competitors from conspiring to set prices.

“I had many conversations with attorneys to understand where the boundaries are,” he said. “Anybody who’s building one of these systems or is involved in these should care a lot about fair housing and should care a lot about price collusion to avoid both.”

Roper told ProPublica that when he was developing the YieldStar software more than a decade ago, he was concerned about avoiding both issues. He also said he didn’t want to misuse private data in pricing.

“I was highly sensitized to: You just don’t do it,” Roper said.

Despite differences in the software’s design, RealPage acquired LRO in 2017 after months of scrutiny by the antitrust division of the justice department. Federal regulators review mergers above a certain size — right now, it is transactions valued at $101 million — and typically allow them to proceed after only a preliminary review. But some are flagged for a more extensive look. The government can challenge a merger in court if it believes it could substantially harm competition.

RealPage’s purchase of LRO received such a second look, but the DOJ allowed it to proceed in late 2017. The department did not respond to requests for comment.

The approval allowed RealPage to acquire its only significant competitor, Roper said, adding, “I was surprised the DOJ let that go through.”

RealPage was pricing 1.5 million units, and the acquisition of LRO would double that, Steve Winn, RealPage’s then-CEO, said at a mid-2017 investor conference. “I don’t think there’s any concentration, enough concentration, of buying or pricing power here” to warrant DOJ concerns, he said. A third company had a substantial footprint in the market, Winn said, but property managers’ own manual pricing processes or proprietary systems were RealPage’s largest competitor.

“We expect our combined platform to drive accelerated, sustained revenue growth,” Winn said in a media release announcing the deal.

RealPage’s influence was burgeoning. That year, the firm’s target market — multifamily buildings with five or more units — made up about 19 million of the nation’s 45 million rental units. A growing share of those buildings were owned by firms backed by Wall Street investors, who were among the most eager adopters of pricing software.

RealPage renamed its combined pricing software AI Revenue Management. By the end of 2020, the firm was reporting in a Securities and Exchange Commission filing that its clients used its services and products to manage 19.7 million rental units of all types, including single-family homes. The private equity firm Thoma Bravo bought the public company a few months later for $10.2 billion.

Winn, whose net worth Forbes estimates at $1.7 billion, stepped aside. He did not respond to requests for comment.

A spokesperson for Thoma Bravo declined to comment.

Who Uses the Software and How It Works

Somewhere around 2016, according to one trade group, the industry’s use of the pricing software began to achieve “critical mass.”

The more property managers who sign on to RealPage services, the more data flows into the company’s repository. That in turn aids its pricing service, which the company says “leverages multifamily’s largest lease transaction database.”

RealPage’s clients include some of the largest property managers in the country. Many favor cities where rent has been rising rapidly, according to a ProPublica analysis of five of the country’s top 10 property managers as of 2020. All five use RealPage pricing software in at least some buildings, and together they control thousands of apartments in metro areas such as Denver, Nashville, Atlanta and Seattle, where rents for a typical two-bedroom apartment rose 30% or more between 2014 and 2019.

Greystar and FPI Management each control hundreds of buildings in metro areas where rents have risen steeply in recent years. And Equity Residential, Lincoln Property Company and Mid-America Apartment Communities each manage dozens of buildings in high-growth markets.

In contrast, these same companies control fewer buildings in metro areas such as Philadelphia, Tampa and Chicago, where rents have increased more slowly, the analysis found.

Many factors may cause RealPage clients to cluster in high rent-growth markets. The company’s clients may gravitate toward such markets because those areas will bear more rent hikes and so offer an opportunity to make more money, for instance. But RealPage says its software steers pricing that beats the market in areas where it operates.

RealPage’s algorithm calculates how demand for apartments responds to changes in price — what’s known as price elasticity.

The algorithm takes into account characteristics of apartments, like the number of bedrooms. It also considers factors such as how many more of a complex’s apartments are likely to become available in the near future. Property managers can adjust settings according to their priorities — such as how full they want their buildings to be.

The software also analyzes rent prices in the broader market, the company said. That data can provide insight into how competitors’ buildings located near the client — such as within, say, a half-mile or mile radius — are being priced, said Ryan Kimura, a former RealPage executive.

One advantage RealPage’s data warehouse had was its access to actual lease transactions — giving it the true rents paid, instead of simply those a landlord advertised, RealPage said.

Property managers can’t look at the unpublished data any one rival is sharing with YieldStar, Roper and other former RealPage employees said.

Nicole Lott said that when the building where she worked as a property manager near Dallas started using YieldStar, the software determined that similar buildings in the area were charging more. It pushed for steep increases.

“It really jumped rates up,” Lott said. “Leasing slowed down to a crawl.”

She and other staff challenged the software, asking the division of her company that oversaw YieldStar for a review, she said. The landlord ended up raising rates more gradually, she said.

“We didn’t think we could get those rates,” she said. “In some cases we were right and in some cases we might have been wrong.”

Kimura, a former RealPage executive who worked at the firm for three years before leaving in 2021, said the company would typically see pushback from property staff on about 10%-20% of the software’s recommendations. It was part of the process. “If they are approving every rate and it’s 100% acceptance,” he said, “they basically have a blindfold on and are pushing a button.”

RealPage claims its software will increase revenue and decrease vacancies. But at times the company has appeared to urge apartment owners and managers to reduce supply while increasing price.

During an earnings call in 2017, Winn said one large property company, which managed more than 40,000 units, learned it could make more profit by operating at a lower occupancy level that “would have made management uncomfortable before,” he said.

The company had been seeking occupancy levels of 97% or 98% in markets where it was a leader, Winn said. But when it began using YieldStar, managers saw that raising rents and leaving some apartments vacant made more money.

“Initially, it was very hard for executives to accept that they could operate at 94% or 96% and achieve a higher NOI by increasing rents,” Winn said on the call, referring to net operating income. The company “began utilizing RealPage to operate at 95%, while seeing revenue increases of 3% to 4%.”

But the software’s supporters say it’s not driving the nation’s housing affordability problem.

Though soaring rent is giving the industry a “black eye,” Campo said, the culprit is a lot of demand and not enough supply — not revenue management software. The software just helps managers react to trends faster, he said.

“Would you rather do your work today on a typewriter or a computer?” he asked. “That’s what revenue management is.”

Using software like YieldStar is “taking what we used to do manually on a yellow pad and calling people on the phone and putting it on a codified system where you take the errors out of the pricing,” he said.

RealPage, Seattle and Rising Rents

To see how rent-setting software can make a difference, look no further than Seattle, where over the last few years rents have risen faster than almost anywhere in the country, some studies show.

Large apartment buildings in one ZIP code just north of downtown, sandwiched between the Space Needle and Pike Place Market, are overwhelmingly controlled by RealPage clients, ProPublica found.

The trendy Belltown neighborhood, with its live music venues and residential towers, had 9,066 market rate apartments in buildings with five or more units as of June, according to the data firm CoStar and Apartments.com. Property management was highly concentrated: The ZIP code’s 10 biggest management firms ran 70% of units, data showed.

All 10 used RealPage’s pricing software in at least some of their buildings, according to employees, press releases and articles in trade publications.

Expensive markets with high rents, like Seattle, tend to have “very high” rates of revenue management use by landlords, Roper said.

Two buildings in the ZIP code — one with revenue management software and the other without — reveal diverging approaches to pricing apartments.

The Fountain Court apartments, 320 units clustered around a courtyard with a fountain, are about a half-mile from Amazon’s corporate headquarters. The building is owned and managed by Essex Property Trust, whose executives told investors in a 2008 earnings call that they were implementing YieldStar in the trust’s apartment buildings.

At the Fountain Court, rent has risen 42% since 2012, CoStar data shows — steeper than the 33% average increase for similar downtown buildings.

Tenant Amanda Tolep and her husband were approaching the end of their lease for a one-bedroom at the six-story building near the end of 2021 when they learned rent would jump about $400, to $1,600. The increase amounted to 33% — in one year.

Tolep had been working as a barista and launching her own nutrition-related business. Her husband worked for a bank. They expected their rent to go up, knowing they had received a “COVID deal.” But the size of the jump, along with other nuisances — like stolen packages and noise from a nearby fire station — led them to look elsewhere.

After finding prices similar to their raised rent at several other neighborhood buildings, the couple decided to leave the city and move a half-hour’s drive north.

A spokesperson for Essex declined to comment. None of the other biggest property managers commented on the record about their use of revenue management.

About six blocks away, rent has not gone up as dramatically at The Humphrey Apartments, a historic six-story brick building with 74 units.

John Stepan’s rent stayed relatively steady in a building that did not use RealPage’s pricing software. (Jovelle Tamayo for ProPublica)

John Stepan, a writer for a tech company, moved into a studio in the 1923 building a little more than a year ago. It was small, but he liked the high ceilings, hardwood floors and farmhouse-style kitchen. He had secured a COVID deal, too: one month free, with rent of $1,295 a month after that.

A few months before his lease was up, the building notified him that rent would increase by $50, which amounted to about a 3.9% rise. “It was surprisingly low,” said Stepan, who left only because he found a condo to buy nearby.

Tami Drougas, the asset manager who oversees The Humphrey and two other Seattle-area buildings for the local real estate developer who owns them, said she doesn’t use a revenue management system.

“I don’t believe in them,” she said. “That’s great and fine for larger corporations. But I think it takes the humanity out of what we do.”

After 24 years in the industry, she said, she sees good relationships with tenants and vendors as the key to running a building successfully. She said The Humphrey has low costs related to vacancies.

The building’s rent has barely budged in recent years, she acknowledged. “We have a lot less turnover and I feel like that keeps expenses down,” Drougas said.

Seattle has been hit particularly hard by soaring rents. One report found the city had the steepest rent growth of any major city in the nation over the decade ending in 2019. Almost 46,000 Seattle households were spending more than half their incomes on housing, making them what federal standards call “severely cost-burdened,” according to a 2021 study the city commissioned. Many families have trouble paying for necessities like food and medical care when their rent eats up 30% or more of their income.

“Many others have been priced out of Seattle altogether due to rapidly rising rents and housing prices,” the study said.

It also found that people with higher incomes often “down rented,” choosing cheaper apartments that would otherwise have been available to people making less. Seattle should have had a surplus of 9,000 apartments affordable to people making 80% or less of the median income, the study found. But tenants’ down renting as prices rose turned that surplus into a deficit of 21,000.

Newly Rent-Burdened Workers Range From Accountants to Groundskeepers

In metro Seattle, more people in a variety of jobs are spending over 30% of their income on rent. Below are the 10 occupations where the share of rent-burdened households jumped the most.

Note: A household’s occupation was determined by the job held by the highest earner in each household; to determine if a household is cost-burdened, gross rent (including utilities) was divided by total household income. Homeowners were not included. Source: IPUMS USA, University of Minnesota. (Graphic by Haru Coryne)

As the availability of apartments has shrunk, so has the choice of landlords. The startling concentration of property management in Belltown mirrors a national trend.

The number of apartments controlled by the country’s 50 largest property managers has grown every year for 14 years, according to the National Multifamily Housing Council, which surveys buildings with five or more units.

Those firms oversaw about 1 in 6 such apartments nationwide in 2019, amounting to 3.6 million units. By 2021, the number had risen to almost 4.2 million.

James Nelson, a former bank examiner and loan broker, noticed the concentration of landlords when he and his partner moved to Seattle in 2018.

Troubled by astronomical home sale prices and high rents, Nelson began looking at what was happening in the broader market.

After some digging, he found that many if not most of the bigger apartment managers in Seattle appeared to be using price-setting software. “The name RealPage kept popping up,” said Nelson, who is retired and writing a book on his research. “I went in and looked at the technologies that they were using.”

He concluded the landlords were using tech to do exactly what RealPage advertised it could do — help them charge high rents and beat the market.

“There is no competition,” he said.

Concerns About Competition

RealPage’s software has gained traction at a time when the Biden administration, concerned about rising prices and corporate concentration, is looking to bolster enforcement of rules meant to ensure competition is flourishing.

To win cases, antitrust prosecutors have traditionally needed to show that competitors agreed among themselves to tamper with pricing. “If competitors agreed among themselves to use the same algorithm and to share information among themselves with the purpose of stabilizing pricing, that would be per se illegal,” said Stucke, the former antitrust prosecutor.

If they simply shared information without agreeing to manipulate pricing, the question of whether antitrust law was violated would be more complex, he said. Stucke said he knew of no cases where companies had been prosecuted for what’s known as tacit collusion while using the same algorithm to set prices.

But Maureen K. Ohlhausen, who was then the acting chair of the Federal Trade Commission, said in a 2017 talk that it could be problematic if a group of competitors all used the same outside firm’s algorithm to maximize prices across a market.

She suggested substituting “a guy named Bob” everywhere the word algorithm appears.

“Is it OK for a guy named Bob to collect confidential price strategy information from all the participants in a market and then tell everybody how they should price?” she said. “If it isn’t OK for a guy named Bob to do it, then it probably isn’t OK for an algorithm to do it either.”

Through a representative, Ohlhausen declined to comment on RealPage.

RealPage’s software raises multiple concerns, experts said.

Courts have frowned on sharing nonpublic data among competitors. Lease transaction data is not always public.

As far as RealPage’s claim on its website that it uses “disciplined analytics that balance supply and demand to maximize revenue growth,” Stucke said that businesses can’t usually control supply and demand on their own. “Normally that’s left to market forces,” he said.

The RealPage User Group — the forum for apartment managers who use the company’s products — encourages rivals to work together, something that has been challenged as anti-competitive in antitrust prosecutions, too. The company’s website says the group aims to “promote communications between users,” among other things.

Starting out with 10 members in 2003, the group has grown to more than 1,000 participants, according to the website. A dozen subcommittees, including two focused on revenue management, meet in invitation-only sessions at the company’s annual conference, RealWorld, and participate in a conference call each quarter.

Those sorts of collaborations, Stucke said, “could raise an antitrust red flag.”

If clients are tampering with market forces, their assertions in RealPage marketing videos that its software keeps prices and occupancy “more stable” could also become relevant in court, Stucke said. Similar comments have been used as evidence in previous antitrust cases.

And the exhortations by RealPage and real estate executives for companies to use YieldStar and let some units sit vacant to raise prices are reminiscent of a legal case in the early 1900s, he said, where lumber companies shared information and a directive to reduce supply in order to push up prices.

In an email to ProPublica, RealPage dismissed the notion that the company was using market data improperly.

The company said that using actual rents helps the company “capture a truer picture of price elasticity and affordability,” which reduces the odds a unit is overpriced. And the lease transaction data RealPage is using isn’t always private; sometimes such data is disclosed, the company said, such as when publicly traded real estate firms make reports.

The FTC, which has broad authority to bring enforcement cases against businesses for anti-competitive practices, said in 2021 that it was seeking a more active role in such cases.

A spokesperson for the FTC declined to comment on RealPage’s pricing software.

The agency has tangled with RealPage before: In 2018, the company agreed to pay $3 million to settle an FTC complaint that the company had failed to do enough to make sure personal information used in its tenant screening product was accurate. RealPage did not admit wrongdoing in the settlement.

Higher Rents Are Burdening More Tenants

Drama over rising rent costs — now a key driver of inflation — has been increasingly public. The year before the pandemic, roughly 46% of renters in the U.S. spent more than 30% of their income on rent and therefore met the definition of cost-burdened, Harvard University’s Joint Center for Housing Studies found.

In mid-September in Washington, D.C., angry protesters disrupted the normally sedate yearly conference held by the National Multifamily Housing Council. Before security ejected them, they seized the stage and recounted how their families had been harmed by an inability to find safe, affordable housing.

At the center of the acrimonious debate has been RealPage’s Jay Parsons.

Since RealPage’s own July conference, he’s repeated a statistic, compiled from a company data set of new lease transactions, that market-rate apartment renters are only spending around 23% of their income on rent.

“The reality is that rents can only rise as incomes rise,” Parsons told The New York Times last month. “If people can’t afford it, you can’t lease it.”

But his sunny view has drawn sharp rebukes.

“This is demonstrably false,” wrote Ben Teresa, co-director of the RVA Eviction Lab at Virginia Commonwealth University, on Twitter. “One of the defining characteristics of housing markets in the last 40 years has been rents increasing faster than wages.

“The problem is quite precisely that people are paying rents they can’t afford,” he wrote.

Do You Have a Tip for ProPublica? Help Us Do Journalism.

Maya Miller contributed reporting and Doris Burke contributed research.

Three theories for a mysterious string of deaths in Putin’s Russia.

It’s a rough year to be a high-profile Russian: After nearly eight months of war in Ukraine, the Russian military is reeling and on its back foot; sanctions continue to squeeze the country’s economy and elite — and at least 15 Russian businessmen and executives have died in apparent accidents or by suicide, including a number of Putin allies.

The victims range from an executive with Gazprom, a major state-owned oil company, to the managing director of a state-run development corporation. The causes of death range from unremarkable — a stroke, for example — to lurid, such as death by toad poison in a shaman’s basement.

Combined, the sheer number of deaths, as well as the prominence of the dead and a long history of suspicious demises in Putin’s Russia, have raised questions about whether something other than ordinary bad luck is at fault.

According to Stanislav Markus, an associate professor at the University of South Carolina business school and author of Property, Predation, and Protection: Piranha Capitalism in Russia and Ukraine, it’s a near certainty. “We can almost certainly rule out the official explanation of the deaths as suicides or poor health,” Markus told me via email. He’s not alone; theories vary — and generally don’t feature some grand conspiracy by the Kremlin — but a number of Russia experts see “more than just randomness” in the deaths, as Syracuse University professor Brian Taylor, who specializes in Russian politics and is the author of The Code of Putinism, put it to me in an interview.

The string of mysterious fatalities began with the death of Gazprom Invest transport director Leonid Shulman in late January; a suicide note was reportedly found near his body, and the death was investigated as such.

Another Gazprom executive, Alexander Tyulakov, died in February, also by suicide, as did Ukraine-born billionaire Mikhail Watford, who was found dead in his house in the United Kingdom.

Vasily Melnikov, the founder of the medical supplies company MedStom, was found dead in March, in a possible murder-suicide along with his wife and his two children. Another alleged murder-suicide, that of former Gazprombank executive Vladislav Avayev and his wife and teenage daughter, followed in April, just one day before former oil and gas executive Sergei Protosenya was also found dead along with his family in a third possible murder-suicide incident.

Avayev and his family were shot to death, according to news reports, while Protosenya was found hanged and his wife and daughter fatally stabbed.

Other subsequent deaths, including multiple deadly falls — down stairs, from a window, from a moving boat — have also prompted speculation, though there is no overt evidence of foul play.

Most recently, Pavel Pchelnikov, a manager with the Russian Railways subsidiary Digital Logistics, died by suicide late last month; shortly before that, on September 21, a former Russian aviation expert, Anatoly Gerashchenko, fell to his death “from a great height” and down multiple flights of stairs, according to a report in the Daily Beast citing Russian media.

Of the dead, a number have links to Gazprom and Novatek, Russia’s two largest natural gas companies; two others were affiliated with Lukoil, also a major energy company in Russia.

There are reasons to doubt the official stories

In several cases, the family and friends of the dead have already raised questions about their deaths, or rejected official conclusions of suicide.

In a statement after Protosenya’s death, for example, Novatek, his former employer, said that speculations about his death “bear no relation to reality,” an apparent reference to early reports in Spanish media describing it as a murder-suicide. Protosenya’s son, Fedor, also told the Daily Mail that his father “could never do anything to harm them [his family]. I don’t know what happened that night but I know that my dad did not hurt them.”

Igor Volobuev, also a former Gazprombank executive, told CNN he does not believe Avayev’s death was truly a murder-suicide.

“He was in charge of very large amounts of money. So, did he kill himself? I don’t think so. I think he knew something and that he posed some sort of risk,” Volobuev said.

There’s something to these suspicions — political assassinations, after all, aren’t exactly unusual in Russia. Assassination by purported suicide is virtually a category to itself: As Ian Bremmer, president of the Eurasia Group, remarked on Twitter in September, “for those keeping track at home, 12 ‘threw himself from window/shot himself 7 times in the head’ russian oligarch deaths this year so far” (a number that has since increased).

As recently as two years ago, Alex Ward highlighted a similar trend in a different sector of Russian society in a story for Vox: coronavirus doctors dying after falling from high windows early in the pandemic. Those deaths were equally unexplained, but as Ward wrote at the time, murder “may not be completely out of the question.”

That ambiguity is a common theme around deaths in Russia; though there is rarely clear-cut evidence, questions surrounding the deaths of Putin critics stretch back nearly two decades.

Three experts I spoke with told me that was equally the case here — though they stressed the degree of uncertainty surrounding the deaths.

“The number of [deaths] seems higher than random chance would suggest, but that doesn’t mean that it’s all part of the same story,” Taylor said. “Some of them really could be suicides or accidents. Some of them could be murders.”

So what really happened?

The short answer is we don’t know — the deaths are strange on their own and outright suspicious as a cluster, but the throughline, if there is one, remains a mystery. That being said, there are a few possible explanations.

Suicide and accident — really

According to the experts I spoke with, the sheer volume of accidental deaths and suicides so far is enough to mean that this is unlikely to be the true explanation in every case. It’s not impossible, however; sometimes a suicide is just a suicide and an accident is just an accident, no matter how odd.

There are certainly factors that point in that direction, even beyond official findings in the deaths. Specifically, as Ward pointed out in May 2020, Russia has the third-highest suicide rate in the world, according to the World Health Organization. The data is now several years old — the last full set is from 2016 — but that year, about 122 people died by suicide each day in Russia, equal to more than 44,500 deaths a year.

Additionally, according to Peter Rutland, a Russia expert and professor of government at Wesleyan University, Russia’s system, and perhaps especially its business community, is under substantial pressure due to the war.

“These are incredibly stressful times, right?” Rutland said. “Businesspeople have seen their chances to visit Europe frozen, their assets frozen, their yachts seized, the value of the shares in their companies.”

Those factors, Rutland told me, could conceivably provoke a spate of suicides.

“If businesspeople had loans that were collateralized with those assets, or which required some kind of business income, which has just disappeared because of the sanctions, you can only imagine that that would drive people to suicide,” he said.

Of course, that doesn’t account perfectly for the murder-suicides, or the number of fatal accidents. But it’s not impossible that at least some of the deaths are no more than what they seem on the surface.

The long arm of the Kremlin

One of the most dramatic and often-speculated-about explanations is that the deaths are really killings — carried out at the order of the Kremlin and Russian President Vladimir Putin.

As Bill Browder, a onetime investor in Russia turned Kremlin critic, told the Australian Broadcasting Corporation (ABC) this month, “when people of all the same industry die that way, it looks to me like what I would call an epidemic of murder.”

According to ABC’s Samantha Hawley and Flint Duxfield, Browder “told the ABC News Daily podcast he had little doubt the deaths of the Russian oligarchs — predominantly from the oil and gas sector — have come at the orders of the Kremlin.”

Under Browder’s theory, as he explained it to ABC, the pressure of sanctions has created a financial crunch for Putin, and the deaths of businessmen are a particularly brutal way to revive streams of funding for the conflict — particularly from Russia’s oil and gas industry.

“I would suspect that this guy said ‘no’ and then the best way of getting that flow of cash is to kill him and then ask his replacement the same question,” Browder told ABC.

It’s a tempting answer, particularly given Putin’s long history of assassinating or attempting to assassinate dissidents, such as Alexei Navalny, who was poisoned with the Russian nerve agent Novichok in 2020 and has since been imprisoned in Russia. It’s also something Browder is familiar with — his lawyer, Sergei Magintsky, died in a Russian prison in 2009 after uncovering apparent large-scale fraud by the Russian government.

However, Taylor told me, it’s not the most likely explanation in this case.

“It’s a big leap from saying yes, there’s been a campaign of repression against internal opposition going back for a long time, and evidence of some high-profile people being targeted by the state, to saying everyone who’s killed mysteriously was killed either because of their business dealings with Putin or their criticism of the state,” Taylor said.

Fiona Hill, a former Russia specialist on the National Security Council staff, agrees. “Not every unexplained death in Russia is the KGB or the GRU bumping someone off,” she told Politico Magazine in August regarding the apparent suicide of Dan Rapoport, a Washington, DC-based Kremlin critic who previously did business in Russia.

Internal business pressures turned deadly

That leaves a third theory, one that both Taylor and Rutland indicate is far more likely than either a Kremlin-directed campaign of assassinations or a spate of genuine accidents and suicides.

Specifically, the recent run of deaths among Russia’s business elite could well be disguised killings — but the killings may be a product of Russia’s tangled political and economic structures, which are newly under pressure from Russia’s war in Ukraine, more than of any specific, overarching agenda.

According to Taylor, the deaths could have more to do with “shady business, attempt to cover tracks, attempt to wipe out a competitor, trying to maybe get rid of someone who’s inconvenient at a time when there’s a lot of pressure on state-affiliated companies, especially in the oil and gas sector, but also in the defense sector.”

Markus agrees, noting in an email that “there are competing influential clans” within the Russian state “that span state institutions and private or state-owned firms.”

“So far these clans have been loyal to Putin, but this loyalty has not reduced their predatory appetites,” Markus told me. “From the clans’ viewpoint, the current situation has led to (1) lower cash flows available for diversion or theft; and (2) less certainty in Putin’s future as the ultimate leader of Russian kleptocracy. Hence, clans may be settling their scores and competing more viciously — which could involve murders in question — without this being a centralized Kremlin effort.”

That explanation also makes more sense than the Kremlin-directed conspiracy theory, given the cross section of Russia’s business class that’s turned up dead. Though there are some common linkages — ties to energy companies, for example — some experts, such as Mark Galeotti, the author of the upcoming book Putin’s Wars: From Chechnya to Ukraine, have pointed out that coverage of the deaths can paint with an overly broad brush.

“When did the death of the former rector of a technical university become the (implied: mysterious) end of a ‘Putin ally’? (Everyone dying in [Russia] now is elevated to oligarch or ally),” Galeotti tweeted after the death of Geraschenko in September.

Significantly, both Taylor and Rutland emphasize that there’s still a great deal of uncertainty around the deaths. However, under the third and, according to them, more likely theory, continued pressure on Russia’s economy could well accelerate the trend.

Violence as a way of doing business has been “deeply normalized going back to the 1990s,” Rutland said. “And so as the regime enters what could be its death throes, or certainly it’s under huge pressure, you can imagine that there’s gonna be this — well, it’s not yet a bloodbath, but you can imagine that the faction fighting will get even more desperate.”

There are no satisfying answers to be had, at least for now. Recent history supports the idea that such deaths are something Putin would be fully capable of, but he lacks a clear motive that connects them all; as some close Russia watchers have observed, Russia’s cutthroat business culture is at least equally likely to be culpable as a repressive Kremlin. In both cases, there’s a distinct dearth of evidence — but the speculation only underscores the overlapping brutality of Russian business and Putin’s regime.

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One of the stupidest chapters in recent American legal history comes to a close.

The Supreme Court handed down a very brief, unsigned order on Thursday denying former President Donald Trump’s most recent attempt to undermine a criminal investigation into classified documents that the FBI recovered from Mar-a-Lago, Trump’s Florida residence.

Technically, the litigation over the documents seized by the FBI — a lawsuit known as Trump v. United States — remains ongoing. But Trump already suffered a big loss in a federal appeals court, which restored the FBI’s ability to criminally investigate him. And even if Trump had prevailed in the Supreme Court, which he did not, his lawyers sought such a narrow modification of the appeals court’s order that it’s unclear how this modification would have mattered.

This all began in August, when the FBI seized several boxes from Mar-a-Lago, including 103 documents with classified markings, as part of an investigation into potential violations of the Espionage Act, among other things. Last month, Judge Aileen Cannon, a Trump appointee to a federal trial court in Florida, appointed another federal judge as a “special master” to review the seized documents and help determine whether some of them are protected by attorney-client or executive privilege.

Significantly, Cannon also prohibited the FBI from using the seized classified documents in a criminal investigation against Trump.

Cannon’s order appointing senior federal Judge Raymond Dearie as a special master remains in effect, as does her order instructing Dearie to screen any nonclassified documents seized from Mar-a-Lago. But, in late September, a federal appeals court blocked the parts of Cannon’s order that prevented the FBI from continuing its criminal investigation.

That appeals court decision, which was joined by two judges also appointed by Trump, was extraordinarily dismissive of Cannon’s original order — pointing out over a dozen errors in Cannon’s reasoning. Among other things, the appeals court faulted Cannon for suggesting that a former government official could have a personal interest in retaining classified documents, and it also criticized Cannon for ordering the government to show these documents to people who do not need to know the information contained in them.

In the Supreme Court, Trump’s lawyers filed a bizarre application asking the Court to reinstate the parts of Cannon’s order that required Dearie to review the classified documents, but not the parts of her original order that halted the criminal investigation into Trump. It’s unclear how, exactly, Trump hoped to benefit from such limited relief.

In any event, he won’t receive even the very narrow relief he sought from the justices. No justice publicly indicated his or her dissent from the Court’s order denying relief to Trump — not even Justice Clarence Thomas, who previously dissented from the Court’s decision to allow the US House committee investigating the January 6, 2021, attack on the Capitol to obtain certain Trump White House documents.

This decision and the previous decision in the January 6 committee case suggest that the Supreme Court will not take extraordinary steps to protect Trump from investigations now that he is no longer president.

Before Trump left office, the Court handed him a significant victory in Trump v. Mazars (2020), which effectively shielded him from a House investigation into his personal finances until after the 2020 election. That decision, which departed from previous decisions holding that the House has broad authority to conduct such investigations, suggested that the Court — which is dominated by Republican appointees — was unusually protective of Trump while he remained president.

But the justices have now twice signaled that they will not protect Citizen Trump in the same way they did President Trump.

Thursday’s Supreme Court order is also almost certainly the end of the line for Trump’s efforts to sabotage the Mar-a-Lago investigation by convincing Cannon to micromanage it. Again, while Cannon’s appointment of Dearie remains valid, the DOJ now has full access to the classified documents that allegedly incriminate Trump.

And it’s not even clear that any of the nonclassified documents that will still be reviewed by Dearie are relevant to any potential criminal charges against Trump. So, while the need to work with Dearie (and Cannon) may prove to be an ongoing headache for Justice Department lawyers, it is unlikely to impact the DOJ’s ability to bring criminal charges against Trump should it choose to do so.