Lindsey

As you may recall, a few weeks ago I wrote about how Congress was asking the GAO to investigate whether the director of the US Patent & Trademark Office had been interfering in determinations made by the Patent Trial and Appeal Board (PTAB). I'm not going to go into all of the background again (please read the original for that), but under the America Invents Act, a process for reviewing patents after they were granted was set up, known as the Inter Partes Review (IPR) process. This was important, because the granting of patents is a non-adversarial process, where patent examiners are not given very much time to actually review everything. So the IPR process allowed those (especially those with prior art) to kick off a process by which the PTAB would recheck to see if the original examiner made a mistake in granting a 20 year monopoly to someone.

Unfortunately, because the members of the PTAB are designated as Administrative Patent Judges (APJs), there was the question of whether or not they needed to be appointed by the President with Senate confirmation to abide by the Appointments Clause of the Constitution. That question has been hanging out in the Supreme Court for many months -- with the decision finally coming down this week. In arguing against this notion, the USPTO itself had claimed that the APJs were "interior officers" that don't need Senate confirmation, and part of their "proof" was that the Director of the PTO could review their decisions. This raised some alarms in Congress, because it certainly wasn't their intention (from everything stated so far) to allow the Director of the PTO to put their finger on the scale of what is and what is not patentable.

The full opinion from the Supreme Court is a bit of a mess -- with different Justices signing onto different parts. But the key bits to pull out of this are that the Supreme Court found that the APJs are (or have been) "Principal Officers" meaning they should have been appointed by the President and confirmed by the Senate.

History reinforces the conclusion that the unreviewable executive power exercised by APJs is incompatible with their status as inferior officers. Since the founding, principal officers have directed the decisions of inferior officers on matters of law as well as policy. Hamilton articulated the principle of constitutional accountability underlying such supervision in a 1792 Treasury circular. Writing as Secretary of the Treasury to the customs officials under his charge, he warned that any deviations from his instructions “would be subversive of uniformity in the execution of the laws.” 3 Works of Alexander Hamilton 557 (J. Hamilton ed. 1850). “The power to superintend,” he explained, “must imply a right to judge and direct,” thereby ensuring that “the responsibility for a wrong construction rests with the head of the department, when it proceeds from him.”

However, in then immediately inserts its own remedy, saying that everything is fixable if the Patent Office Director actually can review the IPR decisions.

In sum, we hold that 35 U. S. C. §6(c) is unenforceable as applied to the Director insofar as it prevents the Director from reviewing the decisions of the PTAB on his own. The Director may engage in such review and reach his own decision. When reviewing such a decision by the Director, a court must decide the case “conformably to the constitution, disregarding the law” placing restrictions on his review authority in violation of Article II

So, the good news here is that the important PTAB/IPR process remains alive. But it does seem quite worrisome that the end result is that any Director of the Patent Office can now step in and overrule the PTAB. One would hope that the political ramifications of doing so would prevent it, but it does seem that it's now possible that a Director who just doesn't like the whole IPR/PTAB process (and there are many patent system fans who hate it) could just automatically deny every single IPR.

And that seems very worrisome. Of course, all of this could be solved by making the APJs Senate confirmable, but apparently no one wants to bother with doing that. Alternatively, we could rethink the entire patent approval process altogether, so that it doesn't need to go back and realize it granted 20 year monopolies for no good reasons... but, you know, that would take actual effort.

Today, C-SPAN released its Presidential Historians Survey of Presidential Leadership, which asks historians and professional presidential observers to rate commanders-in-chief on a scale of one to 10, focusing on 10 key leadership areas, like moral authority, vision, economic management, and more. At the top is Abraham Lincoln, George Washington, and Franklin D. Roosevelt. At the […]

Last week, in a somewhat controversial decision in the TransUnion v. Ramirez case, the Supreme Court ruled, 5 to 4, that plaintiff's in a class action lawsuit did not have standing to sue under the Fair Credit Reporting Act (FRCA). The issue may seem wholly unrelated from copyright, but in reading through the decision, it's possible it could lead to a vastly different world for copyright going forward, because the same issues that the Court finds fault with in the FRCA also apply to copyright law -- and, indeed, it's the part of copyright law that is most widely abused in lawsuits.

I should be clear that I think the holding in the TransUnion case is problematic and seems... well... weird. But if what the majority decided is true, then I don't see how copyright's statutory damages can remain constitutional. Let's dig into the case to explore why. The majority opinion, written by Justice Kavanaugh gives the basic overview right upfront:

To have Article III standing to sue in federal court, plaintiffs must demonstrate, among other things, that they suffered a concrete harm. No concrete harm, no standing. Central to assessing concreteness is whether the asserted harm has a “close relationship” to a harm traditionally recognized as providing a basis for a lawsuit in American courts—such as physical harm, monetary harm, or various intangible harms including (as relevant here) reputational harm.

The issue in this case involved TransUnion's credit reports damaged people by flagging their reports to say that they might be listed on an Office of Federal Assets Control (OFAC) watchlist. Basically, if TransUnion thought that someone's name matched someone on the OFAC list, it would put that in their credit report. For a lot of people who aren't actually on the OFAC list, that can really suck. That resulted in this lawsuit. The court found that for those on that list who could show actual damage, they had standing. But, for others who were flagged by TransUnion, but could not show any actual harm, they did not have standing to sue.

In this case, a class of 8,185 individuals sued TransUnion, a credit reporting agency, in federal court under the Fair Credit Reporting Act. The plaintiffs claimed that TransUnion failed to use reasonable procedures to ensure the accuracy of their credit files, as maintained internally by TransUnion. For 1,853 of the class members, TransUnion provided misleading credit reports to third-party businesses. We conclude that those 1,853 class members have demonstrated concrete reputational harm and thus have Article III standing to sue on the reasonable-procedures claim. The internal credit files of the other 6,332 class members were not provided to third-party businesses during the relevant time period. We conclude that those 6,332 class members have not demonstrated concrete harm and thus lack Article III standing to sue on the reasonable-procedures claim.

The constitutional analysis focuses on the power of the judiciary to deal with actual cases and controversies:

Therefore, we start with the text of the Constitution. Article III confines the federal judicial power to the resolution of “Cases” and “Controversies.” For there to be a case or controversy under Article III, the plaintiff must have a “‘personal stake’” in the case—in other words, standing. Raines, 521 U. S., at 819. To demonstrate their personal stake, plaintiffs must be able to sufficiently answer the question: “‘What’s it to you?’” Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 882 (1983).

To answer that question in a way sufficient to establish standing, a plaintiff must show (i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560– 561 (1992). If “the plaintiff does not claim to have suffered an injury that the defendant caused and the court can remedy, there is no case or controversy for the federal court to resolve.” Casillas v. Madison Avenue Assocs., Inc., 926 F. 3d 329, 333 (CA7 2019) (Barrett, J.).

So, then the open question is whether or not a law that allows a private right of action over something that is a potential, but not concrete, harm meets the standard. And the majority decides it does not. And then, it goes even further, and notes that even if Congress creates a statutory "prohibition or obligation," courts can't just accept that as evidence of a concrete harm:

Importantly, this Court has rejected the proposition that “a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Spokeo, 578 U. S., at 341. As the Court emphasized in Spokeo, “Article III standing requires a concrete injury even in the context of a statutory violation.” Ibid.

Congress’s creation of a statutory prohibition or obligation and a cause of action does not relieve courts of their responsibility to independently decide whether a plaintiff has suffered a concrete harm under Article III any more than, for example, Congress’s enactment of a law regulating speech relieves courts of their responsibility to independently decide whether the law violates the First Amendment. Cf. United States v. Eichman, 496 U. S. 310, 317– 318 (1990). As Judge Katsas has rightly stated, “we cannot treat an injury as ‘concrete’ for Article III purposes based only on Congress’s say-so.” Trichell v. Midland Credit Mgmt., Inc., 964 F. 3d 990, 999, n. 2 (CA11 2020) (sitting by designation); see Marbury, 1 Cranch, at 178; see also Raines, 521 U. S., at 820, n. 3; Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 41, n. 22 (1976); Muskrat v. United States, 219 U. S. 346, 361–362 (1911).

As the Court then says explicitly, just because someone will have claimed to have violated a statutory cause of action that does not automatically mean there is a concrete harm:

For standing purposes, therefore, an important difference exists between (i) a plaintiff ’s statutory cause of action to sue a defendant over the defendant’s violation of federal law, and (ii) a plaintiff ’s suffering concrete harm because of the defendant’s violation of federal law. Congress may enact legal prohibitions and obligations. And Congress may create causes of action for plaintiffs to sue defendants who violate those legal prohibitions or obligations. But under Article III, an injury in law is not an injury in fact. Only those plaintiffs who have been concretely harmed by a defendant’s statutory violation may sue that private defendant over that violation in federal court.

Indeed, the majority argues that this is, fundamentally, a separation of powers issue:

In sum, the concrete-harm requirement is essential to the Constitution’s separation of powers. To be sure, the concrete-harm requirement can be difficult to apply in some cases. Some advocate that the concrete-harm requirement be ditched altogether, on the theory that it would be more efficient or convenient to simply say that a statutory violation and a cause of action suffice to afford a plaintiff standing. But as the Court has often stated, “the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.” Chadha, 462 U. S., at 944. So it is here.

The main dissent, written by Justice Thomas (it's an ideologically odd pairing: Justice Thomas with the three Justices most commonly found on the other end of the ideological spectrum: Justices Breyer, Sotomayor, and Kagan) is actually fairly compelling regarding the issue of concrete harm:

The principle that the violation of an individual right gives rise to an actionable harm was widespread at the founding, in early American history, and in many modern cases. See Uzuegbunam, 592 U. S., at ___–___ (slip op., at 5–8) (collecting cases); Havens Realty Corp. v. Coleman, 455 U. S. 363, 373 (1982) (“[T]he actual or threatened injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing” (citing cases; brackets and internal quotation marks omitted)). And this understanding accords proper respect for the power of Congress and other legislatures to define legal rights. No one could seriously dispute, for example, that a violation of property rights is actionable, but as a general matter, “[p]roperty rights are created by the State.” Palazzolo v. Rhode Island, 533 U. S. 606, 626 (2001). In light of this history, tradition, and common practice, our test should be clear: So long as a “statute fixes a minimum of recovery . . . , there would seem to be no doubt of the right of one who establishes a technical ground of action to recover this minimum sum without any specific showing of loss.” T. Cooley, Law of Torts *271.3 While the Court today discusses the supposed failure to show “injury in fact,” courts for centuries held that injury in law to a private right was enough to create a case or controversy.

Thomas also goes back to the issue of statutory damages in copyright to prove his point:

The First Congress enacted a law defining copyrights and gave copyright holders the right to sue infringing persons in order to recover statutory damages, even if the holder “could not show monetary loss.” Muransky v. Godiva Chocolatier, Inc., 979 F. 3d 917, 972 (CA11 2020) (Jordan, J., dissenting) (citing Act of May 31, 1790, §2, 1 Stat. 124–125). In the patent context, a defendant challenged an infringement suit brought under a similar law. Along the lines of what TransUnion argues here, the infringer contended that “the making of a machine cannot be an offence, because no action lies, except for actual damage, and there can be no actual damages, or even a rule for damages, for an infringement by making a machine.” Whittemore v. Cutter, 29 F. Cas. 1120, 1121 (No. 17,600) (CC Mass. 1813). Riding circuit, Justice Story rejected that theory, noting that the plaintiff could sue in federal court merely by alleging a violation of a private right: “[W]here the law gives an action for a particular act, the doing of that act imports of itself a damage to the party” because “[e]very violation of a right imports some damage.” Ibid.; cf. Gayler v. Wilder, 10 How. 477, 494 (1851) (patent rights “did not exist at common law”).

But this example in the dissent now seems to serve the opposite point: and effectively argues that under the majority decision, copyright's statutory damages may not be available at all if a plaintiff cannot show "concrete harm."

That's a very big deal in the copyright context. For years, we've pointed out the problematic nature of statutory damages in copyright. Under copyright law, if the work is registered before the infringement, statutory damages are available. And the whole theory behind them is that it's supposedly difficult to show the concrete harm of infringement, and therefore, you don't need to show any actual harm to get statutory damages, and those damages are wholly unrelated to any actual harm. As we noted a decade ago, this makes it "too attractive to sue." Basically, the possible payout from statutory damages, without having show any actual harm or damages at all, is massively distortionary.

And, now, looking at this ruling, it seems that there's an open argument if copyright plaintiffs will now be able to rely on statutory damages if they can't show any harm at all. This wouldn't completely take away statutory damages, but would, at the very least require plaintiffs to show some kind of harm.

Of course, when it comes to copyright law, one of the things we've noted is that courts seem to ignore every other precedent and treat everything related to copyright as if it's different. And, if this issue ever comes back to the court, I'd predict we'd see that same thing again. Judges will bend over backwards to insist that copyright is somehow "different." And it's possible that the majority ruling has an escape valve for that: it mentions repeatedly that part of the way of judging whether or not there's concrete harm is whether or not the issue is "traditionally recognized as providing a basis of a lawsuit in American courts." And, as the Thomas dissent makes clear, that's definitely been the case for copyright law and statutory damages going back basically to the beginning.

However, I do wonder if there's another interesting opening here on that: while in the early 2000s, Larry Lessig pushed a variety of failed cases to try to argue that the massive changes brought about by more recent copyright law changes raised constitutional issues. The Supreme Court rejected those arguments (wrongly in my opinion), but I do wonder if this ruling in TransUnion, at the very least, raises questions about statutory damages under the 1976 Copyright Act, since it covers so much more content, for so much longer, than was "traditional" under copyright law for the first two centuries of the country.

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Ending housing discrimination requires more than making it illegal.

“I’m so angry. Every time I talk about it I get emotional because I could have been dead. It was a life-to-death situation and nobody was trying to help me,” Mildred said, her voice trailing on the other end of the line.

A victim of domestic violence, she recounted desperately searching for a new place to live in Westchester County, New York. She had obtained a Section 8 housing voucher — a federal program that helps qualifying low-income tenants afford their rent — but just when she thought she’d found a new home for herself and her children away from her alleged abuser, she says she became the victim of discrimination. (Vox is withholding her full name and some identifying details to protect her privacy.)

Housing voucher recipients don’t just face the normal barriers to finding an affordable place to live. They can also face a little-known but insidious form of discrimination called “source of income discrimination,” where landlords refuse to rent to people with Section 8 housing vouchers or certain other types of legal income. While this type of discrimination is legal in most states, in 2019 New York passed a law banning the practice.

Yet it still happens in the state.

After Mildred told her landlord that she would be paying with a voucher, she and her lawyers say the landlord strung her along before taking the place off the market. She says it took her nearly four months to find a new place, all while living in fear of further abuse.

Stories like Mildred’s are what prompted a watchdog group called Housing Rights Initiative (HRI) to take action. On Wednesday, the group and the law firm Newman Ferrara are filing a suit — shared exclusively with Vox — in New York state court against 36 realtors, brokers, and landlords, including Keller Williams Realty and a franchise of the international firm Century 21, alleging source of income discrimination.

HRI spent eight months quietly running a systematic testing program, auditing landlords and realtors to weed out discriminatory agents and practices. Instead of just searching to find people like Mildred who believe they have experienced this type of discrimination, the organization followed in the long tradition of civil rights lawyers and organizations by sending testers to determine if housing providers were illegally discriminating against their clients. HRI hired and trained testers to call and text inquiring about available units, giving them profiles representative of low-income tenants like Mildred to see if agents were illegally discriminating. Despite New York’s statute prohibiting discrimination against Section 8 recipients, they say they found blatant forms of discrimination.

Out of hundreds of phone calls, HRI selected the cases where it found a realtor or landlord explicitly rejected a prospective tenant for inquiring whether they could pay with a voucher. But while landlords and realtors often ignore inquiries or in some other subtle way discourage tenants from pursuing a specific property, there are many more egregious forms of source of income discrimination.

“The one takeaway from our investigation is that housing discrimination is alive and well in the United States of America,” HRI’s executive director Aaron Carr told Vox.

Angela Weiss/AFP via Getty Images

Some of the defendants Vox spoke with claim they are exempt from the law (which HRI’s legal team disputes), and other experts say that landlords may be rejecting voucher holders due to bureaucratic concerns instead of bias against Section 8 recipients. The reasoning behind the alleged discrimination in New York is irrelevant to the legality of the actions, but such concerns nationwide provide important lessons in designing housing policy.

The most striking thing about the HRI phone calls, of which some of the audio is included throughout this article, is their banality. The people on the other end of the line don’t yell or utter racial or gendered epithets; they don’t even really express any hostility toward the undercover testers. In some cases, they even express sympathy. But that sentiment paired with the result of their words is jarring. In each of these cases, the defendant is denying a low-income tenant a place to live. And, HRI and its legal team argue, that’s not just personally devastating for the tenant, it may be illegal and even unconstitutional.

These phone calls paint a picture of discrimination in America that is so woven into the fabric of the housing market that some of these landlords and realtors felt free enough to put allegedly unlawful activity in writing. Sometimes the most devastating forms of discrimination are the ones that are hardest to recognize.

Sometimes discrimination is a quiet voice at the end of the line saying, “No, they’re not allowing any voucher programs in the unit, miss.”

LISTEN: Defendant EXIT Realty Group on the phone with undercover tester

The legal battle, briefly explained

The case, filed in New York state court, is relatively straightforward. The complaint is largely about enforcing an existing law: the New York State Human Rights Law, which banned source of income discrimination. HRI and Newman Ferrara say the defendants “have explicitly and systematically refused to rent apartments to tenants who intend to pay their rent with government-provided rental assistance.”

As a result, the suit asks the court to do a few things:

• Declare that the realtors and landlords named in the complaint have violated state law.
• Ban the defendants from engaging in source of income discrimination again.
• Require the defendants to comply with fair housing laws generally. The suit asks that defendants allow their processes to be monitored and for them to develop written procedures regarding fair housing policy “to be distributed to all staff, tenants, and rental applicants.”
• Award damages to HRI to fully compensate for the use of resources diverted to suing these defendants as well as attorneys’ fees, costs, and expenses.

“The real sword of Damocles hanging over their head is attorneys’ fees,” lead attorney Randolph McLaughlin, from Newman Ferrara, told Vox. “When you’re successful in a civil rights case like this, you get attorneys fees from the defendant. ... That can be significant.”

LISTEN: Defendant Keller Williams Realty on the phone with undercover tester

The Westchester case focuses on seemingly clear-cut rejections of potential Section 8 renters, but that’s not always the form alleged discrimination like this takes. Carr told me that ignoring would-be tenants after discovering their participation in the Section 8 program is common. Another tactic is steering the tenant to look in specific neighborhoods that are “quote-unquote more appropriate,” Carr explained, alluding to realtor decisions to keep low-income tenants out of “nicer” neighborhoods. There are also “unjustified income and credit requirements.” Carr told me these requirements are used to weed out voucher holders, as they often won’t meet high income requirements since they qualify for the voucher in the first place.

“We’re going after all types of discrimination. This is just the tip of the iceberg; this is just round one,” Carr said. “If we were only looking at explicit rejections, it would be a dereliction of duty.”

In an emailed statement, a Century 21 spokesperson said that the company “does not tolerate any form of discrimination and takes these allegations seriously. As you know this is a legal matter relating to our independently owned and operated franchise, New Golden Age Realty, and we cannot comment directly on the case. We will continue to monitor this situation as it develops.” The spokesperson declined to answer follow-up questions on the nature of the relationship between the franchise and the larger company.

LISTEN: Defendant Century 21 franchise on the phone with undercover tester

Keller Williams Realty did not respond to requests for comment as of publication time.

This lawsuit is actually the second filed by HRI alleging source of income discrimination. The first one landed in mid-March and focused on realtors and landlords in New York City. It differs from this case in one important way: It’s filed in federal court and therefore can make a claim not just under New York state law but also the federal Fair Housing Act.

This latter claim is that source of income discrimination, despite not being mentioned in the Fair Housing Act, violates the civil rights law because it has a disparate impact on a protected class. That standard ensures that plaintiffs don’t have to prove a policy was necessarily designed with the intent to discriminate; they can instead just show that it had a discriminatory effect against a protected class (such as race, familial status, and religion).

This claim isn’t being made in the New York state court case, but a victory under the Fair Housing Act could have national implications for source of income discrimination. It could open the door to litigation even in states without source of income protections on the books.

Why landlords and realtors discriminate against Section 8 recipients

Many fair housing experts believe that Section 8 discrimination is a proxy for other illegal discrimination — specifically, racial discrimination against Black Americans.

There has been widespread reporting on the use of Section 8 as a racial epithet. The Washington Post reported on how it became a “racially coded put-down,” citing the federal government’s disinvestment in public housing programs as white Americans began to make up a smaller share of the recipients.

Sara Pratt, the former deputy assistant secretary for fair housing enforcement and programs and senior adviser to the assistant secretary at the Department of Housing and Urban Development (HUD) during the Obama administration, told Vox, “I would say in many places the fact that someone is referring to someone as ‘Section 8,’ that is a code word for Black person. ... Courts have started recognizing that and saying if someone says ‘no Section 8,’ what they mean is racial discrimination.”

Housing Rights Initiative

Racial discrimination is inextricable from source of income discrimination, but it’s very hard to isolate who is being discriminatory when there are real reasons landlords may not want to participate in the program. Martha Galvez, principal research associate in the Metropolitan Housing and Communities Policy Center at the Urban Institute, previously told Vox, “There’s a lot of reasons why landlords don’t want to accept vouchers. Some have to do with stereotypes about families that have vouchers and some parts of it have to do with landlords’ experiences with housing authorities and dealing with the government as a partner in your lease.”

There is evidence that some landlords have valid (nondiscriminatory) reasons for not wanting to participate in Section 8 housing — namely, working with the government to make sure your property fits the requirements can be onerous and frustrating. Landlords may have difficulty getting rents paid on time by the local public housing authority, and often the unit inspections can be an inefficient and arduous process.

After reviewing 1.5 million administrative records and interviewing 127 landlords and property managers in Maryland, Texas, and Ohio, researchers for HUD found that financial motivations, perception of tenants, and bureaucratic factors all played a role in some landlords’ reluctance to rent to a voucher recipient.

Philip Garboden, a professor and housing policy researcher at the University of Hawaii Manoa and one of the authors of the study, explained that the time premium that comes with accepting a housing voucher tenant versus one that is paying without that assistance is “a legitimate complaint.”

“If there’s a voucher, it can often take a month or more to get all of the paperwork done,” he said. “That can often mean, from a landlord’s perspective, they’re going to start a month later than a market tenant might. And that’s lost revenue because that’s a unit being held vacant even though there’s demand.”

Can you stop housing discrimination by making it illegal?

In 2018, the Urban Institute along with researchers at HUD published a study that asked the question: Do landlords “treat people with vouchers differently than other renters”? The answer was an unequivocal yes.

Similarly to the HRI lawsuit, the study employed testers to determine how landlords behaved.

Denial rates for voucher tenants ranged wildly in the cities they studied: Fort Worth, Texas (78 percent); Los Angeles (76 percent); Newark, New Jersey (31 percent); Philadelphia (67 percent); and Washington, DC (15 percent). Importantly, the researchers also discovered that landlords were the most likely to discriminate in wealthier areas, which has the effect of concentrating poverty and forcing voucher recipients to live in less desirable neighborhoods with worse outcomes for children.

Of the five cities they studied, Newark, Washington, and Philadelphia had source of income discrimination laws. Though it’s just one study, the data seems to indicate that the anti-discrimination laws are having an effect, since the three cities showed lower denial rates than in Fort Worth and Los Angeles.

LISTEN: Agent on the phone with undercover tester

Phil Tegeler, executive director of civil rights organization Poverty & Race Research Action Council, explained DC’s low levels of landlord discrimination, crediting civil rights actions like the one HRI is taking: “We saw the benefits of this approach in Washington, DC, where the Washington Lawyers Committee in collaboration with the Equal Rights Center had a multi-year enforcement effort on source of income discrimination. They had widely publicized prosecutions of landlords, broad testing of the rental market, and as a result DC had the lowest rates of source of income discrimination in the Urban Institute/HUD study.”

However, even in Washington, where the researchers found the least amount of discrimination, in 2018 the Equal Rights Center still found 130 advertisements that stated “no vouchers accepted” or “no Section 8,” suggesting that some landlords are still either unaware of the law or are confident that they can get away with breaking it.

Criminal justice research broadly shows that even associating high penalties with law-breaking isn’t sufficient to reduce crime — you need to raise the likelihood that landlords and realtors are being caught. HRI-type civil litigation is one avenue, but state attorneys general and HUD could also run investigations of their own. According to a 2012 ProPublica article, over its history HUD has largely refused to use undercover investigations.

Gregory Rec/Getty Images

“What we’re trying to do is make these brokers and these realtors and these landlords an example to the nation,” McLaughlin told Vox. “And if it works in New York, there are other states that have these same source of income discrimination laws. And guess what? We’ll be testing in those states when we’re ready and we’ll be suing in those states when we’re ready.” According to the National Multifamily Housing Council, 15 states and several localities including New York have source of income discrimination laws on the books.

A few of the defendants Vox spoke with, including Keller Williams’s Danielle DeMatteo and the owner of defendant EXIT Realty Group Sonny Vataj, claim that the properties they told tenants weren’t taking Section 8 are actually exempt from New York’s law. New York state law exempts owner-occupied single-family and two-family homes from its law barring source of income discrimination.

McLaughlin pushed back against these claims, telling Vox that they contacted every defendant to see if they could explain themselves before litigation proceeded: “A couple did come forward and we resolved those issues, but the ones we’re suing, they didn’t come forward to resolve any issues.” He added that they checked each property to try to determine whether it was owner-occupied before suing: “No one’s 100 percent sure, but none of the defendants have advised us of that.”

Still, these types of loopholes, as well as the general failure of small landlords to remain aware of and adhere to fair housing law, underscore the importance of making fundamental changes to how the housing voucher program works and the broader housing market writ large.

What policymakers can do outside of the courts

There are ways to redesign the Section 8 program to make it more attractive to landlords and do away with some of the logistical hurdles landlords say are causing them to be unwilling to participate:

• Increase funding for public housing authorities to do outreach to landlords and ensure there is enough staff to be able to respond quickly when there is outreach
• Ensure rents are competitive with the local submarket so that landlords aren’t being asked to take a pay cut in order to service housing voucher recipients
• Standardize inspections so that landlords and tenants can be confident that a unit won’t be disqualified for a minor infraction

But there also could be a broader reimagining of the voucher program. After a year when direct cash benefits have proved the value of these types of programs, the federal government should seriously consider making the voucher payable directly to the tenant. This would essentially eliminate source of income discrimination, since landlords would have no way of knowing that a tenant was benefiting from the program.

Additionally, concerns that this program would be abused without stringent oversight could be dealt with by designing the program in a way that provides ample communication between public housing authorities that administer the vouchers and the tenants themselves. As Vox’s Dylan Matthews reported in 2019, providing increased direct support to tenants through the housing authorities can also have the added benefit of ensuring they move to high-opportunity neighborhoods.

But perhaps most importantly, fixing the imbalance of power between low-income tenants and landlords will require addressing America’s dire lack of affordable housing. The Urban Institute/HUD study screened more than 341,000 online advertisements for rental units over the course of 16 months and found only 8,735 that “appeared to be voucher-eligible based on the information in the ad. On average we screened 39 advertisements to identify one potentially eligible unit.”

The power imbalance this type of lopsided market causes lays the groundwork for discrimination. If a landlord feels like there will be 30 people vying for every unit, they can afford to allow bias into their business practices because it won’t cost them much. On the other hand, if landlords are forced to compete for tenants, it gives tenants power to demand fairness and reasonable accommodations. This needs to come hand in hand with tenant protections, but without housing abundance, landlords will always have the upper hand.

“When real estate companies say no to Section 8 tenants, what they’re really saying is you can’t work here, you can’t get food here, and your child can’t go to school here,” Carr said. “Housing discrimination doesn’t just impact one thing — it impacts literally everything.”

The delta variant has made Covid-19 more dangerous than ever for unvaccinated people.

The fast-spreading delta variant of the coronavirus is eroding some of the world’s precious progress against the Covid-19 pandemic. It’s likely the most transmissible variant of the SARS-CoV-2 virus identified to date, appears to cause more severe illness than others, and has already landed in at least 85 countries.

While health experts are worried, much of their advice hasn’t changed. The strategies that have contributed to progress so far — masks, social distancing, and especially vaccines — on the whole remain effective. But these tools work best when everyone is willing to use them, and those who don’t are at the greatest risk.

Even countries that have done a good job of vaccinating people are starting to hit the limits of people willing to get their shots, leaving smaller groups still vulnerable to the disease. In places like the US, this pattern has effectively created two distinct pandemics, with vaccinated people starting to return to normal while those who are unvaccinated make up almost all new hospitalizations and deaths from Covid-19.

Under Centers for Disease Control and Prevention guidelines, fully vaccinated Americans do not need to wear masks or maintain social distancing. But World Health Organization officials made a different recommendation on June 25, encouraging even vaccinated individuals to wear masks in hopes of preventing the spread of variants like delta. Los Angeles County officials suggested similar precautions for indoor settings on June 28, referencing the delta variant.

In the coming months, even as the coronavirus continues to mutate, the human element — the willingness to get vaccinated, adjust behavior, and tolerate restrictions — will be critical in containing the disease. “As has been true for the past year and a half, human behavior is far more important in shaping the course of the pandemic than any variant,” wrote virologists Amy Rosenfeld and Vincent Racaniello in the New York Times.

But after 16 months of restrictions, many people may be reluctant to modify their routines to counter evolving risks from variants. This urge to return to normal, if mismanaged, could end up drawing out the pandemic further and creating opportunities for dangerous variants to make inroads.

The delta variant is poised to dominate new Covid-19 cases

In the US, the delta variant of SARS-CoV-2 currently accounts for 20 percent of new cases and is on track to become the dominant variant in the US. “The delta variant is currently the greatest threat in the US to our attempt to eliminate Covid-19,” said Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, during a briefing in June.

In Israel, the variant is responsible for up to 70 percent of new cases, prompting the country to reinstate an indoor mask mandate. Health officials in Israel reported that about half of the new cases were in adults who had been fully vaccinated. In the United Kingdom (which has vaccinated a large portion of its population) and Uganda (which has not), delta comprises almost all new infections. The same is true in Australia and parts of Asia, which had reduced their rates of community spread to enviably low levels but are now imposing new lockdowns in some cities to control the spread of the variant.

Delta itself is continuing to change. Health authorities reported last week that a sub-variant with additional mutations, delta plus, has caused at least 50 infections in India, where the delta variant was first detected last year. Delta plus has already been reported in 11 countries.

Vaccines — the most effective tool for countering Covid-19 — remain potent for the most part at preventing severe illness and death from these mutant forms of the virus. A study published in The Lancet looking at Scotland found the vaccine developed by AstraZeneca and the University of Oxford had 60 percent efficacy in preventing illness from the delta variant, while the Pfizer/BioNTech vaccine had 79 percent efficacy. Both vaccines, however, were effective at preventing hospitalizations from the delta variant. Moderna reported early results showing that its Covid-19 vaccine was able to generate an immune response to delta, albeit with a “modest reduction” compared to the original virus.

It’s less clear how well the two Chinese vaccines, developed by Sinopharm and Sinovac, fare against delta. These vaccines are widely used in Asia, Africa, and South America. There is emerging evidence that they may be less effective than some of the others on the market against SARS-CoV-2 in general, and delta in particular.

But even the best vaccines are not impregnable. Some infections still occur among those who have been vaccinated, and immunized people may be able to spread the virus. Still, with rare exceptions, these breakthrough infections usually lead to no symptoms or mild symptoms, and the rate of transmission by vaccinated people is drastically lower.

In order to yield their maximum public health benefits, vaccines have to be administered to as many people as possible, getting to the point where the virus can no longer spread easily from person to person. However, there are cavernous gaps in Covid-19 vaccination rates around the world, creating ample space for the virus to run rampant.

Now the spread of the delta variant is amplifying the divisions between vaccinated and unvaccinated people. “If you are vaccinated, this should not change your thinking,” said John Moore, a virologist and vaccine researcher at Weill Cornell Medical College. “If you’re not vaccinated, you’re at increased risk of getting infected.”

Why the delta variant appears so dangerous

The delta variant of SARS-CoV-2, initially known as B.1.617, is one of five variants of concern identified by the Centers for Disease Control and Prevention. A variant of concern is one that spreads more readily, causes more severe disease, or reduces protection from vaccines or previous infections. Delta checks all three boxes.

Like all viruses, SARS-CoV-2 accumulates mutations as it spreads through a population and makes errors in copying its genetic code. The majority of those mistakes are harmful to the virus or have no net effect, but occasionally a mutation will arise that gives the virus an advantage. Health officials then classify strains of the virus with distinct groupings of mutations as variants.

Delta contains at least 23 mutations compared to the original strain of SARS-CoV-2, but there are several mutations that confer particularly alarming traits. Among them, delta has mutations in the spike protein of the virus, the part the virus uses to attach to human cells to infect them. Some of these mutations increase the affinity of the spike for a receptor on human cells, allowing the virus to reproduce more efficiently.

That could allow the variant to make more copies of itself compared to the original version of the virus, wreaking more havoc throughout the body. And more viral particles in the body could also mean the infected person is shedding more virus, increasing the likelihood of the infection being passed to someone else. The delta variant is about 60 percent more transmissible than the alpha variant, and the alpha variant was already up to 60 percent more transmissible than the original version of the virus.

“The most troubling aspect is its transmissibility,” said Moore.

The spike protein of SARS-CoV-2 is also the main target for the immune system when the human body fights an infection. White blood cells known as B cells make proteins called antibodies that stick to the virus, often at the spike protein. These antibodies then flag the virus for removal by other white blood cells, or prevent the virus from causing an infection. But antibodies are very particular about binding to specific parts of the virus, and if those parts mutate, then the antibodies become much less effective.

Scientists have found that delta has mutations in exactly those regions, making it better able to evade antibodies produced to counter past versions of SARS-CoV-2. That increases the odds of a Covid-19 survivor getting reinfected with delta. It also means that delta has a greater chance of causing a breakthrough infection in someone who has been vaccinated against Covid-19, since many of the vaccines train the immune system with an older version of the spike protein.

There’s evidence as well that delta can cause more severe outcomes from Covid-19 compared to the original versions of the virus. One study looking at 5.4 million people in Scotland found that infections with delta are more than twice as likely to lead to hospitalizations as infections with the alpha variant, previously known as B.1.1.7. However, the death rate from delta appears to be comparable to other variants in several countries, blunted in part by vaccines and the increased capacity of hospitals at this stage in the pandemic. For instance, cases in the United Kingdom have risen back to the levels they reached in January, but the death rate is vastly lower now than it was then.

There have been some reports that younger people are making up a larger proportion of new delta Covid-19 cases, but that’s due in part to young adults, teenagers, and children being the last groups allotted to receive vaccines, as well as a lower uptake of vaccines in these groups even when offered.

By far the biggest threat from delta is for people who have not been vaccinated or had a previous infection. Remember that the original version of SARS-CoV-2 could spread easily between people, oftentimes unwittingly. And the virus caused a disease that led to millions of deaths around the world, as well as lasting ailments and untold economic and social damage.

So a mutated version of the original virus that is more transmissible, leads to more severe outcomes, and is harder to protect against stands to be devastating for people who have no protection. And, indeed, delta infections are occurring largely in unvaccinated people, accounting for a growing share of hospitalizations and deaths from Covid-19 around the world.

The looming threat now is that the more delta spreads, the more likely it is to mutate further in dangerous ways. “The scary scenario is that this is not the last or the most harmful variant,” said Maureen Miller, an infectious disease epidemiologist and medical anthropologist at Columbia University. And when variants cause new lockdowns, the restrictions affect everyone — not just the unvaccinated people who are most at risk.

The old formula for containing Covid-19 still works against delta

Despite the risks from delta, the overall public health strategy used throughout the pandemic remains effective. Many of the places that have suffered the worst effects of the delta variant, like India, also struggled to maintain pandemic control measures, so it’s hard to attribute the spikes in cases to the variant alone.

Getting vaccinated against Covid-19 is the strongest form of protection. While some vaccines may be less effective at blocking infections from delta and other variants, many of the vaccines were so good at preventing disease to begin with that even a diminished level of efficacy is still robust.

So far, the evidence shows that the vaccines approved in the US — from Moderna, Pfizer/BioNTech, and Johnson & Johnson — still prevent almost all hospitalizations and deaths. Some vaccinated individuals in the US have experienced more severe disease, and several have died of Covid-19 after vaccination, but the majority of breakthrough infections resulted in mild symptoms. Some researchers have suggested that recipients of the one-dose Johnson & Johnson vaccine may need to get a booster dose to better protect against delta.

However, other countries are facing complications from the vaccines that they’ve approved, with some vaccines shown to be less protective against SARS-CoV-2 in general and others failing to provide adequate protection against variants. Countries like Mongolia and Seychelles, an island nation in the Indian Ocean, relied on vaccines from China and are still seeing high levels of spread of Covid-19. It’s hard to distinguish whether these cases are due to a less effective vaccine, a more slippery variant, less compliance with pandemic controls, or a mix of the three — but taken together, it’s an example of diverging experiences of the pandemic across the world.

People who survived a bout with a previous version of Covid-19 are also more likely than not to shrug off an infection with the delta variant, although the level of protection from a past infection is less than that of a vaccine. “We should expect more reinfections with delta,” said Moore. “That’s why previously infected people should also get vaccinated.”

For people who have yet to be vaccinated against Covid-19, practicing good hygiene, wearing face masks in enclosed environments, and social distancing can still reduce the risk of infection.

Many of the treatments for Covid-19 remain about as effective against Covid-19 cases caused by delta, though monoclonal antibodies are key exceptions. These drugs use antibodies targeted at a single part of the virus, and if that part mutates, they are rendered ineffective. The Food and Drug Administration has already revoked an emergency authorization for a monoclonal antibody drug that failed to mitigate infections caused by SARS-CoV-2 variants. On the other hand, monoclonal antibodies are expensive drugs that require transfusion, so they aren’t used that widely, and losing some of them is unlikely to make a major difference in overall patterns of the disease.

Testing to identify potential asymptomatic spreaders and directing them to isolate should remain a pillar of the public health response to Covid-19. Sequencing the genomes of SARS-CoV-2 samples in circulation is another critical step in identifying and staying ahead of new mutations. It allows scientists to find variants that can escape the protection offered by vaccines. Without widespread genome sequencing, variants can spread undetected.

Ongoing and reimposed pandemic restrictions are sparking frustration

A major problem now is that pandemic fatigue is setting in, and countries like the US that have done well in vaccinating their populations risk becoming complacent. Testing rates are declining. Vaccination rates are hitting a plateau. And only a tiny fraction of virus samples are being sequenced.

“That is a public health concern, and I’m nervous that in the United States we’re not keeping as close track of breakthrough infections that don’t lead to hospitalizations and deaths as we should be,” said Miller.

Many public health tactics are getting harder to deploy. Already, in parts of the US, people have rallied against mask mandates and vaccine requirements for hospital workers. Protests against new lockdown restrictions have also erupted in the UK, while countries like India that have only vaccinated a tiny fraction of their populations saw protests against lockdowns even while suffering a devastating outbreak.

At the same time, economies are struggling, and many people are desperate to return to work. Some are past the limits of their financial means. So the political will to reimpose restrictions if cases rise is much weaker now, and people could be less inclined to comply.

“Changes in people’s activities contribute to the rise of infections — such as travel, failure to mask and to adhere to physical distancing policies, and most important right now, insufficient vaccination — and these are often not considered in public discussion of variants,” wrote Rosenfeld and Racaniello.

These social factors also make it harder to disentangle the inherent dangers of a variant like delta from public health failures. The virus itself may be more dangerous, but it’s difficult to know exactly how dangerous when people are unable or unwilling to take steps to slow it.

The delta variant is creating a divided pandemic in the US and around the world

While people who have been immunized against Covid-19 are still shielded, those who aren’t now face a more dangerous virus along with a decreased tolerance for pandemic restrictions. In the US, areas with low vaccination rates overlap with areas where other containment strategies have met resistance.

“It’s probably not surprising that the places where [mask-wearing and social distancing] were least accepted are places where vaccines are low,” Miller said.

The tragedy is that everyone who dies or falls ill from Covid-19 from here on out will do so at a point where there are multiple highly effective vaccines, which drastically reduce the most harmful aspects of the disease. And while close to half of US adults have been vaccinated against Covid-19 and many places have undone all their pandemic restrictions, there are still parts of the country where cases are rising.

“Cases have begun to rise more rapidly in communities with lower vaccination rates,” noted journalist David Leonhardt at the New York Times. Rural areas in states like Arkansas, Missouri, Nevada, and Utah are a case in point.

One hospital system in southwest Missouri reported a 225 percent increase in hospitalizations from Covid-19 since the beginning of June. Only 39 percent of adults in Missouri are fully vaccinated as of June 29, and the delta variant accounts for more than a quarter of new cases in the state, the largest share of any US state.

So the topline vaccination rate across the country obscures the fact that there are pockets that are far more vulnerable to the delta variant. With temperatures rising this summer, people seeking cooler spaces indoors could end up facing an even higher risk of exposure. Not only will this add to the public health burden, it will also increase the opportunities for further mutations in the virus.

The same expanding divide exists on a global scale, with many wealthier countries lifting restrictions and returning nearly to normal, while countries with fewer resources are coping with an even more dangerous virus.

In some countries, vaccination has barely begun. Countries like Chad, Benin, Syria, and Yemen have immunized just a fraction of a percent of their populations. Others, like Uganda and Zambia, are now dealing with their second or third wave of cases and seeing hospitals overwhelmed. Many are counting on vaccine donations from well-stocked nations such as the US, or are trying to develop their production systems.

While restaurants, offices, schools, and theaters are reopening in some parts of the world, it’s important to remember that Covid-19 remains a global threat, and it’s still far from over. Less than a quarter of the world’s population has received a single dose of any Covid-19 vaccine to date, which means the majority of people continue to face a deadly disease with little to no protection. Vaccination rates need to speed up drastically to stall an even larger humanitarian toll and contain the virus. Otherwise Covid-19 will continue destroying lives and livelihoods while transforming in more dangerous ways.

Isabel Fall’s sci-fi story “I Sexually Identify as an Attack Helicopter” drew the ire of the internet. This is what happened next.

“In a war zone, it is not safe to be unknown. Unknown travelers are shot on sight,” says Isabel Fall. “The fact that Isabel Fall was an unknown led to her death.”

Isabel Fall isn’t dead. There is a person who wrote under that name alive on the planet right now, someone who published a critically acclaimed, award-nominated short story. If she wanted to publish again, she surely could.

Isabel Fall is a ghost nonetheless.

In January 2020, not long after her short story “I Sexually Identify as an Attack Helicopter” was published in the online science fiction magazine Clarkesworld, Fall asked her editor to take the story down, and then checked into a psychiatric ward for thoughts of self-harm and suicide.

The story — and especially its title, which co-opts a transphobic meme — had provoked days of contentious debate online within the science fiction community, the trans community, and the community of people who worry that cancel culture has run amok. Because there was little biographical information available about its author, the debate hinged on one question: Who was Isabel Fall? And that question ate her alive. When she emerged from the hospital a few weeks later, the world had moved on, but she was still scarred by what had happened. She decided on something drastic: She would no longer be Isabel Fall.

As a trans woman early in transition, Fall had the option of retreating to the relative safety of her legal, masculine identity. That’s what she did, staying out of the limelight and growing ever more frustrated by what had happened to her. She bristles when I ask her in an email if she’s stopped transitioning, but it’s the only phrase I can think of to describe how the situation appears.

Isabel Fall was on a path to becoming herself, and then she wasn’t — and all because she published a short story. And then her life fell apart.

In the 18 months since, what happened to her has become a case study for various people who want to talk about the Way We Live Today. It has been held up as an example of progressives eating their own, of the dangers of online anonymity, of the need for sensitivity readers or content warnings. But what this story really symbolizes is the fact that as we’ve grown more adept at using the internet, we’ve also grown more adept at destroying people’s lives, but from a distance, in an abstracted way.

Sometimes, the path to your personal hell is paved with other people’s best intentions.

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Like most internet outrage cycles, the fracas over “I Sexually Identify as an Attack Helicopter” was enormous news within the bubble of people who cared about it and made barely a blip outside of that bubble. The full tale is amorphous and weird, and recounting its ins and outs is nearly impossible to do here. Just trying to explain the motivations of all involved is a task in and of itself, and at any rate, that story has been told many times, quoting others extensively. Fall has never spoken publicly about the situation until now.

Clarkesworld published Fall’s story on January 1, 2020. For a while, people seemed to like it.

“I was in awe of it on a sentence level. I thought it was beautiful and devastating and incredibly subversive and surprising. It did all this work in a very short amount of space, which I found completely breathtaking. It had been a long time since I had read a short story that I had enjoyed and that also had rewired my brain a little bit,” said author Carmen Maria Machado, who read the story before controversy had broken out.

In the first 10 days after “Attack Helicopter” was published, what muted criticism existed was largely confined to the story’s comments section on Clarkesworld. The tweets that still exist from that period were largely positive responses to the story, often from trans people.

But first in Clarkesworld’s comments and then on Twitter, the combination of the story’s title and the relative lack of information about Fall began to fuel a growing paranoia around the story and its author. The presence of trolls who seemed to take the story’s title at face value only added to that paranoia. And when read through the lens of “Isabel Fall is trolling everybody,” “Attack Helicopter” started to seem menacing to plenty of readers.

“Attack Helicopter” was a slippery, knotty piece of fiction that captured a particular trans feminine uncertainty better than almost anything I have ever read. Set in a nightmarish future in which the US military has co-opted gender to the degree that it turns recruits into literal weapons, it told the story of Barb, a pilot whose gender is “helicopter.” Together with Axis — Barb’s gunner, who was also assigned helicopter — Barb carried out various missions against assorted opposition forces who live within what is at present the United States.

Then, because its title was also a transphobic meme and because “Isabel Fall” had absolutely no online presence beyond the Clarkesworld story, many people began to worry that Fall was somehow a front for right-wing, anti-trans reactionaries. They expressed those fears in the comments of the story, in various science fiction discussion groups, and all over Twitter. Fans of the story pushed back, saying it was a bold and striking piece of writing from an exciting new voice. While the debate was initially among trans people for the most part, it eventually spilled over to cis sci-fi fans who boosted the concerns of trans people who were worried about the story.

Neil Clarke, Clarkesworld’s editor, pulled the story on Fall’s behalf on January 15, replacing it with an editorial note that read, in part, “The recent barrage of attacks on Isabel have taken a toll and I ask that even if you disagree with the decision, that you respect it. This is not censorship. She needed this to be done for her own personal safety and health.”

Fall, reeling, checked into the hospital. She has since retitled her story “Helicopter Story,” and under that title, it was nominated for a 2021 Hugo Award, one of the most prestigious honors in science fiction.

“How do I feel about the nomination? I don’t know,” Fall says by email. “It’s a nice validation to know that some people liked the story enough to nominate it. But it’s also dreadful to know that this will just mean reopening the conversation, which will lead to a lot of people being hurt.”

I started emailing with Fall in February, just over a year after “Attack Helicopter” blew up. I had been working on a completely different piece about the short story and wanted to invite her to share her version of events, which thus far have been defined by voices that are not her own. Clarke put me in touch with Fall, and she agreed to speak with me on the condition that we only correspond over email. I am the first journalist she has talked to about what happened. I do not know her legal identity, but I have confirmed that she is the person who wrote “Attack Helicopter” from looking at earlier drafts of the story that Isabel shared with me.

When Fall published “Attack Helicopter,” she was not yet ready to be publicly out as a trans woman, but hoped that writing it for a niche publication in a community that is frequently friendly to queer writers would be a good way to get her feet wet.

She had at least some reason to expect that the complete vacuum of personal information about her — the short author bio attached to the story said only that she was born in 1988 — wouldn’t be questioned. Trans spaces, both online and in real life, have a long history of allowing an anonymity that paradoxically hides within one’s true identity.

If you want to attend a support group meeting and say your name is Isabel and you use she/her pronouns, you will be treated as such, no matter how you look or what name is on your driver’s license. Gatekeeping in a trans space usually involves loosely enforced rules that focus on giving those who exist within them a safe place to explore their identity. Those rules almost never attempt to determine that someone is “trans enough.”

But anonymity isn’t always welcome on the internet, where an anonymous identity can be weaponized for the worst. That gap — between the good-faith anonymity assumed in trans spaces and the bad-faith anonymity increasingly assumed online — was the one Fall wandered into.

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“I sexually identify as an attack helicopter” is a “copypasta” (a snippet of text that is copied and pasted across the internet, sometimes with alterations, sometimes word-for-word) that dates to 2014. It most likely originated on the forums for the game Team Fortress 2 before making its way to Reddit and 4chan, where it became a meme used to mock and demean trans people who spoke earnestly about their experiences and identities. The meme is transphobic on its face, because it suggests that one’s gender can be decided on a whim.

Fall’s story tries to take the meme seriously. What would it be like if your gender was actually “helicopter”?

As a story, “I Sexually Identify as an Attack Helicopter” explores three separate but interconnected ideas: gender as an innate part of the self, gender as a performance for society, and gender as a (literal) weapon of the state. The story’s complicated exploration of gender identity doesn’t work for everyone, but it hits others with almost laser-targeted precision.

At its core, “Attack Helicopter” is about the intersection of gender and American hegemony. On that level, it has plenty to say even to cisgender people. After all, if all gender is on some level a performance (and it is), then it can be co-opted and perverted by the state. But if it’s also innate on some level (and it is), then we are powerless against whatever it is that enough people decide gender performance should look like. We are constantly trapped by gender, even when we know we are trapped by it. You can’t truly escape something so all-pervasive; you can only negotiate your own terms with it, and everybody’s terms are different.

The conversation around gender “is dominated by those who can tolerate and thrive in it. It is conducted by the voices of those who are able to survive speech and its consequences,” Fall says. “But it is a conversation that is, by necessity, reductive. We need teams and groups and identities, not just to belong to, but as mental objects to manipulate and wield. If we tried to hold 10 million unique experiences of gender in our mind they would sift through our fingers and roll away.”

Such a conversation around gender is not particularly conducive to those who are figuring out their gender in public, as all trans people must do eventually. It’s especially not conducive to artists who are exploring their gender in their art, under even greater degrees of public scrutiny. Which is to say: That conversation is not conducive to people like Fall.

“We make boxes that seem to enclose a satisfying number of human experiences, and then we put labels on those and argue about them instead,” she says. “The boxes change over time, according to a process which is governed by, as far as I can tell, cycles of human suffering: We realize that forcing people into the last set of boxes was painful and wrong, we wring our hands, we fold up some new boxes and assure ourselves that this time we got it right, or at least right enough for now. Because we need the boxes to argue over. I do not want to be in a box. I want to sift through your fingers, to vanish, to be unseen.”

The question many people asked when “Attack Helicopter” was published was: What were Fall’s intentions in borrowing a transphobic meme for her title?

When I came out in 2018, the “attack helicopter” meme had already mostly been ironically reclaimed by trans people, who had undercut its sting by, in essence, shouting, “Get better material!” at transphobes. (To wit.)

Fall was channeling that ironic reclamation, but readers were quick to jump to their own conclusions. Many only read as far as the title before assuming Fall was either transphobic herself or a trans person intentionally using the meme to make a point.

All they had to go on was one biographical detail: “Isabel Fall was born in 1988.” There was no Isabel Fall Twitter profile. She had never published fiction before. She was a blank space, upon which anyone could project their worst fears or biggest hopes.

“When the story was first published, we knew nothing about Isabel Fall’s identity, and there was a smattering of strange behavior around the comments and who was linking to it, that led people to suspect right-wing trolls were involved in this,” says science fiction author Neon Yang. They were publicly critical of the story on Twitter. “In hindsight, they were probably just drawn by the provocative title and possibly did not even read the story. And yes, it seems like an overreaction on the part of the trans people who responded this way, but being trans in this world is having to constantly justify your right to existence at all, and when you’re forced to be on the defensive all the time, everything starts to look like an attack.”

But a lot of trans women adopt an online pseudonym before coming out publicly, including me. To come out as a trans woman in a transphobic patriarchal society that views our existence as a curiosity at best is rarely something done all at once. It requires baby steps, like becoming used to a new name that starts to feel like home.

Absent any context, “This writer is a secret troll” seems like a huge, unjustified leap to make. Within the science fiction community specifically, it’s still a huge leap, but not necessarily an unjustified one. In recent years, a neoreactionary movement known as the “Sad Puppies” has advocated for politically and artistically conservative science fiction and gamed the Hugo Award nominations, drawing ire from genre writers old and new. The Sad Puppies’ position is, more or less, that great sci-fi is traditional, usually focused on straight white guys in militaristic settings, with straightforward prose. It’s a pushback against the diversification of science fiction and fantasy writing, and though the Puppies’ influence has waned, the lasting effects of their efforts have only stirred up fear and uncertainty within the community. Thus, paranoia was the prevailing mood under which many first read “Attack Helicopter.”

A few people insisted to me that the controversy began with honest but negative readings of the story by people who felt Fall had missed the mark, before mutating into something worse. One unstated assumption made here is that only trans people should write about trans experiences, and therefore, Fall should have identified herself as a trans woman directly in the bio attached to the story. This notion is admirable on the surface but fails to account for the many ways in which trans artists both explore and experience their gender in what they create. Sometimes you can only figure out you’re trans by writing about being trans.

“[In criticism], you can say, ‘This struck me as somewhat clumsy and born from inexperience.’ That’s a fair thing to say about art,” says Gretchen Felker-Martin, an author and critic who says she loved “Attack Helicopter.” “What isn’t fair to say is, ‘The person who wrote this is definitely straight, and they’ve never met a trans person.’ There’s some room for error there, when it comes to whether the person whose work you’re critiquing is some sort of famous cultural icon or something. But Isabel was not that. She’s a woman writing under a pseudonym.”

Fall remembers the sequence of events differently, and so far as I have been able to figure out, her sequence of events is the correct one: Suspicion of her motives in writing “Attack Helicopter” spurred an almost immediate attempt to figure out her real identity, which fueled suspicion that she was trying to hide something. She was accused of being an alt-right troll or a Nazi. Only when things had gone too far did the good-faith criticism start to roll in. Fall says she found some of that criticism useful, particularly with regard to the story’s treatment of Barb’s race. (Barb is Korean.) But in her telling, the good-faith criticism came after the attempts to prove she was a bad actor. By then, the damage was done.

“Framing matters. After the frame around the story was in place, it could not be shaken, and everything that happened afterwards was influenced by it,” Fall says. “I have also heard people say, ‘We deserve to know if Isabel Fall is someone with a history of writing things that divide queer communities.’ Is it now a crime to divide a queer community? Why shouldn’t queer people be divided on one issue or another?”

The mess very quickly turned nasty and personal, and it was happening where Fall could see all of it.

“I sought out and read everything written about the story. I couldn’t stop,” Fall says. “It was like that old nightmare-fantasy. What if someone gave you a ledger of everything anyone’s ever said about you, anywhere? Who wouldn’t read it? I would read it; I would go straight to the worst things.”

One criticism above all got to her: that Fall must be a cis man, because no woman would ever write in the way she did. And because this criticism was so often leveled by cis women, Fall felt her gender dysphoria (the gap between her gender and her gender assigned at birth) increasing. In Fall’s story, Barb and Axis destroy the lives of people they cannot even see. Now, in a bitterly ironic twist, the same was happening to her.

“In this story I think that the helicopter is a closet. ... Where do you feel dysphoria the hardest? In the closet. Or so I have to hope; I have not been anywhere outside it, except for [in publishing ‘Attack Helicopter’], which convinced me it was safer inside,” Fall says. “Most of all, I wanted people to say, ‘This story was written by a woman who understands being a woman.’ I obviously failed horribly.”

That was when she asked Clarke to take down the story. That was when she checked herself into a psych ward, so she wouldn’t kill herself in the midst of her dysphoric spiral.

“It ended the way it did because I thought I would die,” she says.

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Twitter is really good at making otherwise unimportant things seem like important news.

It’s incredibly hard to imagine “Attack Helicopter” receiving the degree of blowback it did in a world where Twitter didn’t exist. There were discussions of the story on forums and in comment threads all over the internet, but it is the nature of Twitter that all but ensured this particular argument would rage out of control. Isabel Fall’s story has been held up as an example of “cancel culture run amok,” but like almost all examples of cancel culture run amok, it’s mostly an example of Twitter run amok.

“It’s very easy to do a paranoid reading on Twitter,” says Lee Mandelo, a PhD candidate at the University of Kentucky and an author and critic who writes for Tor.com. They were among the earliest advocates of “Attack Helicopter,” and they wrote a lengthy Twitter thread (collected as a blog post here) about paranoid versus reparative readings of art, in response to Clarkesworld pulling the story.

The delineation between paranoid and reparative readings originated in 1995, with influential critic Eve Kosofsky Sedgwick. A paranoid reading focuses on what’s wrong or problematic about a work of art. A reparative reading seeks out what might be nourishing or healing in a work of art, even if the work is flawed. Importantly, a reparative reading also tends to consider what might be nourishing or healing in a work of art for someone who isn’t the reader.

This kind of nuance gets completely worn away on Twitter, home of paranoid readings.

“[You might tweet], ‘Well, they didn’t discuss X, Y, or Z, so that’s bad!’ Or, ‘They didn’t’ — in this case — ‘discuss transness in a way that felt like what I feel about transness, therefore it is bad. That flattens everything into this very individual, very hostile way of reading,” Mandelo says. “Part of reparative reading is trying to think about how a story cannot do everything. Nothing can do everything. If you’re reading every text, fiction, or criticism looking for it to tick a bunch of boxes — like if it represents X, Y, and Z appropriately to my definitions of appropriate, and if it’s missing any of those things, it’s not good — you’re not really seeing the close focus that it has on something else.”

Kat Lo, a researcher whose work tracks how information and misinformation spread across social networks, explained to me that Twitter itself is as big a part of Isabel Fall’s story as a faceless mob of the site’s users. The sheer assault of information on Twitter makes it difficult to parse, and unlike other social networks, it doesn’t really have elements that preserve any semblance of context (whereas an individual subreddit is built around a particular subject, and a Facebook feed or group is limited to posts by one’s friends or organized around one topic, at least in theory). Twitter ends up organized around what Lo calls “influencer hubs.”

For instance, if you’re a science fiction fan, you might follow a big-name author or critic in the field, and since they’re likely a bigger expert on the topic than you are, you’ll probably regard them as such. But Twitter is a platform that rewards divisive opinions, which are more likely to drive engagement (hearts, retweets, and the like). So, many influencers with the biggest reach on Twitter are also people whose core identity is expressing divisive opinions.

Where this becomes an issue is when influencers from different worlds start to cross-pollinate, which is precisely what happened with “Attack Helicopter.” Though much of the early discussion of the story was among trans sci-fi fans, and though much of that discussion was pretty evenly split between paranoid and reparative readings, the takes that were amplified by bigger and bigger names in the sci-fi world were almost always the paranoid ones, because those were the most divisive and most clickable. And the people elevating those paranoid takes were almost all cis.

“Attack Helicopter” ended up stuck in a feedback loop, as cis people circulated takes skewed toward bad-faith readings of Fall’s story, in the name of supporting trans people. “Attack Helicopter” went from a story that people were debating, to a story that was perceived as one trans people had a few qualms with, to one that was perceived as actively harming trans people, almost entirely because of how Twitter functions.

Once a Twitter conversation takes off like this, it becomes very difficult to stop, which leads to stranger and stranger levels of binary thinking and gatekeeping. I found two tweets posted within hours of each other where one insisted Fall must be a cis man and the other insisted she must be a cis woman. Both were sure she was mocking trans people.

Once a Twitter controversy has reached that critical mass is usually when you might start reading about it in the media.

“What’s on Twitter extends far beyond Twitter, because people make Twitter relevant to the rest of the world. So in a sense, they’re reproducing the chaos and social structures of Twitter, by bringing them into the rest of the world,” Lo says. “It ends up having outsize influence, because the people who are on Twitter perceive Twitter as being bigger and more representative [of the world] than it really is.”

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By the time it was pulled, “I Sexually Identify as an Attack Helicopter” had been read by tens of thousands of people, according to Clarke, though its ultimate audience is impossible to total, because archived versions of the story and pirated PDFs reached countless others. (Fall also issued a limited-edition ebook of the story under the title “Helicopter Story” last fall, to qualify for an award — not the Hugo. The ebook was not nominated.)

In the two weeks that the story was online, discussion around it attracted interest, and the story amassed a wide number of fans, beyond the normal sphere of science fiction short-story aficionados. Many people who read it did so because it was controversial, but it only became controversial because it was so widely read.

Even more people came to know “Attack Helicopter” as an exemplar of the left eating its own. Most of the people I talked to for this story, regardless of whether they initially criticized or praised “Attack Helicopter,” cited articles by established pundits, including one in the Atlantic, as supercharging the discussion. Those articles launched the discourse beyond the twin niches of online trans communities and online SFF communities and sent it swirling out into the larger internet of people vaguely interested in free speech absolutism. With every new article, a new audience of people outside of the science fiction community learned about Isabel Fall, and a new wave of anger fell on everybody involved, regardless of their position, including Fall.

“There were several reporters that reached out to me right after the story came down. I remember having a conversation with one of them and saying, ‘Is [writing about] this really what you want to do? I’m not going to participate. I think that this is just going to make it worse,’” Clarke says. “And they ran with it. It brought in the whole cancel culture thing. Isabel needed that story down for her, not for them, and not for anybody else. But for her. And that’s why it came down. I tried to make that clear [in the editor’s note on the story’s removal]. But people still wanted that cancel narrative.”

“Attack Helicopter” was nominated for a Hugo Award (a prize for science fiction and fantasy works that is voted on by SFF fans) in April, under the title “Helicopter Story.” The nomination prompted a new round of criticism, this time mostly centered on Clarke and how he didn’t do enough to preemptively shield Fall before the story was published. Clarke says he’s happy to take the responsibility, but both he and Fall insist he did everything right. Clarkesworld hired a sensitivity reader. The story spent far longer in the editing process than most other stories published in the magazine. And so on.

What happened in the wake of “Attack Helicopter” being pulled is that Isabel Fall stopped being someone who acts and became someone who is acted upon. The prevailing narratives about the story erased her agency almost entirely. Fall wanted the story to be titled “I Sexually Identify as an Attack Helicopter,” and when she eventually retitled it “Helicopter Story” as a vague gesture of goodwill, many people assumed she had been pressured into doing so. Fall wanted the story taken off the internet, and when it was, many assumed she had been “canceled.” Both narratives framed Fall as an unwitting puppet of forces beyond her control.

So what does Isabel Fall think? She takes great issue with the way cancel culture has been positioned within the larger culture, while also allowing that certain elements of what happened to her seem to fit within that framework.

“The powerful want to say that we are entering a dangerous new era where ‘people disliking things en masse’ has coalesced into some kind of crowdsourced [weapon], firing on arbitrary targets from orbit and vaporizing their reputations,” she wrote to me in an email. “The use of mass social sanction gives the less powerful a weapon against the more powerful, so long as they can mobilize loudly and persistently. This is not new. Shame and laughter are vital tools for freedom.”

She cautions, however, that “like all weapons, it will do the most damage when aimed at the least defended, the isolated, those with no one to stand up for them, publicly or privately. And we must be careful with the temptation to use it inside our own houses to destroy shapes we think are intruders.”

If anybody canceled Isabel Fall, it was Isabel Fall. She remains the subject of her own sentences.

“The story was withdrawn to avoid my death,” she says. “It was not withdrawn as a concession that it was transphobic or secretly fascist or too problematic for publication. When people approve of its withdrawal they are approving, even if unwittingly, of the use of gender dysphoria to silence writers.”

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If Twitter makes it very easy for unimportant things to seem like important news, it also creates an environment where one of our deepest, most human impulses becomes almost calcified. When we hurt someone, we want, so badly, for everyone to see our good intentions and not our actions. It’s a natural human impulse. I do it. You do it. Everybody involved in this story did it, too, including Isabel Fall.

But the structure of Twitter and the way it rewards a constant escalation of emotion makes it exceedingly difficult to just back down, to say, “I thought I was doing the right thing, but I hurt somebody very badly in the process.”

Many of those who criticized “I Sexually Identify as an Attack Helicopter” on the grounds that it was harmful operated with the absolute best of intentions. I have talked to many of them at great length. I believe them when they say that they earnestly thought the story was a false front for bad actors, because being trans on the internet turns your alarm sensors all the way up. (It’s not like the internet isn’t teeming with awful people hiding in plain sight. Why give anyone the benefit of the doubt?)

I believe the story’s detractors were hurt by the title, or some of the content, or the very idea of the story. I believe they truly feel that trans stories should be only written by trans people and that Fall should have had to out herself before publishing. I believe they believe — still — that they did the right thing.

They still destroyed a woman’s life.

After she checked out of the hospital, Isabel Fall ceased to be Isabel Fall. “I had a few other stories in the works on similar themes, and I withdrew them; that is the most concrete thing I can say that I stopped doing,” Fall says. “More abstractly, more emotionally, I have stopped trying to believe I am a woman or to work towards womanness. If other people want to put markings on my gender-sphere and decide what I am, fine, let them. It’s not worth fighting.”

Isabel Fall was on a path to living as an out trans woman with a career writing science fiction, and now, she says, there will be no more Isabel Fall stories. She is done writing under that name, and she now considers “Isabel Fall” an impossible goal to achieve, a person she will never be.

“I don’t know what I meant to do as Isabel,” she says. “I know [that publishing “Attack Helicopter”] was an important test for myself, sort of a peer review of my own womannness. I think I tried to open a door and it was closed from the other side because I did not look the right shape to pass through it.”

Trans people — trans women, especially — can find their first few steps as themselves in public particularly stressful. That stress is why it’s so often important for us to have safe ways to explore who we are, under whatever veil of anonymity we can concoct for ourselves. When we’re behind that veil, we can divorce ourselves from the identities we were assigned at birth, at least a little bit. To have that veil punctured is a great violence, and Isabel Fall had her veil punctured.

Every day, the person who might have been Isabel Fall sees friends who tore down her story and speculated on her true motivations and identity go on with their lives. They are not stuck in the events of January 2020, like she is. These friends don’t know who she is. Probably. She doesn’t know how to talk to them about it, and to confront anyone about their role in the chaos would require outing herself. She says only one person has reached out to apologize, via Clarke.

“It ends up with groups of people I thought of as friends all assuring each other they did nothing wrong ... and I do not even know if they know it was me,” Fall says. “Or they make vague statements about how they are thinking of everyone harmed by the mess around the story, including the author, as if that mess were an inevitable result of publishing a flawed and problematic story: as if the solution was simply to employ even more sensitivity readers, sensitivity readers who agreed with them and could change the story into something they wanted to read.”

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So what’s the worst that might have happened if, somehow, the “Attack Helicopter” detractors were right and the story was a secret reactionary text?

As far as I can tell, the worst that would have happened is that another piece of transphobic literature would have existed. To be clear, transphobic literature is worth protesting. I would rather have less of it. But there’s a large gap between speaking out against a work of art you find objectionable and trying desperately to sniff out an author’s true identity, with ever more horrific accusations.

It is easy for me to say this with hindsight, of course. I know Isabel Fall just wanted to write a good story. I’ve seen earlier drafts of that story. I know how hard she worked to make it exactly what she wanted it to be. I suppose that simply by talking with Fall as much as I have, I have subtly put myself on “her side.” Maybe you shouldn’t trust my good intentions either.

But in any internet maelstrom that gets held up as a microcosm of the Way We Live Today, one simple factor often gets washed away: These things happened to someone. And the asymmetrical nature of the harm done to that person is hard to grasp until you’ve been that person. A single critical tweet about the matter was not experienced by Isabel Fall as just one tweet. She experienced it as part of a tsunami that nearly took her life. And that tsunami might have been abated if people had simply asked themselves, “What’s the worst that could happen if I’m right? And what’s the worst that could happen if I’m wrong?”

Everybody I talked to in the course of reporting this story said some variation on “I hope Isabel is okay.” And she is. Sort of. In the months I’ve spent emailing Isabel Fall, she’s revealed herself to be witty and thoughtful and sardonic and wounded and angry and maybe a little paranoid. But who wouldn’t be all of those things? Yet I’m emailing with a ghost who exists only in this one email chain. The person who might have been Isabel has given up on actually building a life and career as Isabel Fall. And that is a kind of death.

“Isabel was somebody I often wanted to be, but not someone I succeeded at being,” she says. “I think the reaction to the story proves that I can’t be her, or shouldn’t be her, or at least won’t ever be her. Everyone knew I was a fraud, right away.”

Emily VanDerWerff is Vox’s critic at large. Read other essays by the author here and here.

As you've now heard, there's a big push in Congress to revise how antitrust works. A group of mostly Democratic House members (with a few Republicans on board) introduced a questionable package of antitrust bills, with many, many problems. There were some good ideas (such as better funding of the FTC) and some more creative ideas (such as around interoperability), but done in such ham-fisted ways that they would cause a lot more harm than good. We've noted how the bills would create massive problems for content moderation, and raise related speech issues.

Last week's marathon markup hearing in the House Judiciary Committee did not ease these concerns -- if anything they made them much, much worse. After the hearing was finally over, a bi-partisan group of Judiciary Committee members put out a statement highlighting the half-baked nature of the proposals.

“The marathon markup – that started Wednesday morning, recessed as the sun came up on Thursday morning, and then reconvened for another four hours on Thursday – featured several bills that would radically change America’s leading tech companies and made crystal clear that the bill text as debated is not close to ready for Floor consideration.

“The package of legislation poses harm to American consumers and the U.S. economy and left Members on both sides of the aisle with basic questions that have yet to be answered. What companies are covered in the scope of the bills? If only four, why? Why are foreign firms not covered? Were the definitions of ‘covered platforms’ arbitrary or not? How would the bills impact useful products that consumers rely on? How do the bills protect the data of American consumers? How do the bills protect consumers from arbitrary tech company abuses, as well as safeguard the nation’s security and economic interests?

“The 16-month-long investigation conducted by the Antitrust, Commercial, and Administrative Law Subcommittee rightfully scrutinized digital markets in an effort to remove barriers to competition. Unfortunately, the resulting legislative proposals – which the full Committee did not hold a hearing on or have reasonable time to fully consider – fell short of adequately addressing identified problems in an effective way that serves Americans’ interests. We urge the sponsors of the bills to take the necessary time, commit to a comprehensive approach, and work with their bipartisan colleagues of this Committee to address the concerns articulated during markup to further develop these bills.”

Of course, given how nearly all of those concerns were brushed aside by Committee members who support the bills, my fear was that this process was on an unstoppable train track. People had asked Rep. Jerry Nadler to slow things down before the hearing and he had refused. However, it appears that more soberly minded members of the leadership are now realizing that maybe this rush job is a mistake.

Majority Leader Steny Hoyer is now pumping the brakes on moving these antitrust bills to a full floor vote.

“There was disagreement among the Democrats in the committee and not every Democrat voted for it, and some very senior members opposed it,” Hoyer said of the House Judiciary’s consideration of the legislation last week. “There’s a lot of discussion to be had before I get to scheduling bills for the floor.”

What this really means is that someone has taken the temperature of the other members and realized there aren't enough votes to pass these bills. That doesn't mean they won't be back (or that this process won't just jump over to the Senate for now). It's entirely possible that updated versions of the bills will be even worse. But, for now, at least, it appears that Congress is taking at least a temporary breather on rushing through these bills.

Streaming services’ playlists make it easier for listeners to find music worth playing. But experts say they’re also breaking fans’ relationships with artists.

In 2018, Trevor Daniel released the song “Falling” to little fanfare. Its tame take on emo-rap couldn’t hold a candle to the darker more confessional acts like Lil Uzi Vert and Juice WRLD, who pioneered the sound.

But two years later, “Falling” blew up, thanks to the internet. First, it was picked up by influencers on Instagram, then it became a TikTok meme featured in more than 3 million videos. The social media hype led to traditional media success: The song spent 38 weeks on Billboard’s Hot 100, peaking at 17. It was streamed more than a billion times on Spotify, where it’s featured on prominent playlists like “Chill Hits,” “Beast Mode,” and “Top Gaming Hits.”

Then Daniel attempted a star-studded follow-up, ”Past Life,” featuring Selena Gomez and produced by Finneas. The song peaked at No. 77 on Billboard, left the charts in 5 weeks and had just 10 percent of the streams that “Falling” achieved on Spotify. Daniels has yet to come close to replicating the accomplishment of “Falling.”

Success in the music industry used to rely on radio plays and premium retail “endcap” placements (where stores like Best Buy gave album releases prime real estate). It’s no secret that streaming has changed everything, providing unfettered access to the largest catalog of music in human history.

It also presents a paradox of choice: What should you listen to when you can hear nearly any song that’s ever been recorded? With more and more songs released by more and more musicians on more and more platforms — and less emphasis on traditional media to tell listeners what to like — the sprawl of streaming has upended what it means to be a pop star. For an artist like Daniels, streaming both gave him the opportunity to break out from obscurity and made it exponentially more difficult to have a follow-up hit. That’s because like so many other viral hits, the song, not the artist, became the asset.

“Streaming is a great way to make an artist faceless,” says Lucas Keller, the CEO of the entertainment management company Milk & Honey, which manages some of the biggest producers and songwriters working today. His roster has written for artists including BTS, Ariana Grande, and Gwen Stefani — at one point in 2019, 10 of the songs on top 40 were written or produced by Milk & Honey talent.

“The song,” Keller says, “becomes bigger than the artist.”

He cites James Arthur, whose song “Say You Won’t Let Go” reached No. 11 on Billboard’s Hot 100 in 2017. It’s a mid-tempo acoustic ballad with a gentle hip-hop groove that fits equally well on pop radio as it does in alternative and adult contemporary formats. And though appearances on Spotify playlists like Mood Booster, Happy This!, Warm Fuzzy Feeling, Chill Hits, and Alone Again helped generate billions of streams for the song and a number of follow-up singles, Arthur has yet to land another Top 40 hit.

There’s more competition on the charts than ever. In 2020, there were more songs on Billboard’s Hot 100 than any year since the 1960s, the last decade when singles, and not albums, drove the recording industry. In 2019, 40,000 songs were uploaded daily to Spotify, according to Music Business Worldwide; in 2021, that number has grown to 60,000. For artists, as the volume of new music releases increases, it’s becoming more difficult to be heard.

Keller puts this volume in perspective: “If you took all of the premium music released on a digital storefront right now, and tried to jam it into a record store, it’d need to be a Home Depot.”

To help listeners find their way in the endless aisles of digital music, streaming providers created playlists — but this new way of listening has created unintended consequences for artists and songwriters. Today, three services make up two-thirds of the streaming economy: Spotify, which has an estimated 32 percent of the market, Apple Music (18 percent), and Amazon Music (14 percent). But Spotify dominates the conversation both because of its market power and its immensely popular playlists. In 2017, 68 percent of all listening on Spotify was from a company or user playlist, according to the company’s 2018 Securities and Exchange Commission filing. Its platform has more than 4 billion playlists, 3,000 of which are owned by Spotify, curated by a mix of algorithms and editors.

Its most prominent playlists have serious cultural power. RapCaviar shapes the sound of hip-hop, and can turn indie rappers into household names. The genre-agnostic, slightly quirky playlist Lorem curates the vibe for Spotify’s Gen Z listeners. In 2020, listeners ages 16 to 40 used playlists as their primary source for discovering new music on the platform, according to the company. So today, a placement atop one of its playlists can make or break a song.

Spotify isn’t shy about the marketing power of its playlists. In its SEC filing, the company wrote as much, crediting Lorde’s breakout global success to her placement on a single playlist: Sean Parker’s Hipster International. But her example may be an outlier. The challenge for most artists is that playlist listeners frequently don’t know who they’re listening to. A song with high completion rates on a playlist might end up on more playlists, accumulating millions of streams for an artist who remains effectively nameless. In the best-case scenario, these streams, which pay very low royalties compared to radio, could help land the song a coveted advertisement, or better yet, pique the attention of Top 40 radio programmers.

But pop stardom has always relied on a blend of catchy songs and compelling personas. “The music video era gave you a big dose of their personality whenever you discovered new songs. And the same thing with an album,” says music producer Jesse Cannon.

An MTV study on fandom showed that fans expect to have direct interaction with artists. But in a music economy built on playlists, the listener is much less likely to be aware of who they’re listening to. Playlists are a “lean back” experience. You choose the mood you’re in, and the music just flows. Cannon believes that playlisting is breaking the fan-artist connection: “When we’re making playlists, there’s no depth whatsoever to the relationship.”

Even if playlists work against persona-based star power, artists are still desperate to appear on them to create buzz for their music. “The buzz-making, hit-making economy has gone from top down, to bottom up,” says Slate’s chart expert Chris Molanphy. “It used to be that you pushed things at radio, and that made people buy the single, buy the album.”

Now songs develop on social media platforms, and grow on playlists, before making it to radio. Music marketers have repositioned themselves to build influence over TikTok feeds. PR firms market their ability to get their clients on playlists, though Spotify maintains a stance of editorial independence.

Even success on a small playlist helps boost an artist’s chances of getting noticed by an algorithm or editor and being placed on a larger playlist. (While researching this article, I received an email from an independent artist asking for placement on my playlist with 199 followers: “I just came across your playlist, ‘Silk Sonic’s Retro Soul,’” they wrote. “I have a song ... that I think would be perfect for the playlist.” A link to the song was attached.)

This is one way would-be pop stars suffer in the new music economy: Playlists have become such an essential part of a song’s success that an underworld of playlist promoters have emerged to exploit this musical ponzi scheme. Independent artists often pay hundreds of dollars to them hoping for exclusive placements on popular playlists. The labels are in on it, too. Spotify provides an egalitarian service where everyone, whether distributed by an indie or major label, submits songs for playlisting. But according to Cannon, labels have direct access to the company through reps, and regularly wine-and-dine key decision makers at the company.

Spotify’s guidelines do not allow for paid playlist promotion. Still, thousands of pay-to-play lists exist on the platform. And Spotify has its own program to boost the likelihood of landing on a playlist if artists and songwriters are willing to accept a lower royalty rate on promoted songs. Called “Discovery Mode,” it’s currently being probed by Congress for the practice of forcing lower royalties; representatives from the House Judiciary Committee want to find out if Spotify is limiting choice and hurting artist revenues. Spotify has argued that this program is an essential way for artists to highlight which songs they want to prioritize to be heard, even if they’re not seen.

For upstart musicians, the bottom-up model is the only choice. Without the old gatekeepers, in rare cases, indie artists can break outside of the major-label ecosystem. Cannon cites Penelope Scott as a prototypical example. She makes obscure baroque punk, but her music has expanded beyond her niche. Her song “Rät” has “lyrics that are so extremely online” that they’ve inspired thousands of TikTok videos, and that led to Spotify playlists and even a place on Billboard’s Hot Rock & Alternative charts. “That is what gets around the gatekeeper,” says Cannon. “This girl reached 3 million monthly listeners without any coverage.”

But overnight viral stars are rare, and building a lasting audience is harder than ever as social media platforms are flooded by celebrities and established acts. Many artists who break out on TikTok become one-hit wonders. Their songs eclipse their short-lived public identities as audiences move onto the next meme. And those who do break out still need to work their way up the ladder from social media to streaming, and finally, to radio to reap financial rewards.

Performers aren’t the only ones affected by streaming. Though streaming has been a financial boon for labels, songwriters still depend on radio play for the bulk of their income — radio pays much higher royalties to songwriters compared to streaming. Emily Warren, who has written hits for Dua Lipa and the Chainsmokers among many others, told me that she knows songwriters with hundreds of millions of streams and Grammy nominations who still drive Uber for a living. But she says that a songwriter with just two big radio hits is set up to retire.

These distorted economics change the kind of songs that are written. “[Songwriters] are just chasing radio. The only way a writer can make any money is if they have a radio single,” Warren says. Even though it’s been widely reported that streaming has changed the sound of pop music, artists still fight for radio listeners, who skew older and more conservative in their tastes.

There may be some truth to the age-old criticism of all pop music sounding the same. Before iTunes started selling songs as singles, songwriters could make money off of deep album cuts: “There used to be so much money and value in any kind of song, and anywhere on the album. You could have track eight on an album that had a big single and you would make so much money off of it,” Warren says. She believes that album sales allowed songwriters to take more risks and find new sounds. By comparison, the Top 40 radio format of old-school anthemic choruses is creatively restraining. Warren says that these financial incentives are holding popular music back: “If songwriters start being compensated, there will be a musical renaissance.”

As artist and songwriter Julia Michaels puts it, “With streaming, songwriters are lucky if they make anything. If you don’t have the single, you’re basically fucked.” And in the bottom-up method of hit-making, promoting a single across every platform is exhausting.

Michaels believes that the creative laborers in popular music are feeling pressure to compete with every online influencer: “It is definitely a scary time for songwriters. And it’s kind of a scary time to be an artist, too. There’s a lot of expectations. You have to be a TikTok star. You have to be on social media all the time. You have to be a model.”

Today’s streaming economy looks a lot like the larger economy. Michaels explains that now, “if you’re not in the top 1 percent, it is not lucrative at all.” In fact, the pool that makes a decent paycheck is much smaller than the 1 percent — only 13,400 artists earned more than $50,000 on Spotify in 2020. Just 870 made it rich, bringing in more than $1 million.

As for Trevor Daniel? Chart whisperer Molanphy says that he’s in the “middle of the pack — neither a nobody, nor a chart-topper — who now has to find his way in this weird new economy of hit-making.” With so much financial uncertainty in music, it’s not surprising that so many artists are selling their catalogs and speculating with cryptocurrencies and NFTs.

The age-old business of writing and releasing songs has been upended. Now every song has to find a life on a half-dozen different formats to be a hit. What was never easy is only getting harder. While we’re daydreaming to our “Chill Vibes” playlist, artists and songwriters are flailing to get our attention.

Charlie Harding is a songwriter and executive producer and co-host of Vox Media’s Switched on Pop podcast, which looks at phenomena in pop music.

And it’s soundtracked by Megan Thee Stallion.

Earlier this June, Megan Thee Stallion’s “Thot Shit” was poised to take over TikTok. It’s compulsively danceable and full of quotable “Hot Girl Summer”-isms, but a scroll through the song’s official sound on the app unveils a wasteland of mediocre lip-syncs and unimaginative — to say the least — dance trends.

“Megan says, ‘Hands on my knees. Shaking ass, on my thot shit.’ ... You could not have possibly gone so far in the opposite direction,” says a viral TikTok from user @xosugarbunny. “The instructions are right there.”

Fast-forward weeks later, and a viral dance challenge has yet to emerge — because Black content creators, fed up with rampant cultural appropriation on the platform, are refusing to dance to the song. Dubbed the “#BlackTikTok Strike,” Black TikTokers are hitting pause on their dance tutorials indefinitely, making this the first collective action the platform has seen, where creators are equating uncredited trends with unpaid labor.

The move comes on the heels of the now-national holiday Juneteenth, which signifies the day in 1865 when a group of enslaved people in Texas learned of their emancipation three years late, but also amid larger conversations about race and appropriation on the platform. One such recent controversy saw white female creators flooding TikTok with videos of lip-syncing along to Nicki Minaj’s “Black Barbies.” While the trend first emerged as a way to celebrate Black beauty, it’s now a site of heated discourse on the lengths to which non-Black creators will go to pantomime Black culture for views.

“As Black folk, we’ve always been aware that we’ve been excluded and othered. Even in the spaces we’ve managed to create for ourselves — whether it be in music, fashion, language, or dance — non-Black folk continuously infiltrate and occupy these spaces with no respect for the architects who built them,” says Erick Louis, a dancer and TikToker from Florida whose content traverses the space between social commentary and off-the-cuff humor. “We’re mobilizing in this way because it’s necessary and it’s something we’ve been saying among ourselves for quite a while now.”

Louis was among the first to officially post about the strike on TikTok, uploading a video on June 19 of him faking out viewers with promises of a dance to “Thot Shit” before declaring, “Sike. This app would be nothing without [Black] people.”

And as if an internet prophet, Louis later found his act of protest stolen. Days later, a pair of white creators uploaded themselves mimicking Louis’s moves without crediting him, only for the now-deleted video to receive north of a million views.

The virality vacuum of the internet has always made the concept of credit nebulous. “Dances are virtually impossible to legally claim as one’s own,” after all, writes The Goods’ Rebecca Jennings on the ethics of the dance trend. And while until recently it was nearly impossible to own a meme, Black trauma and culture have long been the unsung soundtrack of the internet.

In the 2010s, Sweet Brown went from recounting an apartment fire on the nightly news to becoming an internet sensation, as her declaration of “Ain’t nobody got time for that!” became the answer to any minor inconvenience — computer updates and pleasantries included. Then came this year’s Double Homicide meme. Devoid of context, the voiceover from Joseline Hernandez’s reality competition show Joseline’s Cabaret pokes fun at casual adversities, like bad sex or an awkward body type. In reality, the phrase is a response to a contestant sharing how she terminated a twin pregnancy.

The point: Blackness, whether related to joy or pain, is a shortcut to internet fame and all it brings. But as white creators turn these moments into personal brands, sponsorship deals, and small-time media empires, a larger question exists: Should this content be theirs to claim in the first place?

“Black creators carry TikTok on our backs. We make the trends, we give the looks, we are funniest — there’s no argument about it,” says Louis. “But what ends up happening is non-Black folk appropriate our content, and they end up being the faces of what Black folks created.”

Digital blackface, or the co-opting of dances, memes, and slang popularized by Black creators by the non-Black side of the internet, is committed so casually and frequently that it feels like the default mode of shitposting. And why wouldn’t it? It’s how two of TikTok’s biggest darlings found their stride.

For months, Charli D’Amelio let herself be described as the “C.E.O. of Renegade,’’ a 30-second dance combination set to the chorus of K Camp’s “Lottery” that made its rounds on the shortform video apps Funimate and Dubsmash before hitting Instagram and then TikTok in 2019. D’Amelio’s identity is forever intertwined with the dance, its peak hitting when she performed it courtside at the 2020 NBA Dunk Contest, despite having nothing to do with its creation. The dance’s real choreographer, 15-year-old Jalaiah Harmon, remained undiscovered until a New York Times profile ran, and she spent months asking for acknowledgment in TikTok’s comments section.

“I think I could have gotten money for it, promos for it, I could have gotten famous off it, get noticed,” Harmon told the Times. “I don’t think any of that stuff has happened for me because no one knows I made the dance.”

D’Amelio is rumored to be worth $8 million, her teenage wealth an amalgamation of a $1 million deal with Sabra hummus and a going rate of $100,000 per sponsored social media post. Harmon, meanwhile, is rumored to be worth between $70,000 and $100,000.

Then, of course, came the matter of Addison Rae Easterling’s March 2021 Jimmy Fallon appearance, where the influencer performed low-energy renditions of Mya Johnson’s and Chris Cotter’s “Up,” Dorien Scott’s “Corvette Corvette,” Camyra Franklin’s “Laffy Taffy,” and Keara Wilson’s “Savage” without credit.

“[It] was kind of hard to credit during the show,” Easterling told TMZ after the appearance. “It was never my intention and they definitely deserve all the credit, because they came up with these amazing trends.”

It’s not that Black creators never receive credit for the trends they originate. It’s that they consistently receive it after a public about-face, where any autonomy they had over their de facto creative property is stripped from them by layers of white creators, adoring fans, media appearances, and ensuing backlash.

Harmon got to dance with D’Amelio at the NBA All-Star Game, but only after a firestorm of criticism. And the original creators of the dances Easterling performed were invited to Jimmy Fallon to perform their dances virtually after a show break, but not until after the show was lambasted. There’s something about each of these situations that feels less like a celebration and more like the moment before you exhale. It’s not so much a “congratulations” as an “about time.”

“With the amount of policing already going on on the app, to finally have a video that does well, or like to get some form of recognition, and then have it ripped away from you hurts,” says Louis. “And then to not get credited also adds on to the already open wounds.”

Some politicians have viewed the ruling as a call for Congress to update aged antitrust laws.

The antitrust push targeting Facebook hit a significant roadblock on Monday when a federal court dismissed antitrust lawsuits that the Federal Trade Commission (FTC) and 48 states had filed against the tech giant.

The dismissal is a major win for Facebook, which — along with Amazon, Apple, and Google — has been facing increasing scrutiny about whether it’s engaging in monopolistic behavior to stifle its competition. It’s also a major setback for the growing bipartisan political movement in the US to rein in Big Tech’s power. And it signals that the path forward for antitrust enforcement against these companies may require lawmakers to revisit existing US antitrust law, which had its last major overhaul in the early 1900’s — well before the internet age.

The FTC’s lawsuit against Facebook argued that Facebook has engaged in monopolistic behavior against its competitors, but on Monday the judge’s ruling said the FTC’s argument wasn’t clear enough.

“The FTC has failed to plead enough facts to plausibly establish a necessary element of all of its Section 2 claims — namely, that Facebook has monopoly power in the market,” reads a part of the filing from the US District Court for the District of Columbia. The filing goes on to criticize the FTC’s complaint against Facebook for containing “nothing on that score save the naked allegation” that the company has a dominant share of the market in the “personal social networking” industry.

“It is almost as if the agency [the FTC] expects the Court to simply nod to the conventional wisdom that Facebook is a monopolist,” states another part of the filing.

The court also dismissed a parallel complaint to the FTC which was filed by 48 state attorney generals in December. In its dismissal of the states’ complaint, the judge ruled the states had taken too long to take issue with Facebook’s acquisition of Instagram and WhatsApp, which were acquired in 2012 and 2014, respectively.

Immediately following the court’s decisions, Facebook’s shares rose by more than 4 percent.

“We are pleased that today’s decisions recognize the defects in the government complaints filed against Facebook,” a Facebook company spokesperson wrote in a statement. “We compete fairly every day to earn people’s time and attention and will continue to deliver great products for the people and businesses that use our services.”

A spokesperson for the FTC shared the following statement with Recode in response to the complaint being dismissed:

“The FTC is closely reviewing the opinion and assessing the best option forward.”

Facebook may be in the clear for now with the FTC, but the larger antitrust case against the company is far from over

Despite the court’s dismissal, the FTC’s case against Facebook still isn’t completely closed.

For one, the court is allowing the FTC to submit a more detailed amended complaint against Facebook within 30 days, which it would re-review.

And more broadly, the FTC and its newly appointed chair, Lina Khan, who is well-known for her scrutiny of Big Tech, can pursue other methods for limiting these giants’ power. Beyond this existing case, the FTC could directly file a new case against Facebook within its own administration without needing to involve the federal court system. But as we’ve seen in the past, even record-setting settlements between the FTC and Facebook haven’t had much of an impact on how the company does business.

Some powerful politicians have viewed today’s rulings as a call for Congress to update aged antitrust laws so they can apply to modern-day tech companies.

Earlier this month, a bipartisan group of legislators led by Rep. David Cicilline (D-RI) and Rep. Ken Buck (R-CO) put out five antitrust bills intended to limit the economic power of major tech companies. Those bills included several that would update the laws around antitrust to more specifically target tech companies.

Shortly after news of the dismissal of the FTC complaint against Facebook came out, Rep. Buck tweeted that the court dismissal of the FTC’s complaint was a reason why antitrust laws need updating.

“This intensifies the demand for legislative reform unmistakably,” said Bill Kovacic, former chair of the FTC under George W. Bush’s presidency. “This will be proof for the advocates of [antitrust law] reform that ‘This is what you get by going to court.’”

Sen. Josh Hawley (R-MO), who is a vocal Republican critic of major tech companies, also tweeted his disappointment with today’s outcome.

So while the decisions may offer temporary relief to Facebook, it’s only for the moment. Larger challenges lie ahead — and the court’s opinions today may galvanize lawmakers to take a new approach to antitrust enforcement of Big Tech.

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The police officer who set off months of anti-police violence protests has been sentenced to more than 22 years in prison. Minneapolis police officer Derek Chauvin was found guilty of murdering George Floyd by kneeling on his neck for nearly ten minutes… and for more than two minutes after another officer said he couldn't detect a pulse.

This murder was carried out in broad daylight in front of several witnesses. Perhaps the most important witness was the one who filmed the entire killing: 17-year-old Darnella Frazier. Largely because of this recording, Chauvin was unable to elude justice.

Two months after Chauvin's conviction on murder charges, Judge Peter Cahill has handed down a sentence nearly a decade longer than the 10-15 years recommended by state sentencing guidelines. This sentence is far more than Chauvin's lawyer felt was justified. His attorney asked for time served and probation. (Chauvin had been incarcerated for 199 days by the time he was sentenced.) But it's also less than what prosecutors had asked for: a 30-year sentence based on several aggravating factors.

Judge Cahill didn't just hand down a sentence. He also issued a written order [PDF] explaining his decision to depart upwards from the sentencing guidelines. The order is thorough. And the list of aggravating factors includes the public nature of this killing and a reference to the witness who filmed the incident, creating an undeniable version of the facts that made it impossible for Chauvin to walk away from this.

Here's the short version of the court's explanation for its sentencing variance:

[T]he Court found that the evidence at trial proved beyond a reasonable doubt the following four aggravated sentencing factors:

(i) That Mr. Chauvin abused a position of trust and authority;

(ii) That Mr. Chauvin treated George Floyd with particular cruelty;

(iii) That children were present during the commission of the offense;

(iv) That Mr. Chauvin committed the crime as a group with the active participation of three other individuals, former Minneapolis Police Officers Thou Thao, Thomas Lane, and J. Alexander Kueng, who all actively participated with Mr. Chauvin in the crime in various ways.

These are presented in more detail later on in the order.

Mr. Chauvin “abused his position of authority” by using unreasonable force to hold “a handcuffed George Floyd in a prone position on the street”—“a position that Defendant knew from his training and experience carried with it a danger of positional asphyxia”—for more than nine minutes and forty seconds, “an inordinate amount of time.”

“Defendant’s placement of his knee on the back of George Floyd’s neck was an egregious abuse of the authority to subdue and restrain because the prolonged use of this maneuver was employed after George Floyd had already been handcuffed and continued for more than four and a half minutes after Mr. Floyd had ceased talking and had become unresponsive.”

[...]

That “failure to render aid became particularly abusive after Mr. Floyd had passed out, and was still being restrained in the prone position, with Mr. Chauvin continuing to kneel on the back of Mr. Floyd’s neck with one knee and on his back with another knee, for more than two and a half minutes after one of his fellow officers announced he was unable to detect a pulse.”

Also factoring into the upward variance is the fact that this was no ordinary killing. As the court points out, this was an protracted, painful experience that ended in death -- one that was far crueler than the acts normally associated with murders and assaults.

Mr. Chauvin’s prolonged restraint of Mr. Floyd was also much longer and more painful than the typical scenario in a second-degree or third-degree murder or second-degree manslaughter case. The “prolonged nature of the asphyxiation” makes this offense different in kind than, for example, a near-instantaneous death by gunshot, which is one typical scenario for this type of offense.

[...]

The conduct this Court has deemed particularly cruel also occurred over a longer period and was substantially more painful than a typical third-degree assault, the predicate felony offense for Mr. Chauvin’s second-degree murder conviction. [...] . Chauvin’s conduct went beyond just inflicting “substantial bodily harm.” It “kill[ed] George Floyd slowly”—over the course of almost ten minutes—by inhibiting “his ability to breathe when Mr. Floyd had already made it clear he was having trouble breathing.” Indeed, Mr. Chauvin’s continuation of the assault after Mr. Floyd was no longer conscious and no longer had a pulse—Mr. Chauvin “continu[ed] to kneel on the back of Mr. Floyd’s neck . . . for more than two and a half minutes after one of his fellow officers announced he was unable to detect a pulse”—plainly sets Mr. Chauvin’s conduct apart from the typical case involving a felony assault that results in substantial bodily harm and death to the victim.

For that, the judge tacks on another ten years. Chauvin -- the second Minneapolis police officer to be convicted of murder in the last two years -- will spend most of the next 15 years in jail and another eight years under supervised release. Nothing done here will bring George Floyd back to life. But the court's willingness to depart upwards when sentencing a former cop should hopefully act as a deterrent towards future police violence.

Postmaster General Louis DeJoy proposed new standards for first-class mail, which would slow down how long it takes for you to receive a letter. The Washington Post made an interactive (paywall) to see how the plan would change delivery times from your ZIP code.

Tags: slowdown, USPS, Washington Post

One of the most contentious areas of Internet law is the extent to which sites are responsible for the actions of their users. One issue concerns user-uploaded materials: if these infringe on copyright, should the platform be held responsible too? The EU's highest court, the Court of Justice of the European Union (CJEU), has just ruled on two cases touching on this question. One concerned the posting of music recordings to YouTube, while the other involved medical textbooks published by Elsevier, which appeared on some filesharing sites. Both cases were before the Federal Court of Justice in Germany, which asked the CJEU to provide guidance on the liability of online platforms as regards to copyright materials posted by users. The basic decision is straightforward (pdf), explained here by the court's press release:

the Court emphasises the indispensable role played by the platform operator and the deliberate nature of its intervention. That platform operator makes an 'act of communication' when it intervenes, in full knowledge of the consequences of its action, to give its customers access to a protected work, particularly where, in the absence of that intervention, those customers would not, in principle, be able to enjoy the broadcast work.

In that context, the Court finds that the operator of a video-sharing platform or a file-hosting and -sharing platform, on which users can illegally make protected content available to the public, does not make a 'communication to the public' of that content, within the meaning of [EU] Directive 2001/29 [on copyright], unless it contributes, beyond merely making that platform available, to giving access to such content to the public in breach of copyright.

Put simply, platforms need to be involved in making material available in some active way before they can be held liable.

In an excellent Twitter thread, Julia Reda points out some interesting aspects of the ruling. First, she notes that copyright companies have long tried to push the idea that platforms like YouTube, largely based on user-uploaded material, are automatically playing an "active" role, and are therefore not mere conduits. The latest CJEU ruling says that for a platform to be liable under the EU's eCommerce Directive "it must have knowledge of or awareness of specific illegal acts committed by its users relating to protected content that was uploaded to its platform."

However, a platform may be required to use "appropriate technical measures" to "counter credibly and effectively copyright infringements on that platform". Within the full judgment is the following comment by the judges:

YouTube has put in place various technological measures in order to prevent and put an end to copyright infringements on its platform, such as, inter alia, a notification button and a special alert procedure for reporting and arranging for illegal content to be removed, as well as a content verification program for checking content and content recognition software for facilitating the identification and designation of such content. Thus, it is apparent that that operator has adopted technological measures to counter credibly and effectively copyright infringements on its platform.

Reda points out that YouTube's "technological measures" are regarded by the court as "credible" and "effective", even though they do not use an upload filter of the kind that Article 17 of the EU Copyright Directive is likely to need. As she writes: "Providing a button that allows rightholders to easily notify infringements can be an appropriate technical measure."

That's good news, but it's important to remember that the current CJEU ruling refers to EU law as it was before the Copyright Directive came into force. As such, its views on upload filters are likely to be superseded by the important case brought by Poland, seeking to have them thrown out completely. It may be that the CJEU rules that Article 17's strict upload filters are legal in the EU, which would therefore negate the current judgment's more lenient view of what is needed. The first indication of which way the court may rule will come next month, when a CJEU adviser will offer a preliminary opinion on the matter. Although the new CJEU position on technological measures is welcome, it is the future ruling on Article 17 that will be decisive.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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For the first time since the onset of the pandemic, DC has reported zero deaths due to Covid-19 for seven consecutive days. The milestone is another sign that the pandemic is easing in our area. The proliferation of vaccines around the District has heavily contributed to the decline in deaths. According to an new Associated […]

Baltimore City is recommending against construction of a high-speed train that would shorten the trip between DC and Baltimore to a mere 15 minutes, a move that makes the project significantly less likely to happen. The magnetic-levitation train—maglev for short—harnesses magnetic force to keep railcars above an elevated track at speeds of up to 374 […]

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How we all failed Britney Spears.

During Britney Spears’s explosive remarks about her longstanding conservatorship, made before a Los Angeles court on Wednesday afternoon, one of the most heartbreaking moments came toward the end.

Spears devoted much of her 20-minute statement to outlining her problems with the restrictions of the conservatorship: how she has an IUD she’s not allowed to remove; how she has been forced to perform against her will; how she was forced onto lithium against her will.

Then Spears took time to explain why she had never spoken about her conservatorship in public before. She offered a very simple reason: She thought people would make fun of her if she did.

“I didn’t want to say it openly, because I honestly don’t think anyone would believe me,” Spears said. “That’s why I didn’t want to say any of this to anybody, to the public. Because I thought people would make fun of me or laugh at me.”

Spears doesn’t need to say why she assumed people would laugh at her if she told them that she was having a hard time. We already know why she was concerned about that: because it happened to her before, in the 2000s. That’s part of what landed her in her conservatorship in the first place. When Spears shaved off all her hair and hit a paparazzo’s car with her umbrella, she was very clearly struggling, and the world responded by mocking her viciously.

“Britney Spears Needs A Makeover Almost As Bad As She Needs A Lobotomy,” said Jezebel in 2007. Perez Hilton drew sperm on photos of Spears’s face and declared her 2007 VMAs performance “disrespectful.” ABC quoted a bunch of publicists who called her fat.

So of course Spears expected that if she made herself vulnerable to the public, the public would respond by pointing and jeering. That’s how her life has always worked. So she hasn’t spoken about her conservatorship or about the strictures under which she is living for 13 years.

Since the release of Framing Britney Spears earlier this year, it has become a talking point that the culture has changed. We’ve gotten better about how we talk about famous women. Perez Hilton has stopped doodling semen over the faces of the women he blogs about. It’s become unthinkable that a major network news site would run a story about how a famous woman is now fat.

What Spears’s testimony made clear, however, is that the world has not changed as much as we would necessarily like to think it has. She describes being photographed by paparazzi as she walks crying out of her therapist’s office — not when the paparazzi were at the height of their power in the ’00s, but now, today.

“Yesterday, paparazzi showed me coming out of the place literally crying in therapy,” Spears said. “It’s embarrassing, and it’s demoralizing. I deserve privacy when I go and have therapy.”

In the wake of Spears’s testimony, the dominant media narrative is full of support for her. Planned Parenthood spoke out against her unwanted IUD, and her fellow celebrities are up in arms on her behalf. Even Ted Cruz tweeted out a #FreeBritney. But that doesn’t mean the mockery Spears dreaded isn’t happening, too.

While the comments on her social media pages are filled with fans offering her their support and crying out to #FreeBritney, they’re also filled with people making fun of her hair and makeup. “Is she allowed to wash her hair …?” one says. Some comments mock the videos Spears frequently posts of herself dancing, although it’s increasingly come to seem that the reason Spears posts them so often is that there isn’t much else she’s allowed to do with her life. “Reminds me of an episode of Seinfeld when Elaine dances,” says one.

The fact that making fun of women is no longer considered acceptable behavior in respectable media outlets does not mean our culture is no longer interested in making fun of women, or in invading their privacy, or in harassing them. It means that the harassment and mockery has become diffuse. People no longer need ABC to write an article about how Britney’s fat now because they can log on to Instagram and tell her that they think she’s fat themselves.

Britney Spears was not wrong to assume that people would make fun of her for telling the world what happened to her. People are still making fun of her because the mainstream media set a narrative for years that she was someone it was fun and entertaining to mock, and because we live in a culture that loves to make fun of women.

The world has been taught to think of Britney Spears in a particular way. The mainstream media has changed the way it talks about her — but will the world ever fully change its mind?

We've noted for a very long time that despite a lot of lip service about broadband, the U.S. government still doesn't have a very good idea of where broadband is or isn't available. There's a long line of reasons for this, including political pressure by regional monopolies that very much don't want a lack of competition and high prices to be apparent (somebody might get the crazy idea to try and fix the problem!). The FCC has also long been criticized for methodology that declares a census block (which can be hundreds of square miles) "served" with broadband if just one home can theoretically get service from an ISP.

The problem is made fairly apparent if you spent a few minutes with the FCC's $350 million broadband availability map, which just outright hallucinates available competitors and speeds, and can't be bothered to include an essential metric: prices.

Telecom mono/duopolies like AT&T and Comcast want policymakers looking at the problem through rose-colored glasses. The illusion protects up a broken US telecom subsidization process that mindlessly throws money at them for projects that make no coherent sense or often don't materialize. All propped up by zero accountability, and this belief that if you "deregulate" telecom, magic happens. But deregulating a broken captured industry dominated by natural monopolies doesn't result in magic. It results in those dominant monopolies behaving worse than ever. There's thirty years of evidence to that point.

It's a very profitable mess that a select group of large companies work very, very hard to keep intact.

Enter the National Telecommunications and Information Administration (NTIA), which earlier this month put a stick in the front wheel of this dysfunction by releasing a new broadband map that tracks both median speeds and affordability, the latter being a subject big ISPs and captured regulators never want to talk about. The map integrates data from a wide variety of sources including Ookla, M-Lab, Microsoft, and the FCC. The red in the shot below represents places where the median broadband speeds fall below 25 Mbps down, 3 Mbps up (the FCC's current definition of broadband). It's not pretty:

There's a button on the left of the NTIA's map that lets you overlap lower income areas and see how ISPs like AT&T have routinely neglected marginalized communities, something also documented by several past reports. This is the net result of what countless billions in poorly managed subsidies and rampant, often mindless deregulation delivered. Basically, a US broadband market dominated by regional monopolies and overseen by captured, feckless regulators. The data is the data, and for decades those who've coddled entrenched monopolies have tried very, very hard to pretend that this problem doesn't exist.

One amusing bit: if you zoom in and look at North Dakota, you'll find that it breaks the national trend of substandard, sluggish broadband:

Why? Because a group of communities grew tired of the apathy of their regional monopolies and bought up their networks to form a massive, interconnected group of cooperatives. Like many community broadband networks, it was a project born out of frustration, resulting in fiber networks that deliver faster, cheaper speeds. Studies keep showing that locally-owned community projects like this routinely offer better, cheaper, faster service at more transparent price points. Such networks often tend to be more accountable because they're owned and operated by people who live in those communities.

Yet instead of embracing these niche solutions as a creative way to drive an essential service to more people for less money, these projects are routinely demonized by those (like recent FCC boss Ajit Pai) who'd prefer broadband remain monopolized and expensive. There's an entire cottage industry funded by the telecom sector singularly tasked with pretending that US broadband is perfectly healthy, and attacking absolutely any effort to do anything differently. And they've been dominating telecom policy for decades. It's this monopolization and corruption that results in the "digital divide" still being a problem in 2021.

Community broadband isn't some mystical panacea. Like any other business plan they're dependent on the quality of the planning and people involved. But these networks do frequently drive better, cheaper broadband to underserved parts of the United States, and they repeatedly force apathetic regional monopolies to try a little harder. It doesn't have to be an either/or equation. There's room for various solutions and players, and numerous ways these home-grown efforts can be integrated into adult broadband policy (cooperatives, piggybacking on existing utilities, private/public partnerships).

But instead of doing that, we let entrenched monopolies write shitty state laws that ban such efforts entirely. We let captured regulators demonize an organic, grass roots response to market failure as "government run amok" or "socialism." It's a stupid, self-defeating mess we can fix with enough momentum, but only once people recognize that it's happening. But when you read most major news reports and hear most politicians talk about "the digital divide," regional monopolization (and the state and federal corruption that protects it) is bizarrely and routinely never even mentioned.

A high school student's quest to say "fuck cheer" in a semi-crowded convenience store has reached its end. The origin of this journey -- which began all the way back in 2017 -- was nothing more than a high school student doing high school stuff.

Posing in street clothes with a friend, middle fingers raised, B.L. took a “selfie” at the Cocoa Hut, a local store and student stomping ground. On top of the photo, B.L. added the following text: “fuck school fuck softball fuck cheer fuck everything.” B.L. then posted the captioned photo—the “Snap”—on her private Snapchat account, where it could have been viewed briefly by about two-hundred and fifty (250) of her friends.

For that, B.L. was booted off the cheerleading team she had very briefly disparaged and suspended from cheer activities for a year. She sued. And she won. A Pennsylvania federal court said the student's off-campus speech was protected, seeing as it was not provably disruptive and -- the court reminded the school -- it had occurred off-campus. The school's limitations of student's rights didn't reach that far. And even if the student had agreed to a code of conduct for extracurricular activities, the court said the agreement -- one that couldn't be altered and forced students to give up rights if they wanted to participate in extracurricular activities -- was coercive, rather than equitable.

The school appealed. And lost again. The Third Circuit Appeals Court upheld the lower court's ruling, pointing out that accepting the school's arguments would encourage administrators to become censors of students' speech, no matter where that speech occurred.

The heart of the School District’s arguments is that it has a duty to “inculcate the habits and manners of civility” in its students. To be sure, B.L.’s snap was crude, rude, and juvenile, just as we might expect of an adolescent. But the primary responsibility for teaching civility rests with parents and other members of the community. As arms of the state, public schools have an interest in teaching civility by example, persuasion, and encouragement, but they may not leverage the coercive power with which they have been entrusted to do so. Otherwise, we give school administrators the power to quash student expression deemed crude or offensive—which far too easily metastasizes into the power to censor valuable speech and legitimate criticism.

The school appealed again. And it has lost. Again. This time the loss really counts because this time it happened in the highest court in the land.

The Supreme Court's decision [PDF] upholds students' free speech rights, but applies this ruling very narrowly to the facts at hand. But even though the finding is narrow, it encourages schools to err on the side of caution (and students' rights), rather than simply assume anything that doesn't fit the facts of this case is acceptable.

The Supreme Court doesn't go as far as the Third Circuit Appeals Court, which pretty much said all off-campus speech is protected. Instead, it sets out guidelines for when it may be permissible for schools to regulate off-campus speech, such as bullying, harassment, threats, and use of school websites.

The limits placed on schools when it comes to off-campus speech are the following:

First, a school, in relation to off-campus speech, will rarely stand in loco parentis. The doctrine of in loco parentis treats school administrators as standing in the place of students’ parents under circumstances where the children’s actual parents cannot protect, guide, and discipline them. Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.

Second, from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.

Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus. America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the “marketplace of ideas.” This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, “I disapprove of what you say, but I will defend to the death your right to say it.”

Schools still have an obligation to respect students' rights. And only rarely should they expect to usurp a parent when dealing with off-campus speech. Most importantly, schools should teach students to respect free speech rights by… respecting students' free speech rights. Seems simple enough.

These guidelines are directed at both schools and the nation's courts. Schools need to ensure they minimize their policing of off-campus speech. Courts need to consider these guidelines when handling cases involving punishment of off-campus speech. There's no bright line created here. There's simply a lot more clarification of the issue at hand.

The decision makes short work of the excuses the school offered for its punishment of B.L.'s off-campus speech. Although the school is allowed to punish students for "vulgar speech," its jurisdiction is very limited.

The strength of this anti-vulgarity interest is weakened considerably by the fact that B. L. spoke outside the school on her own time.

The court says the school also stepped on the student's parent's toes by punishing B.L.

B. L. spoke under circumstances where the school did not stand in loco parentis. And there is no reason to believe B. L.’s parents had delegated to school officials their own control of B. L.’s behavior at the Cocoa Hut. Moreover, the vulgarity in B. L.’s posts encompassed a message, an expression of B. L.’s irritation with, and criticism of, the school and cheerleading communities. Further, the school has presented no evidence of any general effort to prevent students from using vulgarity outside the classroom.

The court also says the "disrupted school" excuse is no better. There was no evidence presented by the school of any disruption other than "5-10 minutes of an algebra class" for a couple of days after the Snapchat was posted.

That's it. B.L. -- more than four years after the fact -- wins. So do students all over the United States who now have the benefit of these speech regulation guidelines from the nation's top court. And it's all due to the tireless efforts of the little school that couldn't, Mahanoy Area High School.

(Oh, and if you're interested, there's a dissent by Clarence Thomas that should be read in a Principal Skinner "No, it's the children who are wrong" voice and which basically says that in an era of social media platforms that can be accessed anywhere, students' speech should have fewer protections, rather than more.)

Over the years, we've had many, many concerns about the US government seizing websites as it generally raises 1st Amendment issues (it's not unlike seizing a printing press). Of course, non-US citizens outside the US are not protected by the 1st Amendment, but that doesn't mean we shouldn't be concerned when the US government seizes news websites tied to foreign governments, even those with hostile interests to the US, like Iran. But that's exactly what happened.

When people first started tweeting about this, and showing the graphic that had replaced the websites, many people insisted that it was actually a hack rather than a US government takedown, but the DOJ has now confirmed that they did, in fact, seize these sites.

The DOJ claims they actually grabbed 33 such websites:

Today, pursuant to court orders, the United States seized 33 websites used by the Iranian Islamic Radio and Television Union (IRTVU) and three websites operated by Kata’ib Hizballah (KH), in violation of U.S. sanctions.

On Oct. 22, 2020, the Office of Foreign Assets Control (OFAC) designated IRTVU as a Specially Designated National (SDN) for being owned or controlled by the Islamic Revolutionary Guard Corps Quds Force (IRGC). SDNs are prohibited from obtaining services, including website and domain services, in the United States without an OFAC license. According to OFAC, the designation of IRTVU as an SDN was in response to the Iranian regime targeting the United States’ electoral process with brazen attempts to sow discord among the voting populace by spreading disinformation online and executing malign influence operations aimed at misleading U.S. voters. OFAC’s announcement explained that components of the government of Iran, to include IRTVU and others like it, disguised as news organizations or media outlets, targeted the United States to with disinformation campaigns and malign influence operations. 33 of the websites seized today were operated by IRTVU. The 33 domains are owned by a United States company. IRTVU did not obtain a license from OFAC prior to utilizing the domain names.

Three additional websites seized today were operated by KH. On July 2, 2009, OFAC designated KH an SDN, and the Department of State designated KH a Foreign Terrorist Organization. The announcements described KH as an Iraqi terrorist organization that committed, directed, supported or posed a significant risk of committing acts of violence against Coalition and Iraqi Security Forces. OFAC further explained that the IRGC provides lethal support to KH and other Iraqi Shia militia groups who target and kill Coalition and Iraqi Security Forces. The three domains operated by KH were owned by a United States company. KH did not obtain a license from OFAC prior to utilizing the domain names.

Of course, just last fall we had a similar story of the US government seizing domains that it said were spreading Iranian disinformation. We were concerned then and we remain concerned now.

First off, as Jameel Jaffer notes, while foreign governments have no right to spread disinformation, the 1st Amendment also does cover a right to receive information from abroad, and it seems like this could violate that.

But, even more to the point, this seems unlikely to end well. Governments seizing websites seems like the kind of thing that could escalate in ways that will backfire. Perhaps US companies will be protected, with most of their sites registered and hosted in the US, but especially with regards to some more exotic top level domains, that are technically country codes of foreign countries, you could certainly see efforts to similarly seize the domains of US companies in retaliation.

Four years after release, Pokémon GO’s raids are getting a handful of updates this summer, starting with special achievements Trainers can unlock in raids, new medals, new visuals and quality-of-life updates.

Raid Achievements

Trainer Achievements are a new system that rewards players for skilfully participating in Raids, using specific Pokémon or winning Raid battles under specific conditions. Completing these achievements will reward a medal which can be progressed from Bronze to Silver and Gold levels.

The system is designed to be inclusive for all Trainer levels, with some achievements being targeted at the hardcore crowd, while others are targeted at specific Pokémon or ways of raiding.

For example, at the conclusion of a raid, Trainers who dealt the most damage or used a Mega-Evolved Pokémon will be showcased for being valuable participants in the battle.

Niantic shared a list of some Raid Achievements you will be able to collect:

• Delivering the final attack
• Dealing the most damage overall
• Keeping a single Pokémon in battle for the longest time of all participants
• Using the tallest Pokémon among all participants in battle
• Joining the raid from furthest distance
• Using a Mega-Evolved Pokémon during the battle
• Changing your avatar’s clothing or pose
• Using the most Charged Attacks of all participants

The first time you earn a Trainer Achievement, you’ll receive a medal that you can level up from bronze, to silver, and finally to gold. You can even download your Trainer Achievement Card featuring your avatar to share with your friends on social media and more.

In a recent data mine, PokéMiners have discovered visual assets for most of these achievements that will show up once the raid is over. We expect that your Avatar will be overlayed on top of these:

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Visual and quality-of-life updates

Art and UX updates are also coming to raids, and the way Raid Battles look will be getting a makeover ahead of the summer.

In addition to Trainer Achievements, aka Raid Achievements, Raids will be visually refreshed this summer. The stadium where Raid Battles take place will have a whole new look, and there will be other visual updates as well.

Once again, PokéMiners have already discovered these assets in an earlier APK teardown posted in June. The new Pokémon GO Raid stadium looks awesome:

Niantic also mentioned that various quality-of-life updates will be implemented for Raids, but they shared no further info on the topic. We are not sure if these changes will be rolled out gradually or worldwide, and we hope it involves improvements for solo raids – maybe a ready check functionality finally?

The post Raid Achievements, new Raid Stadium and UX updates coming to Pokémon GO appeared first on Pokémon GO Hub.

Have you ever filmed a bridge collapsing in front of you as you drove down the highway? Raphael Williams did just that. Yesterday morning at 11:50 AM, when a pedestrian bridge over DC-295 in Northeast DC suddenly collapsed—blocking both directions of traffic underneath it, injuring at least five people, and trapping a truck that leaked […]

The FDA’s controversial approval of a Biogen drug for Alzheimer’s disease could blunt future R&D, experts warn.

The FDA’s recent approval of the Alzheimer’s drug aducanumab is a crucial crossroads in the continuing search for a cure for this devastating disease.

Federal regulators approved Biogen’s drug, through an accelerated process, earlier this month. The FDA’s approval came over the objections of its own scientific advisers, who had cited a lack of evidence for the drug’s effectiveness. (Several of those advisers have since resigned.) Patient advocates, on the other hand, welcomed the decision because, to date, there is no treatment that clearly slows down the progression of this disease afflicting 6 million Americans. Health policy experts worried, almost immediately, whether an expensive drug of unproven efficacy would send costs for Medicare and private insurance soaring.

But beyond the immediate effects of aducanumab alone, there is another question lurking after the FDA’s decision: Will this ultimately lead to more drug development for Alzheimer’s disease — or less?

“There could be big-picture harms for incentivizing drug development for truly innovative treatments,” Stacie Dusetzina, who studies drug pricing at Vanderbilt University, says. “It isn’t a very good signal for investors and innovators. ... Why should they push for something more complicated?”

Because one thing is clear: The evidence on aducanumab is mixed at best. It may, for some patients, slow the disease down. Experts are urging Biogen or Medicare itself to run more clinical trials to be sure. Either way, this should not be the end of the road in searching for a cure for Alzheimer’s disease.

Alzheimer’s patient advocates are optimistic that it won’t be. They believe one treatment finally getting FDA approval will encourage drug companies to keep investing in this space.

A representative for the Alzheimer’s Association offered the example of statins as a promising precedent. Since the first drug in that class was approved, six more statins have been introduced, each one more effective than the first. Likewise, the first HIV drug faced serious doubts about its efficacy, but its FDA approval ended up spurring more investment in that research area — and, with time, better treatment.

“When people are concerned about risk and whether things can get approved, this says, ‘No, pursue this. There is a major market here, and you need to enter that market as well,’” Robert Egge, chief public policy officer of the Alzheimer’s Association, told me. “To stand out, to win market share, you have got to make a business case that your treatment is more effective than the incumbent.”

He is not alone in that view. Three FDA officials, in a Washington Post op-ed explaining their decision to approve aducanumab, cited the approval of cancer drugs through the same accelerated approval pathway and the effect on subsequent research and development: “Even though not every drug worked as expected, these approvals have propelled progress forward.”

But there is an opposing view, shared by several experts I spoke to, that aducanumab could lead to less drug development. For one, drug makers may not think it’s worthwhile to invest the time and money to find more effective treatments. Biogen cleared a low bar to get the FDA to sign off on its drug, and now it’s setting the list price at nearly $60,000 a year.

“Maybe now some companies will see that they can get Alzheimer’s drugs approved, so they will start (or keep) investing in that space,” Holly Fernandez Lynch, who studies drug development at the University of Pennsylvania, told me over email. “Maybe some of their drugs will work. But they will have little incentive to prove that definitively if FDA doesn’t make them.”

On top of that, a lot of Alzheimer’s patients — millions, maybe — could now be prescribed aducanumab. Patients understandably take FDA approval to be a sign that a drug works and so, believing now that Biogen’s drug does, they could be reluctant to participate in future trials, whether confirmatory trials for this drug (in which case they risk being randomized to a placebo) or for different, unproven treatments.

“If you want to do a trial of different drugs, all your patients are still going to want aducanumab. So you have to start testing different drugs against it or in addition to it,” Lynch Fernandez says. “That’s going to make it a hell of a lot harder to tell if the new drugs work. There is a lot of negative potential when FDA lowers its standards.”

This is not a new concern. Three Penn researchers wrote about the same problem in 2019, warning that the FDA’s use of the accelerated approval pathway (the same process used to okay aducanumab) for cancer drugs could dampen future innovation.

They cited data showing that the FDA often does not force companies to complete the additional trials meant to confirm a drug’s efficacy. And even for those trials that are completed, they frequently find the approved drugs do not have a clinical benefit. On the issue of future innovation, the authors wrote:

Approval of ineffective drugs also crowds out innovation that might produce effective treatment. Once a drug has been approved for a certain indication, other companies and researchers might not invest resources in treatments related to the condition, believing that there is no market.

This is partly a result of how US insurers cover prescription drugs, which is generally not based on the value that the medication actually provides. Medicare generally covers any FDA-approved drug (though some experts are urging it to restrict or deny access for the Biogen drug, given the clinical record) and has few tools to limit the price it pays. Private insurers, on the other hand, will sometimes enter into arrangements with drug makers that give the insurer a financial incentive not to cover or to limit coverage for future drugs from the same class.

“The risk ... is that the first drug to market can block downstream innovation,” Robin Feldman, who studies innovation law at the University of California Hastings, told me. “This can be particularly problematic if the first-to-market drug is sub-optimal.”

There is one final complicating factor: The science upon which Biogen’s drug is based, known as the amyloid hypothesis, is still very much in dispute. It holds that plaque in the brain found in Alzheimer’s patients is in part responsible for the disease and that therefore removing plaque could help relieve the symptoms.

As recently as two years ago, when Biogen had halted its clinical trials for aducanumab because of poor evidence, scientists were questioning whether the amyloid hypothesis had been wrong, given how much time had passed without an effective treatment being found.

The question now following aducanumab’s approval, as Rachel Sachs at Washington University in St. Louis told me, is “whether the amyloid hypothesis is now being revived and more companies will be investing there, rather than in other hypotheses.”

It is possible to imagine a future in which companies do invest more in Alzheimer’s research after the FDA’s decision — but end up going all-in on a hypothesis that turns out to be wrong. Or the aducanumab approval could be the first step through a door that leads to a very effective treatment.

For now, no one can be sure which path we’re on.

by Justin Elliott, Patricia Callahan and James Bandler

Billionaire Peter Thiel, a founder of PayPal, has publicly condemned “confiscatory taxes.” He’s been a major funder of one of the most prominent anti-tax political action committees in the country. And he’s bankrolled a group that promotes building floating nations that would impose no compulsory income taxes.

But Thiel doesn’t need a man-made island to avoid paying taxes. He has something just as effective: a Roth individual retirement account.

Over the last 20 years, Thiel has quietly turned his Roth IRA — a humdrum retirement vehicle intended to spur Americans to save for their golden years — into a gargantuan tax-exempt piggy bank, confidential Internal Revenue Service data shows. Using stock deals unavailable to most people, Thiel has taken a retirement account worth less than $2,000 in 1999 and spun it into a $5 billion windfall.

To put that into perspective, here’s how much the average Roth was worth at the end of 2018: $39,108.

And here’s how much $5 billion is: If every one of the 2.3 million people in Houston, Texas, were to deposit $2,000 into a bank today, those accounts still wouldn’t equal what Thiel has in his Roth IRA.

What’s more, as long as Thiel waits to withdraw his money until April 2027, when he is six months shy of his 60th birthday, he will never have to pay a penny of tax on those billions.

ProPublica has obtained a trove of IRS tax return data on thousands of the country’s wealthiest people, covering more than 15 years. This data provides, for the first time, an inside look at the financial lives of the richest Americans, those whose stratospheric fortunes put them among history’s wealthiest individuals.

What this secret information reveals is that while most Americans are dutifully paying taxes — chipping in their part to fund the military, highways and safety-net programs — the country’s richest citizens are finding ways to sidestep the tax system.

One of the most surprising of these techniques involves the Roth IRA, which limits most people to contributing just $6,000 each year.

The late Sen. William Roth Jr., a Delaware Republican, pushed through a law establishing the Roth IRA in 1997 to allow “hard-working, middle-class Americans” to stow money away, tax-free, for retirement. The Clinton administration didn’t want to give a fat tax break to wealthy people who were likely to save anyway, so it blocked Americans making more than $110,000 ($160,000 for a couple) per year from using them and capped annual contributions back then at $2,000.

Yet, from the start, a small number of entrepreneurs, like Thiel, made an end run around the rules: Open a Roth with $2,000 or less. Get a sweetheart deal to buy a stake in a startup that has a good chance of one day exploding in value. Pay just fractions of a penny per share, a price low enough to buy huge numbers of shares. Watch as all the gains on that stock — no matter how giant — are shielded from taxes forever, as long as the IRA remains untouched until age 59 and a half. Then use the proceeds, still inside the Roth, to make other investments.

About a decade after the creation of the Roth, Congress made it even easier to turn the accounts into mammoth tax shelters. It allowed everyone — including the very richest Americans — to take money they’d stowed in less favorable traditional retirement accounts and, after paying a one-time tax, shift them to a Roth where their money could grow unchecked by Uncle Sam — a Bermuda-style tax haven right here in the U.S.

From $2,000 to $5 Billion: How the .001% Use Retirement Accounts as Tax-Free Piggy Banks

To identify those who have amassed fortunes in retirement accounts, ProPublica scoured the tax return data of the ultrawealthy for IRA accounts valued at more than $20 million. Reporters also examined Securities and Exchange Commission filings, court documents and other records, including a memo detailing Thiel’s wealth that was included in his 2005 application for residency in New Zealand.

Among this rarefied group, ProPublica found, the term “individual retirement account” has become a misnomer. Rather than a way to build a nest egg for old age, the accounts have morphed into supercharged investment vehicles subsidized by American taxpayers. Ted Weschler, a deputy of Warren Buffett at Berkshire Hathaway, had $264.4 million in his Roth account at the end of 2018. Hedge fund manager Randall Smith, whose Alden Global Capital has gutted newspapers around the country, had $252.6 million in his.

Buffett, one of the richest men in the world and a vocal supporter of higher taxes on the rich, also is making use of a Roth. At the end of 2018, Buffett had $20.2 million in it. Former Renaissance Technologies hedge fund manager Robert Mercer had $31.5 million in his Roth, the records show.

Buffett didn’t respond to questions sent by email. Mercer couldn’t be reached for comment, and his accountants and attorneys didn’t respond to requests to accept questions on his behalf. Smith also couldn’t be reached for comment, and an employee at his hedge fund repeatedly hung up when ProPublica reporters identified themselves. Other representatives for Smith and his hedge fund didn’t respond.

In a written statement, Weschler said his retirement account relied on publicly traded investments and strategies available to all taxpayers. Nevertheless, he said he supports reforming the system.

“Although I have been an enormous beneficiary of the IRA mechanism, I personally do not feel the tax shield afforded me by my IRA is necessarily good tax policy,” he wrote. “To this end, I am openly supportive of modifying the benefit afforded to retirement accounts once they exceed a certain threshold.”

A spokesman for Thiel accepted detailed questions on Thiel’s behalf, then never responded to phone calls or emails. Messages left at Thiel’s venture capital fund were not returned.

While the scope and scale of such accounts has never been publicly documented, Congress has long been aware of their existence — and the ballooning tax breaks they were garnering for the ultrawealthy. The Government Accountability Office, the investigative arm of Congress, for years has warned that the wealthiest Americans were accumulating massive retirement accounts in ways federal lawmakers never intended.

At the same time, Congress has slashed the IRS’ budget so severely that the agency’s ability to ferret out abuses has been stymied. Money was so tight that at one point in 2015 the agency couldn’t afford to enter critical data about IRAs from paper tax filings into its computer system.

Over the years, a few politicians have tried, and failed, to crack down on the tax breaks the ultrarich receive from their giant IRAs.

In 2016, Sen. Ron Wyden, an Oregon Democrat, floated a detailed reform plan and said, “It’s time to face the fact that our tax code needs a dose of fairness when it comes to retirement savings, and that starts with cracking down on massive Roth IRA accounts built on assets from sweetheart, inside deals.”

“Tax incentives for retirement savings,” he added at the time, “are designed to help people build a nest egg, not a golden egg.”

But Wyden soon abandoned his proposal; there was no chance the Republican-controlled Senate would pass it.

Meanwhile, Thiel’s Roth grew.

And grew.

At the end of 2019, it hit the $5 billion mark, jumping more than $3 billion in just three years’ time — all of it tax-free.

Thiel, a fan of J.R.R. Tolkien, by then had brought his Roth under the auspices of a family trust company called Rivendell Trust. In “The Lord of the Rings,” Rivendell is a secret valley populated by elves, a misty sanctuary against forces of darkness. Thiel’s earthly version resides in a suburban Las Vegas office complex, across from a Cheesecake Factory, and is staffed by a small group of corporate lawyers.

And thanks to the Roth, Thiel’s fortune is far more vast than even experts in tallying the wealth of the rich believed. In 2019, Forbes put Thiel’s total net worth at just $2.3 billion. That was less than half of what his Roth alone was worth.

How Humdrum Retirement Accounts Become Mega Tax Shelters for the Rich

Contributions to a Roth IRA are capped at $6,000 per year for most people. But some of the wealthiest Americans found ways to grow their Roth IRAs to millions — or even billions — of dollars, tax-free. Here’s how.

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The ultrawealthy’s hijacking of a tool meant for the middle class becomes especially striking when you consider what the retirement future looks like for many Americans.

There isn’t one.

One in four working-age Americans has nothing saved for retirement, a 2020 Federal Reserve study found.

Individual retirement accounts emerged from the ruins of corporate pensions. The traditional IRA had existed since the 1970s for workers who didn’t have pensions, but as corporations shifted the burden of saving for retirement to workers, too few Americans were setting up these accounts, condemning many to scrape by on Social Security in old age. By the 1990s, politicians on both sides of the aisle were fretting over the declining savings rates in the U.S.

It was against this backdrop that an idea Sen. Roth had been pushing for years finally found its moment.

One of the fathers of Reaganomics, Roth was determined to slash the federal budget, cut taxes and rein in the IRS. Starting in 1997, as chairman of the Senate Finance Committee, Roth held a series of hearings that portrayed IRS agents as menacing thugs. Roth’s investigations sparked legislation that gutted the IRS’ collection powers for more than a decade.

But it was his championing of the Roth IRA that would earn the senator posthumous fame and a mention in the American Heritage dictionary. Roth’s obsession was a new kind of IRA, which he said would “be a blessing to countless Americans as they prepare for the future.”

It would also create an escape hatch from the entire income tax system.

Run-of-the-mill retirement plans — a traditional IRA or 401(k), for instance — defer taxes to a later date. The money that people put into their accounts is deducted from their income, so they aren’t taxed up front, nor are the dividends, interest or gains on investments along the way. But when retirees withdraw money, they have to pay income tax on it.

A Roth, by contrast, eliminates tax liability rather than deferring it. People who open a Roth don’t get the tax break on the money they initially put in. But once they deposit that money, their investments grow tax-free forever and retirees don’t pay a penny of taxes on withdrawals. Even better, unlike a traditional IRA, the Roth doesn’t require retirees to deplete the account as they age.

Sen. Roth promised that his new IRA would “provide relief to hard-working, middle-class Americans.”

The law creating the Roth IRA passed in 1997 with overwhelming bipartisan support. A few tax wonks predicted that workers who were most likely to struggle financially in old age wouldn’t open the accounts because they couldn’t afford to save. Roths, they warned, would become a giveaway to mostly well-off taxpayers who would have saved anyway. Investing in a Roth was like locking in a rate on a mortgage when interest rates were low, an attractive proposition for wealthy Americans worried that Congress would raise tax rates in future years.

That’s why the Clinton administration insisted on barring people who made too much from stashing money in a Roth. Surely, that would prevent the superrich from gaming the system to use Roths as tax shelters.

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One day in early 1999, a deputy of Thiel’s at the company that would become PayPal walked into the San Francisco office of Pensco Pension Services. It could have been an uneventful appointment. Instead, it changed Thiel’s life.

Thiel, a Stanford law graduate, ran a small hedge fund and hadn’t yet joined the ranks of the ultrawealthy. But he had outsized ambitions for his months-old tech venture, where he served as both chairman and CEO. He envisioned his company creating “a new world currency, free from all government control.”

Influenced by libertarian Ayn Rand and Tolkien’s fantasy trilogy, Thiel, then in his early 30s, carried himself like a contrarian philosopher king. A few years earlier, he had co-authored a jeremiad against multiculturalism that accused the administration of then-President Bill Clinton of waging class warfare. “Taxing the rich seems to have become an end in itself,” he and his co-author wrote.

Pensco was a small firm that allowed its customers to put nearly any investment they wanted into a tax-advantaged retirement account. Thiel was about to become Pensco’s whale.

In an interview with ProPublica, Pensco founder Tom Anderson recalled how Thiel and other PayPal executives had wanted to put startup shares of the company into traditional IRAs.

Anderson dangled something sweeter.

“I said, ‘If you really think this is going to be big, you know, you might want to consider this new Roth,’” recalled Anderson, who is now retired. If the investment ballooned, he remembered saying, “‘you’re not going to pay tax on it when you take it out.’ It’s a no-brainer."

The math was compelling. Thiel wouldn’t get a tax break up front, but he’d avoid an immense tax bill later on if the investment surged in value.

“They immediately grasped that,” Anderson said. “And they did it.”

What happened next deprived the U.S. government of untold millions in tax revenue. Perhaps billions. Thiel used his new Roth IRA to purchase shares of his startup.

In 1999, single taxpayers were only allowed to contribute to a Roth if they made less than $110,000. Like many startups, PayPal offered its top executives low initial salaries and large stock grants. Thiel’s income that year was $73,263, the IRS records show.

Thiel also had an advantage over most Americans with IRAs, who typically use them to purchase publicly traded stocks, bonds, mutual funds and certificates of deposit. Since Thiel used his Roth to buy shares of a private company, the value wasn’t set on a public stock exchange.

Although the details of such purchases are not usually public, Thiel’s financial assistant later disclosed them in a letter included in the entrepreneur’s application for residency in New Zealand: “Mr. Thiel purchased his founders’ shares in PayPal through his Roth IRA during PayPal’s formation.”

While SEC filings describing that time don’t mention Thiel’s Roth, they show that he bought his first slice of the company in January 1999. Thiel paid $0.001 per share — yes, just a tenth of a penny — for 1.7 million shares. At that price, he was able to buy a large stake for just $1,700.

In 1999, $2,000 was the maximum amount you could put into a Roth in a year.

Thiel’s unusual stock purchase risked running afoul of rules designed to prevent IRAs from becoming illegal tax shelters. Investors aren’t allowed to buy assets for less than their true value through an IRA. The practice is sometimes known as “stuffing” because it gets around the strict limits imposed by Congress on how much money can be put in a Roth.

PayPal later disclosed details about the early history of the company in an SEC filing before its initial public offering. The filing reveals that Thiel’s founders’ shares were among those the company sold to employees at “below fair value.”

Victor Fleischer, a tax law professor at the University of California, Irvine who has written about the valuation of founders’ shares, read the PayPal filings at ProPublica’s request. Buying startup shares at a discounted $0.001 price with a Roth, he asserts, would be indefensible.

“That’s a huge scandal,” Fleischer said, adding, “How greedy can you get?”

Warren Baker, a Seattle tax attorney who specializes in IRAs, said he would advise clients who are top executives working at a startup not to purchase founders’ shares with a Roth to avoid accusations by the IRS that they got a special deal and undervalued the shares. Baker was speaking generally, not about Thiel.

“I would be concerned about the fact that you can’t support the valuation number as being reasonable,” he said.

At the time Thiel bought his founders’ shares, his own hedge fund had already loaned the new startup $100,000, California and SEC records show.

And soon after the company sold him the shares, millions of dollars poured in from investors, securities filings show. In just a month’s time, the company sold a slice of itself to investors for $500,000. That June and August, another $4.5 million poured in from the venture fund arm of telecom giant Nokia and other investors, those records show.

The dot-com boom was in full swing. “We’re definitely on to something big,” Thiel told employees in late 1999, predicting that PayPal would become “the Microsoft of payments,” according to “The PayPal Wars,” a book by a former employee recounting those heady early years.

But when it came time for Pensco, the custodian of Thiel’s Roth, to report the value of the account to the IRS at the close of 1999, none of the investor enthusiasm was apparent. Pensco told the IRS that Thiel’s Roth was worth just $1,664 at the end of 1999, tax records show.

In an interview, Anderson said Pensco relied on the companies whose shares were in a Roth to say what they were worth. He didn’t know how PayPal came up with its market value, but he said Thiel’s purchase of those shares was “very legitimate.”

From there, nothing would stop Thiel’s Roth. In a Silicon Valley equivalent of Tolkien alchemy, his Roth would transform those PayPal shares into a tax-free fortune — one that would be safer than all the gems, gold and silver in the dragon Smaug’s mountain.

Thiel’s Roth IRA Balloons Into Billions of Tax-Free Dollars

Congress created the Roth IRA as a tax-free account for ordinary Americans to save for retirement. Peter Thiel has turned his Roth into a behemoth investment vehicle that grew to $5 billion in 20 years.

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After 1999, Thiel would never again contribute money to his Roth, tax records show.

He didn’t need to. In just a year’s time, the value of his Roth jumped from $1,664 to $3.8 million — a 227,490% increase.

Then in 2002, eBay purchased PayPal. That same year, Thiel sold the shares, still inside his Roth, his financial assistant later told New Zealand officials. The tax-free proceeds poured into his account. By the end of 2002, Thiel’s Roth was worth $28.5 million, tax records show.

If he had held his shares outside of the Roth in a normal investment account, Thiel would have owed the IRS 20% of his gains and owed another 9% to California tax authorities. Because the shares were in a Roth, he had no tax bill when he sold them, saving him millions.

Suddenly, Thiel had an advantage few investors could claim: His own personal investment bank that wasn’t subject to taxation. He could now use the cash inside the Roth to buy and sell nearly any investment he wanted. Thiel used the millions in proceeds from his PayPal windfall to invest in other Silicon Valley startups as well as his own hedge fund, according to his financial assistant’s memo. Once again, Thiel’s Roth scooped up startup shares at bargain-basement prices.

For instance, Thiel and colleagues in 2003 founded Palantir, a data analytics company, helped by an early investment from a CIA-backed venture fund. The company was named after the “seeing stones” made by elves in the “Lord of the Rings” trilogy, used to detect danger near and far.

Thiel used his Roth to buy shares of Palantir when it was still a private company, years before it was listed on the New York Stock Exchange, according to a ProPublica analysis of tax records, an SEC filing and shareholder records included in a civil suit.

Over the years, Palantir has won federal contracts from the military to hunt terrorists and from U.S. Immigration and Customs Enforcement to find undocumented immigrants. Even the IRS has a $99 million contract with Palantir to comb through data to identify tax cheats.

Then, in 2004, Thiel met Mark Zuckerberg, a Harvard undergraduate who had come to Silicon Valley for the summer to work on growing the company that would become Facebook. Thiel invested $500,000, Facebook’s first large outside infusion of cash. Those Facebook shares ended up — where else? — in Thiel’s Roth IRA, an attorney for Facebook later disclosed in a letter filed in federal court. That ensured that Thiel wouldn’t owe taxes on his early investment in the company.

As Thiel’s Roth and fortune ballooned, he scolded Americans for their financial imprudence. In a 2006 Forbes column, headlined “Warning: Save, Save, Save,” Thiel lamented the low household savings in the U.S. and called for most Americans to live within their means.

“Forgo the new kitchen and sundeck,” he wrote. “Shoot to put away 15% of the paycheck.” His closing advice: “Living modestly and saving well is better than dying broke.”

In an interview on the website Big Think, Thiel said the U.S. tax system has “fairness problems” in which “you have super rich people paying a lower rate than people in the middle or upper middle class.”

The answer wasn’t taxing the rich more, he said, but “taxing the middle class and the upper middle class a lot less” and cutting their dependence on expensive programs such as Medicare and Social Security.

By then, Thiel had purchased a Ferrari and had bought and sold a penthouse in the San Francisco Four Seasons. In 2005, he sought residency in New Zealand, which had become a destination for some ultrawealthy people who saw it as a safe haven should civilization collapse.

“I have long admired the people, culture, business environment and government of New Zealand, as well as the encouragement which is given to investment, business and trade in New Zealand,” Thiel later wrote in a letter to the country’s government.

Thiel applied as an investor. His application, prepared by his then-financial assistant, Jason Portnoy, touted the size of his Roth. Thiel transferred $749,967 to a bank in New Zealand, keeping it under the umbrella of the Roth.

The country, where the “Lord of the Rings” movies were filmed, approved Thiel’s application. The New Zealand Herald later revealed that the country had secretly granted Thiel full citizenship. The newspaper obtained Thiel’s application through a public records request, and those documents included Portnoy’s letter.

In the next two years, Thiel’s Roth reached new heights, reflecting Facebook’s meteoric rise. In his bestselling book on startups, “Zero to One,” Thiel wrote: “Money makes money.” By the end of 2008, the Roth was worth $870 million.

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Up to this point, Thiel was one of the few Americans who had managed to amass prodigious Roth accounts. Among the others were at least three additional PayPal alums who eventually built Roths worth more than $80 million each, according to tax records and SEC filings.

Even so, the existing income limits managed to keep most of the superrich out.

Then, in the latter years of the George W. Bush administration, Congress took a wrecking ball to those defenses, and the wealthy stormed in.

The change centered on an unsexy-sounding maneuver known as a Roth conversion. It works like this: If you have money in a traditional IRA, you can transform it into a Roth as long as you pay one-time income tax on the money. By converting the account to a Roth, no additional income taxes are ever due.

Conversions had existed since the Roth’s conception, but they had been restricted to Americans making below $100,000 per year.

In 2006, Bush and the Republican-controlled Congress were seeking to slash taxes on capital gains, the type of income that can be generated when stocks or other assets are sold. But they faced a problem. Budget rules required them to find a way to make up for the lost revenue.

Their solution was widely viewed as a gimmick: using one tax cut to pay for another tax cut. A provision was included in the Bush bill that lifted the ban on the wealthy making Roth conversions. Since the maneuver requires a payment of tax up front, it counted in short-term congressional budget models as actually raising revenue. The tax breaks didn’t come until later. “It will have large and damaging effects on the federal budget for decades to come,” wrote budget expert Len Burman in the specialty publication Tax Notes.

The new backdoor into the Roth opened in 2010 and set off a frenzy of conversions among hedge fund managers, industrialists and heirs, the tax records reviewed by ProPublica show.

Weschler, the Berkshire Hathaway executive, amassed a giant traditional IRA in his years as a private equity partner and hedge fund manager. He converted a whopping $130 million. His boss, Warren Buffett, converted $11.6 million. After paying the one-time tax, both men saw their Roth accounts soar.

In his statement, Weschler said he opened a retirement account as a 22-year-old junior financial analyst in 1983 and began contributing the maximum amount allowed, along with a generous match from his employer. Weschler said his Roth is so large because he chose investments carefully, had “exceptional luck” and had nearly four decades for it to grow.

Weschler said he could envision the late Sen. Roth holding up his experience as “an aspirational example of the power of deferred consumption” that could “hopefully help motivate generations of future savers.”

He added that he paid more than $28 million in federal taxes to convert his account to a Roth.

Some of the wealthy managed to avoid even that one-time tax bill.

Three members of the Ebrahimi family, whose patriarch made a fortune at the software firm Quark, collectively converted $65 million into Roths in 2010 and 2011. Farhad Ebrahimi, one of the heirs of the fortune, has supported left-wing causes and became known for walking around the Occupy Boston protest in 2011 wearing a hand-lettered T-shirt that declared he was a member of the 1% and said: “Tax me, I’m good for it.”

Kind of.

He converted $19.4 million into a Roth, which would have triggered $6.8 million in income tax. But thanks to losses generated by other investments, he wiped out the tax bill on the conversion. Ebrahimi declined to comment.

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In 2009, word of Thiel’s secret weapon leaked for the first time.

In a story headlined, “Give Me Liberty or Give Me Taxpayer Money,” Gawker Media, citing anonymous sources, revealed that Thiel held his Facebook investment in a tax-free Roth.

The Great Recession, though, caught up with Thiel. His hedge fund racked up big losses.

Thiel then did something unusual: For five years starting in 2010, he dipped into his Roth for at least $254 million, the IRS tax return data obtained by ProPublica shows. That is almost unheard of among the wealthy, tax advisers say, because it shrinks the pot of money that can be invested tax-free. Because Thiel was still in his 40s, he was too young to pull money from a Roth without paying income tax plus a 10% penalty on these withdrawals.

During the life of his Roth, Thiel also has made money outside it. He took in an additional $687 million of income from 1999 to 2018, largely from gains on investments, tax records show. All told, over that period he paid $206 million in federal taxes, including the taxes on the early Roth withdrawals.

In four of those years, however, Thiel managed to cut his federal income tax bill to zero.

In 2011, Thiel caught the attention of the IRS. The agency launched an audit, tax records show. The records don’t spell out what the IRS was looking at or if it involved Thiel’s Roth. Whatever the case, the audit was closed years later and Thiel didn’t owe any more taxes, tax records show.

By 2012, large IRAs began to attract scrutiny, falling under the klieg lights of presidential politics.

That January, The Wall Street Journal reported that Mitt Romney, the former private equity executive running for the GOP nomination, had listed on a financial disclosure form that he had amassed an IRA worth between $20 million and $102 million. The story ran on the front page and launched waves of coverage in other publications. Romney had a traditional IRA, not a Roth. But how, people wondered, could the account have grown so large, given that the government imposed strict limits on how much money could be put into one of the tax-deferred accounts?

Citing former company insiders and documents, the Journal reported that during Romney’s time as CEO at investment giant Bain Capital, executives there had effectively bypassed the contribution limits by putting extremely low-valued shares from private equity deals into their IRAs, then watching them balloon.

ProPublica’s analysis of the tax records show that by the end of 2018, at least seven other current or former Bain executives had amassed IRAs worth $25 million or more, with three exceeding $90 million.

Other financiers also found ways to supersize their retirement accounts. Michael Milken, for example, the 1980s junk bond king who went to prison for fraud and was later pardoned by President Donald Trump, had traditional IRAs valued at $509 million.

A senior adviser to Milken declined to answer questions, “since it’s not our practice to publish or discuss Mike Milken’s private financial information, I can’t help you on this one.”

Romney lost the 2012 election, but the IRA revelation provoked a lasting backlash. Wyden asked the investigative arm of Congress to look into the matter. In a landmark report issued in 2014, the Government Accountability Office sounded the alarm, finding the mega IRAs stood “in contrast to Congress’s aim.”

IRS officials told investigators that the federal government was losing more and more money to “IRA abuses.” The GAO investigators flagged “aggressive” valuation tactics by private equity. And while it didn’t mention Thiel or his PayPal co-founders, the report laid out how startup founders’ shares could be used to render IRA contribution limits irrelevant. “Individuals can manipulate contribution limits by grossly undervaluing investments at the time the individual uses an IRA to purchase them,” the congressional investigators wrote.

The report estimated that, as of 2011, there were around 300 taxpayers with IRAs worth more than $25 million. That detail reverberated around the media and Capitol Hill. Few knew that most of those accounts were minuscule compared to Thiel’s, which that year was valued at nearly $1.6 billion.

A series of reform proposals followed. Wyden, who now holds Roth’s old position as chair of the Senate Finance Committee, has become the leading proponent of rolling back what he calls “unfair strategies used by the privileged to rake in subsidies and dodge tax bills with so-called ‘mega Roth IRAs.’” In 2016, he released a plan that would require owners of Roth IRAs worth more than $5 million to take money out of the accounts. Amid howls of protest from the retirement industry and a Senate and House controlled by Republicans, Wyden’s proposal went nowhere.

The IRS, meanwhile, was floundering in its efforts to police retirement accounts. At one point the agency recommended Congress prohibit IRA accounts from buying investments that aren’t traded on a public market, such as founders’ shares. That went nowhere, too. Instead, Congress began slashing the IRS’ budget, kneecapping the agency for more than a decade.

In 2009, an internal team had recommended the agency at least collect data on unorthodox assets held in IRAs. But it took more than five years for the agency to mandate disclosure of those investments. Even then, the agency simply required tax forms to say whether an IRA held stock in a private company, not the name of the company or the price per share.

By 2015, the agency was struggling to handle the paper forms sent in by the companies that administer IRAs. The agency couldn’t afford to digitize them. Another two years went by before the IRS started electronically transcribing the forms.

After years of plodding, the agency said it was finally ready in 2019 to use the data to target potential abusers for audits. And that’s before the real fighting begins over hotly contested issues such as how to value shares in a startup that aren’t publicly traded. IRS officials have complained to congressional investigators that challenging such valuations is costly and time-consuming, and that it requires a small army of experts to go up against deep-pocketed taxpayers.

The IRS did not respond to detailed questions. But as ProPublica has reported, in tax disputes with the superrich, the IRS is completely outmatched.

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In his book “Zero to One,” Thiel argues that fortunes are built not by luck or unfair advantage, but by discerning investors and founders who are more courageous than their peers, leaders who zig when the crowd zags. Thiel devotes an entire chapter to the importance of keeping secrets, writing that “every great business is built around a secret that’s hidden from the outside.”

A secret of Thiel’s is that his fortune was built not just with brains but also with massive tax breaks. By 2019, Thiel’s holdings had grown so vast and diverse that his $5 billion was spread across 96 subaccounts inside his Roth.

As his wealth grew, Thiel showered millions of dollars on Republican politicians and groups with an anti-tax agenda, including Club for Growth Action. In 2016, he became the rare Silicon Valley titan to endorse Donald Trump.

The Trump years, which fueled a market boom, were good for Thiel and his Roth. In 2018, he moved his Roth from Pensco to Rivendell, the family trust company named after Tolkien’s elven sanctuary.

In Tolkien’s fantasy world, elves can be killed in battle or succumb to grief, but they don’t die of old age or disease. Thiel has told people he hopes to live to be 120 years old. That might be a bit optimistic, but he is not taking any chances and is investing in anti-aging technology companies. He’s even tucked some of those shares into his Roth, SEC and tax records show.

Assuming a modest 6% annual return and no withdrawals, his tax-free golden egg could be worth about $263 billion in 2087, when Thiel plans to celebrate his 120th birthday. That’s larger than the current gross domestic product of New Zealand, his adopted homeland.

“There is good news and bad news,” Thiel told The Washington Post when asked about living more than a century. “The bad news is: If you don’t believe in the good news, you’re not saving enough for retirement and likely to spend much of your old age in poverty.”

“The financial planning,” Thiel said, “takes on a very different character.”

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