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ba744470862f416b51d3582aa48c76d2393be09072f33c52247fe6bfb219c715

Experimentation is the best approach, which requires federalism

Gabriel Scheffler 19, Regulation Fellow, Penn Program on Regulation, University of Pennsylvania Law School; Research Fellow, Solomon Center for Health Law and Policy, Yale Law School, “UNLOCKING ACCESS TO HEALTH CARE: A FEDERALIST APPROACH TO REFORMING OCCUPATIONAL LICENSING,” 29 Health Matrix 293, 2019, Lexis

a federalist approach encourages states to reform while preserving states' control A federalist approach has functional advantages over outright preemption : it allows more experimentation in constructing new licensing regimes , and enables the f g to take advantage of states' institutional expertise in regulating occupations presents a model for how f g can play a constructive role in state regulatory policy

a federalist approach to licensing reform, in which the federal government encourages states to reform licensing while largely preserving states' control represents the most promising path toward reforming occupational licensing Federal intervention is necessary , due to states' lack of incentives to experiment with licensing reforms, the externalities of licensing and their inability to resolve their own collective action problems A federalist approach has functional advantages over outright preemption : it allows for more experimentation in constructing new licensing regimes , and it enables the f ederal g overnment to take advantage of states' institutional expertise in regulating occupations this presents a model for how the f ederal g overnment can play a constructive role in other fields of state regulatory policy .

federalist approach encourages states reform licensing preserving states' control most promising path Federal intervention is necessary incentives to experiment externalities collective action problems federalist functional advantages outright preemption more experimentation in constructing new licensing regimes f g advantage of states' institutional expertise in regulating occupations model f g constructive role in other fields of state regulatory policy .

['Several features of the existing occupational licensing system impede access to health care without providing appreciable protections for patients. Licensing restrictions prevent health care providers from offering services to the full extent of their competency, obstruct the adoption of telehealth, and deter foreign-trained providers from practicing in the United States. Scholars and policymakers have proposed a number of reforms to this system over the years, but these proposals have had a limited impact for political and institutional reasons.', "Still, there are grounds for optimism. In recent years, the federal government has taken a range of initial steps to reform licensing requirements for health care providers, and these steps have the potential to improve access to health care. Together, they illustrate a federalist approach to licensing reform, in which the federal government encourages the states to reform their licensing regimes, while largely preserving states' control over the system. These steps include: (1) easing federal licensing restrictions for health care providers in certain areas where the federal government possesses regulatory authority; (2) creating incentives for states and professional bodies to experiment with reforms; (3) intensifying the Federal Trade Commission's focus on licensing boards' anti-competitive conduct; and (4) generating additional pressure for state-level reforms through expanding health insurance and promoting delivery system reforms under the Affordable Care Act.", "This article argues that a federalist approach represents the most promising path toward reforming occupational licensing in health care. Federal intervention in licensing is necessary, due to states' lack of incentives to experiment with licensing reforms, the externalities of their licensing regimes, and their inability to resolve their own collective action problems. Nevertheless, large-scale federal preemption of state licensing laws is unlikely, due to a combination of interest group politics, Congress's tendency toward incrementalism, and its reliance on the states to administer federal policies. A federalist approach also has functional advantages over outright federal preemption: it allows for more experimentation in constructing new licensing regimes, and it enables the federal government to take advantage of states' institutional expertise in regulating occupations. Finally, this approach presents a model for how the federal government can play a constructive role in occupational licensing in other fields besides health care, and in other areas of state regulatory policy."]

[(8, 20)]

a6b7b0e3fbccfbe6f607dfcaba2ea1cb7e983f535c6eec88934430d9dfe51a9c

Kills regulatory innovation

Richard F. Walker III 17, Articles Editor, Emory Law Journal; J.D., Emory University School of Law (2017); B.B.A., double major in accounting and philosophy, Emory University (2012), “Cavity Filling or Root Canal: How Courts Should Apply North Carolina State Board of Dental Examiners v. FTC Comments,” Emory Law Journal, vol. 66, no. 2, 2017/2016, p. [i]-482

Framers envisioned checks and balances central to this is that states retain the authority to which they are entitled Permitting to interfere with a state's police powers would denigrate the federalist structure to regulate internal economic affairs is the core of police powers interference would turn federalism on its head antitrust federalism should not be abandoned

the Framers envisioned a system of checks and balances ; central to a government operating under this ideal is that the states retain the authority to which they are entitled Permitting the to unduly interfere with a state's core police powers would denigrate the federalist structure a state's right to regulate its internal economic affairs is at the core of its police powers and permitting federal government interference with the exercise would turn federalism on its head antitrust federalism should not be abandoned wholesale

states retain the authority to which they are entitled unduly interfere with a state's core police powers denigrate the federalist structure internal core of its police powers interference turn federalism on its head not be abandoned wholesale

['3. Checks and Balances', 'Finally, and perhaps most importantly, the Framers of the Constitution envisioned a system of checks and balances; central to a government operating under this ideal is that the states retain the authority to which they are entitled. 226 Permitting the FTC or private plaintiffs to unduly interfere with a state\'s core police powers would denigrate the federalist structure guaranteed by the Constitution and affirmed by the Tenth Amendment.227 Indeed, a state\'s right to regulate its internal economic affairs is at the core of its police powers, and permitting federal government interference with the exercise of these powers "would turn federalism on its head." 228 Although the problems caused by excessive occupational licensing requirements offend fundamental notions of economic liberty and free markets, antitrust federalism should not be abandoned wholesale when it occasionally, or even frequently, facilitates bad results.']

[(11, 21), (22, 24)]

130da0aff8e68b0c09a59ab7862a8d9060593caedfa4cb9f9031d09db226a4ac

Preserving some state authority is vital for state innovation and flexibility.

Gabriel Scheffler 19, Regulation Fellow, Penn Program on Regulation, University of Pennsylvania Law School; Research Fellow, Solomon Center for Health Law and Policy, Yale Law School, “UNLOCKING ACCESS TO HEALTH CARE: A FEDERALIST APPROACH TO REFORMING OCCUPATIONAL LICENSING,” 29 Health Matrix 293, 2019, Lexis

Congress doesn't have information to enact optimal licensing the downside of federal standards nationwide is bigger , since there is no guarantee the f g will set optimal standards federal standards could actually reduce access a federalist approach enable to take advantage of states' institutional experience in regulating and avoid an equivalent apparatus at the federal level there is no federal agency "with the expertise it would be difficult to create one not that there is no role In fact coop regimes made use of the threat of preemption the generalized threat provide impetus for states to reform a federalist solution may be most normatively desirable

Congress doesn't have enough information to enact the optimal licensing reform Although proponents of federal preemption may object that such an approach is slower and less efficient the downside of having the federal government pick certain standards and apply them nationwide is also bigger , since there is no guarantee that the f ederal g overnment will set the optimal standards if the federal government were to adopt federal scope-of practice standards , it could actually reduce access to care to the extent that the federal scope-of-practice standards were set to match the strictest state requirements a federalist approach would enable the federal government to take advantage of states' institutional experience in regulating occupations, and to avoid having to create an equivalent institutional apparatus at the federal level there is currently no federal agency "with the authority, expertise , and experience to perform the various licensing functions undertaken by the states, and it would be difficult to create one ." this challenge is not insurmountable But federal preemption such as creating a federal system of licensure, would necessitate creating an accompanying set of institutions capable of issuing, updating, and enforcing federal occupational licensing laws this is not to say that there is no role for federal preemption, nor that federal preemption is necessarily incompatible with a federalist approach. In fact , traditional coop erative federalist regimes have often made use of the threat of federal preemption : offering states the option of administering a certain program or having the federal government administer it Simply maintaining the generalized threat of federal preemption may provide additional impetus for states to reform their licensing regimes a "field-claiming" approach, in which the federal government makes a small series of encroachments onto state territory, may represent a realistic path. Yet reformers would be better served by viewing preemption as one of several tools that can be used to prod the states into reforming their licensing regimes, rather than as an immediate or exclusive solution. [T]he whole institution of occupational licensing is embedded in a morass of federal, state, and local legislation suffused with tradition, custom, and jealously guarded rights. There are clearly no simple solutions. To bring about change would involve not only modifications of hundreds of state laws and local ordinances but also negotiations among dozens of occupational interest groups Nevertheless the federal government has a range of tools at its disposal to encourage states to reform their licensing regimes, that it has already taken some initial steps to encourage states to restructure their licensing requirements even these limited measures have had tangible impacts and in turn have the potential to improve access a federalist solution may be the most realistic and normatively desirable solution there is promising precedent for such an approach.

Congress doesn't have enough information to enact the optimal licensing reform slower less efficient downside federal nationwide also bigger no guarantee f g optimal standards could reduce access strictest federalist institutional experience equivalent institutional apparatus at the federal level no federal agency expertise difficult to create one insurmountable not no incompatible coop threat option or federal government generalized threat impetus states better served several tools prod their hundreds of state laws local ordinances dozens of occupational interest groups range of tools at its disposal already limited tangible impacts federalist realistic normatively desirable promising precedent

["Preserving state variation in licensing policy would also address the concern that Congress doesn't have enough information to enact the optimal licensing reform. 304 Although proponents of federal preemption may object that such an approach is slower and less efficient than having Congress step in and set federal standards, 305 the potential downside of having the federal government pick certain standards and apply them nationwide is also bigger, since there is no guarantee that the federal government will set the optimal standards. 306 For instance, if the federal government were to adopt federal scope-of practice standards, it could actually reduce access to care to the extent that the federal scope-of-practice standards were set to match the strictest state requirements. 307", 'Finally, a federalist approach would enable the federal government to take advantage of states\' institutional experience in regulating occupations, and to avoid having to create an equivalent institutional apparatus at the federal level. Daniel Gilman, an Attorney Advisor at the FTC\'s Office of Policy Planning, notes that there is currently no federal agency "with the authority, expertise, and experience to perform the various licensing functions undertaken by the states, and it would be difficult to create one." 308 He acknowledges that this challenge is not insurmountable: there is plenty of expertise about occupational regulation in the federal government, at agencies like the Department of Labor, HRSA, and the FTC. But some federal preemption proposals, such as creating a federal system of licensure, would necessitate creating [*353] an accompanying set of institutions capable of issuing, updating, and enforcing federal occupational licensing laws. 309', '* * *', 'All this is not to say that there is no role for federal preemption, nor that federal preemption is necessarily incompatible with a federalist approach. In fact, traditional cooperative federalist regimes have often made use of the threat of federal preemption: offering states the option of administering a certain program or having the federal government administer it. 310 Simply maintaining the generalized threat of federal preemption may provide additional impetus for states to reform their licensing regimes. 311 In addition, as outlined above, a "field-claiming" approach, in which the federal government makes a small series of encroachments onto state territory, may represent a realistic path. Yet reformers would be better served by viewing preemption as one of several tools that can be used to prod the states into reforming their licensing regimes, rather than as an immediate or exclusive solution.', 'V. CONCLUSION', 'This article presents a model for how the federal government can encourage states to reform the current system of occupational licensing for health care providers, and argues that such an approach would be more viable than either leaving licensing to the states or advocating for outright federal preemption. Although this paper focuses primarily on occupational licensing in health care, it also suggests that a federalist model could be used to change the licensing systems governing other fields as well. 312', ' [*354] Of course, that is not to say that affecting widespread change in our licensing system will be easy or quick. The licensing system in the United States has proven remarkably intractable since its inception, and any change will likely have to be incremental. Nearly half a century ago, in their study of occupational licensing, Benjamin Shimberg, Barbara F. Esser, and Daniel H. Kruger sketched out some of the challenges entailed in reforming the licensing system:', '[T]he whole institution of occupational licensing is embedded in a morass of federal, state, and local legislation suffused with tradition, custom, and jealously guarded rights. There are clearly no simple solutions. To bring about change would involve not only modifications of hundreds of state laws and local ordinances but also negotiations among dozens of occupational interest groups that have, over the years, managed to achieve some sort of delicate balance within the existing structure. The possibility of change, even relatively minor change, is likely to be perceived as a threat by those who gain not only prestige but also tangible economic benefits from the existing structure. Anyone contemplating change must consider not only its operational aspects, such as amending existing legislation or modifying procedures, but also its psychological aspects--the way people perceive or respond to the proposed changes. It is probably best to think of modifications in licensing as an ongoing process--a spiral moving upward from one level to the next--that will not necessarily be accomplished in one, two, or even five years. 313', 'Despite the promise of recent developments and the resurgence of interest in licensing, this cautionary advice seems just as applicable today. Any large-scale change will require a strong and sustained commitment on behalf of the federal government, and will likely take place over a long period of time.', "Nevertheless, this article provides some reasons for optimism. It shows that the federal government has a range of tools at its disposal to encourage states to reform their licensing regimes, that it has already taken some initial steps to encourage states to restructure their licensing requirements for health care providers specifically, and that even these limited measures have had tangible impacts on states' licensing regimes and in turn have the potential to improve access to health care.", 'This lesson is especially important today, as there is a growing appreciation of the important consequences that state and local regulations have for national issues such as health care, the labor market, and geographic mobility. Many scholars and policymakers grappling with these interactions have continued to view state and local regulatory policy through a dual federalist framework: either advocating [*355] for states to reform their own regulations, or alternatively, calling for large-scale federal preemption. By contrast, this article shows that at least in some contexts, a federalist solution may be the most realistic and normatively desirable solution, and that there is promising precedent for such an approach.']

[(8, 20)]

4c048259c5bbbde9d6f0e82289c46ef7a9e76ad61fa4f18e1523fb28ddc9ece0

The recent FBI Inspector General report revealed systematic process failures in warrant applications for foreign intelligence gathering---also called “FISA warrants”---stemming from a lack of external oversight. This pattern of abuses politicizes intel-gathering---undermining the broader legitimacy of the intelligence community, or “IC.”

Bob Bauer & Jack Goldsmith 12/16, Bauer is Former White House Counsel under Barack Obama; Goldsmith is Harvard Law School professor, “The FBI Needs to Be Reformed,” Atlantic, 12/16/2019,

the Horowitz report shows reforms are vital an opportunity if Congress can seize it The mere hint of investigation into a campaign threatens democratic process the FBI history of surveillance for politic s when disclosed in the 70s , almost destroyed the bureau survived because it entered a “grand bargain” with Congress intel maintain surveillance in exchange , Congress subject them [to] legal restrictions to assure that agencies) did not in fact use powers for politic s also that it did not appear to even where breakdown can fairly be attributed to human error this explanation stands little chance in the heat of partisan conflict . One side will charg a political motive The effect call into question the grand bargain FISA is a core of the grand bargain The Achilles’ heel is that judges depend on accurate representations by the FBI lacks adversarial process When political dust settles this will spark crisis for the entire FISA process . The system rests on accuracy of FBI facts when the stakes were highest the process broke altogether it is not clear this problem can be fixed credibly within the executive alone . Congress needs to introduce adversarial process

Horowitz ’s report told a complex story Its publication predictably ignited a contest between Dem s and Rep s to extract what was most serviceable in the construction of competing political “narratives.” But there is something more important in the Horowitz report than evidence for political vindication. The report shows that serious reforms are vital ly needed suggesting an opportunity if Congress can seize it The mere fact or even hint of investigation into a campaign threatens protected speech and political activity , and, worse yet, threatens to taint the democratic process by unduly influencing electoral outcomes . Such investigations are all the more fraught because the FBI has a long history of using investigations and secret surveillance against American citizens for politic al end s , including to favor one party or to serve the FBI’s institutional interests at the expense of elected officials. These tactics, when publicly disclosed in the 70s , almost destroyed the bureau . The FBI survived with its powers intact only because it entered a “grand bargain” with Congress about the use of such powers The central elements of that bargain were The intel bureaucracy were allowed to maintain robust surveillance and espionage capacities, including domestically . But in exchange , Congress subject ed them [to] significant legal restrictions The idea was that the use of these powers would be watched by institutions that could be trusted The point of these arrangements was to assure the American people that the FBI (and other intelligence agencies) did not in fact use powers for politic al end s , but also to ensure that it did not appear to use its powers for these ends. The FBI has taken a large hit in its credibility due in large part to Trump’s attacks on it. But the bureau has also hurt itself Horowitz documented serious failures of policy, process, and decision making While Republicans now link the failings detailed by Horowitz to a “deep state” that is biased against their party and determined to take down Trump, Democrats remain aggrieved by bureau actions that they believe fatally damaged their 2016 presidential nominee. The problems do not cut politically in one direction. To the extent that an FBI operating without clear guidance and rigorous process can be weaponized to serve partisan political interests, the weapons are available to be turned on different interests at different times . Moreover, even where systemic breakdown can fairly be attributed to human error and flawed judgment , not to political machinations , this explanation stands little chance of being heard clearly or accepted widely in the heat of partisan conflict . One side or the other will find in this kind of breakdown the basis for charg ing a political motive The overall effect of these controversies has been to call into question the viability of the grand bargain especially as it concerns FBI action related to politicians and political campaigns. Horowitz’s reports provide numerous fine-grained and technical criticisms, and literally dozens of proposals for reform, to enhance FBI process, credibility, and legitimacy in this context. They all deserve attention. But areas warrant special consideration A major problem identified by Horowitz concerns FISA This was the process under which the Justice Department got approval to surveil Carter Page . FISA is a core element of the grand bargain . The main innovation in FISA, and the main basis for its legitimation, is that federal judges review proposed surveillance and approve it only if the government can show probable cause that the target of the surveillance is an “agent of a foreign power.” For decades the involvement of independent judges, combined with the supposedly rigorous procedures inside the FBI, were held up as reasons for confidence in the process The Achilles’ heel in the FISA process is that the judges are depend ent on accurate and full factual representations by the Justice Department, which in turn is dependent on the FBI for a full accounting of the facts The system lacks an adversarial process ; no one represents the target . Here is where Horowitz’s report is most troubling . He found 17 significant inaccuracies, omissions, or errors related to the four applications to surveil Page, many (but not all) of which resulted in incomplete or misleading information being provided to the FISA court All concerned matters that, if handled properly, would have tended to undermine the justification for surveilling Page Horowitz concluded that these matters were known inside the FBI but not conveyed serious performance failures by the supervisory and non-supervisory [FBI] agents with responsibility over the FISA applications When the political dust settles this aspect of the Horowitz report will spark a crisis for the entire FISA process . The system rests on the accuracy and fullness of the FBI ’s factual representations, including facts that are adverse to the surveillance. In the most serious of possible contexts , when the stakes were highest and everyone knew there would be close scrutiny the process appears to have broke n down altogether —raising the question of whether the system can be trusted in ordinary cases. Horowitz recommended a number of reforms and FBI Director Christopher Wray is taking these proposals very seriously. But it is not clear that this problem can be fixed credibly within the executive branch alone . Congress needs to introduce some sort of adversarial process

Horowitz contest between Dem s Rep s extract most serviceable in the construction of competing political “narratives.” more important reforms are vital opportunity Congress seize it mere hint protected speech political activity taint the democratic process influencing electoral outcomes long history politic s including one party publicly disclosed 70s destroyed the bureau survived because it entered a “grand bargain” Congress central elements intel maintain robust surveillance espionage including domestically in exchange Congress subject significant legal restrictions watched institutions trusted point in fact politic s appear large hit in its credibility Trump’s attacks also hurt itself Horowitz serious failures policy, process, and decision making turned on different interests at different times fairly human error flawed judgment not to political machinations little chance of being heard clearly or accepted widely in the heat of partisan conflict charg political motive overall effect call into question the viability of the grand bargain special consideration major problem FISA Carter Page core element of the grand bargain main innovation review decades inside confidence Achilles’ heel depend accurate representations FBI full accounting of the facts adversarial process target most troubling All undermine the justification inside not conveyed serious performance failures political dust settles crisis for the entire FISA process rests accuracy FBI facts adverse most serious of possible contexts highest everyone knew there would be close scrutiny broke altogether ordinary number of reforms not clear that this problem can be fixed credibly within the executive branch alone Congress adversarial process

['Inspector General Michael Horowitz’s report last week told a complex story about extraordinary events related to the investigation of officials in Donald Trump’s 2016 presidential campaign. Its publication predictably ignited a contest between Democrats and Republicans to extract from the 429-page opus what was most serviceable in the construction of competing political “narratives.”', 'But there is something much more important in the Horowitz report than evidence for political vindication. The report shows that serious reforms are vitally needed in how the FBI and the Department of Justice, of which it is a component, open and conduct investigations—especially those related to politicians and political campaigns. The report prompted concerns from both sides of the aisle, suggesting that there’s an opportunity for serious reflection and reform—if Congress and the executive branch can seize it.', 'The mere fact or even hint of investigation into a campaign threatens protected speech and political activity, and, worse yet, threatens to taint the democratic process by unduly influencing electoral outcomes. Such investigations are all the more fraught because the FBI has a long history of using investigations and secret surveillance against American citizens for political ends, including to favor one party over another, or to serve the FBI’s institutional interests at the expense of elected officials.', 'These tactics, when publicly disclosed in the 1960s and ’70s, almost destroyed the bureau. The FBI survived with its powerful investigatory and surveillance powers intact only because it entered into a “grand bargain” with Congress and the American people about the use of such powers.', 'The central elements of that bargain, as one of us previously explained, were as follows:', 'The president and his intelligence bureaucracy were allowed to maintain robust surveillance and espionage capacities, including domestically. But in exchange, Congress subjected them [to] significant legal restrictions on how they collected, analyzed, and disseminated intelligence information; a bevy of lawyers throughout the intelligence community and, over time, in the Justice Department monitored and enforced those restrictions; domestic surveillance required a court order, including a court order from a new court, the Foreign Intelligence Surveillance Court, for foreign intelligence investigations; and two new committees, the Senate and House Intelligence committees, were to be kept “fully and currently informed” of all significant intelligence activities, and would have robust oversight authorities. The idea was that the use of these powers would be documented and watched by institutions that could be trusted to keep secrets but would act as credible surrogates for public oversight mechanisms.', 'The point of these arrangements was not only to assure the American people that the FBI (and other intelligence agencies) did not in fact use its powers for political ends, but also to ensure that it did not appear to use its powers for these ends.', 'The FBI has taken a large hit in its credibility over the past four years, due in large part to Trump’s unprecedented, reckless, and routinely baseless attacks on it. But the bureau has also hurt itself through its conduct of the investigation of Trump-campaign officials and of Hillary Clinton’s emails when she was a presidential candidate. Horowitz, in his latest report, and in three earlier ones related to the 2016 election, has documented what appear to be serious failures of policy, process, and decision making at multiple levels. ', 'While Republicans now link the failings detailed by Horowitz to a “deep state” that is biased against their party and determined to take down Trump, Democrats remain aggrieved by bureau actions that they believe fatally damaged their 2016 presidential nominee. Among Democrats’ numerous other concerns about the conduct of the Clinton email investigation, they were appalled by reasons to believe that a “a deep and visceral hatred” of Hillary Clinton in the FBI’s New York field office led agents to leak investigative information to Rudy Giuliani and Devin Nunes, and that the threat of further leaks informed the FBI’s decision to notify Congress, only 11 days before the 2016 election, that it had reopened the Clinton email investigation. ', 'The problems at the FBI revealed by multiple inspector-general investigations do not cut politically in one direction. To the extent that an FBI operating without clear guidance and rigorous process can be weaponized to serve partisan political interests, the weapons are available to be turned on different interests at different times. Moreover, even where systemic breakdown can fairly be attributed to human error and flawed judgment, not to political machinations, this explanation stands little chance of being heard clearly or accepted widely in the heat of partisan conflict. One side or the other will find in this kind of breakdown the basis for charging a political motive or manipulation. The overall effect of these controversies has been to call into question the viability of the grand bargain, at least on its current terms, especially as it concerns FBI action related to politicians and political campaigns. Horowitz’s reports provide numerous fine-grained and technical criticisms, and literally dozens of proposals for reform, to enhance FBI process, credibility, and legitimacy in this context. They all deserve attention. But based on his insights and other factors, we think that three areas warrant special consideration. ', 'First is the serious problem of inadequate guidance to the FBI for opening and conducting investigations against politicians or campaigns, especially during election season. The FBI has two guidebooks—the Attorney General’s Guidelines, and the Domestic Investigations and Operations Guide (DIOG)—to regulate the bureau’s investigative and intelligence-collection activities. Such guidance is vital to FBI legitimacy, especially when it investigates a politician or campaign. Well-designed guidance can establish a process to ensure that controversial steps are properly vetted in ways that minimize mistakes or disproportionate action. This, in turn, can help the FBI avoid controversy later, either because it declined to take unnecessarily controversial investigatory steps, or because it took those steps but can point to clear guidance for legitimation. But the past three years have shown that the current guidance is not well designed for investigations related to political campaigns. ', 'As Horowitz noted, the threshold for opening an FBI investigation is “low.” To open a “full investigation” like the one against Trump-campaign officials—which allows the FBI to use all its prodigious surveillance and intelligence-gathering techniques—the FBI needs to satisfy only two requirements. First, it must have an “authorized purpose” (such as detecting a federal crime or threat to national security). And second, it must have an “articulable factual basis” that “reasonably indicates” that a federal crime or threat to national security “may have occurred” or “may occur,” and that the investigation may obtain relevant information. These relatively permissive criteria give officials enormous leeway in opening an investigation based merely on the right type of factual allegations. And there is only one additional rule when the investigation involves a political candidate or member of a political organization: The FBI agent considering such a step must consult up the FBI chain of command to various degrees depending on the type of assessment or investigation in issue. ', 'Horowitz’s latest report expressed surprise about deficiencies in the DIOG guidance in the context of opening investigations related to political campaigns. He proposed that the FBI establish procedures that require giving notice not just to a senior FBI official, but also outside the bureau to a senior DOJ official, such as the deputy attorney general, “for case openings that implicate core First Amendment activity.” Such elevated notice at the outset of such a sensitive investigation is a good idea because it brings into the loop a Justice Department official who has been subject to Senate confirmation and is directly subject to congressional oversight, and thus politically accountable. Such high-level notice occurs in other crucial circumstances, such as sensitive undercover operations. A senior Senate-confirmed Justice Department official will also likely take a broader view of the matter than the Bureau and can, as Horowitz noted in his hearing, “consider the potential constitutional and prudential implications in advance of these activities.” In the event that such an official fails to do so, or makes the attempt but exercises poor judgment, he or she is the one who should answer for this to Congress and public. ', 'We would go further and propose not just better notice rules up the chain of command, but also concrete guidance to FBI officials about when they can or cannot open cases in politically sensitive areas. Horowitz noted that the FBI rulebook uses the same low threshold for opening sensitive cases connected to a political campaign, which implicate First Amendment activity and electoral integrity, as in ordinary, nonsensitive cases. The FBI should develop a heightened threshold for opening such cases to ensure that First Amendment activity is not unduly investigated. It is a fair concern that the new standard could invite risk aversion within the bureau and leave undetected criminal or adverse national-security activity related to a campaign. This requires particularly close attention in an era likely to be marked by increased activity to illicitly influence our political process. But given the very large costs of the investigations in the past three years, these risks seem acceptable and can be mitigated if the heightened standard is carefully crafted. ', 'We would also propose a heightened standard, and mandatory notice to the Justice Department, before the FBI opens a counterintelligence investigation on the president, as it did in May 2017. Such investigations focus on threats to national security from foreign intelligence agencies. The FBI is authorized to open such investigations but lacks specific guidance when the possible foreign asset is the president. The FBI appears to have concluded that Trump posed a national-security threat, and warranted counterintelligence scrutiny, because he was harming the FBI’s Russia investigation. But the president is not like other individuals who might pose a threat to national security, because he is constitutionally empowered to determine the national-security interests of the United States and to conduct its foreign policy, which includes the authority to change foreign policy on a dime. ', 'We are not saying that the FBI should be barred from investigating a president who appears to be a Manchurian candidate, but the situation requires special guidance. The lines between a Manchurian candidate, a president engaged in quid pro quo foreign-policy bargaining that is possibly corrupt, and the very large discretionary control that presidents have to conduct U.S. foreign policy are not always easy to discern. The decision to open a counterintelligence investigation of the president is so consequential for the nation (and the FBI), and so politically fraught, that it should not be made without much clearer guidance. It also should not be made by the FBI alone. FBI leadership wisely realized this truth, even without specific guidance, because they quickly briefed the acting attorney general and relevant congressional leaders. Such briefings should be mandatory—both for the FBI’s sake, and to ensure that Justice Department leaders do not eschew their responsibilities. ', 'Horowitz additionally noted that the FBI had no policy on whether to give notice to campaigns, like Trump’s, that are subject to investigation. According to Horowitz, the discretionary call not to inform the Trump campaign was made by an assistant director of an FBI division, who concluded without any guidance that such notice might prevent the FBI from “finding the truth.” But this decision poses a huge legitimacy risk to the bureau, because the failure to notify can later be construed as evidence of political motivation. The FBI needs a clear policy and procedures on when and how it informs presidential campaigns about investigations. ', 'Horowitz identified other important gaps in the standing FBI guidance about investigations related to political campaigns. As he set out in his report and his testimony to the Senate, the use of confidential human sources for “consensually monitoring” individuals affiliated with the Trump campaign, including an official who was not a subject of the investigation, was “permitted under Department and FBI policy because their use was not for the sole purpose of monitoring activities protected by the First Amendment.” However, he noted that the FBI rules allow agents to seek approval of this kind of intrusive investigative technique from only a first-level supervisor, without any requirement that the FBI notify senior Justice Department officials. Horowitz recommended a requirement that there be “consultation, at a minimum.” The department should consider a rule requiring both notice and approval in cases involving politicians and campaigns. ', 'Last week is not the first time that Horowitz has reported on gaps in Justice Department rules and policies in this context. In his 2018 report on the Clinton email investigation, he noted that departmental memoranda counseled that “politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges.” However, enforcement of this policy has rested on mere norms or practices against overt investigative steps within two months of a primary or general election, rather than something firmer and more concrete. Horowitz recommended that the department “consider” additional “guidance to agents and prosecutors concerning the taking of overt investigative steps, indictments, public announcements, or other actions that could impact an election.” The department must establish clear policies on these matters. ', 'A second major problem identified by Horowitz concerns the 1978 Foreign Intelligence Surveillance Act (FISA) for obtaining judicial approval for electronic surveillance of foreign agents. This was the process under which the Justice Department got approval four times to surveil Carter Page. FISA is a core element of the grand bargain. The main innovation in FISA, and the main basis for its legitimation, is that federal judges review a proposed surveillance and approve it only if the government can show probable cause that the target of the surveillance is an “agent of a foreign power.” For decades the involvement of independent judges, combined with the supposedly rigorous procedures inside the Justice Department and FBI, were held up as reasons for confidence in the process. ', 'The Achilles’ heel in the FISA process is that the judges are dependent on accurate and full factual representations by the Justice Department, which in turn is dependent on the FBI for a full accounting of the facts related to the surveillance. The system lacks an adversarial process; no one represents the interests of the target. Here is where Horowitz’s report is most troubling. He found 17 significant inaccuracies, omissions, or errors related to the four applications to surveil Page, many (but not all) of which resulted in incomplete or misleading information being provided to the FISA court. All of the inaccuracies, omissions, or errors concerned matters that, if handled properly, would have tended to undermine the justification for surveilling Page. ', "Horowitz concluded that these matters were known inside the FBI but not conveyed to relevant officials in the Justice Department. He described these problems as “serious performance failures by the supervisory and non-supervisory [FBI] agents with responsibility over the FISA applications.” He expressed dismay that “so many basic and fundamental errors were made by [FBI agents] on one of the most sensitive FBI investigations that was briefed to the highest levels within the FBI, and that FBI officials expected would eventually be subjected to close scrutiny.” And he concluded that the episode “raised significant questions regarding the FBI chain of command's management and supervision of the FISA process.” ", 'When the political dust settles, if not sooner, this aspect of the Horowitz report will spark a crisis for the entire FISA process. The system rests on the accuracy and fullness of the FBI’s factual representations, including facts that are adverse to the surveillance. In the most serious of possible contexts, when the stakes were highest and everyone knew there would be close scrutiny after the fact, the process appears to have broken down altogether—raising the question of whether the system can be trusted in ordinary cases. ', 'Horowitz recommended a number of reforms to ensure factual accuracy and completeness, and FBI Director Christopher Wray is taking these proposals very seriously. But it is not clear that this problem can be fixed credibly within the executive branch alone. Congress needs to consider adding criminal or civil penalties for gross factual misrepresentations before the FISA court, akin to the penalties in FISA for electronic surveillance without court approval. It should also consider ways to introduce some sort of adversarial process, at least in the most sensitive contexts. ']

[(4, 11), (17, 32)]

c621b71e138697f3aacf3f4a22258219f3625866f1c16ac3d441e51e53203e37

Russia-induced intelligence politicization causes extinction by undermining responses to nuclear, WMD, and environmental risks

Michael Andregg 19, professor of Justice and Peace Studies at the University of St. Thomas and taught in the Aquinas Scholars program, lecturer at the National Intelligence University, Army Command and General Staff College, and the Naval Postgraduate School, winner of the International PeaceWriting Award for his book On the Causes of War, “Strategic Intelligence in an Age of Polarization, Politicization and Fake News,” ISA Conference, March 26-29, 2019,

Russia hack our election goals were successful Doubt in the legitimacy of our i c law enforcement increased Democratic intel depend on ev -based analysis and objective presentation of “truth” When shattered hell can result Population Pressure Corruption Militant Religion , and Authoritarian Law cause wars over long periods underlie proximate causes MAD will result in nuc war Escalation chains by computers decide whether any trigger becomes thermonuclear war applies to chem bio and other w m d we sleep-walk toward Armageddon climate burns and nature decays killing our planet and fueling wars worldwide Extinction ” endangers everyone intel does not eliminate a single rogue-state but does highlight responses dealing with causes instead of symptoms ample warning from good sources avoid catastrophe intel can educate policy makers to do the right thing

There is zero doubt that Russia was aggressively involved in hack ing our 2016 US election , as cited by our entire i c to both Obama and Trump Reasonable differences of informed opinion remain about whether these were successful but they probably were But some other meta- goals of the Russian effort were unambiguously successful , regardless of whether they tipped the election Doubt in the legitimacy of basic institutions , like of our i c law enforcement the D o J and other departments was increased Democratic intel ligence systems depend on ev idence -based analysis and objective presentation to policy makers of “truth” When these are shattered hell can result Already a dwarf compared to tactical intelligence, strategic intelligence becomes irrelevant to most taskings Many factors contribute to the “Developing Global Crisis ” include at least four factors : 1) Population Pressure , 2) Corruption s of Governance, 3) Militant Religion , and 4) Authoritarian Law These are powerful cause s of wars over long periods of history But they typically underlie more obvious proximate causes of each particular conflict competition for resources is a perennial cause of wars every nation that currently owns nuc s is modernizing the system is unstable MAD built with the best of intentions will eventually result in nuc lear war Escalation chains , key individuals and decisions by computers will decide whether any trigger ing event becomes a general thermonuclear war What applies to nuc s applies with modifications to chem ical, bio logical and other novel w m d With WMD we sleep-walk toward Armageddon while climate burns and nature decays Population Pressure is killing the living system of our planet and fueling wars worldwide the “Sixth Great Extinction ” endangers everyone everywhere intel does not eliminate a single dictator or rogue-state but does highlight responses that can be effective at dealing with the causes of conflicts instead of just symptoms ample warning of problems to come, from good sources avoid such catastrophe s, and intel professionals can educate policy makers to do the right thing s

zero doubt aggressively involved hack entire i c successful probably were goals legitimacy of basic institutions i c law enforcement D o J other departments increased intel depend ev -based analysis objective presentation to policy makers “truth” hell can result Already tactical strategic irrelevant Global Crisis four factors 1) Population Pressure 2) Corruption 3) Militant Religion 4) Authoritarian Law cause wars obvious proximate competition for resources perennial cause owns nuc s modernizing unstable MAD nuc war Escalation chains individuals computers any trigger thermonuclear war nuc s chem bio w m d sleep-walk toward Armageddon climate burns nature decays Population Pressure killing the living system of our planet wars worldwide Great Extinction endangers everyone everywhere intel single causes symptoms ample warning good sources avoid catastrophe intel professionals educate policy makers do the right thing

['There is now zero doubt that Russia was aggressively involved in hacking our 2016 US election, as cited by our entire intelligence community to both Presidents Obama and Trump. 1 Reasonable differences of informed opinion remain about whether these were successful enough to swing the election from Hillary Clinton to Mr. Trump, but they probably were according to Kathleen Hall Jamieson, Director of the Annenberg Public Policy Center at the University of Pennsylvania. 2 Obviously, if Russian efforts were enough to swing an American Presidential election this would be a profound political effect at minimal cost in national security expenditures (for the Russians anyway). But I want to focus for a moment on some other meta-goals of the Russian effort that were unambiguously successful, regardless of whether they tipped the election to Mr. Trump.', 'a. Doubt in the validity of electoral process in America in general was greatly amplified.', 'b. Doubt in the legitimacy of many basic institutions, like of our intelligence community, law enforcement, media, the Department of Justice and other departments was increased.', 'c. Polarization of politics in America, already severe, was also increased, and', 'd. Hatred among various American communities was increased. Sewing division, uncertainty and illegitimacy were arguably among Russia’s main strategic goals.', 'e. Relationships with long-term allies were put under great stress. NATO suffered. This was another Russian goal. Fractured US relations with Canada and Mexico were bonuses.', 'f. The term “Fake News” became a meme, with pernicious effects far beyond the obvious. Democratic intelligence systems depend on concepts like evidence-based analysis and on objective presentation to policy makers of “truth” as best that can be discerned. When these fundamental concepts are shattered, trust evaporates, and hell can result.', 'Special Counsel Robert Mueller’s report on these topics has not been released to the American public at the time of writing this paper, but it will probably have significant effects on both academic conclusions and on practical politics in America. I can still conclude with high confidence now that this was one of the most effective applications in recent history of what we call “psychological operations” and what Russians often call “active measures.” 3', 'The general dilemma of election meddling with practical consequences for neighbors is nothing new to Eastern Europe. They have dealt with Russian (and other) meddling for a very long time. America is just now learning the hard way why so many people in so many countries hate us for past acts when we manipulated their elections. That negative reaction is a vivid example of blowback from an intelligence practitioner’s or policy maker’s point of view. Policy makers chose a somewhat evil method (manipulating a neighbors’ elections) to support some allegedly good end (like containing communism) but found that in the long run, this also creates much hatred of your country. Hatred has national security consequences too. The internet evolution to distributed networks of information flow, and the special power of “social media” to mold public perceptions of reality are technical aspects of this problem, but the moral dilemma is eternal.', 'Excellent technical reviews of evolving methods of manipulation through social media and other emerging fora can be found by Matteo Bonfanti of Zurich’s ETS, and James Pamment et al. of Lund University and Sweden’s Civil Contingencies Agency (MSB). 4 They describe new techniques so exotic they require a new language, as noted in this quote from Bonfanti’s article. “They include socio-cognitive and psychographic hacking via dark advertisement, social hacking, band wagoning, digital disinformation and fakes, exploitation via bots, botnets and sock-puppets, trolling and flaming.” 5 Greg Treverton has also written about these challenges for the Swedish Defense University. 6 Finally, the Canadian Security Intelligence Service published a very good workshop overview on such techniques, but as is their practice all papers are anonymous. 7 By tapping into and enflaming local prejudices, the Russians spread lies faster and further than truth* broadcast by establishment, mainstream media. 8', 'Should we promote truth and goodness in our public diplomacy and private (even secret) actions, or descend to deception and evil in order to gain advantage in our competitions for power, wealth and basic security? Well in war, this seems simple. If you do not win, you and all you love may die young. But in cold wars or normal competitions, this is not simple. Evil methods tend to yield evil outcomes far more often than not. Unintended consequences abound, and are often negative. A similar dilemma occurs when people consider assassination (or “targeted killings”) as they have throughout the centuries and to this day. A particular and interesting contemporary case lies at the intersection of these phenomena, the much-publicized murder of Saudi journalist Jamal Khashoggi at the Saudi Arabian consulate in Istanbul, Turkey, on October 2, 2018. 9', 'Assassinations of Journalists and other Suppressions of “Objective Reality”', '“Fake News” can be created in very large volumes by active propaganda efforts funded by states. This can be enhanced by suppression of alternative “narratives.” One very harsh method for that is the murder of journalists who do not comply with official stories. 10 There are many other methods short of murder, like arresting, intimidating or buying off large numbers of independent or critical journalists. And police-states simply own all significant media and fire any journalist who strays from party lines, as occurs in North Korea, China and other police-states these days.', 'Many more countries than Saudi Arabia use such tactics. Some are not police-states. For one sad example, NATO ally Turkey, which exposed the especially gruesome and egregious murder of Jamal Khashoggi, imprisons more journalists today than any other nation on earth (as best we can measure such tragedies) due to President Erdoğan’s campaign against supporters of Fetullah Gulan. 11 , 12 Those include many journalists, professors and whole media outlets and schools in Turkey (many since closed down by the government). Turkey is not yet a police-state, although it trends in that direction in 2019. Venezuela provides another example from another continent, as Nicolás Maduro drives his formerly prosperous country towards failed-state conditions. In most such cases, control of the media is a prelude to rot within, but both Russia and China prove that police-states with controlled media can endure for very long periods.', 'True police-states have always been in the vanguard of these kinds of efforts to control people’s thoughts by controlling the information available to them. But even undeniable and relatively healthy democracies can be guilty of egregious controls on information, including kidnapping journalists and whistleblowers, imprisonment of critics and even assassinations of people who tell inconvenient truths. The saddest examples of all to me come from Israel since it once aspired to be a leader in law and moral thought. Then they kidnapped Israeli citizen Mordecai Vanunu overseas because he told the London Sunday Times about Israel’s clandestine nuclear weapons program. 13 They then held Vanunu in solitary confinement for years lest he share more with international media. After 18 years and release, they convicted him again, for speaking to foreigners about his plight. Meanwhile, every child in neighbor nations knows they could be burned alive by Israel’s nuclear arsenal. Israel has also assassinated many hundreds, probably thousands of its neighbors in Lebanon, Egypt, Syria and Iran. Those include both Palestinians working for their own freedom (and sometimes fighting for their freedom, of course) and nationals of those neighbor states, for many reasons detailed in the incomparable record of Israeli assassinations called “Rise and Kill First,” a book reviewed and approved by IDF military censors in 2018. 14 This source is unique, because it includes the moral dilemmas and angst faced by top Israeli intelligence officials as they decided to kill many, many hundreds of possible enemies of their state. Despite strenuous efforts to avoid injuring bystanders, innocents and witnesses nearby were also killed more often than anyone wants to admit. Hence the intense secrecy about “targeted killing” operations, even in a state that aspires to moral leadership.', 'I will not detail assassinations attempted, conducted or enabled by my own United States of America because it continues to deny such things. The official denials are lies, but they are important to keep practitioners loyal to my country that also once aspired to moral leadership.', 'It appears that no nation is immune to the temptation to use unconventional methods to attack people or institutions that appear to be threats to the state. “Unconventional methods” include here (more or less) precise targeted killings and massive information operations against whole populations that exploit every dimension of the internet including social media in particular. What happens to strategic intelligence in this context of constant battle against endless enemies? The short answer is that strategic intelligence is commonly ignored, so the enemies never end.', 'Nuclear Weapons, other WMD, the Developing Global Crisis, and Strategic Intelligence', 'Strategic intelligence is often ignored simply because most of the system is very busy every day with current intelligence about active armed conflicts and responses to the blizzard of modern propaganda operations. Already a dwarf compared to tactical intelligence, strategic intelligence becomes irrelevant to most taskings, far too long-term, a purview of mostly elder analysts on end of career assignments, and is almost never attended to by active policy makers.', 'I will illustrate this by reference to something virtually everyone agrees is a real threat to all of human civilization, nuclear and other WMD, which proliferate as we chat about terrorists. I will also describe very briefly a “Developing Global Crisis” that underlies much of the lethal conflict on earth today. Few policy makers or analysts will dispute that each of those causes of threat to everything under heaven are real, and powerful. But little is done about any of those ultimate causes of armed conflicts, because they are very difficult to deal with, and some are protected by “taboos” (like population pressure). Finally, everyone is so busy fighting the perpetual wars they are trapped in. So the wars continue. Intelligence professionals can describe in detail why they so often ignore ultimate threats to focus on the mosquitos that are biting states today.', 'Many factors contribute to the “Developing Global Crisis” so descriptions can be cumbersome, but all include at least four factors: 1) Population Pressure, 2) Corruptions of Governance, 3) Militant Religion, and 4) Authoritarian Law. 15 These are powerful causes of wars over long periods of history. They are especially relevant today as we become ever more global, economically and in many other ways. But they typically underlie more obvious proximate causes of each particular conflict. This is especially true of the first two. Everyone knows that competition for resources is a perennial cause of wars, for example. But few note (in print) how population pressure guarantees competitions for resources, as when Syria’s population growth rate of 2.4% per year in 2010 meant doubling every 30 years. Their economy could not keep up. The corrupt government then used ruthless methods to repress protests, which metastasized into hyper-complex civil wars that eventually displaced fully half of Syria’s pre-war population. At least one-fourth fled the country entirely, spreading their chaos into neighboring nations and even far-away Europe. But most people, including policy makers, focus on particular political actors like Bashar al-Assad and Vladimir Putin rather than on long-term causes of such conflicts.', 'Whoever wins in Syria today will inherit a country mortally wounded by the incredible damage caused by civil wars, which are fueled especially by corruptions of governance and authoritarian law. And who will fund research on corruptions of governance? Not, usually, governments. But many of them will fund projects to study how to corrupt other governments, or how to exploit policy makers therein, or how to damage adversary economies, rather than on searching for solutions to the common problems facing all of us during this difficult century.', 'Meanwhile, every nation that currently owns nuclear weapons is modernizing (a.k.a. improving the lethal potentials of their arsenals) while condemning any other nation that tries to join that ‘club.’ This, even though leading thinkers (like former Secretaries of State Henry Kissinger and George Schultz, former Secretary of Defense William Perry, Senator Sam Nunn and others) point out that the system we have built is unstable. 16 In short, the doomsday MAD system 17 that we built with the best of intentions will eventually result in a nuclear war if we wait long enough. Escalation chains, key individuals and decisions by computers will decide whether any triggering event becomes a general thermonuclear war. Does this danger dominate threat analysis today? No. Catching or killing endless retail terrorists consumes far more attention, time and money.', 'The nuclear arms control regime that brought a bit more stability and a lot more surveillance, verification, and other measures to restrain the nuclear arms race for decades is unraveling now. Most attention, time and resources are devoted instead to endless wars against untold millions of unemployed and often unemployable teenaged males from failed states. These dispossessed and poorly educated men were created by population pressure. Now they are inspired by militant religious enthusiasts to attack corrupt governments there, here, and increasingly everywhere. None of those problems can be solved by more, or more sophisticated nuclear or other WMD.', 'What applies to nuclear weapons applies with modifications to chemical, biological and other, more novel weapons of mass destruction. For various reasons, the logic of forbidding these whole categories of weapons from “civilized” arsenals resulted in non-perfect, but very effective bans on most national programs in biological and chemical weapons, overseen by international agencies with resources to detect violations and initiate response contingencies. 18 With nuclear WMD, however, we sleep-walk toward an Armageddon no general or politician says they want.', 'Conclusions', '1. Russian efforts to disrupt the 2016 American Presidential election were remarkably successful, consequential and efficient. Rather than trying to excel at this kind of destructive, black politics, we should implement radical defensive measures, and reflect on how many other nations view America today because of our historic efforts to manipulate their elections, particularly in Latin America. Strategic intelligence attempts to discern those situations that call for response in kind (like an armed invasion of home territories) and other situations where violating core American principles like truth and democracy is short sighted and self-destructive.', '2. Many other countries are getting into the social media disinformation game, and black money is as important as black propaganda. But China is still the rising threat, not Russia. Black money can also swing elections, and the US Supreme Court’s “Citizens United” decision opened a door for hostile foreign powers to inject black money into our political system using simple cutouts (like the NRA) 19. Retaliating in kind would be an imprudent, expensive and ineffective response. Still, defense against black money is as essential to democracy as defense against black propaganda through novel methods. Defense is not always retaliation. In each case we should recognize that China is the rising threat, not Russia, even though Russia was first to injure us by those particular methods. China’s police-state is way ahead of us in using facial recognition, artificial intelligence, and other technologies to repress dissent at home ever more efficiently. Such tools will be used against free people everywhere if we do not react. 20', '3. A Civil Defense style response to Russian election meddling is more appropriate than “active measures” in response. This differs from cyberwarfare, or kinetic warfare, where offensive capability is as important as defensive resilience. Points one and two allude to this distinction. Some kinds of attack, like direct warfare, call for ruthless, active responses, and practitioners know that you cannot win with defense only. However, when evil information operations threaten freedom and democracy, there are other ways of responding that do less damage to core American values and are arguably more effective over time. Examples would be public education, the Voice of America and similar efforts that spread light and truth, rather than darkness and evil through lies and deception. Strategic intelligence highlights such distinctions.', '4. A new emphasis on strategic intelligence over tactical urgencies is also required. This should include specific things like:', 'a. Recognizing that Climate Change is a new ‘common enemy’ of humankind, and that Information Operations are critical to effective countermeasures. Such “operations” include classical, intelligence led, pro-democracy tools like VoA, but also substantial public education at home to counter ordinary ignorance and to stress that the emerging world faces problems that no nation can solve alone. Among other virtues, this would put America on the side of youth worldwide, who are quite tired of elders arguing while their climate burns and nature decays in a thousand ways.', 'b. Recognizing that Population Pressure is killing the living system of our planet slowly and fueling wars worldwide while we focus on religious and political enemies, and “triggering events.” Those tactical issues do not disappear; most must be dealt with, but they often obscure ultimate causes and therefore prevent effective solutions. As noted earlier, population pressure is one of the four most important ultimate causes of global conflict today, but discussing it is virtually taboo in practical politics. Yet immigration issues that are driven by population pressure are dominating domestic politics in ever more countries, while the “Sixth Great Extinction” endangers everyone everywhere. 21 Strategic intelligence does not eliminate a single terrorist, evil dictator or rogue-state nuclear weapon, but it does highlight responses that can be effective at dealing with the causes of conflicts instead of just symptoms of them. In practical medicine this distinction between symptoms and causes is absolutely critical, and it should be in intelligence analysis as well. 22', 'c. Examples of Syria and Myanmar Other papers have described in detail how such forces contributed to the collapse of Syria (growth rate in 2010 = 2.4% preceded by four years of climate change-driven drought that intersected with a very corrupt and authoritarian regime, and rising militant religion). 23 That collapse spread population pressure to many other nations including much of Europe. Myanmar faces a similar dilemma, where even genocide of southeastern Rohingya brought no lasting peace, while civil wars fester to the north. Tactical intelligence to “win Myanmar’s wars” does nothing to help it solve its long-term problems, which are becoming profound.', 'I am Vice President of an “International Society for the Comparative Study of Civilizations.” One perennial topic of concern is whether our emerging global civilization is in a “decay phase” where corrupt and authoritarian leaders fiddle while modern “Romes” burn. People who studied the collapse of ancient civilizations intensively report that sometimes their elites had ample warning of problems to come, from very good sources, but simply ignored them because to consider various taboos was too disturbing to their worldviews. 24 , 25 It is our task today to avoid such catastrophes, and courageous strategic intelligence is a way that intelligence professionals can educate policy makers to do the right things, both morally and practically.']

[(8, 18)]

06ac89658de4fc7d372d5e0f151f167df3e3ae358c3ddbfa6aa487d8e0725062

Goes nuclear

Dmitri Trenin 18, director of the Carnegie Moscow Center, chairs the research council and the Foreign and Security Policy Program, “Avoiding U.S.-Russia Military Escalation During the Hybrid War,” U.S.-Russia Insight, 01/25/2018, http://carnegie.ru/2018/01/25/avoiding-u.s.-russia-military-escalation-during-hybrid-war-pub-75277

Hybrid War is fought in a global borderless environment From cyber and a i to propaganda and fake news the weapons of choice are information includes interference in elections Nuclear risks of miscalc derive from conventional forces . A standoff has reemerged new tech blur distinction between war and peace in Africa , Asia , Europe , Latin America , and the Mid East a nonlinear asymmetrical conflict will result Russia must rely on escalation dominance decisive action ; and high risks without warning an uncertain risky environment , where miscalc lead to collisions that escalat prevention should be easy However, during Hybrid War cannot be taken for granted

Since February 2014, the Russian leadership has been in a de facto war mode with regard to the U S This Hybrid War ’s most distinguishing feature is that it is being fought in a truly global , virtually borderless environment Traditional distinctions between strategy and tactics have been all but erased The war is being fought simultaneously in a number of spheres, on different levels, and in the never-ending, twenty-four-hour news cycle. This aspect of warfare is particularly true of the field of information, which is of prime importance in the Information Age that emerged with the end of the Cold War. From cyber conflicts and the use of a rtificial i ntelligence to the predominance of propaganda and fake news , the main battles of the Hybrid War are taking place outside of the purely physical realm and in the domain of new info rmation tech nologies The prominence of the U.S. media and the U S immense financial power give it a huge advantage in both fields. As a result, the weapons of choice in the Hybrid War are those that use information and economic power to discredit and sanction one’s adversaries Politically, the Hybrid War includes the outside stimulation of political change s in other countries through street activism and the promotion of specific values, parties, or popular movements. It has been characterized by interference in elections , political transitions, and other political processes, including various efforts to hack sensitive information, spread compromising or damaging materials and fake news, encourage character assassinations, and impose personal and other noneconomic sanctions on opponents The existence of a common info rmation space makes waging political war fare on foreign territory much easier and more attractive than ever before Nuclear deterrence between Russia and the West remains in place but at lower and more stable levels than during the Cold War. Today’s risks of miscalc ulation derive from potential incidents involving conventional forces . A token military standoff has reemerged along Russia’s border with NATO countries The main focus is on developing new military tech nologies and novel means and ways of prosecuting warfare—from outer space to cyberspace—that blur or eliminate the distinction between war time and peace time. Like its predecessor, the Hybrid War is a war in the time of peace in Africa , Asia , Europe , Latin America , and the Mid dle East Neither the balance nor the correlation of forces, however, will determine the outcome of this confrontation the course of events is not predetermined. As a nonlinear , highly asymmetrical conflict , the outcome likely will result from domestic developments in Russia or the U S or both. Both countries are facing serious problems that could prove decisive in the final calculations of the Hybrid War The U S is going through a triple crisis of its political system , exemplified but not caused by Trump and the virulent domestic opposition to him and his policies. A crisis of social values lies beneath this political crisis and points to a widening gap between the more liberal and the largely conservative parts of the country. At the same time, the United States faces a crisis within its own foreign policy as it struggles to reconcile the conflict between the more inward-looking U.S. national interest and the international liberal order of the U.S.-led global system Russia, though outwardly stable, is approaching its own major crisis as the political regime created by Putin faces an uncertain future Russian society is also changing and Putin’s heirs cannot take its support for granted Russia must rely on escalation dominance swift, and decisive action ; and willingness to take high risks without warning This promises an uncertain and risky environment , where miscalc can lead to incidents or collisions that , in turn, lead to escalat ion not automatic neither party envisions a real war wants to allow the situation to become uncontrollable to manage confrontation Incident prevention should be easy requires professionalism However, during a Hybrid War , these cannot be taken for granted raising the stakes of confrontation

de facto war mode Hybrid War global borderless environment prime importance cyber a i propaganda fake news info tech weapons of choice Hybrid War information discredit sanction stimulation political change elections common info space political war easier Nuclear risks miscalc conventional forces tech blur war and peace Africa Asia Europe Latin America Mid East outcome nonlinear asymmetrical domestic developments U S crisis political system Trump foreign policy escalation dominance decisive action high risks warning uncertain and risky environment miscalc collisions escalat automatic envisions wants uncontrollable should professionalism Hybrid War cannot taken for granted raising the stakes of confrontation

['Since February 2014, the Russian leadership has been in a de facto war mode with regard to the United States. The Kremlin saw the developments in Ukraine that led to the ouster of former president Viktor Yanukovych as a threefold threat: a U.S.-supported political invasion of Russia’s vital strategic buffer, an attempt to prevent Moscow-led integration in post-Soviet Eurasia, and a move to build a barrier between Russia and the rest of Europe. Russian President Vladimir Putin, taken by surprise, responded with the use of force in Ukraine—first to secure Crimea for Russia and then to protect a rebel stronghold in Donbass. The events that followed have developed into a virtual Russo-American war—but a different kind of war compared to those the countries have fought in the past. ', 'The crisis over Ukraine put an end to a quarter century of cooperative relations between Russia and the West and resulted in Russia’s confrontation with the United States and its estrangement from Europe. This confrontation has often been labeled a second Cold War.1 The analogy, however, is flawed: the world has changed too much since the 1980s to suggest that today’s antagonism is merely a revival of an old conflict. The new confrontation is better described as a Hybrid War—a term which, like its predecessor, is capitalized here to highlight its distinct place in the history of international relations. This time, the U.S.-Russia conflict is not central to the world system, but, nevertheless, its outcome will help shape the future of that system. ', 'The current Hybrid War is a conflict essentially between Russia and the United States over the issue of the world order. It is not the result of misunderstanding or miscalculation but rather the opposite; Russia, in particular, has a deliberate outcome in mind. Moscow is pursuing a set of objectives—the most important of which is to reassert its role as a great power with a global reach. In Europe, specifically, it seeks to prevent NATO from moving forward into former Soviet territory, particularly Ukraine. As for Ukraine itself, the Kremlin wants it to serve as a buffer between Russia and NATO. Russia has important objectives outside of Europe as well, including in the Middle East. Since September 2015, Moscow has been waging a military campaign in Syria. The main purpose of the intervention—apart from the immediate need to prevent a major victory for Islamist extremists—was to return Russia to the regional and global stage as an active geopolitical player with considerable military capabilities. Russian actions in these and other areas therefore undermine the United States’ global dominance of the post–Cold War period, even though the Russian Federation (unlike the Soviet Union) does not seek to impose its own model on the world. ', 'Even as Russia opposes U.S. global hegemony and favors a more distributed balance of power among several major nations (including itself), the United States feels the challenge to the international liberal order that it began building after the end of World War II and has dominated since the end of the Cold War. As long as all major powers, including China and Russia, subscribed to the rules and norms of that order—and, in China’s case, also benefited from it2—it was a genuine Pax Americana: a state of peace among the major powers, who all deferred to the United States. With Russia’s breakout from the post–Cold War system, that unique period of peaceful relations among the principal players is now history. ', 'Even though the scale of the current conflict is much smaller, the stakes are high once more. For the Kremlin, this is a battle for survival—of Russia’s status as an independent player capable of defining and defending its interests and of the Russian leadership, which has been personally targeted by Western financial sanctions and various public accusations ranging from corruption to war crimes. Originally, Moscow believed that this conflict would be a short-term problem, but it now appears to be more prolonged than previously anticipated and may take a generation to resolve. ', 'FEATURES OF THE HYBRID WAR ', 'This Hybrid War’s most distinguishing feature is that it is being fought in a truly global, virtually borderless environment. International interaction is no longer restricted by walls or other state-imposed barriers. Traditional distinctions between strategy and tactics have been all but erased. The hybrid warriors include many more players than was the case during the Cold War—from national governments and transnational corporations to nongovernmental actors and even private individuals. ', 'The war is being fought simultaneously in a number of spheres, on different levels, and in the never-ending, twenty-four-hour news cycle. This aspect of warfare is particularly true of the field of information, which is of prime importance in the Information Age that emerged with the end of the Cold War. From cyber conflicts and the use of artificial intelligence to the predominance of propaganda and fake news, the main battles of the Hybrid War are taking place outside of the purely physical realm and in the domain of new information technologies. Just as important to the Hybrid War is economics, which has been the key driver of globalization that paralleled the rise of these innovative information technologies. The prominence of the U.S. media and the United States’ immense financial power give it a huge advantage in both fields. As a result, the weapons of choice in the Hybrid War are those that use information and economic power to discredit and sanction one’s adversaries.3 ', 'Politically, the Hybrid War includes the outside stimulation of political changes in other countries through street activism and the promotion of specific values, parties, or popular movements. It has been characterized by interference in elections, political transitions, and other political processes, including various efforts to hack sensitive information, spread compromising or damaging materials and fake news, encourage character assassinations, and impose personal and other noneconomic sanctions (for example, restrictions on travel, seizure of assets, imprisonment, or deportation) on opponents. The existence of a common information space makes waging political warfare on foreign territory much easier and more attractive than ever before. Cross-border promotion of democracy and support for the color revolutions that dominated the 2000s (for example, the 2003 Rose Revolution in Georgia and the 2004 Orange Revolution in Ukraine) have now found counterparts in emerging solidarity among those who espouse more conservative and traditionalist values, such as political systems based on authoritarian models and strict national sovereignty.4 ', 'Military power is not out of the picture—though its use is different than in the Cold War. The static standoff of million-strong armies in Europe and the long shadow of the nuclear arms race have drawn down or faded. Nuclear deterrence between Russia and the West remains in place but at lower and more stable levels than during the Cold War. Today’s risks of miscalculation derive from potential incidents involving conventional forces. A token military standoff has reemerged along Russia’s border with NATO countries, but, to date, this standoff bears no resemblance in either scale or scope to the forces that faced each other during the Cold War. The main focus is on developing new military technologies and novel means and ways of prosecuting warfare—from outer space to cyberspace—that blur or eliminate the distinction between wartime and peacetime. Like its predecessor, the Hybrid War is a war in the time of peace. Even more than in the past, however, the onus is on national leaderships to minimize the number of casualties, ideally to zero. ', 'Russian military strategists had developed the concept of hybrid warfare even before the actual conflict broke out in earnest between the United States and Russia in early 2014. Analyzing the experience of the post-Soviet color revolutions and the 2011 Arab Spring, Chief of the General Staff Valery Gerasimov wrote in February 2013 that the “consequences of new conflicts are comparable to those of a real war”; in many cases, nonmilitary methods “are substantially more effective than the power of arms,” and greater emphasis is placed on “political, economic, information, humanitarian, and other nonmilitary means” and “covert military measures,” including “information warfare and actions by special forces.” In this environment, “overt use of military force, often in the form of peacekeeping or crisis management, takes place only at a certain stage, mainly to achieve final success in a conflict.” With regard to the U.S.-Russia confrontation, another key feature has surfaced: asymmetry between the sides’ capabilities. ', 'POWER ASYMMETRIES AND ASYMMETRIC ACTIONS ', 'Although Gerasimov was referring to a hybrid war when discussing new means and methods of warfare, this analysis uses the newly fashionable term to describe the current U.S.-Russia confrontation. Unlike its Cold War predecessor, this conflict is asymmetrical. At least since the 1970s, the Soviet Union was the United States’ equal in terms of both nuclear and conventional military power. Even beyond its own vast land mass and immediate sphere of influence in Eastern Europe, it wielded considerable ideological power in many Western countries and in the Third World and presided over a system of alliances in Africa, Asia, Europe, Latin America, and the Middle East. The Russian Federation, by contrast, has few formal allies, no satellite states, and a handful of protectorates, if one includes the self-proclaimed states of Abkhazia, Donbass, South Ossetia, and Transnistria. It has no ideology to compare with the comprehensive dogma of Marxism-Leninism, and although it is still a nuclear superpower, it lags far behind the United States in non-nuclear military capabilities. Economically, Russia—with its estimated 1.5 percent of the global gross domestic product—is a dwarf. ', 'Neither the balance nor the correlation of forces, however, will determine the outcome of this confrontation. Despite the glaring asymmetries in the national power of the two sides of the conflict, the course of events is not predetermined. As a nonlinear, highly asymmetrical conflict, the outcome likely will result from domestic developments in Russia or the United States or both. Both countries are facing serious problems that could prove decisive in the final calculations of the Hybrid War. ', 'The United States is going through a triple crisis of its political system, exemplified but not caused by the arrival of President Donald Trump and the virulent domestic opposition to him and his policies. A crisis of social values lies beneath this political crisis and points to a widening gap between the more liberal and the largely conservative parts of the country. At the same time, the United States faces a crisis within its own foreign policy as it struggles to reconcile the conflict between the more inward-looking U.S. national interest and the international liberal order of the U.S.-led global system. ', 'Russia, though outwardly stable, is approaching its own major crisis as the political regime created by Putin faces an uncertain future after the eventual departure of its figurehead. Putin’s Kremlin is already working on a political transition that would rejuvenate the elite and improve its competence and performance, but, at the same time, Russian society is also changing and Putin’s heirs cannot take its support for granted. Gross inequality, sluggish economic growth, low vertical mobility, and high-level corruption will present a range of serious challenges to the future Russian leadership. ', 'The eventual outcome of the Hybrid War could be reminiscent of the downfall of the Soviet Union, which was far less the result of the U.S.-Soviet Cold War than of a misguided effort to reform the Soviet Union itself. Russia might break down and break up again, or it might decide on a foreign policy more geared toward its economic needs than to a certain concept of world order. As for the United States, it might decide to limit its global commitments and redesign its international role as the world’s preeminent but no longer dominant state. Yet, in doing so, it will need to accept that its change in status will come with a certain price and that it will not be able to take advantage of the benefits of the position it once enjoyed. ', 'Asymmetries in power lead to asymmetric actions, which as Gerasimov suggested are intended to “neutralize the enemy’s superiority in warfare” or “identify and exploit the enemy’s vulnerabilities.”5 By an order of magnitude—or more—Russia is outgunned, outmanned, and outspent by the combined forces of the United States and its allies. To stay in the fight, it must rely on its few comparative advantages and seek to use them to maximum effect. These advantages include the geographical proximity of some of the main theaters of operation, such as Crimea and eastern Ukraine, where Russia has escalation dominance; the Russian political system, which allows for secretive, swift, and decisive action; and Moscow’s willingness to take much higher risks in view of the disproportionally higher stakes involved for the Russian leadership and a national culture that historically has tolerated higher losses in defense or protection of the Motherland. Through swift decisions and actions, made without prior warning, Russia is capable of surprising its adversaries and keeping them off-balance. This situation promises an uncertain, hard-to-predict, and risky environment, where miscalculation can lead to incidents or collisions that, in turn, lead to escalation. Granted, these incidents would be of a different kind than the tank standoff at Berlin’s Checkpoint Charlie in late October 1961 or the Cuban Missile Crisis barely a year later. Escalation resulting from miscalculation would not be automatic, but the wider damage it could cause needs to be taken seriously. ', 'AVOIDING MISTAKES LEADING TO ESCALATION ', 'The Hybrid War is highly dynamic and, so far, has no agreed-upon rules. In this sense, it resembles the Cold War of the early 1950s rather than that of the 1970s. However, it is possible, up to a point, to avoid military escalation during the Hybrid War. U.S.-Russian antagonism does not mean that the two countries’ interests are in total opposition. Unlike in the second half of the twentieth century, neither party envisions a real shooting war against its adversary and neither wants to allow the situation to become uncontrollable. The most obvious ways to manage the confrontation are incident prevention, confidence building, and arms control. ', 'Incident prevention, on the face of it, should be easy. Since the early 1970s, Moscow and Washington have had agreements in place to avoid incidents, which in the Cold War days carried the risk of escalation to nuclear levels. Effective prevention requires a degree of professionalism, adequate safety measures, and reliable channels of communications. However, during a Hybrid War, these preconditions cannot be taken for granted. Acting from a position of relative weakness, Russia is likely to compensate for its inferior overall strength by raising the stakes of confrontation.']

[(7, 16)]

ebc7286e049a6ac61ac5d5149d5068a1851e0f6b2f7345a7877380d0716a314d

The plan ensures defendants’ counsel can challenge FISA warrants underlying criminal evidence. This creates a backstop against inappropriate policing.

Ashley Gorski & Patrick Toomey 2/5, Gorski is Staff Attorney and Toomey is Senior Staff Attorney, both at ACLU, “The Government is Using its Foreign Intelligence Spying Powers for Routine Domestic Investigations,” ACLU, 02/05/2020,

when the government uses ev in a criminal case, defendants have the right to review the application a commonsense requirement and bedrock due process The defendant counsel , is best positioned to identify misrepresentations But FISA defendants never get that The I G exposed shocking misstatements If this can happen in an adviser to the president , one can imagine abuses that affect other s less connected lack of disclosure encourages these abuses Congress has responsibility to make clear that, when the government relies on FISA in a criminal prosecution , defendants have a right to review applications

FISA gives the government an extraordinarily powerful surveillance tool the government is increasingly using these broad and intrusive spying powers in run-of-the-mill criminal investigations against Americans , circumventing Fourth Amendment rights . For instance, the government recently relied on FISA surveillance to charge a man in Washington D.C. with crimes related to mortgage fraud . It used FISA to spy on Temple University physics professor, Xiaoxing Xi, before charging him with wire fraud And in Michigan, the government revealed that it used FISA surveillance in a prosecution for food-stamp fraud . That’s as far from espionage or national security as you can get. To make matters worse, people caught up in FISA prosecutions face immense hurdles in vindicating their due process rights and holding the government accountable Normally, when the government uses wiretap ev idence in a criminal case, defendants have the right to review the government’s application in order to challenge any errors and omissions. This is a commonsense requirement and a bedrock due process protection : The defendant , with the assistance of counsel , is best positioned to identify potential misrepresentations But when it comes to FISA defendants never get that opportunity — even when the government relies on FISA surveillance in ordinary criminal prosecutions. In the 40 years since FISA was enacted , no defendant has ever been able to review the government’s FISA application. The I G report on FISA abuses shows exactly why that’s a problem . The report exposed a shocking number of misstatements and omissions in the government’s FISA applications to surveil former Trump campaign advisor Carter Page. If this abuse can happen in the case of an adviser to the now- president , one can only imagine the surveillance abuses that affect other individual s less connected than Page. in 2000, the government confessed that 75 applications it had submitted to the FISA court contained misstatements and omissions The one-sided secretive nature of the FISA process, combined with the lack of disclosure to criminal defendants, encourages these abuses courts must give defendants access to FISA materials consistent with due process , as Congress anticipated when it enacted FISA. Congress has a responsibility to reform the statute to make clear that, when ever the government relies on FISA in a criminal prosecution , defendants have a right to review the applications and orders that led to the surveillance

extraordinarily powerful surveillance tool using run-of-the-mill criminal investigations against Americans Fourth Amendment rights mortgage fraud wire fraud food-stamp fraud as far from espionage or national security as you can get. immense hurdles vindicating ev review the government’s application commonsense requirement bedrock due process protection assistance of counsel best positioned misrepresentations FISA never get that opportunity even when 40 years since FISA was enacted no defendant has ever been able to review the government’s FISA application. I G report exactly why that’s a problem shocking number of misstatements and omissions adviser to the now- president other s less connected 75 applications misstatements omissions one-sided secretive nature lack of disclosure to criminal defendants, encourages these abuses must give defendants access to FISA materials consistent with due process Congress has a responsibility when relies on FISA in a criminal prosecution have a right to review the applications and orders that led to the surveillance

['FISA gives the government an extraordinarily powerful surveillance tool. Under FISA, the government can ask a secret court, the Foreign Intelligence Surveillance Court, for approval to wiretap individuals to obtain “foreign intelligence information.” As compared to ordinary criminal wiretaps, for which the government must establish probable cause that the wiretap will yield evidence of a particularcrime, FISA surveillance is based on relaxed standards, allowing the government to conduct surveillance with fewer restraints. In recent years, the government has relied on FISA to deploy an array of novel and intrusive surveillance techniques — implicating the privacy rights of countless Americans who have never been suspected of any crime.', 'Disturbingly, the government is increasingly using these broad and intrusive spying powers in run-of-the-mill criminal investigations against Americans, circumventing their Fourth Amendment rights. For instance, the government recently relied on FISA surveillance to charge a man in Washington D.C. with crimes related to mortgage fraud. It used FISA to spy on Temple University physics professor, Xiaoxing Xi, before charging him with wire fraud — in a prosecution that was ultimately dismissed. And in Michigan, the government revealed that it used FISA surveillance in a prosecution for food-stamp fraud. That’s about as far from espionage or national security as you can get.', 'To make matters worse, people caught up in FISA prosecutions face immense hurdles in vindicating their due process rights and holding the government accountable.', 'Normally, when the government uses wiretap evidence in a criminal case, defendants have the right to review the government’s application in order to challenge any errors and omissions. This is a commonsense requirement and a bedrock due process protection: The defendant, with the assistance of counsel, is best positioned to identify potential misrepresentations by government agents. But when it comes to FISA surveillance, defendants never get that opportunity — even when the government relies on FISA surveillance in ordinary criminal prosecutions. In the 40 years since FISA was enacted, no defendant has ever been able to review the government’s FISA application.', 'The Department of Justice Inspector General’s recent report on FISA abuses shows exactly why that’s a problem. The report exposed a shocking number of misstatements and omissions in the government’s FISA applications to surveil former Trump campaign advisor Carter Page. If this abuse can happen in the case of an adviser to the now-president, one can only imagine the surveillance abuses that affect other individuals less connected than Page.', 'Indeed, in 2000, the government confessed that 75 surveillance applications it had submitted to the FISA court contained misstatements and omissions of material facts. In 2014, a press report revealed that five prominent Muslim Americans, including one who had served in the Bush administration, were apparently targeted for surveillance. ', 'The one-sided and secretive nature of the FISA process, combined with the lack of disclosure to criminal defendants, encourages these abuses. As our amicus brief in Mr. Osseily’s case explains, courts must give defendants access to FISA materials consistent with due process, as Congress anticipated when it enacted FISA.', 'While the courts must do more to uphold the rights of defendants subject to FISA surveillance, Congress also has a responsibility to reform the statute to make clear that, whenever the government relies on FISA in a criminal prosecution, defendants have a right to review the applications and orders that led to the surveillance.']

[(7, 15), (24, 34)]

4ee2b179cbd21f822d05c71fd2b2548578e4997bb45bc0f73009740a758cb85e

It threads the needle, causing downstream effects for the entire FISA process without unduly limiting investigation speed.

Stephen Vladeck & Robert Chesney 4/1, Vladeck is A. Dalton Cross Professor in Law at the University of Texas School of Law, where he specializes in national security law, especially with relation to the prosecution of war crimes; Chesney is Charles I. Francis Professor in Law at The University of Texas School of Law, where he serves as the Associate Dean for Academic Affairs and teaches courses relating to U.S. national security and constitutional law, “Episode 161: This Podcast Was Recorded “Before There Were Privacy Laws” The National Security Law Podcast.” Transcribed by Otter, edited by Truf, 04/01/2020, www.nationalsecuritylawpodcast.com, https://www.nationalsecuritylawpodcast.com/episode-161-this-podcast-was-recorded-before-there-were-privacy-laws/

a situation in which the target is involved is tantamount to not doing it at all . What would enable speed and efficiency without tipping off in advance? ex ante tools are hard to defend the right way is after the fact checking that exert pressure to be cleaner on the front end FISA provides what is supposed to be a Franks Hearing has been read incredibly narrowly one of the ways to pressure the government to have its ducks in a row is to put teeth into the right to attack the application when the government's going to use evidence in a trial it's a tiny fraction of FISA but the hydraulic pressure of knowing this could be scrutinized by a judge in a motion to suppress would have a salutary effect security-cleared defense counsel have a duty to represent their clients They're best situated to look for problems because they know the case best amicus is a huge disadvantage incentivizing reduction of shenanigans , of sloppiness , and more care

Obviously we not only are not going to but should not move to a situation in which the proposed target of the surveillance is involved in any way and I don't know anyone who would argue otherwise because that's [that is ] tantamount to just not doing it at all . What would be a reasonable way to enable the requisite speed and efficiency of trying to monitor foreign agents foreign intelligence threats, foreign terrorism threats, without tipping off in advance? ex ante tools are much hard er to defend normatively than ex post tools because, you know, in this context, what would ex ante tools look like? You're not going to put a lawyer in the FISA court to argue against the government's FISA application the right way to do this is after the fact checking and auditing mechanisms that exert hydraulic pressure on the process to be cleaner on the front end FISA provides a procedure in any criminal case in which the government wants to introduce evidence derived from FISA for the defendant to collaterally attack the underlying FISA warrant . The statute 50 USC Section 1806(f) provides at least what looks like it's [it is ] supposed to be what's called a Franks Hearing the idea is that if the defendant can offer some non-speculative, some sort of plausible reason for thinking that there might be a problem with the warrant application, then he, or at least his security-cleared lawyer, should be allowed to look at the underlying application to help the judge determine whether it was invalid . This has been read quite narrowly by the courts that have carefully considered it the seventh circuit read 1806(f) incredibly narrowly it's worth having a conversation about whether 1806(f) is actually serving its purpose , and whether one of the other ways to put pressure on the government to really have its ducks in a row when it's pursuing a FISA application is to put more teeth into the defendant's right to collaterally attack the application when the government's going to use evidence against him in a criminal trial it's a tiny fraction of FISA cases that ever end up in that context, where the government's trying to bring 1806 evidence, trying to bring FISA evidence into a criminal case triggering 1806(f), but the hydraulic pressure of having that out there, and of the government knowing that this application could , one day, be scrutinized by a n Article III non-FISA judge in the context of a motion to suppress that would have a salutary effect on the rigor and procedural propriety of what the government does it's a question of whether the judge does it ex parte which is what always happens, or if instead the judge actually allows some adversariality in the review of the file security-cleared defense counsel have a duty to zealously represent their clients They're the best situated to look for the problems because they know the case best amicus is a huge disadvantage there are ways that would not dramatically upset the government's internal processes , where you could put real teeth into the back-end checking mechanisms that are out there that would go a long way toward incentivizing reduction of shenanigans , reduction of sloppiness , and much more care on the government's part

are not should not proposed target involved in any way tantamount to just not doing it at all would reasonable way speed and efficiency without tipping off in advance? ex ante much hard to defend lawyer right way after the fact checking auditing hydraulic pressure cleaner on the front end procedure criminal case defendant collaterally attack the underlying FISA warrant 50 USC Section 1806(f) Franks Hearing look at the underlying application invalid quite narrowly by the courts seventh circuit incredibly narrowly actually serving its purpose pressure on the government teeth into the right to attack the application when the government's going to use evidence against him in a criminal trial tiny fraction hydraulic pressure scrutinized by a motion to suppress salutary effect on the rigor and procedural propriety of what the government does ex parte adversariality duty zealously represent their clients best situated to look for the problems know the case best amicus huge disadvantage not dramatically upset the government's internal processes real teeth back-end checking mechanisms incentivizing reduction of shenanigans sloppiness care

['Robert Chesney 22:16 ', "What is it you would want to see? Okay, so we should articulate what you and I know is the countervailing consideration that that acts as the counterweight in this process. Obviously, we're not going to move, not just as a predictive matter, but I'm suggesting as a merits matter, we not only are not going to but should not move to a situation in which the proposed target of the surveillance is involved in any way and I don't know anyone who would argue otherwise because that's [that is] tantamount to just not doing it at all. What is it you think would be a reasonable way to enable the requisite speed and efficiency of trying to monitor foreign agents foreign intelligence threats, foreign terrorism threats, without tipping off in advance? Are you interested in having, creating more ex ante anticipation of review by creating stronger post hoc tools? Do you want to instead see more ex ante or contemporaneous tools? ", 'Steve Vladeck 25:29 ', "I think this actually dovetails with stuff I've written about more generally, I think national security law is a field of law where ex ante tools are much harder to defend normatively than ex post tools because, you know, in this context, what would ex ante tools look like? You're not going to put a lawyer in the FISA court to argue against the government's FISA application, because you know, who's gonna know who the target is, besides the government? No, I mean, I think the the right way to do this, Bobby, is a series of after the fact checking and auditing mechanisms that exert hydraulic pressure on the process to be cleaner on the front end. And so instead of a one off Horwitz audit, right, what about regular audits of individual, of a randomly selected cross section of Title I applications?", 'Robert Chesney 26:26 ', "So for example, taking exactly what's done here, and having this be a statutorily required recurring process that ensures that an agent who's in a huge rush, is under tremendous pressure, puts their life on the line on a regular basis, and is worried about other people's lives, nonetheless knows that, it's not just an easy out where you can blow off something, yeah, Woods Procedures, fill in the blank, I said a few words, now onto the thing I want to work on, but rather knows that there's a decent chance that happens all the time that somebody's case from last year gets pulled for audit and then you get blasted and it looks bad on review. And if you know that's the case then you tick the needle over a little bit into how much time and effort the agents will put into actually following the procedures, which on their face are good procedures, it's the execution we're being told here is shoddy. I think that actually to me, sounds pretty reasonable. You know, I am not moving closer to your view. I think both of us are just going to keep the same relative distance between us in terms of general level of trust. I'm assuming your general level of trust is going down, mine's moving some, we may just be moving in lockstep - a lowering tide lowering all boats proportionally. ", 'Steve Vladeck 27:46 ', 'Although I started much lower. ', 'Robert Chesney 27:47 ', 'Yeah, you\'re starting much lower. I\'m starting much higher. And but I nonetheless think what you\'re describing sounds pretty reasonable and frankly, not particularly disruptive. I appreciate that you\'re focusing on ex post procedures as opposed to what the usual argument you hear people say is, "oh, we gotta put an amicus in there in all settings to litigate the way that America does litigation." All right, hold on, I have some requests for you to go fill out! I\'ve got a lot of paperwork for you now to consider.', 'Steve Vladeck 28:15 ', 'But so I said I had three ideas, and I wanted to sort of get them all on the table. ', 'Robert Chesney 28:18 ', 'Okay, that was just one. ', 'Steve Vladeck 28:19 ', 'Right. So one is one is mandate, by statute, periodic random audits of Title I applications. The second, and this is gonna sort of be in some tension with what you just said, but in the cases in which there already is authority to appoint an amicus, I would go back to the original proposal in the what was called the Leahy Bill in the 2015 FISA reform, the 2014-2015 FISA reform, and make the amicus not an amicus, make it mandatory. Not in all cases, Bobby, for the reasons you say, but stop having this sort of mechanism where it depends upon the court saying "I need help," right, as opposed to, mandateing the participation, at least in those cases where the statute already allows participation, which is to say, cases raising novel questions of law, or important questions of law under the statute. And then the...', 'Robert Chesney 29:14 ', 'Before the third one, I just want to ask a question about that one. ', 'Steve Vladeck 29:15 ', 'Yeah. ', 'Robert Chesney 29:16 ', "Would you would you agree the - both Horowitz reports, very, very problematic findings. They're not about that. That, to me is about the sorts of issues that were raised by... ", 'Steve Vladeck 29:30 ', "That's right. And it's not clear to me that an amicus participating in the FISA court process, even in a Title I case, like a Carter Page type case, would have anywhere near enough information to actually, you know, point out the things that Horowitz can point out from behind the scenes as the Inspector General.", 'Robert Chesney 29:50 ', "I'd be very opposed to that sort of participation.", 'Steve Vladeck 29:53 ', "Right. Which is why it should be, you know, sort of, in the cases where the statue already exists, just make it a stronger power. But then third, and this is the one that I think comes back to Title I. So, you know, but I think listeners may not sort of follow this jot and tiddle, that FISA itself provides a procedure in any criminal case in which the government wants to introduce evidence derived from FISA for the defendant to collaterally attack the underlying FISA warrant. The statute, I think it's 1806(f), 50 USC Section 1806(f), provides at least what looks like it's [it is] supposed to be what's called a Franks Hearing, and this is named after the 1978 Supreme Court case, Franks v. Delaware. And the idea is that if the defendant can offer some non-speculative, some sort of plausible reason for thinking that there might be a problem with the warrant application, then he, or at least his security-cleared lawyer, should be allowed to look at the underlying application in order to help the judge determine whether it was invalid. This provision has been read quite narrowly by the courts that have carefully considered it. I think, Bobby, you might remember the seventh circuit's 2014 decision in the Daoud case, which was the most prominent one, where Judge Posner really went after a district judge who had, the district judge basically said in order to know which materials are relevant to the Franks Hearing, I need the security-cleared defense lawyer to be able to see the whole application. And Posner says, that's totally crazy. And read 1806(f) incredibly narrowly. I think it's worth having a conversation, Bobby, about whether 1806(f) is actually serving its purpose, and whether one of the other ways to put pressure on the government to really have its ducks in a row when it's pursuing a FISA application is to put more teeth into the defendant's right to collaterally attack the application if and when the government's going to use evidence against him in a criminal trial. Now, I should say, I mean, this is not a surprise to anyone, it's a tiny fraction of FISA cases that ever end up in that context, where the government's trying to bring 1806 evidence, trying to bring FISA evidence into a criminal case triggering 1806(f), but Bobby, again, I think the hydraulic pressure of having that out there, and of the government knowing that this application could, one day, be meaningfully scrutinized by an Article III, civilian, you know, non-FISA Court judge in the context of a motion to suppress, you know, I have to think that would have a salutary effect on the rigor and procedural propriety of what the government does.", 'Robert Chesney 32:40 ', "So would you feel equally comfortable if, so, the status quo is that it's clear, the judge certainly has authority to consider it - it's a question of whether the judge does it ex parte which is what always happens, or if instead the judge actually allows some adversariality in the review of the file. Would you be more or less satisfied if there was an amicus in that context so that it was not the defendant's own lawyer? Because you put the defendant's own lawyer in a pretty impossible position if they get exposed - first of all, the majority of these cases, they're not going to be in a position to have the clearances, and it's going to gum up the works to try to get them to that position. ", 'Steve Vladeck 33:18 ', "Is that true? Is that true that in a majority of these cases, the defendant doesn't have the security clear defense counsel? ", 'Robert Chesney 33:24 ', "I don't know. I don't know. That's just my assumption. That was...", 'Steve Vladeck 33:27 ', "My anecdotal experience, Bobby, and anecdotes are not data, but my anecdotal experience, the cases I'm familiar with, all invariably involve security-cleared defense counsel. I'm sorry, I didn't mean to throw you off.", 'Robert Chesney 33:38 ', "No, that's good. It's a fair point because I was asserting it like it's empirically documented. I don't know. So I'm happy to - let's just assume it's otherwise, they've all got clearance. They also have a duty to zealously represent their clients and you put them in a very difficult, difficult ethical position. They're the ones best situated to look for the problems, of course, because they know the case best, and amicus is a huge disadvantage. On the other hand, putting them in a position to potentially be exposed to information that the client may not be told is, as we learned in, say, the Moussaoui litigation and some other settings, that can be really problematic, too. But I also think you're just much more likely to actually get such an innovation if the 1806(f) motion to get some adversariality involved ran towards getting one of the standing amicus persons involved. Now that said, I that's actually, I think that's already within the courts authority. And it may be something they could do without any type of obligation. ", 'Steve Vladeck 34:38 ', "But you could make it mandatory. You could make it mandatory. You could also sort of tie the existing amucus provisions in the FISA court to 1806(f) in civilian court. I just think there are there are ways, Bobby, that would not dramatically upset the government's internal processes, where you could put some real teeth into some of the few, sort of, back-end checking mechanisms that are out there that I think would go a long way toward incentivizing, sort of, reduction of shenanigans, reduction of sloppiness, and much more care on the government's part."]

[(8, 17), (25, 36)]

72158778ac311da7b9232354eee9e059384693d6f31c8134912ec486b32dab3b

That decimates the ITC, preventing its use for Lacey Act enforcement. That solves global environmental crimes.

Beau Jackson & Michael Buckler 15, Beau Jackson is an associate in Adduci Mastriani & Schaumberg's Washington, D.C., office. Michael Buckler is the CEO and general counsel of Village X Inc., a nonprofit that crowd funds donations to community-led projects with quantifiable impacts in developing countries and provides live picture updates of project impacts, “Unfair Trade Practice? Prove It Under Section 337,” Law360, 10/21/15, https://www.law360.com/articles/713250/unfair-trade-practice-prove-it-under-section-337

the I T C could be effective against unlawful practices a range profoundly broad already include trade secrets designation of origin labeling ad s Copyright and antitrust rewards complainants with exclusion can leverage the appeal of the U.S. marketplace to promote fairer markets The Lacey Act is powerful for demonstrating unfairness makes it unlawful — and thus unfair “to import any fish wildlife plant sold in violation competitors flouted U.S. or foreign environmental law for bringing a commodity at an artificially low price the ITC is an excellent forum to make the world more equitable

Section 337 of the Tariff Act of 1930 — a trade statute administered by the U.S. I nternational T rade C ommission — could be an effective weapon against unlawful trade practices Although Section 337 is best known as an intellectual property enforcement mechanism, the statute exists to protect U.S. industries and the American public from a range of unfair acts . The language is profoundly broad already construed to include misappropriation of trade secrets , false designation of origin , false labeling false ad verti s ing , violation of the Digital Millennium Copyright Act and antitrust Section 337 rewards successful complainants with a powerful remedy: an exclusion order blocking the importation of goods associated with the unfairness. The ITC may also issue cease and desist orders that prohibit respondents from marketing , distributing or selling in the U S Section 337’s reach is international and its adjudication is fast , making the ITC a compelling venue In this way, Section 337 can leverage the appeal of the U.S. marketplace to promote fairer and freer markets worldwide. Conflict Minerals the smartphone or gaming system may contain raw materials mined by militias in war-torn countries. In August 2012, the S E C implementing Dodd-Frank requir ing all publicly traded companies to disclose use of minerals associated with conflict and used in consumer goods Failure to comply could give rise to a Section 337 action , to the extent companies save money by not complying and, thus, are able to import and sell products to U.S. consumers at prices below those of their competitors Another “unfair act” that could potentially trigger this type of case is the acquisition and use of conflict minerals in derogation of a foreign sovereign’s law In theory, Section 337 could reach companies trading in certain minerals mined in Congo without performing the required Congolese compliance , where those activities result in an importation into the U S Environmental Degradation The Lacey Act is a powerful weapon for demonstrating unfairness related to importation. Incredibly broad, the Lacey Act makes it unlawful — and thus unfair when undertaken for business advantage — “to import , export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce ... any fish or wildlife any plant or prohibited wildlife species taken, possessed, transported, or sold in violation of any law or regulation of any state or in violation of any foreign law “Taken” encompasses “captured, killed, or collected and, with respect to a plant, also means harvested, cut, logged, or removed.” Collectively, these terms encompass an enormous number of product lines of the Harmonized Tariff Schedule of the United States. A Section 337 investigation could be premised on the unfair act of importing an article in violation of the Lacey Act . Such a case would likely involve an allegation that the complainant’s competitors have flouted U.S. or foreign environmental law for the purpose of bringing a commodity to market at an artificially low price companies could be accused of importing seafood caught in prohibited waters or in violation of conservation treaties or of importing lumber harvested in protected forests. If a complainant can establish a case unfair acts or methods of competition, nexus between unfairness and importation and injury to a domestic industry the ITC is an excellent forum in which to challenge harmful trade practices and, hopefully, make the world a more equitable place

I T C effective weapon unlawful trade practices range of unfair acts profoundly broad already trade secrets designation of origin labeling ad s Copyright antitrust exclusion order marketing distributing selling U S fast compelling venue appeal of the U.S. marketplace fairer markets Conflict Minerals militias S E C Dodd-Frank requir disclose use of minerals associated with conflict consumer goods comply 337 action foreign sovereign’s law reach companies trading in certain minerals mined in Congo Congolese compliance U S Environmental Degradation Lacey Act demonstrating unfairness unlawful unfair fish wildlife plant prohibited wildlife species foreign law Section 337 investigation violation of the Lacey Act flouted U.S. or foreign environmental law seafood lumber excellent forum more equitable place

['Ninety percent of seafood consumed in the United States is imported. Could a U.S. seafood company prohibit the importation of a Thai competitor’s illegally harvested fish? The vast majority of apparel sold in the United States is imported. Could a clothing company exclude from the U.S. market garments that a competitor in Vietnam made with illegal child labor? The answer to these questions is yes: Section 337 of the Tariff Act of 1930 — a trade statute administered by the U.S. International Trade Commission — could be an effective weapon against these and other unlawful trade practices. ', 'Although Section 337 is best known as an intellectual property enforcement mechanism, the statute exists to protect U.S. industries and the American public from a range of unfair acts. The language of Section 337(a)(1)(A) — “[u]nfair methods of competition and unfair acts” incident to the importation of products — is profoundly broad, and “unfairness” is not defined in the statute or its legislative history.[1] The ITC has already construed unfairness to include misappropriation of trade secrets, false designation of origin, false labeling, false advertising, violation of the Digital Millennium Copyright Act and antitrust violations.[2] Section 337 rewards successful complainants with a powerful remedy: an exclusion order blocking the importation of goods associated with the unfairness. The ITC may also issue cease and desist orders that prohibit respondents from marketing, distributing or selling products in the United States. ', 'Section 337’s reach is international and its adjudication is fast, making the ITC a compelling venue for a company or interest group opposed to an unlawful practice overseas that affects the United States through trade.[3] Upon institution of an investigation, a complainant can immediately serve the respondents — domestic and foreign — with discovery requests seeking information about their business practices. Respondents failing to appear can be held in default. In this way, Section 337 can leverage the appeal of the U.S. marketplace to promote fairer and freer markets worldwide. ', 'Prevailing on Non-IP Claims Under Section 337 ', 'To establish a prima facie case under Section 337(a)(1)(A), a complainant must demonstrate: (1) unfair methods of competition or unfair acts; (2) relating to imported merchandise; and (3) injury to a U.S. industry from such imports. ', 'Unfair Methods or Acts ', '“What is unfair under Section 337(a)(1)(A)?” is a threshold question for any entity seeking to use the statute to challenge imports that do not infringe statutory IP. Notably, the Senate report accompanying the original passage of the statute explained that “[t]he provision relating to unfair methods of competition in the importation of goods is broad enough to prevent every type and form of unfair practice and is, therefore, a more adequate protection to American industry than any antidumping statute the country has ever had.”[4] ', 'The predecessor court to the U.S. Court of Appeals for the Federal Circuit recognized that Section 337’s prohibitions are: ', 'broad and inclusive and should not be held to be limited to acts coming within the technical definition of unfair methods of competition as applied in some decisions. The importation of articles may involve questions which differ materially from any arising in purely domestic competition, and it is evident from the language used that Congress intended to allow wide discretion in determining what practices are to be regarded as unfair.[5] ', 'The ITC has intervened where alleged unfairness in the importation of articles threatens “the assurance of competitive conditions in the United States economy,”[6] even for the purpose of halting such unfairness in its incipiency.[7] In light of its broad scope as written and interpreted, Section 337(a)(1)(A) is practically unbounded. ', 'Bottom line: If unfair methods or acts overseas threaten the free and fair operation of the U.S. marketplace, Section 337 may apply. For example, it would be unfair for a Malaysian manufacturer exporting to the United States to pay its workers a wage so low that it violates Malaysian law. ', 'Nexus Between Unfairness and Importation ', 'As the ITC has explained: ', 'It is obvious from our traditional role, not to mention our remedial provisions, that Congress intended Section 337 to attack only unfair trade practices which relate to imported products. It then becomes crucial to discern some nexus between unfair methods or acts and importation before this commission has power to act. ', 'A Chinese company manufacturing widgets for the U.S. market would engage in unfairness by defrauding its suppliers into providing it goods and services for free, and such fraud might allow the manufacturer to import the widgets into the United States at an artificially low price. Yet, if the manufacturer pocketed the ill-gotten gains and imported the widgets into the United States at a fair price, the unfairness, while unfortunate for the foreign suppliers, would be too removed from the United States to justify Section 337’s involvement. Likewise, if a U.S. retailer of the Chinese manufacturer’s widgets committed fraud only in the post-importation sale of widgets, Americans might suffer, but the ITC would stand idle, deferring to the jurisdiction of U.S. federal and state courts. ', 'Bottom line: A complainant must connect the alleged unfairness to the importation of articles. For example, show that underpaid workers produced the imported goods, allowing the goods to be sold in the United States at an artificially low price. ', 'Injury to a U.S. Industry ', 'A complainant under Section 337(a)(1)(A) must have a domestic industry that is the target of the unfair methods or acts. “The commission does not adhere to any rigid formula in determining the scope of the domestic industry as it is not precisely defined in the statute, but will examine each case in light of the realities of the marketplace.”[8] Generally speaking, a company with U.S. employees that expends resources in the United States — whether on manufacturing, customer service, research and development, etc. — should be able to establish a domestic industry under Section 337(a)(1)(A). ', "A complainant must then show substantial injury from the unfairness — either real or threatened. The ITC's injury determinations tend to focus on five factors: (1) the respondent’s volume of imports and penetration into the market; (2) the complainant’s lost sales; (3) underselling by the respondent; (4) the complainant’s declining production, profitability and sales; and (5) harm to goodwill and reputation.[9] The ITC considers three additional criteria in assessing threat of substantial injury: (1) foreign cost advantages and production capacity; (2) the ability of the imported product to undersell the complainant’s product; or (3) substantial foreign manufacturing capacity combined with the respondent’s intention to penetrate the U.S. market.[10] While showing injury (or threat thereof) can entail complex economic analyses, in practice, the ITC has not imposed a high threshold for satisfying this element of Section 337(a)(1)(A). ", 'Bottom line: Connect the unfairness to real or threatened injury. For example, show that the goods imported at an artificially low price have or will likely erode the market share of a company operating in the U.S. market, regardless of whether that company manufactures here. ', 'Hypothetical Cases Under Section 337 ', 'Conflict Minerals ', 'Many U.S. consumers would be surprised to learn that their smartphone or gaming system may contain raw materials mined by militias in war-torn countries. In August 2012, the U.S. Securities and Exchange Commission issued a rule implementing Section 1502 of the Dodd-Frank Act, requiring all publicly traded companies to disclose their use of certain minerals associated with conflict and used in consumer goods.[11] Failure to comply could give rise to a Section 337 action, to the extent companies save money by not complying and, thus, are able to import and sell products to U.S. consumers at prices below those of their competitors who expend resources complying with the law. ', 'Another “unfair act” that could potentially trigger this type of case is the acquisition and use of conflict minerals in derogation of a foreign sovereign’s law. In February 2012, the government of the Democratic Republic of the Congo codified a requirement that all mining and mineral trading companies operating in the country perform supply chain due diligence to ensure their purchases are not supporting warring parties in that country. In theory, Section 337 could reach companies trading in certain minerals mined in Congo without performing the required Congolese compliance, where those activities result in an importation into the United States. ', 'Child Labor ', 'The illegality of child labor is widely recognized. The United Nations Convention on the Rights of the Child recites basic human rights for all children, including the right to protection from economic exploitation.[12] Additionally, the Minimum Age Convention requires countries to ensure that children below a certain minimum age (which varies depending on the activity) are not employed.[13] Section 337 may be well-situated for claims based on the importation of articles produced with child labor in contravention of these treaties. ', 'A violation of the national labor laws of the country-of-origin of imported goods could also trigger a Section 337 case. Indeed, “nations that violate [their own] fair labor laws and accepted standards ... [can] accrue an unfairly gained competitive advantage through unfair reduction of the cost of labor, a major input in the cost of production, thereby distorting trade.”[14] This practice has been labeled “social dumping,” defined as the “export of products that owe their competitiveness to low labor standards.”[15] A Section 337 investigation could improve standards for child workers in poor countries by threatening import-driven segments of the U.S. marketplace that traffic in goods made by such children. ', 'Environmental Degradation ', 'The Lacey Act is a powerful weapon for demonstrating unfairness related to importation. Incredibly broad, the Lacey Act makes it unlawful — and thus unfair when undertaken for business advantage — “to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce ... any fish or wildlife[,] ... any plant,” or “any prohibited wildlife species” that has been “taken, possessed, transported, or sold in violation of any law or regulation of any state or in violation of any foreign law.”[16] “Taken” encompasses “captured, killed, or collected and, with respect to a plant, also means harvested, cut, logged, or removed.”[17] Collectively, these terms encompass an enormous number of product lines of the Harmonized Tariff Schedule of the United States. ', 'A Section 337 investigation could be premised on the unfair act of importing an article in violation of the Lacey Act. Such a case would likely involve an allegation that the complainant’s competitors have flouted U.S. or foreign environmental law for the purpose of bringing a commodity to market at an artificially low price. For example, companies could be accused of importing seafood caught in prohibited waters or in violation of conservation treaties, [18] or of importing lumber harvested in protected forests. ', 'Food and Drug Safety ', 'Only 2 percent of U.S. seafood imports are inspected by the U.S. Food and Drug Administration before entering the U.S. market.[19] One public interest group found that 33 percent of samples were mislabeled and thus sold to unsuspecting consumers under false, and potentially dangerous, pretenses.[20] Sushi vendors and grocery stores were businesses found most likely to sell mislabeled food. A U.S. seafood company could use Section 337 to challenge the importation of competing, mislabeled fish. ', 'U.S. drug products are increasingly imported from emerging economies, such as India and China, yet the FDA cannot conduct sufficient oversight of foreign plants to ensure compliance with U.S. law. [21] To offer competitive pricing and gain market share at the expense of compliant companies, some overseas plants have abdicated good manufacturing practices and, consequently, caused adulteration of the U.S. drug supply. Drug companies who follow the law could use Section 337 to combat the importation of competing drugs made in substandard facilities, thereby protecting U.S. consumers from unsafe medicines. ', 'Conclusion ', 'Section 337 is a powerful trade remedy administered by a nimble, expert agency. Whether a company or interest group can employ the statute to redress non-IP claims depends on the legal and factual contours of each alleged infraction. If a complainant can establish a prima face case — unfair acts or methods of competition, nexus between unfairness and importation and injury to a domestic industry — the ITC is an excellent forum in which to challenge harmful trade practices and, hopefully, make the world a more equitable place.']

[(5, 14), (23, 33)]

609604d16eb46ae1fb9f5ff2b63ba6c6f334f9f4edca7b1003e377fb7227738b

Third, it publicizes the costs of policing. Currently they are hidden because police are funding themselves through forfeitures. The CP forces them to ask legislatures for money to pay takings claims instead. Legislatures will refuse, reducing total forfeitures AND policing.

Donald J. Bourdreaux & Adam C. Pritchard 96, Boudreaux is a Research Fellow at the Independent Institute; Associate Editor of The Independent Review; and Professor of Economics, Senior Fellow with the F.A. Hayek Program for Advanced Study in Philosophy, Politics, and Economics, and the Martha and Nelson Getchell Chair for the Study of Free Market Capitalism in the Mercatus Center at George Mason University; Pritchard is a Professor of Law at the University of Michigan and a Research Fellow at the Independent Institute, “Civil Forfeiture as a “Sin Tax”,” Independent Institute, 1/1/1996, https://www.independent.org/publications/policy_reports/detail.asp?id=9250#_ftnref14

civil-forfeiture proceeds relieve general taxpayers from paying collectively for law enforcement the result is excessively aggressive drug-law enforcement An alternative is to place budget decisions solely in legislatures In this no one has a “revenue advantage” The legislature is appropriate confronts a large number of constituencies better positioned than any bureaucracies to determine if revenue should be used enforcement or schooling or welfare rationally allocate resources a court should ask, “Is this punitive If no ask, “Is the property contraband If it is the government can seize goods if not contraband , absent a criminal conviction , a taking has occurred and compensation must be paid

The random manner in which civil-forfeiture are levied hides from taxpayers a part of the cost of government’s operations . A disproportionate share of these costs are foisted upon owners whose properties law-enforcement agencies only suspect were used in offenses. This group is politically unorganized and generally cannot adequately defend itself against lobbies such as law-enforcement agencies who clamor for civil-forfeiture powers. Property owners have little incentive to form or to join lobbying groups pressing for repeal or reform of civil-forfeiture statutes The proceeds thus relieve the general body of taxpayers from some of the burden of paying collectively for the public good of law enforcement Because the general population of taxpayers does not feel the full cost of government the result is excessively aggressive drug-law enforcement biases result from exploitation of a revenue source that is hidden from general taxpayers An alternative to giving government agencies discretion over their budgets is to place budget decisions solely in the hands of legislatures . When legislatures determine the entire budgets for law-enforcement agencies, legislatures in effect choose a quantity of law enforcement In this scenario no one type of activity has a “revenue advantage” over others in attracting law-enforcement resources heads of law-enforcement agencies will thus make more rational enforcement decisions The legislature is most appropriate for selecting the budget for law-enforcement agencies The legislature confronts a large number of constituencies vying for public funds. Therefore, legislatures are better positioned than any specialized bureaucracies to determine if an additional dollar of public revenue should be used for law enforcement or for schooling or welfare legislatures are better placed to rationally allocate resources than are individual enforcement agencies Civil forfeiture remains however, a source of revenue for government as it wages its war on drugs more can be done by the courts , under the Constitution, to further rein in government’s use of civil forfei­ture more must be done The protections of the criminal process are essential to safeguard innocent parties from overreach Given that one role of the courts is to protect citizens’ constitutional rights from legislative legerdemain , the label attached by the legislature to the forfeiture should be of no consequence. In all cases, a court should ask, “Is this forfeiture punitive ?” If the answer is no (that is, if the court finds that no puni-tive purpose is served by the forfeiture the court should then ask, “Is the property contraband ?” If it is the government can constitutionally seize these goods and destroy them. But if the property is not contraband , absent a criminal conviction , a taking of private property has occurred and under the Fifth Amendment fair compensation must be paid to the dispossessed owner When a court finds that the forfeiture is designed to be punitive, all procedural requirements of the criminal law should be met before the forfeiture is final

random civil-forfeiture hides taxpayers part of the cost of government’s operations suspect politically unorganized defend itself lobbies law-enforcement agencies relieve general body of taxpayers collectively public good of law enforcement full cost result excessively aggressive drug-law enforcement biases exploitation of a revenue source hidden general taxpayers alternative solely legislatures legislatures entire choose quantity no one type of activity has a “revenue advantage” over others more rational enforcement decisions legislature most appropriate large number better positioned than any specialized bureaucracies schooling welfare better rationally allocate resources remains revenue more can be done by the courts rein in must criminal process essential innocent parties overreach legislative legerdemain a court should ask, “Is this forfeiture punitive ?” no contraband ?” is constitutionally seize destroy not contraband absent a criminal conviction taking under the Fifth Amendment fair compensation must be paid to the dispossessed owner is all procedural requirements of the criminal law should be met before the forfeiture is final

['The random manner in which civil-forfeiture taxes are levied hides from taxpayers a part of the cost of government’s operations. A disproportionate share of these costs are foisted upon owners whose properties law-enforcement agencies only suspect were used in the commission of drug offenses. This group is politically unorganized and, hence, generally cannot adequately defend itself against more cohesively organized lobbies—such as law-enforcement agencies—who clamor for liberalized civil-forfeiture powers. Property owners at risk of forfeiture remain unorganized because they do not know who they are before having their properties confiscated under civil-forfeiture statutes. The potential loss of property due to forfeiture is typically a one-time, low-probability event for each property owner. Thus, they have little incentive to form or to join lobbying groups pressing for repeal or reform of civil-forfeiture statutes.[12]', 'The proceeds from civil-forfeiture actions thus relieve the general body of taxpayers from some of the burden of paying collectively for the public good of law enforcement.[13] Because the general population of taxpayers does not feel the full cost of government as readily as it would if government were financed entirely by direct tax payments, the result is excessively large government in general, and overly aggressive drug-law enforcement in particular.[14]', 'CIVIL FORFEITURE AND THE NONOPTIMALITY OF LAW ENFORCEMENT', 'In the previous section, we showed the biases civil forfeiture creates in the legislature; these biases result from exploitation of a revenue source that is at least partially hidden from general taxpayers. In this section, we explore the consequences of civil forfeiture for decisions made in the executive branch, where law-enforcement agencies get to keep all or part of the proceeds from such seizures.', 'As a preliminary step, however, we must first review some basic economics of law enforcement. Law enforcement, like other goods, is scarce. Resources used to enforce laws have alternative valuable uses, such as building more bridges and highways, providing more education, staffing larger social-service agencies, or keeping taxes lower so that private citizens can individually make their own resource allocation decisions. After some point, the gains from using additional resources to police against crime—even heinous crimes such as murder and rape—become smaller than the gains available from using these same resources elsewhere. Thus, completely wiping out all criminal activity would not be socially desirable.', 'As with all economic choices, the optimal amount of law enforcement occurs when the marginal benefit from an additional unit of enforcement just equals the marginal cost of the resources used to produce that additional enforcement. And what is true for law enforcement in general holds also for choices among alternative areas of law-enforcement activity. Each type of crime fighting entails costs. Devoting more crime-fighting resources to vice offenses means that fewer resources are available to police against murder and other illegal activities.[15]', 'Figure 1 depicts the costs and benefits of enforcing drug prohibition. In the top panel, the horizontal axis measures the quantity of drug-law enforcement, while the vertical axis shows the dollar value of the costs and benefits of such enforcement. The marginal-benefit curve (MB) shows the gains to society of each additional unit of drug-crime enforcement; the marginal-cost curve (MC) shows the costs of the additional units of enforcement. Enforcement beyond E* is excessive because the benefits from further reductions in drug crime are worth less to society than are all the goods and services sacrificed to generate these further reductions. Similarly, enforcement less than E* is suboptimal because the gains from additional enforcement then exceed the costs. Therefore, any institutional arrangement affecting law enforcement should be assessed by how likely it is to encourage the optimal amount of enforcement.', 'Civil forfeiture works against achieving the optimal amount of law enforcement. The reason is that civil forfeiture reduces the incentives law-enforcement officials have to attain E* by giving law-enforcement agents a disproportionate stake in the enforcement of drug prohibitions.', 'The lower part of Figure 1 shows the totals of civil-forfeiture revenues that law-enforcement agents retain as funds for their agencies.[16] These revenues can be depicted using the familiar “Laffer curve,” which shows the relationship between tax rates and tax receipts. If the agency engages in no drug-crime enforcement, it will gain no revenues from drug-related civil-forfeiture actions.', '[[FIGURE OMITTED]]', 'This result is shown at point O. At the other extreme, if the agency enforces drug laws with such vigor as to eliminate illegal drug operations totally, the amount of civil-forfeiture revenues will also be zero. With no drug crime, there is no opportunity for drug-related civil forfeitures. This result is shown at point B. Between points 0 and B, however, civil-forfeiture revenues are positive. Civil-forfeiture revenues increase as drug-law enforcement is expanded from point 0 (no enforcement) toward greater enforcement. After some point, however, a greater intensity of enforcement reduces the number of drug offenses to such an extent that the dollar amounts available from seizures will also be reduced.', 'Revenues from seizures are maximized at EF, the “optimal” level of enforcement for law-enforcement agencies allowed to keep proceeds from civil-forfeiture seizures. Law-enforcement agencies will determine the intensity of their drug-enforcement efforts—and, by implication, the intensity of their efforts to enforce laws against nondrug crimes—by how such efforts affect their civil-forfeiture revenues. The revenue effects, rather than social-welfare consequences, of drug-crime enforcement determine the extent of police efforts in attacking various kinds of criminal behaviors.', 'No necessary correlation exists between EF (revenue-maximizing enforcement) and E* (socially optimal enforcement). EF could be to the right or to the left of E*; only by chance will EF be at the same level of enforcement as E*. Allowing law-enforcement agencies to retain proceeds from civil forfeitures affords agencies discretion over their budgets. As a consequence, agencies supply either sub or supraoptimal amounts of drug enforcement, thus leaving society worse off.', 'An alternative to giving government agencies discretion over their budgets is to place budget decisions solely in the hands of legislatures. When legislatures determine the entire budgets for law-enforcement agencies, legislatures in effect choose a quantity of law enforcement. With their budgets set by legislatures, law-enforcement agencies then allocate their monies among different types of activities, for example, drug-law enforcement versus policing against burglaries. In this scenario, no one type of activity has a “revenue advantage” over others in attracting law-enforcement resources.[17] The heads of law-enforcement agencies will thus make more rational enforcement decisions.', 'The legislature is the most appropriate branch of government for selecting the budget for law-enforcement agencies. The legislature confronts a large number of constituencies vying for public funds. Therefore, legislatures are better positioned than any of the specialized bureaucracies to determine if an additional dollar of public revenue should be used for law enforcement or for schooling or for social-welfare programs or for any other of the multitude of items on which governments spend money. The economics of public choice make clear that legislatures are hardly likely to tax, spend, and regulate in ways that maximize society’s well-being.[18] Even so, legislatures are better placed to rationally allocate resources extracted from civil-forfeiture proceeds than are individual enforcement agencies.[19]', 'Can we be more precise and say whether the current civil-forfeiture regime causes over or underenforcement? We believe that overenforcement of drug laws is the more likely result. Overenforcement is more likely because of the victimless nature of drug use.[20] While all but a small handful of sociopaths prefer effective enforcement of laws curbing violent or fraudulent behaviors aimed at nonconsenting parties, it is much less obvious that a large number of Americans approve of the war on drugs. In 1990, in the midst of drug-war hysteria, the Drug Policy Foundation discovered that more than one in three Americans (36 percent) support legalization.[21] And more recently, in January 1994, NBC Nightly News conducted a telephone call-in poll asking callers if drugs should be legalized. A majority (52.2 percent) favored legalization.[22]', 'As popular support for a particular law decreases, it is plausible to assume that the social benefits of enforcing the law also decrease, especially in the case of victimless crimes. In Figure 1, this fall is shown by a marginal-benefit curve (MB’) closer to the origin than MB. The socially optimal level of enforcement falls as well (to E*’). Naturally, EF is more likely to be to the right of E* the further to the left is E*; that is, the weaker the consensus for outlawing a particular behavior, the more likely it is that legal prohibitions will be excessively enforced if enforcement agents derive personal benefits from their enforcement efforts. If no consensus exists for drug prohibition, then civil forfeiture probably leads to overenforcement of drug laws.', 'THE LEGAL PEDIGREE OF CIVIL FORFEITURE', 'The constitutionality of modern civil-forfeiture statutes does not depend on their efficiency. Many ill-thought statutes remain on the books with no one questioning their constitutionality. Nevertheless, there are solid arguments tending to show that most civil forfeitures under the Drug Act are unconstitutional. In this section, we briefly review the history of civil forfeiture, emphasizing germane Supreme Court decisions. After many years of deference to legislative choices in the realm of civil forfeiture, the Court now seems to be coming around, albeit slowly, to the view that civil forfeiture poses a grave and unconstitutional threat to American liberties.', 'The roots of American forfeiture law are found in England. The predominant kind of forfeiture in England was not civil forfeiture at all; it was criminal forfeiture (which remains on the statute books). Criminal forfeiture occurs only after a person has been convicted of a criminal offense. The convict’s property is seized and liquidated by government, following a criminal conviction, as part of the punishment visited upon those proven guilty.', 'The strict procedural requirements of the criminal law (e.g., trial by jury, a presumption of innocence, the privilege against self-incrimination, and protection against double jeopardy) help thwart unjustified seizures by government. With a criminal conviction as a necessary prerequisite to forfeiture, criminal forfeiture affords greater assurance that people paying fines or restitution to government are actually guilty of antisocial behaviors. Moreover, the Eighth Amendment’s protection against excessive fines helps keep property loss under criminal forfeiture from growing out of proportion to the seriousness of the crime.', 'When government prosecutes someone for a crime, the suit is said to be in personam, which is legal jargon for a suit against an identifiable person. The individual accused of criminal wrongdoing can be punished only after government wins a conviction in court. Criminal forfeitures are always in personam prosecutions.', 'Contrast criminal forfeiture with civil forfeiture. In civil forfeiture, the government sues the offending items rather than any human being. In legal jargon, the government proceeds in rem; that is, the government sues the thing (rather than the thing’s owner).[23] All civil-forfeiture suits are in rem suits. For example, if Mr. Smith’s house at 159 Elm Street is thought by the police to have been the site of a cocaine sale, then the government will sue the house at 159 Elm Street, charging it with wrongdoing. Because criminal-law protections are available only to people, the defendant in this hypothetical civil case—formally, the house at 159 Elm Street—can be found liable for wrongdoing and confiscated and liquidated by government without the usual constitutional formalities. If Mr. Smith complains that he has been deprived of his property without ever having been charged with a crime, the government resorts to the legal fiction that the house was punished, not Mr. Smith, so that Mr. Smith has no cause to complain.', 'Understanding the origin of civil forfeiture (i.e., of in rem legal proceedings) will shed light on contemporary practice. In pre-Civil War America, as under English common law, in rem forfeiture proceedings were used in only two related contexts: (1) to enforce customs law (customs duties being the main source of federal revenue), and (2) to enforce admiralty laws (such as laws against piracy). If the government found smuggled goods, it could seize and liquidate them for revenue. The government was not obliged to criminally convict the owner of the goods prior to forfeiture. Likewise, a seized pirate ship was forfeitable without securing a criminal conviction of the vessel’s owner. Practical concerns justified dropping the requirement of criminal conviction of property owners in these cases. Owners were likely to be in foreign lands, beyond the jurisdiction of domestic courts. Rather than let these defendants break the law without penalty, the government cleverly devised the legal fiction of in rem civil suits to govern those classes of cases in which defendants were not likely to be within the jurisdiction of domestic courts.', 'Historically, in England and in the United States until the second half of the 19th century, civil-forfeiture suits were limited to the narrow class of cases (having to do with customs or admiralty law) in which the overwhelming impracticality of gaining in personam jurisdiction over property owners dictated an alternative means of penalizing wrongdoers. Augmenting government revenues with confiscated valuable properties was not the rationale for the civil (in rem) proceedings in these special cases; rather, even-handed enforcement of the customs and admiralty laws required proceeding without the owners’ consent or participation. Under common law, real property was subject to forfeiture only after a criminal conviction of the owner—and the first U.S. Congress, by statute, abolished criminal forfeiture altogether. With the Civil War, however, came the beginning of government efforts to use civil-forfeiture proceedings as a general method of avoiding the procedural requirements of the Constitution. Rather than limit civil forfeiture to those instances when it was practically impossible to gain jurisdiction over an owner, civil forfeiture came to be used as a device by which the government sought to evade constitutional restrictions.', 'Beginning in August 1861, Congress enacted the Confiscation Acts authorizing the seizure of property owned by Confederates and those aiding the rebellion.[24] These Acts permitted in rem proceedings for the confiscation of both personal and real property. The Acts’ coverage of real property is particularly noteworthy. Until the Civil War, civil forfeiture was limited to personal property (mainly ships or contraband goods); it did not extend to real property. The reason it did not is a straightforward one: real property (unlike personal property) cannot be contraband. Moreover, the owners of real properties used in unlawful ways are more likely to be within the jurisdiction of domestic courts than are the owners of the personal properties traditionally subject to civil forfeiture. Unlike personal property, real property cannot flee during the time it takes to find and establish jurisdiction over the owner.', 'But wartime exigencies notoriously serve as pretexts for expansion of government power.[24] The Supreme Court upheld the Confiscation Acts as a legitimate exercise of the war power, rejecting the argument that the Acts violated the Fifth and Sixth Amendments. The Court also dismissed the contention that due process requires a criminal conviction before forfeiture.[26] By labeling such punishments “civil,” despite their obviously punitive nature, the government succeeded in nullifying constitutional protections against criminal punishment. The war power served as the excuse for doing so.', 'The upholding of the Confiscation Acts encouraged Congress to expand in rem forfeiture further beyond its traditional domain—customs and the admiralty jurisdiction—to enforce revenue provisions unrelated to the maritime trade or to the war power.[27] In Dobbins’s Distillery v. United States, the Court upheld the civil forfeiture of a distillery, and the real property upon which it stood, for liquortax violations.[28] The tenant on the property was accused of defrauding the government of the excise taxes due on the liquor distilled there.[29] The Court held that it was not “necessary that the owner of the property should have knowledge that the tenant was committing fraud on the public revenue, in order that the information of forfeiture should be maintained.”[30]', 'The Court reasoned that the proceeding was civil in nature, and that any “conviction of the wrong-doer must be obtained, if at all, in another and wholly independent proceeding.”[31] But no precedent is cited for the proposition that a forfeiture of real property, as opposed to the personal property traditionally subject to forfeiture in in rem proceedings, can be accomplished without a prior criminal conviction;[32] indeed, the opinion nowhere indicates that the Court even considered that real property might be distinguished from personal property. The Court affirmed the judgment of forfeiture, despite the absence of wrongdoing by the owner, because “the offence...is attached primarily to the distillery, and the real and personal property used in connection with the same, without any regard whatsoever to the personal misconduct or responsibility of the owner.”[33]', 'The Confiscation Acts cases, along with Dobbins’s Distillery, thus mark a watershed in the Court’s treatment of civil-forfeiture statutes. The Court has opened the door so that any kind of property is subject to civil forfeiture as long as the government labels its enforcement actions “civil.” The initial limited rationale for allowing forfeitures in civil rather than criminal proceedings was ignored or forgotten. Civil forfeiture became a generally available weapon for use by government against wrongdoers, and the Constitution’s guarantee of certain rights and privileges to the criminally accused would not block government’s way if the legislature took care to label a particular forfeiture action “civil” rather than “criminal.”', 'During the next century, the Court never seemed quite sure what to do with civil-forfeiture statutes. Although the genie of civil forfeiture was out of the bottle, every now and then the Court would declare a specific application of this or that civil-forfeiture statute unconstitutional. But such declarations never amounted to any wholesale scaling back of the use of civil forfeiture. For example, in Coffey v. United States, the Court held that a prior acquittal of the crime of violating internal-revenue laws barred a subsequent civil-forfeiture suit based on actions for which the defendant was earlier found innocent;[34] that is, civil-forfeiture defendants were thus extended the constitutional protection against double jeopardy. And later in the same term, the Court held in Boyd v. United States that both the Fourth and Fifth Amendments protected the defendant against compulsory production of his private books and papers in a civil-forfeiture proceeding. The Court declared the proceedings to be “quasi-criminal,” reasoning “that proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reasons of offences committed by him, though they may be civil in form, are in their nature criminal.”[35] Boyd thus promised that the Court would no longer be duped into treating the forfeiture of property as a civil matter simply because the legislature labeled it “civil.”', 'Boyd’s promise was quickly abandoned. Subsequent decisions served to limit Boyd’s reach to the narrow Fourth and Fifth Amendment grounds on which it was decided. The Constitution’s other protections of the criminally accused were held not to apply in civil-forfeiture actions because these actions are “civil” and not “criminal.” For example, in United States v. Zucker, the Court held that the right of a criminal defendant to confront his accusers does not apply to civil forfeiture.[36] Also, proof beyond a reasonable doubt was found by the Court not to be required in civil-forfeiture proceedings.[37] Finally, the Court declared that there is no constitutional requirement that the jury find the defendant guilty in civil-forfeiture proceedings; judges are free to direct verdicts in favor of government.[38]', 'Ominously, Coffey’s protection against double jeopardy in the civil-forfeiture context is no longer good law. In 1984, the Court declared that the double-jeopardy clause does not bar “a civil, remedial forfeiture proceeding initiated following an acquittal on related criminal charges. To the extent that Coffey v. United States suggests otherwise, it is hereby overruled.”[39] And Boyd has been all but overruled. In United States v. Ward, the Court accurately noted that it “has declined...to give full scope to the reasoning and dicta in Boyd.”[40]', 'The most notable recent refusal of the Court to restrain civil forfeiture is the 1974 case of Calero-Toledo v. Pearson Yacht Leasing Co.[41] In Calero-Toledo, a yacht worth $20,000 was leased by Pearson Yacht Leasing to a party who subsequently smoked or transported marijuana on the yacht. Upon the discovery of two marijuana cigarettes on the vessel, local authorities—under a Puerto Rican civil-forfeiture statute—seized the yacht without a prior judicial hearing or without notice being given to Pearson. All parties admitted that Pearson had no knowledge that marijuana was used or carried on the vessel. However, the Supreme Court upheld the forfeiture on the grounds that Pearson had failed to prove that it had done “all that reasonably could be expected to prevent the proscribed use of [its] property.”[42] The Court ruled that Pearson’s right to due process had not been violated.', 'In effect, Calero-Toledo reversed the presumption of innocence that is the Constitutional right of persons subject to criminal prosecution. The government was presumed to have behaved properly, and the burden of proving that the government overstepped its authority by seizing a vessel whose owner had done no wrong was foisted upon the owner. If the Puerto Rican statute had been labeled “criminal” rather than “civil,” of course, this reversal of the presumption of innocence would have been held unconstitutional. But, as it had so often in the past, the Court simply trusted the legislature to choose the correct labels for its actions: the Puerto Rican legislature said that this action was civil, so it must be civil, and thus, constitutional protections available to the criminally accused are inapplicable.', 'Fortunately, a trend against unchecked use of civil forfeiture is just now emerging in the Court. During two recent terms (1992–93 and 1993–94), the Court heard four civil-forfeiture cases to which the United States government was a party. The government lost all four.[43] Each of these cases exhibits intensified judicial skepticism of the use of civil forfeiture in fighting the war on drugs. We focus here on the last two of these cases, Austin and James Daniel Good.', 'In Austin, the government sought the civil forfeiture of Richard Austin’s mobile home and auto-body shop after he was convicted of distributing two ounces of cocaine from the shop, having brought the cocaine from his mobile home to consummate a prearranged sale. Both the trial court and the appellate court rejected Austin’s argument that the forfeiture would violate his Eighth Amendment right to be protected from excessive fines. Austin appealed to the Supreme Court.', 'The government urged that civil forfeiture of real property is not a criminal punishment and, therefore, the government can-not be held to the strict requirements of criminal procedure when it confiscates real property. The Court rejected this argument, unanimously reversing the lower court. The Court found that “forfeiture generally and statutory in rem forfeiture in particular historically have been understood, at least in part, as punishment,”[44] thus repudiating the government’s assertion that the Drug Act’s forfeiture provisions are not punitive. The Court concluded that the forfeiture was a “payment to a sovereign as punishment for some offense...subject to the limitations of the Eighth Amendment’s Excessive Fines Clause.”[45]', 'The case of James Daniel Good also represents a step forward in restoring liberties trampled underfoot by a government motivated by civil-forfeiture revenues. Four years after James Daniel Good was convicted, sentenced, and fined in a Hawaii state court for growing marijuana, the United States government seized his house and the four acres of land upon which it sits. Good received no prior notice of the seizure. Although the trial court upheld the seizure, the court of appeals reversed it, finding that the government violated Mr. Good’s right to due process of law by not affording him notice and a hearing prior to the seizure.', 'Arguing before the Supreme Court, the government insisted that the due-process clause does not apply when the government seizes property for law-enforcement purposes.[46] The Court did not buy this claim. In James Daniel Good, the Court reasoned that the government’s asserted interests in seizing property—obtaining jurisdiction and preventing the loss or destruction of the property—were slight in the case of real property. The Court ruled that due process requires the government to give notice and a hearing to owners of real property before seizures because of (1) the high risk of error created by allowing government to seize property without adhering to the requirements of due process of law, and (2) the substantial interests citizens have in being secure in their homes.', 'Thus, in just two terms of the Court, substantial constitutional constraints have been placed on government’s exercise of civil-forfeiture authority. Civil forfeiture remains, however, a source of revenue for government as it wages its war on drugs. For example, although James Daniel Good requires notice and a hearing prior to seizure of real property, the burden remains upon property owners to prove their innocence. Failure to prove innocence at a preseizure hearing means that government may seize the property and liquidate it for revenue purposes. We believe that more can be done by the courts, under the Constitution, to further rein in government’s use of civil forfei\xadture. Indeed, as we read the Constitution, more must be done.', 'At a minimum, civil forfeitures of real property should all be declared unconstitutional. The common law of England and the United States at the time of the Constitution’s ratification did not provide for civil forfeiture of real properties; such forfeitures could be accomplished only following criminal convictions of the owners of real property. Unlike captured pirate ships and contraband goods, there is no chance that real property can stealthily escape jurisdiction before its owner is convicted. Consequently, the pragmatic rationale for allowing in rem seizures of personal property does not apply to real property. Because in rem forfeiture of real property was unheard of at the time the Constitution was ratified, the framers and ratifiers of the Constitution cannot plausibly be supposed to have intended to permit such forfeitures. Thus, any forfeitures of real property sought by government should be part of the explicit punishment sought in criminal proceedings.', 'Given the abuses that have marked civil forfeiture under the Drug Act, the Court might consider it wise to adopt an even more stringent approach to civil forfeiture. Under such an approach, the government would be barred from using civil procedures for the forfeiture of any property—real or personal—whenever (1) the property is forfeitable to the government because of its use in criminal wrongdoing, and (2) the government cannot prove that the property owner is beyond the personal jurisdiction of domestic courts. If the property owner is within the jurisdiction of domestic courts, then he or she should be duly accused, indicted, tried, and convicted before his or her property is forfeited to government. The protections of the criminal process are essential to safeguard innocent parties from government overreaching. If the owner is outside of domestic jurisdiction, the government must then, in good faith, attempt to notify the owner that his or her property temporarily (pending the outcome of a criminal trial) has been seized. If the owner then appears to wage a defense, a criminal conviction should be necessary before final forfeiture. In contrast, if the owner refuses to attend the trial, the property can then be forfeited in a civil action. In either case, however, the burden should be upon the government to prove wrongdoing by the owner, and not (as it is now) upon the owner to prove his or her innocence of any wrongdoing.', 'Given that one role of the courts is to protect citizens’ constitutional rights from legislative legerdemain, the label attached by the legislature to the forfeiture should be of no consequence. In all cases, a court should ask, “Is this forfeiture punitive in purpose?” If the answer is no (that is, if the court finds that no puni-tive purpose is served by the forfeiture), the court should then ask, “Is the property contraband, or is it a legal good?” If it is contra-band, then the government can constitutionally seize these goods and destroy them. But if the property is not contraband, absent a criminal conviction, a taking of private property has occurred and under the Fifth Amendment fair compensation must be paid to the dispossessed owner.[47]', 'When a court finds that the forfeiture is designed to be punitive, all procedural requirements of the criminal law should be met before the forfeiture is final. If the owner of the property is outside the court’s jurisdiction, then fair notice to the defendant of the charges is necessary, as is a fair opportunity for defense. If the defendant fails to show for his or her trial after being notified (or after a reasonable attempt to notify has been made), then a conviction obtained in absentia permits forfeiture to the government of the defendant’s property. The value of such forfeitures would still be limited, of course, by the excessive-fines clause of the Eighth Amendment.']

[(10, 22), (31, 43)]

5f94975fda718c55a8177ee183d8e18a1993731f3e8bce0731edeecbc07e4e76

2. LOWER COURTS---they’ll interpret the CP as an instruction.

--the word “signals” in this evidence is hyperlinked to the Re 16 evidence cited below

utilizing the shadow docket for getting Justices to agree on an ultimate outcome may be more beneficial than issuing a hurried opinion a shadow docket ruling lower courts view as “signals.”

the Court needs flex ibility for matters that arise unexpectedly utilizing the nature of the shadow docket for purposes of simply getting the Justices to agree on an ultimate outcome may be more beneficial than issuing a hurried opinion a shadow docket ruling lower courts view as “signals.”

flex unexpectedly getting the Justices to agree on an ultimate outcome more beneficial hurried opinion ruling lower courts “signals.”

['August Mustillo 21, law student at the Campbell University School of Law and serves as a Staff Writer for the Campbell Law Observer, “Shedding Light on the Supreme Court’s Shadow Docket,” Campbell Law Observer, 4-2-2021, http://campbelllawobserver.com/shedding-light-on-the-supreme-courts-shadow-docket/', 'Furthermore, the Court needs flexibility for matters that arise unexpectedly, as in the example of COVID-19.\xa0 Professor Michael Morley of Florida State University College of Law believes that utilizing the nature of the shadow docket for purposes of simply getting the Justices to agree on an ultimate outcome may be more beneficial than issuing a hurried opinion that is likely to be treated as precedential.\xa0 After all, a shadow docket ruling will likely not have the same weight as a full written opinion. Instead, some lower courts view these orders more as “signals.”']

[]

8b22c1a0a30505369c240ad00cc2078c50c91b796aabff6080ef20ad51eed95b

That means the CP will be treated as binding.

Richard M. Re 16, Assistant Professor, UCLA School of Law, “Narrowing Supreme Court Precedent from Below,” SSRN Scholarly Paper, ID 2699607, Social Science Research Network, 2016, papers.ssrn.com, https://papers.ssrn.com/abstract=2699607

When issuing “signals,” Justices act in official capacities without establishing conventional precedent, but indicate how courts should decide can arise in summary orders attributing precedential force to relatively informal actions Because it can occur through peripheral actions signaling is feasible because of digital media and Court-watching lots of people, including advocates and judges, follow the Court the bar fostered intense attention to details of operations. The result is greater opportunity to provide guidance the Court expressly opine on ancillary issues they are often treated as dicta Nonetheless lower courts pick up the message even using the term “signal.” the Eighth Circuit expressly followed the signal in stay orders when precedent is ambiguous , lower courts follow signals to resolve ambiguity by narrowing precedent from below

When issuing “signals,” Justices act in their official capacities without establishing conventional precedent, but nonetheless indicate how lower courts should decide signals can arise in summary orders are thus distinct from informal cues that arise outside of the traditional adjudicatory process, such as Justices’ statements to the press signals from a majority of the Justices have precedential force Scholars have documented the Court’s use of signals to influence its own docket , particularly by informing nonjudicial actors what type of cases the Justices want to decide judges signal the outcome of future cases in order to actively shape dockets lower courts play a facilitative role [S]ignals create an incentive for appeals courts to provide information that help the Court discern which are likely the best vehicles for change This two - tiered approach builds on the authority model in treating official efforts to resolve cases as authoritative attributing precedential force to the Court’s relatively informal actions Because it can occur through peripheral actions like summary decisions on discretionary relief , signaling is feasible because of contemporary digital media and the growing culture of Court-watching Before the Internet, it wasn’t really possible for far-flung courts and advocates to keep track Indeed, for much of U.S. history it was hard enough for the Court to exert managerial influence through printed case reports most local judges had at best limited information on the Court’s decisions, and the Justices’ practice of circuit riding offered perhaps the best means of informal judicial management Today, however, lots of people, including advocates and lower court judges, follow the Court with the help of digital media the Supreme Court bar has fostered intense attention to the details of the Court’s operations. The result is that the Court has greater opportunity to provide guidance to lower courts In using signals the Court promotes efficiency and uniformity the expressly opine on ancillary issues while resolving the case at hand. These decisions may concern matters of procedure , such as stay decisions Because these patterns lie outside the bounds of conventional precedent, they are often treated as dicta Nonetheless , the Justices routinely express deliberate views on ancillary topics with the intention that lower courts will pick up the message . And the lower courts often do just that , sometimes even using the term “signal.” For a recent example , the Eighth Circuit expressly followed the signal the Court sent in stay orders Although the Court’s orders were not final rulings on the merits , they collectively constitute a signal that less restrictive means exist by which the government may further its interests lower courts can mitigate signals’ downsides when precedent is ambiguous , lower courts should follow signals to resolve ambiguity by narrowing conventional precedent from below lower courts attend to signals only when they reflect deliberate judgments by a majority This addresses the risk that individual Justices might attempt to influence lower courts by telegraphing minority views that may even be opposed by the Court as a whole.

“signals,” official capacities conventional nonetheless indicate how lower courts should decide summary orders distinct informal outside majority of the Justices precedential force documented own docket informing nonjudicial actors what type of cases the Justices want to decide signal future cases actively shape dockets facilitative role incentive provide information vehicles for change two - tiered approach authority resolve authoritative precedential force relatively peripheral summary decisions discretionary relief feasible digital media Court-watching Before track printed limited information best means lots follow the Court digital media Supreme Court bar intense attention greater opportunity guidance signals efficiency uniformity expressly opine ancillary issues procedure stay outside treated dicta deliberate views intention lower courts pick up the message often do just that even using the term “signal.” recent example expressly followed the signal the Court sent in stay orders not final rulings on the merits collectively signal less restrictive means lower courts mitigate signals’ downsides ambiguous follow signals to resolve ambiguity narrowing conventional below only deliberate judgments majority

['When issuing “signals,” the Justices act in their official, adjudicatory capacities without establishing conventional precedent, but nonetheless indicate some aspect of how lower courts should decide cases.101 For example, signals can arise in summary orders, statements during oral argument, separate opinions, and dicta in majority opinions. Signals are thus distinct from the many informal cues that arise outside of the traditional adjudicatory process, such as individual Justices’ statements to the press.102', 'The signals model maintains that signals from a majority of the Justices have precedential force but are subordinate to conventional precedent.103 [FOOTNOTE 103 BEGINS]103. Scholars have documented the Court’s use of signals to influence its own docket, particularly by informing sophisticated nonjudicial actors of what type of cases the Justices want to decide. See VANESSA A. BAIRD, ANSWERING THE CALL OF THE COURT: HOW JUSTICES AND LITIGANTS SET THE SUPREME COURT AGENDA (2007); Tonja Jacobi, The Judicial Signaling Game: How Judges Shape Their Dockets, 16 SUP. CT. ECON. REV. 1, 2 (2008) (discussing the idea that “judges signal the outcome of future cases in order to actively shape their dockets”). In these accounts, lower courts play a secondary or facilitative role. See, e.g., BAIRD, supra, at 70 (“[S]ignals from the Supreme Court create an incentive for appeals courts to provide information that can help the Supreme Court justices discern which cases are likely to be the best vehicles for political or legal change.”); H. W. PERRY, JR., DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT 177 (1991). [FOOTNOTE 103 ENDS]This two-tiered approach to vertical stare decisis builds on the authority model in treating the Court’s official efforts to resolve cases and controversies—and nothing else—as authoritative. In this respect, the signals model diverges from the prediction model’s forward-looking orientation and openness to considering the Justices’ extrajudicial statements as grounds for prediction. At the same time, the signals model captures the main pragmatic benefits of the predictive and proficiency models by attributing supplemental precedential force to the Court’s relatively informal actions, which are likely to be less proficient and predictive than conventional precedent. This approach allows the Court to honor its traditional adjudicatory role while more effectively managing lower courts.', 'Although the Court’s habit of sending nonprecedential signals is a relatively unremarked-on phenomenon,104 the dearth of commentary on this point largely reflects changing times. Because it can occur through peripheral actions like summary decisions on discretionary relief, signaling is feasible today largely because of contemporary digital media and the growing culture of Court-watching.105 Before the Internet, it wasn’t really possible for far-flung courts and advocates to keep track of the Court’s stay orders, oral arguments, and the like. Indeed, for much of U.S. history it was hard enough for the Court to exert managerial influence through printed case reports.106 In the Court’s early years, most local judges had at best limited information on the Court’s decisions, and the Justices’ practice of circuit riding offered perhaps the best means of informal judicial management.107 Once circuit riding ended, the Court’s formally published precedents became its primary mode of vertical control. Today, however, lots of people, including advocates and lower court judges, follow the Court with the help of digital media such as blogs and Twitter. And the rise of the Supreme Court bar, which counts former clerks among its members, has fostered intense attention to the details of the Court’s operations. The result is that the Court has greater opportunity to provide guidance to lower courts while still acting like an adjudicatory body. With their levers of influence multiplied, the Justices might naturally explore new opportunities to use them.108', 'In using signals to exert managerial oversight outside the conventional bounds of precedent, the Court often promotes efficiency and uniformity. In many cases, the Justices implicitly decide or expressly opine on ancillary issues while resolving the case at hand. These decisions may concern matters of procedure, such as stay decisions or other preliminary rulings made below; or they may pertain to substantive legal questions not presently before the Court.109 In other cases, the Court comments negatively on a disfavored precedent, such as by asserting that the precedent is “narrow” or that it is difficult to prevail under the precedent.110 Relatedly, the Court sometimes establishes a pattern of repeatedly narrowing a precedent, thereby tacitly establishing the precedent’s disfavored status.111 Because these decisions, comments, and patterns lie outside the bounds of conventional precedent, they are often treated as dicta or otherwise denied precedential status. Nonetheless, the Justices routinely express deliberate views on ancillary topics in separate opinions or during oral argument, with the apparent intention that lower courts will pick up the message. And the lower courts often do just that, sometimes even using the term “signal.”112 [FOOTNOTE 112 BEGINS]112. For a recent example, the Eighth Circuit expressly followed the signal that the Court had sent in stay orders relating to the religious exemption from the Affordable Care Act’s contraception coverage provisions. See Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., 801 F.3d 927, 944 (8th Cir. 2015) (“Although the Court’s orders were not final rulings on the merits, they at the very least collectively constitute a signal that less restrictive means exist by which the government may further its interests.” (citing Priests for Life v. U.S. Dep’t of Health & Human Servs., 808 F.3d 1, 25 (D.C. Cir. 2015) (Kavanaugh, J., dissenting from denial of rehearing en banc)); see also Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 257 (D.C. Cir. 2014) (finding no substantial burden but acknowledging “that the Supreme Court’s recent order in Wheaton College might be read to signal a different conclusion”); DeBoer v. Snyder, 772 F.3d 388, 402 (6th Cir. 2014) (“But don’t these denials of certiorari signal that, from the Court’s perspective, the right to same-sex marriage is inevitable? Maybe; maybe not.”). For examples of signals during oral argument, see Re, supra note 101. [FOOTNOTE 112 ENDS]', 'The main difficulty with the signals model is the challenge of reliably identifying signals. This problem arises precisely because signaling is marked by the lack of formality associated with full-dress rulings on the merits. That the Court is so closely observed is part of what makes signaling possible, but that reality also multiplies the opportunities for picking up false signals. And because so many people have an interest in gleaning desired signals from the Court, there is a serious risk that self-interested observers will misinterpret signals.113 Complicating things even further, Justices on the losing end of cases might sometimes send false signals by suggesting that they speak for a majority while actually offering just noise or cheap talk that is better ignored than relied on.', 'Yet lower courts can mitigate signals’ downsides. First, signals should give way in the face of clear conventional precedent. This principle reflects the comparative rigor, deliberateness, and clarity associated with conventional holdings and limits the opportunity for mistaken signals. In other words, signals cannot justify lower courts in overruling or partially overruling higher court precedent. But when conventional higher court precedent is ambiguous, lower courts should follow signals to resolve that ambiguity, including by narrowing the conventional precedent from below. In this way, the signals model depends on the recognition that narrowing from below is distinct from anticipatory overruling. Second, lower courts should attend to signals only when they reflect deliberate judgments by a majority of the Justices. This restriction addresses the risk that individual Justices might attempt to influence lower courts by telegraphing minority views that may even be opposed by the Court as a whole.']

[(11, 13), (14, 16)]

dde742d4692f809ebacfa7ea6153530dcb5b951341ad3020a09c1bc911ec7c41

Recent streamlining is improving resource allocation

Lindsay Kryzak 21, FTC Office of Public Affairs, “FTC Authorizes Investigations into Key Enforcement Priorities,” FTC, 7/1/21, https://www.ftc.gov/news-events/press-releases/2021/07/ftc-authorizes-investigations-key-enforcement-priorities

The F T C approve resolutions authorizing key enforcement priorities important in rethinking work of the FTC resolutions promote more holistic use of authorities With these the FTC can better utilize limited resources and fix market structures

The F T C voted to approve a series of resolutions authorizing investigations into key law enforcement priorities for the next decade. Specifically, the resolutions direct agency staff to use “compulsory process,” such as subpoenas, to investigate enforcement priorities the resolutions represent an important step in rethinking the work of the FTC cross-agency, investigatory resolutions will promote a more holistic use of the FTC’s enforcement authorities to stop bad actors The actions taken will allow staff to use compulsory process to investigate both proposed mergers and consummated mergers With these in place, the FTC can better utilize its limited resources and move forward in earnest to fix market structures

F T C holistic better utilize limited resources move forward in earnest to fix market structures

['The Federal Trade Commission voted to approve a series of resolutions authorizing investigations into key law enforcement priorities for the next decade. Specifically, the resolutions direct agency staff to use “compulsory process,” such as subpoenas, to investigate seven specific enforcement priorities. Priority targets include repeat offenders; technology companies and digital platforms; and healthcare businesses such as pharmaceutical companies, pharmacy benefits managers, and hospitals. The agency is also prioritizing investigations into harms against workers and small businesses, along with harms related to the COVID-19 pandemic. Finally, at a time when merger filings are surging, the agency is ramping up enforcement against illegal mergers, both proposed and consummated.', 'In remarks delivered during the open meeting, Chair Lina M. Khan noted that the resolutions approved today represent an important step in rethinking the work of the FTC. Instituting new cross-agency, investigatory resolutions will promote a more holistic use of the FTC’s enforcement authorities to stop bad actors across markets.', '“The reforms are designed to ensure that our staff can comprehensively investigate unlawful business practices across the economy,” said Chair Khan. “They will help relieve unnecessary burdens on staff and cut back delays and ‘red tape’ bureaucracy when it comes to advancing our Commission’s law enforcement priorities. This is particularly important given that we are in the midst of a massive merger boom.”', 'Compulsory process refers to the issuance of demands for documents and testimony, through the use of civil investigative demands and subpoena. The FTC Act authorizes the Commission to use compulsory process in its investigations. Compulsory process requires the recipient to produce information, and these orders are enforceable by courts. The Commission has routinely adopted compulsory process resolutions on a wide range of topics. Many of these resolutions cover specific industries, like the automobile industry or the postsecondary education industry, while others involve business practices that cut across sectors, like privacy or the targeting of older Americans.', 'The actions taken today will broaden the ability for FTC investigators and prosecutors to obtain evidence in critical investigations on key areas where the FTC’s work can make the most impact. Each omnibus authorizes investigations into any competition or consumer protection conduct violations under the FTC Act. The omnibuses will also allow staff to use compulsory process to investigate both proposed mergers and consummated mergers. Individual Commissioners will continue to be required to sign compulsory process documents prior to issuance. With these in place, the FTC can better utilize its limited resources and move forward in earnest to fix the market structures that allow the worst predators to proliferate.']

[(8, 17)]

2cfc35c874eb14d55dba7e411ac6057a89c22611d9b795fcd6733c64ff1fe597

The FTC’s scaling back new obligations---but there’s no margin for error

Leah Nylen & Betsy Woodruff Swan 21, staff writers at POLITICO, “FTC staffers told to back out of public appearances,” POLITICO, 7/6/21, https://www.politico.com/news/2021/07/06/ftc-staffers-public-appearances-498386

Khan’s chief ordered staff to cancel all appearances due to pressing matters at FTC The FTC is under-resourced and mid surge in merger filings an all-hands-on-deck moment to ensure staff time is being used to maximum benefit and productivity The FTC has fewer employees than at the Reagan admin was discussing steps to deal with a cash shortage including freezing pay and cutting lawsuits Khan advancing priorities

Less than a week into Khan’s tenure as F T C chair , her chief of staff ordered the agency’s staff to cancel all public appearances due to pressing matters at the FTC the agency has called off all staff public appearances The FTC is severely under-resourced and in the mid st of a massive surge in merger filings . This is an all-hands-on-deck moment the agency pushed pause on public speaking events that aren't focused on educating consumers to ensure staff time is being used to maximum benefit and productivity . The American public needs this agency solving problems The FTC , which enforces antitrust and consumer protection laws, has about 1,100 staffers, fewer employees than the agency had at the beginning of the Reagan admin istration As recently as December , the FTC was discussing steps to deal with a possible cash shortage including freezing pay and cutting the number of lawsuits the agency files Since taking over Khan has swiftly begun advancing her priorities

F T C chair staff cancel all public appearances pressing matters under-resourced mid surge merger all-hands-on-deck maximum benefit and productivity solving problems Reagan admin December possible cash shortage freezing pay cutting number of lawsuits priorities

['Less than a week into Lina Khan’s tenure as Federal Trade Commission chair, her chief of staff ordered the agency’s staff to cancel all public appearances, according to internal agency emails viewed by POLITICO.', 'In a June 22 email to more than two dozen of the FTC’s top staffers, Khan’s chief of staff, Jen Howard, announced a “moratorium on public events and press outreach.”', '“For the time being I am putting a moratorium on staff participating in external events,” Howard wrote. The message was sent to the head of the FTC’s major offices, including those who oversee all of the agency’s economics, antitrust lawyers and consumer protection attorneys.', 'In a follow-up message two days later, Howard said that any staff who were scheduled for public events should cancel those appearances.', '“I want to make clear that for any situations where staff are currently scheduled to do a public event and thus need to contact event organizers to withdraw their participation, the message they should convey is that they are sorry they can no longer participate due to pressing matters at the FTC,” she wrote.', 'An FTC spokesperson confirmed that the agency has called off all staff public appearances for the time being.', '"The FTC is severely under-resourced and in the midst of a massive surge in merger filings. This is an all-hands-on-deck moment,” Howard said in a statement to POLITICO. “So the agency pushed pause on public speaking events that aren\'t focused on educating consumers to ensure staff time is being used to maximum benefit and productivity. The American public needs this agency solving problems, not speaking on panels."', "The FTC, which enforces antitrust and consumer protection laws, has about 1,100 staffers, fewer employees than the agency had at the beginning of the Reagan administration. Only about 40 of the agency's lawyers are devoted to privacy and data security issues, the agency's former chair told Congress in 2019, in contrast to the United Kingdom, which has an agency of roughly 500 employees focused on privacy.", 'As recently as December, the FTC was discussing steps to deal with a possible cash shortage including freezing pay and cutting back on the number of lawsuits the agency files.', 'Since taking over three weeks ago, Khan has swiftly begun advancing her priorities, holding the FTC’s first open meeting in decades last week. In her opening comment, Khan pledged to provide transparency for the agency’s work and host open meetings “on a regular basis.”']

[(5, 12), (28, 35)]

5cabbaed6c458a54314b7c8b0387b15f7d1e0efcf0ee690b585c760f86e45243

Khan’s laser-focused on her agenda---she’s trimming other distractions.

Kiran Stacey 21, Washington Correspondent for the Financial Times, “Washington vs Big Tech: Lina Khan’s battle to transform US antitrust,” Financial Times, 8/9/21, https://www.ft.com/content/eba8d3d7-dba7-4389-858c-5406c31b413d

Since taking over at FTC, Khan has begun to remodel it. Some look technical others major policy Khan banned public appearances saying the commission has too much work

Since taking over at the FTC, Khan has quickly begun to remodel it. Some of these changes look like technical internal reforms, while others are major policy statements Khan has banned staff from making public appearances saying the commission has too much work to do

remodel technical major policy statements banned public appearances too much work to do

['Since taking over at the FTC, Khan has quickly begun to remodel it. Some of these changes look like technical internal reforms, while others are major policy statements. Almost all have been fiercely opposed by Republicans and the business community.', 'In the past few weeks, Khan has begun holding commission meetings in public — something Democrats say makes the commission more open to scrutiny, but which the two Republican commissioners say makes it harder for them to negotiate compromises.', 'She has banned staff from making public appearances such as conference panel sessions, saying the commission has too much work to do. She has passed a rule which allows FTC staff greater leeway to pursue investigations in certain priority areas, giving them the power to issue their own subpoenas for documents and testimony.']

[(6, 15)]

97fce7ccdcccfe33fea19e352be1b96b9f19cea04d546ab93a92e0f3abc55a27

Treading on new turf magnifies the link---the agency will take time AND money to develop new proficiencies

Seth B. Sacher & John M. Yun 19, Sacher is an Economist, Washington, DC; Yun is from the Antonin Scalia Law School, George Mason University, “TWELVE FALLACIES OF THE "NEO-ANTITRUST" MOVEMENT,” 26 Geo. Mason L. Rev. 1491, 1493, Summer 2019, Lexis

antitrust agencies function well, in spite of many neo-antitrust proposals risk adversely affecting performance antitrust agencies tend to be small their staffs highly trained they have a well-defined objective advocates of neo-antitrust would see responsibilities expanded aggressively enforcing existing laws, as well as issues beyond those within that purview their proposals require active supervision agencies will have diseconomies of scale following neo-antitrust advocates could require antitrust agencies to expand beyond some critical point , which will lead to bureaucracies and inefficiencies

antitrust agencies and their staffs function relatively well, in spite of the views of many who have had experience working within or before the antitrust agencies neo-antitrust proposals run a serious risk of adversely affecting competition agency performance There are a number of objective reasons to expect antitrust agencies to function relatively well antitrust agencies tend to be small their staffs tend to be highly trained professionals consisting primarily of lawyers and Ph.D. economists they have a well-defined objective although antitrust is considered a form of regulation, it is distinct from other forms of regulation in that it does not involve a continuing relationship between the regulated firms and the regulator. As a goal, antitrust seeks to enable markets to more nearly achieve certain social objectives on their own advocates of neo-antitrust would like to see the responsibilities of the antitrust agencies expanded This includes more aggressively enforcing existing laws, as well as the consideration of issues beyond those currently within that purview many of their proposals , such as requiring data sharing monitoring markets to prevent tipping, or approving platforms' algorithm changes will require significantly more active market supervision While many proponents would agree the antitrust agencies are underfunded, there is certainly a point at which expanding the antitrust agencies will have "bureaucratic" diseconomies of scale following the recommendations of neo-antitrust advocates could require many antitrust agencies to expand beyond some critical point , which will inevitably lead to significantly larger bureaucracies and associated inefficiencies

adversely affecting competition agency performance relatively well small trained professionals well-defined objective continuing relationship enable markets neo-antitrust expanded enforcing existing issues beyond within that purview data sharing monitoring markets algorithm changes active market supervision "bureaucratic" diseconomies of scale expand beyond some critical point larger bureaucracies associated inefficiencies

['VII. Fallacy Seven: Not Recognizing That Their Proposals Will Strain Competition Agency Resources, Increase Uncertainty, and Make These Agencies More Political and Subject to Capture', 'Most of those that have worked within, or before, the antitrust agencies, despite their inevitable disagreement with certain actions or policies, are generally very impressed with the high degree of skill, professionalism, and dedication exhibited by the career staff. As will be discussed more fully in the [*1515] context of Fallacy XI below, many proponents of neo-antitrust do not accept the proposition that the antitrust agencies and their staffs function relatively well, in spite of the views of many (on all sides of the political spectrum) who have had experience working within or before the antitrust agencies. Regardless of how neo-antitrust proponents view the agencies, many of their proposals run a serious risk of adversely affecting competition agency performance.', 'There are a number of objective reasons to expect antitrust agencies to function relatively well. First, antitrust agencies tend to be small relative to many other regulatory agencies and bureaucracies in general. Second, their staffs tend to be highly trained professionals, consisting primarily of lawyers and Ph.D. economists. Third, they have a well-defined objective (i.e., the consumer welfare standard or some similar standard based on economic reasoning, such as the total welfare standard). Finally, although antitrust is considered a form of regulation, it is distinct from other forms of regulation in that it does not involve a continuing relationship between the regulated firms and the regulator. As a goal, antitrust seeks to enable markets to more nearly achieve certain social objectives on their own.', 'First, advocates of neo-antitrust would like to see the responsibilities of the antitrust agencies expanded in a number of ways. This includes more aggressively enforcing existing antitrust laws, as well as the consideration of issues beyond those currently within that purview. Further, many of their proposals, such as requiring data sharing, monitoring markets to prevent tipping, or approving platforms\' algorithm changes, will require significantly more active market supervision than is currently the case. While many [*1516] proponents of modern antitrust would agree that the antitrust agencies are underfunded, there is certainly a point at which expanding the antitrust agencies will have "bureaucratic" diseconomies of scale. Fully following the recommendations of neo-antitrust advocates could very well require many antitrust agencies to expand beyond some critical point, which will inevitably lead to significantly larger bureaucracies and associated inefficiencies.']

[(8, 16), (25, 31)]

70ae793462d54e742aca5771f3105bf8d5210cfe9656347a9e6887385665d13c

Even if money’s unlimited, staff are constrained AND trade-off

Alison Jones & William E. Kovacic 20, Jones is a professor at King’s College London; Kovacic is Global Competition Professor of Law and Policy, The George Washington University Law School, “Antitrust’s Implementation Blind Side: Challenges to Major Expansion of U.S. Competition Policy,” The Antitrust Bulletin, vol. 65, no. 2, SAGE Publications Inc, 06/01/2020, pp. 227–255

Measures to expand federal antitrust face arduous opposition targets will marshal the best talent private firms consultancies , and academic bodies can offer to oppose the government will benefit from doctrin sympathetic to firms high cases create a gap between the prosecution and defense Although public agencies can punch for punch when the volume rises litigation will go only as far as the talent enforcement need resources budget increases while useful , are not enough The need is not simply to hire more to attract elite personnel

Measures to expand federal antitrust intervention dramatically will face arduous opposition Assuming litigation will provide the main method the targets of big antitrust cases will marshal the best talent that private law firms , economic consultancies , and academic bodies can offer to oppose the government in court . The defense will benefit from doctrin al principles generally sympathetic to dominant firms the addition of new, high stakes cases to the litigation portfolio of public antitrust agencies will create a serious gap between the teams assembled for the prosecution and defense Although therefore the public agencies can match the private sector punch for the punch when prosecuting several cases, when the volume of such cases rises from several to many government agencies may have to rely on personnel with considerably less experience to develop and prosecute difficult antitrust cases, seeking powerful remedies upon global giants An enhanced litigation program will therefore go only as far as the talent of the agencies enforcement need more resources Nonetheless, budget increases while useful , are not enough . We would resources to boost compensation This means taking the antitrust agencies out of the existing civil service pay scale. The need is not simply to hire more people. It is to attract a larger number of elite personnel equal to the tasks that the ambitious reform agenda will impose

expand dramatically arduous opposition best talent private law firms economic consultancies academic bodies can offer oppose the government in court doctrin sympathetic serious gap prosecution defense punch for the punch several volume rises from several to many less experience only as far as the talent of the agencies more resources budget increases useful not enough compensation not simply more attract elite

['B. Augmenting the Human Capital of the Enforcement Agencies', 'Measures to expand federal antitrust intervention dramatically—through the prosecution of lawsuits or the promulgation of trade regulation rules—will face arduous opposition from the affected businesses. Assuming that litigation will provide the main method in the coming few years to attack positions of single-firm or collective dominance, the targets of big antitrust cases will marshal the best talent that private law firms, economic consultancies, and academic bodies can offer to oppose the government in court. The defense will benefit from doctrinal principles that generally are sympathetic to dominant firms (again, we assume that legislation to change the doctrinal status quo will not be immediately forthcoming). Beyond a certain point, the addition of new, high stakes cases to the litigation portfolio of public antitrust agencies will create a serious gap between the teams assembled for the prosecution and defense, respectively. Although therefore the public agencies can match the private sector punch for the punch when prosecuting several major de-monopolization cases, when the volume of such cases rises from several to many, the government agencies may have to rely on personnel with considerably less experience to develop and prosecute difficult antitrust cases, seeking powerful remedies upon global giants.', 'An enhanced litigation program will therefore go only as far as the talent of the agencies will carry it. We propose three steps to build and retain the human capital—attorneys, economists, technologists, and administrative managers133—to undertake a more ambitious litigation program. The first is to use antitrust as a prototype for a program to raise civil service salaries. The second two steps consist of cautions about the dangers of (a) denigrating the skills and accomplishments of existing agency personnel and (b) attempting to shut the revolving door through which professionals move between the public and private sectors. We discuss all three of these steps below.', '1. Resources and compensation', 'To accomplish the desired expansion of enforcement, we see a need for more resources.134 Nonetheless, budget increases that simply allow the enforcement agencies to hire additional staff, while useful, are not enough. We would use more resources to boost compensation for agency employees. This means taking the antitrust agencies out of the existing civil service pay scale. The need is not simply to hire more people. It is to attract a larger number of elite personnel who are equal to the tasks that the ambitious reform agenda will impose. We do not see how the public agencies can recruit and retain necessary personnel without a significant increase in the salaries paid to case handlers and to senior managers. It surprises us that none of the proposals for bold reform mention compensation for civil servants.']

[(7, 14), (26, 36)]

ef528830249c1aba4b08b5c448b2e583373a3ee729bbd77d05f9ba9be849a8e8

International coordination key---it prevents extinction

Shaun Tan 17, researcher at China-US focus who has written for Quartz, the Diplomat, and the Malay Mail Online, citing Bill Gates, Elon Musk, and Steven Hawking, “We Need an AI Limitation Treaty. Now.,” China-US Focus, 9/26/17, https://www.chinausfocus.com/society-culture/we-need-an-ai-limitation-treaty-now

the threat is real computer scientists warned for years more dangerous than nuclear humanity’s “ biggest existential threat smarter than humans in the way humans are smarter than chimp s . We wouldn’t even comprehend an entity like that extinguishing all life on earth as easy as snuffing out a candle we need to start preparing now AI presents a existential threat All other existential threats have some treaty to manage risks. It’s time we had one for AI now , in early days

the threat is real . Prominent computer scientists have warned of it for years , and some of the smartest people on the planet have taken up the call more dangerous than a nuclear catastrophe humanity’s “ biggest existential threat ,” could “spell the end of the human race .” A superintelligence could be smarter than humans in the same way that humans are smarter than chimp anzee s . We wouldn’t even be able to comprehend an entity like that we have no idea what an IQ of 10,000 would be like many things we deem impossible would be child’s play extinguishing all life on earth as easy as snuffing out a candle leading computer scientists predict it to happen by is 2040 . While this might seem far off, we need to start preparing for it now . The U.S. and China are pouring vast resources into AI research At the same time however, AI presents a real existential threat to humanity . All other existential threats , from global warming to weapons of mass destruction, have some sort of treaty in place to manage the associated risks. It’s time we had one for AI too It’s vital we work on establishing an international framework now , in relatively early days

the threat real nuclear catastrophe biggest existential threat end of the human race superintelligence chimp s comprehend child’s play all life on earth easy snuffing out a candle 2040 preparing now real existential threat to humanity treaty manage time we had one for AI too international framework now early days

['But the threat it poses is real. Prominent computer scientists have warned of it\xa0for years, and recently some of the smartest people on the planet have taken up the call. Bill Gates considers AI\xa0more dangerous than a nuclear catastrophe, Elon Musk said it was probably humanity’s “biggest existential threat,” Steven Hawking said it could “spell the end of the human race.”', 'We should start by defining what’s meant by the term “AI.” AI, in a sense, is already here. It’s in online search engines, the computer opponents in video games, the spam filter in our emails, and the Siri assistant in our iPhones.', 'All of these are examples of artificial narrow intelligence (ANI) – AI that’s only capable of a few specific tasks. Well-designed ANIs can match or surpass humans at particular tasks, but, unlike humans, they can’t be applied to much else. Google’s AlphaGo may be able to beat any human at Go, but that’s all it can do. Such AIs are useful, and don’t seem to pose an existential threat.', 'It’s at the level of artificial general intelligence (AGI) when things get dangerous. An AGI would be as smart as a human across the board. Unlike an ANI, an AGI could be applied to anything. No one’s been able to develop one yet, but in theory, an AGI would be able to match a human at any task, and, naturally, would also be able to do things like perform complicated calculations effortlessly, make countless copies of itself in seconds, and transmit itself across the world instantaneously.', 'An artificial superintelligence (ASI) would be something else entirely. It would be smarter than humans across the board, and the extent to which it’s smarter may be beyond our reckoning.', 'Our final invention', 'In his great\xa0article\xa0“The AI Revolution: The Road to Superintelligence” in\xa0Wait But Why, Tim Urban explained why growth in AI cognitive power is likely to take us by surprise.', 'Humans tend to think that the difference in intelligence between the smartest human and the dumbest human is large, that is, to use Oxford philosopher Nick Bostrom’s example, that someone like Albert Einstein is much smarter than the village idiot. On the grand scale of intelligence including non-human animals, however, this difference is miniscule. The difference between the intelligence of a human and that of a chimpanzee is many, many times larger than the difference between the intelligence of Einstein and that of the village idiot. The difference between the intelligence of a chimpanzee and that of a mouse is larger still.', 'This means that whilst it may take years or decades to get an AI to chimpanzee-level intelligence, for example, once that level is reached the transition to general human-level intelligence (AGI) will be much faster, resulting in what some have termed an “intelligence explosion.”', 'Furthermore, we should factor-in recursive self-improvement, a popular idea amongst AI researchers for boosting intelligence. An AI capable of recursive self-improvement would be able to find ways to make itself smarter; once it’s done that, it’ll be able to find even more ways to make itself smarter still, thereby bootstrapping its own intelligence. Such an AI would independently and exponentially increase in cognitive power.', 'An AI approaching general human-level intelligence, therefore, would pick up speed, and, far from stopping at Humanville Station, as Bostrom puts it, would whoosh past it. An AI capable of recursive self-improvement that had attained village idiot intelligence level in the morning might hit Einstein-level by the afternoon. By evening, it could have reached a level of intelligence far beyond any human. AI researchers, celebrating their success at creating an AGI, might find themselves faced with a superintelligence before they’d even finished the champagne.', 'A superintelligence could be smarter than humans in the same way that humans are smarter than chimpanzees. We wouldn’t even be able to comprehend an entity like that. We think of an IQ of 70 as dumb and an IQ of 130 as smart, but we have no idea what an IQ of 10,000 would be like, or what a being with that cognitive capacity would be capable of. Its power, for us anyway, would be incalculable: many things we deem impossible or fantastical would be child’s play for it. Curing all disease would be as easy for it as popping a pill, interstellar travel as easy as stepping from room to room, and extinguishing all life on earth as easy as snuffing out a candle.', 'The only term we have that comes close to describing something like that is God, and, as Urban ominously puts it, the question we should ask then is:\xa0Will it be a nice God?', 'Taming God', 'Some computer scientists seem confident that we can make an AGI or a superintelligence be “nice,” that taming the god we created is a matter of programming.', 'Programming an AI of human intelligence or above will likely be a daunting task. Who knows what it might do without being given specific goals or values, and, even if it is, its actions might still be unpredictable. Nick Bostrom, who is also the founding director of the Future of Humanity Institute at the University of Oxford,\xa0gives the example\xa0of an AI being tasked with the seemingly boring and innocuous goal of making as many paperclips as possible. At some point, it may decide that in order to maximize the number of paperclips it should prevent humans from reprogramming it or switching it off, upon which it kills all the humans so it can continue making endless amounts of paperclips unimpeded.', 'Note, of course, that in that scenario the AI wouldn’t exterminate humans because of any malice it had towards them (no more than we hate bacteria when we take antibiotics), but because they don’t matter to it. Likewise, when Google’s DeepMind AI program\xa0grew increasingly aggressive as it got smarter, and was more likely to attack opponents with lasers in simulated games, it wasn’t because of any malice towards those opponents; it was just because that strategy maximized its chances of winning.', 'In order to prevent something like that from happening, some have suggested programming AIs with goals specifically beneficial to humans. Such attempts, however, can also lead to unexpected results.', 'For example, an AI programmed to “make people happy” might realize that the most efficient way to do this is to capture humans, implant electrodes into their brains and stimulate their pleasure centers.', 'Likewise, an AI programmed with Isaac Asimov’s Three Laws of Robotics—', '1) A robot may not injure a human being or, through inaction, allow a human being to come to harm.', '2) A robot must obey the orders given it by human beings except where such orders would conflict with the First Law.', '3) A robot must protect its own existence as long as such protection does not conflict with the First or Second Laws.', '--might decide that, since humans are constantly harming each other, the best way to obey these laws would be to gently imprison all of them.', 'Another suggestion is to upload a pre-existing set of values into an AI – utilitarianism, say, or liberal democracy. But even assuming people could agree on which philosophy to go with, it’s hard enough to imbue\xa0humans\xa0with human values as it is. There’s no telling how a superintelligence might interpret it, or the contradictions within it.', 'There’s no reliable way to ensure a superintelligence’s goals or values accord with our own. A single careless assumption or oversight or ambiguity could lead to results no one expected or intended.', 'Caging God', 'Others have suggested building safeguards around the AGI or superintelligence. They’ve mooted\xa0measures\xa0of varying degrees of complexity, from denying it access to the internet, to restricting its contact with the outside world, to trapping it in a series of concentric virtual worlds. None of these safeguards inspire confidence.', 'First, as Roman V. Yampolskiy, Associate Professor of Computer Engineering and Computer Science at the University of Louisville, noted, every security measure ever invented has eventually been circumvented.', ' “Signatures have been faked, locks have been picked, supermax prisons had escapes, guarded leaders have been assassinated, bank vaults have been cleaned out, laws have been bypassed…passwords have been brute-forced, networks have been penetrated, computers have been hacked, biometric systems have been spoofed, credit cards have been cloned, cryptocurrencies have been double spent…CAPTCHAs have been cracked, cryptographic protocols have been broken,” he\xa0wrote. “Millennia long history of humanity contains millions of examples of attempts to develop technological and logistical solutions to increase safety and security, yet not a single example exists which has not eventually failed.”', 'Any safeguards would eventually be circumvented either by human hackers, or acts of nature (for example, the tsunami that caused the radiation leak at the Fukushima nuclear reactor). Whilst a certain failure rate may be acceptable in an enterprise where the stakes are lower, it’s unacceptable where a single leak might be all the AI needs to end humanity’s dominance.', 'Then, there’s the likelihood that any safeguards would be circumvented by the AI itself. Indeed, any security measures our best computer scientists could devise would be laughable to a superintelligence, which by definition would be many times smarter than any human.', 'Imagine a human being held captive by chimpanzees. Suppose that these are unusually intelligent chimpanzees that use state-of-the-art monkey technology to keep the human prisoner – perhaps they manage to construct a rudimentary cage out of sticks. Is there any doubt that the human wouldn’t eventually escape in ways the chimpanzees couldn’t possibly think of? Perhaps he’d dig a hole under the cage, or fashion tools out of nearby objects to help him, or remove the bars of the cage and use them as weapons, or make a fire that burns down a portion of the cage. One way or another, it would only be a matter of time before he found a way free.', 'A superintelligence would be smarter than humans in a similar fashion. In his\xa0article\xa0“Leakproofing the Singularity: Artificial Intelligence Confinement Problem,” Yampolskiy suggested that a superintelligence could easily manipulate a human guard into letting it escape. It could target a guard’s weaknesses, offering him power or immortality, or promising a cure for a loved-one with a terminal disease.', 'It could also find a bug in the system and exploit it (something even human hackers do all the time). Or pretend to malfunction, and then escape when its jailors lower safeguards to investigate. Or it could escape in ways humans aren’t even aware are possible. Insulated from the outside world, Bostrom suggested, it might find a way to generate radio waves by shuffling the electrons in its circuitry in particular patterns. Of course, these are just the methods our puny human brains can imagine – an entity thousands of times smarter would be able to come up with a lot more. Effective safeguards are built around power – they’re not possible against a being that’s smarter, and therefore more powerful, than us. Thinking we could contain something like that would be hubris.', 'At a talk at MIT, Elon Musk compared developing AI to summoning a demon. “You know all the stories where there’s a guy with the pentagram and the holy water and he’s like, yeah, he’s sure he can control the demon? Doesn’t work out.”', 'How do you cage a god? The short answer to that question is “You can’t.”', 'The Need for a Treaty', 'The development of AGI and superintelligence may be approaching. The median realistic year leading computer scientists predict it to happen by\xa0is 2040. While this might seem far off, we need to start preparing for it now.', ' “If a superior alien civilization sent us a text message saying, ‘We’ll arrive in a few decades,’ would we just reply, ‘Ok, call us when you get here – we’ll leave the lights on?’” asked Stephen Hawking in an\xa0article\xa0co-written with Stuart Russell of the University of Berkeley and Max Tegmark and Frank Wilczek of MIT. “Probably not – but this is more or less what is happening with AI.”', 'AI is a technology no major power can afford to ignore if it wants to advance in the 21st century. The U.S. and\xa0China\xa0in particular are\xa0pouring vast resources\xa0into AI research in both the public and private sectors in hopes of achieving the next breakthrough.', 'At the same time however, AI presents a real existential threat to humanity. All other existential threats, from global warming to weapons of mass destruction, have some sort of treaty in place to manage the associated risks. It’s time we had one for AI too.', 'It’s vital we work on establishing an international framework now, in what are relatively early days, before the AI industry develops too far, before we become too used to its benefits, before associated vested interests and lobby groups gain too much power. The difficulties in addressing the global warming crisis show the tendency of humans to inertia, even when faced with a proven existential threat. “[T]he human race might easily permit itself to drift into a position of such dependence on the machines that it would have no practical choice but to accept all of the machines’ decisions,” wrote Bill Joy, co-founder of Sun Microsystems, in his\xa0essay\xa0“Why the Future Doesn’t Need Us.” At that point, he warned, “People won’t be able to just turn the machines off, because they will be so dependent on them that turning them off would amount to suicide.”']

[(6, 12)]

c0ddf48ef8156d17cc3faae16987b70a05c92d62029400a83cf6c6f84a63d03a

Corruption-induced environmental mismanagement is existential.

Sarah Chayes 17. Senior Fellow in the Democracy and Rule of Law Program at the Carnegie Endowment for International Peace and the author of Thieves of State: Why Corruption Threatens Global Security. 2017. “Kleptocracy in America: Corruption Is Reshaping Governments Everywhere Reviews & Responses.” Foreign Affairs, vol. 96, pp. 142–150.

corruption is easy to brush away But hard to deny corruption lies at the root of many first-order global problems , such as violent extremism or civil strife and mass casualties not to mention refugee crises that follow also in the truly existential destruction of the environment. countries have pulled themselves back

In countries as varied as Bulgaria, Honduras, Iraq, Lebanon, Malaysia, Moldova, Romania, and South Africa, where governments haven't been toppled , citizens have shown remarkable collective energy in protesting corruption Despite paying lip service to the problem of corruption developed countries have never treated it as more than a second-order foreign policy concern. After all, corruption is hard to measure and easy to brush away with arguments about differing cultural norms and the value of "facilitation payments" in greasing bureaucratic wheels . But it has become hard er to deny that corruption lies at the root of many first-order global problems , such as the spread of violent extremism or civil strife and mass casualties in South Sudan and Syria - not to mention refugee crises that have follow ed Corruption also plays a major role in the one truly global existential threat: the destruction of the environment. the causal relationship often ask corruption's bad but is there anything that can be done ? Are there examples of countries that have pulled themselves back some places have indeed dramatically reduced corruption . A few on that list are familiar such as Hong Kong and Singapore. Others-Botswana, Georgia, Rwanda-might surprise some readers.

varied governments haven't been toppled remarkable collective energy in protesting corruption lip service developed countries second-order hard to measure easy to brush away greasing bureaucratic wheels hard deny corruption lies at the root of many first-order global problems spread of violent extremism civil strife mass casualties South Sudan Syria refugee crises follow also one truly global existential threat: the destruction of the environment. anything that can be done ? pulled themselves back have indeed dramatically reduced corruption

['In countries as varied as Bulgaria, Honduras, Iraq, Lebanon, Malaysia, Moldova, Romania, and South Africa, where governments haven\'t been toppled, citizens have nonetheless shown remarkable collective energy in protesting corruption. Taken together, these disparate movements add up to a low-grade worldwide insurrection. Elsewhere, taking the pulse of their people, governments such as China\'s have launched top-down initiatives targeting crooked officials. Despite paying lip service to the problem of corruption for decades, leaders in rich, developed countries have never treated it as more than a second-order foreign policy concern. After all, corruption is hard to measure and easy to brush away with arguments about differing cultural norms and the value of "facilitation payments" in greasing bureaucratic wheels. But lately, it has become harder to deny that corruption lies at the root of many first-order global problems, such as the spread of violent religious extremism or the civil strife and mass casualties witnessed in South Sudan and Syria-not to mention the refugee crises that have followed on their heels. Corruption also plays a major role in the one truly global existential threat: the destruction of the environment. When speaking about the causal relationship between corruption and such issues, I\'m often asked questions along these lines: "OK, corruption\'s a bad thing, but is there anything that can be done about it? Are there examples of countries that have pulled themselves back from the brink?" The political scientist Robert Rotberg has surely fielded the same questions countless times during his distinguished career. He has now published a comprehensive and detailed response. His book\'s answer to the second question is important: some places have indeed dramatically reduced corruption. A few names on that list are familiar success stories, such as Hong Kong and Singapore. Others-Botswana, Georgia, Rwanda-might surprise some readers. Rotberg examines these cases, alongside those of both poorer performers and longtime paragons such as Denmark and Finland, in order to figure out what works. His conclusions are scattered throughout the book and then tabulated at the end in a single 14-step program.']

[(6, 15)]

893b93f1135e9f2da2eb816b881f67351a6b67194879d21f6afa34d54fe93864

Global corruption causes extinction.

Michael Dziedzic 18, Professor at the Air Force Academy, the National War College, and Georgetown University and Senior Fellow and Senior Program Officer at the International Institute for Strategic Studies, the Institute for National Strategic Studies, and US Institute of Peace. “Kleptocratic Regimes and National Security: A Pervasive Threat and How it Can be Neutralized.” George Mason University.

Kleptocratic regimes are crosscutting threat that causes great power competitors, nuclear aspirants , terror crime , state failure , genocide obstruction of stability the greatest threat is corrosive impact on geopolitical order . Kleptocracy metastasized into existential threat Putin weaponized corruption safeguarded by lack of transparency which allows kleptocrats to launder illicit revenue enhancing transparency clos off our system Inherent is diversion for private gain – inadequate services, repression radicalization , state fragility , conflict Houthi Taliban I S Boko Haram Kleptocracy distorts markets adding costs creating inefficiencies deters Investment convergence of terror crime illicit power constitutes an parasitic , economy that represents an existential threat to societies Criminal structures responsible for obstructing peace in 70% of conflicts When the U.S. has been involved 100% the U.S. chronically overlook this This is the most likely explanatory factor for return to conflict after intervention

Kleptocratic regimes are a crosscutting security threat that causes or contributes decisively to threat actors great power competitors, nuclear aspirants , terror ism crime , state failure , genocide obstruction of peace and stability they cause or contributes decisively to threat actors Russian/Chinese kleptocracy, a systemic threat One of the greatest threat s to security is corrosive impact of kleptocracy on geopolitical order . Kleptocracy and financial secrecy metastasized into an existential threat Putin weaponized corruption for geopolitical ends safeguarded by lack of transparency which allows kleptocrats to launder illicit revenue enhancing transparency clos off our system Inherent in kleptocracies is massive diversion of public funds for private gain . consequences – inadequate resources for public services, de-legitimization and repression fuel radicalization , state fragility , and conflict . Prominent examples include Houthi Yemen Taliban I S Boko Haram Kleptocracy effects slow growth undercutting stability . Corruption distorts markets adding costs creating inefficiencies deters Foreign Investment convergence of terror ism crime , corruption, and illicit power structures constitutes an alternative , parasitic , global economy that represents an existential threat to societies Criminal ized power structures have been responsible for obstructing or thwarting peace in at least 70% of the internal conflicts since 90 When the U.S. has been involved the figure rises to 100% the U.S. chronically overlook this In ten case studies This is the most likely explanatory factor for 50% rate of return to conflict after intervention

Kleptocratic regimes are a crosscutting security threat that causes or contributes decisively to threat actors great power competitors, nuclear aspirants , terror ism crime , state failure , genocide obstruction of peace and stability they cause or contributes decisively to threat actors Russian/Chinese kleptocracy, a systemic threat One of the greatest threat s to security is corrosive impact of kleptocracy on geopolitical order . Kleptocracy and financial secrecy metastasized into an existential threat Putin weaponized corruption for geopolitical ends safeguarded lack of transparency launder illicit revenue enhancing clos off our system Inherent in kleptocracies is massive diversion of public funds for private gain . consequences – inadequate resources for public services, de-legitimization and repression fuel radicalization , state fragility , and conflict . Prominent examples include Houthi Yemen Taliban I S Boko Haram Kleptocracy effects slow growth undercutting stability . Corruption distorts markets adding costs creating inefficiencies deters Foreign Investment convergence of terror ism crime , corruption, and illicit power structures constitutes an alternative , parasitic , global economy that represents an existential threat to societies Criminal ized power structures have been responsible for obstructing or thwarting peace in at least 70% of the internal conflicts since 90 When the U.S. has been involved the figure rises to 100% the U.S. chronically overlook this In ten case studies This is the most likely explanatory factor for 50% rate of return to conflict after intervention

['Taken together, President Trump’s declaration that corruption and human rights abuse constitute a national emergency and the catalogue of threats identified in the NSS have recognized all of the topics Kleptocratic regimes are not an added threat that is competing in a zero-sum manner for scarce national security resources; rather they are a crosscutting national security threat that either causes or contributes decisively to the threat actors already identified by the Trump Administration. discussed in this report (i.e., great power competitors, nuclear aspirants, terrorism, organized crime, state failure, genocide, and obstruction of peace and stability operations). The central lesson that should be derived is that kleptocratic regimes are not an added threat that is competing in a zero-sum manner for scarce national security resources; rather they are a cross-cutting national security threat that either causes or contributes decisively to the threat actors already identified by the Trump Administration. Our first order of business is to catalogue why kleptocratic regimes constitute a pervasive threat to national security. Our second purpose is to propose recommendations for neutralizing this threat by being smarter about how we deal with it. These arguments are summarized below. Kleptocratic Regimes: A Pervasive Threat to National Security ● Russian/Chinese kleptocracy, a systemic threat, and the general systemic threats posed by kleptocratic regimes One of the greatest threats to U.S. national security is the corrosive impact of kleptocracy on geopolitical order. Kleptocracy and financial secrecy have metastasized into an existential threat to our civilization. Vladimir Putin has “weaponized” use of corruption for geopolitical ends. The convergence of corrupt values and practices in the former Soviet Union, reformulated for the 21st century and exported to the West, now pose an encompassing threat. The economic power of kleptocrats like Putin is safeguarded in the West by our lack of transparency regarding the real owners of corporations which allows kleptocrats to launder their illicit revenue in shell companies. We must address these threats by enhancing transparency and closing off our financial system to those intent on damaging our country. ● Kleptocracy and the Link to Terrorism, Radicalization, Fragile States, and Political Instability Inherent in the nature of kleptocracies is massive diversion of public funds for private gain. The consequences – inadequate resources for public services, de-legitimization of the regime, and repression of dissent – fuel radicalization, state fragility, and conflict. Extremist groups draw on public anger at the abuse of power. Prominent current examples include the Houthi rebels in Yemen, the Taliban in Afghanistan, the Islamic State in Iraq and Syria, and Boko Haram in Nigeria. The most salient cases where kleptocractic actors have posed a clear threat to U.S. counter-terrorism and stabilization efforts are Afghanistan and Iraq. Systemic and high-level corruption – within governments we supported and funded – funneled revenue out of the domestic economy, further impoverished the country, hollowed out security institutions, undermined the legitimacy of the state, and fueled recruitment by insurgent and terrorist groups. Kleptocracy also has economic effects that slow growth, thereby undercutting political stability. Corruption distorts markets by adding costs and creating inefficiencies, and it deters Foreign Direct Investment. ● The “Convergence” among terrorism, organized crime, corruption and illicit power structures The convergence of terrorism, organized crime, corruption, and illicit power structures constitutes an alternative, parasitic, global political economy that represents an existential threat to societies based on the rule of law. Their effects have been exacerbated by the dramatic increase in the flow of goods and services, money, people, and data that have resulted from globalization. Terrorists and criminals take advantage of these same flow paths and are able to do so invisibly as their transactions are lost in the overwhelming volume of licit and illicit transactions. There is an increasing level of organizational collusion between international terrorist organizations, organized crime and networked insurgencies (e.g., Hezbollah and the Sinaloa cartel). This threat is compounded by the collusion of “mafia states” that utilize the traditional tools of statecraft, such as passports, airline and shipping registries, and diplomatic pouches, to provide free passage to engage in criminal activity. ● Criminalized Power Structures: Leading Spoilers of Peace and Stability Operations Criminalized power structures, defined as regimes that obtain and maintain power through exploitation of illicit revenue, have been responsible for obstructing or thwarting peace processes in at least 70% of the internal conflicts in which the United Nations has intervened since 1990.7 When the U.S. has been involved--and this has included both peace and stability operations--the figure rises to 100% (i.e., Somalia, Haiti, Bosnia, Kosovo, Afghanistan, and Iraq). Both the U.S. and the international community chronically overlook this problem. In the ten case studies examined in Criminalized Power Structures: The Overlooked Enemies of Peace, almost five years elapsed before missions had the mandate and means to mount a strategy to confront their kleptocratic spoilers.8 Not only had the “golden hour” been squandered, the legitimacy of the mission had typically been severely compromised. This is perhaps the most likely explanatory factor for the 50% rate of return to conflict within five years after an international intervention, as claimed by Kofi Annan.9']

[(8, 19)]

ddf001a76cda436025be63cc139567763a8704c8cdb7bfa92add2e9f945df654

The purpose of trustworthy auditors is to maintain faith in capitalism

Karthik Ramanna 19, Professor of Business & Public Policy and Director of the Master of Public Policy Programme at the University of Oxford’s Blavatnik School of Government, “The Solution to the Auditing Industry’s Oligopoly Problem? More Competition,” Oxford Law Faculty, 1/14/2019, https://www.law.ox.ac.uk/business-law-blog/blog/2019/01/solution-auditing-industrys-oligopoly-problem-more-competition

auditors are well served to take feedback and win back trust audits are essential to the basis for a modern capitalist economy. it is no coincidence that public support for capitalism is amongst the lowest since World War II

auditors are well served in this moment of public reckoning to take feedback in humility and sincerity , and credibly win back trust this matters because audits are essential to the basis for a modern capitalist economy. it is no coincidence that public support for capitalism in the US and the UK amongst the young, is amongst the lowest since World War II

well served public reckoning take feedback humility sincerity credibly win back trust matters audits essential basis modern capitalist economy. no coincidence that public support for capitalism in the US and the UK amongst the young, is amongst the lowest since World War II

['The auditors are well served in this moment of public reckoning to take the feedback from the reviews in all humility and sincerity, and to ask what they can credibly do to win back the trust, which is the foundation of their business model.', 'All this matters because audits are essential to investor confidence in the separation of ownership and control – the basis for a modern capitalist economy. Perhaps it is no coincidence that public support for capitalism in the US and the UK, especially amongst the young, is amongst the lowest it has been since World War II.']

[(8, 18)]

7cc340340554d41c01f61cbad4e9a7974f71d1d598e8ae1dc877a874691a8197

This conflict of interest is a fundamental issue with for-profit accountancy. Nationalization solves by realigning the profession with public service.

Madison Marriage 18, investigative reporter at the Financial Times, “Grant Thornton calls for independent public body to appoint auditors,” Financial Times, 9/11/2018, https://www.ft.com/content/92050fc4-b5db-11e8-bbc3-ccd7de085ffe

nationalisation of auditor s break the oligopoly would improve weaknesses in the market including conflicts of interest and poor quality , which undermined confidence Nationalising would address concerns that auditors are beholden to management and fail to flag problems because they want their fees

nationalisation of auditor s break the oligopoly of the big four the proposal would improve a swath of weaknesses in the audit market , including conflicts of interest and poor audit quality , which have undermined confidence in the profession Nationalising auditor procurement would address concerns about the audit market that auditors are beholden to management and fail to flag problems because they want to hold their fees at all costs company management teams are biased towards selecting the big four helping to entrench their dominant position

nationalisation auditor s break the oligopoly big four improve swath of weaknesses conflicts of interest poor audit quality undermined confidence in the profession Nationalising address concerns about the audit market beholden to management fail to flag problems want to hold their fees at all costs management teams biased big four entrench their dominant position

['Grant Thornton has called for the nationalisation of auditor selection among Britain’s largest companies in an effort to break the oligopoly of the big four firms.', 'The UK’s fifth largest accounting firm said the radical proposal would improve a swath of weaknesses in the audit market, including widespread conflicts of interest and poor audit quality, which have heavily undermined confidence in the profession.', 'Jonathan Riley, head of quality and reputation at Grant Thornton, said the firm wanted auditor selection for large listed companies and other public interest entities to be carried out by a public body such as a newly established commission or the National Audit Office.', 'Mr Riley said placing responsibility for auditor procurement with an independent public body would address the “perennial issue that audit clients select and pay the auditor”. He added that this would help restore trust and integrity in the market at a time when there “seems to have been a loss in impartiality and independence”.', 'Grant Thornton has floated the idea with Britain’s main political parties, the CBI, the competition watchdog and the ICAEW, an industry body. The firm said it expected companies and the big four to be resistant to the proposal, although it had received warmer than expected feedback from the CBI and the ICAEW.', 'Gervase MacGregor, an audit partner at BDO, the sixth largest firm in the UK, said he was initially sceptical about the benefits of a national procurement body for auditor appointments, but said he has “come around to the idea”. But he added that BDO’s stated position of introducing market share caps to address competition concerns would be more effective.', 'Grant Thornton additionally wants a ban on accounting firms offering any kind of consulting or advisory work to major audit clients — a measure also backed by BDO and privately by some partners within the big four.', 'Nationalising auditor procurement would theoretically address two significant concerns about the audit market. First, that auditors are overly beholden to company management and fail to flag problems at the companies they vet because they want to hold on to their fees at all costs.', 'Second, that company management teams are biased towards selecting the big four firms, helping to entrench their already dominant position in the market. At present, EY, Deloitte, KPMG and PwC audit 98 per cent of the constituents in the FTSE 350 index of Britain’s largest listed companies.']

[(8, 19)]

09442b20983e2546c7fc273afa7f4de238bcdb314f68713a773c56678fb9c330

Empirics prove---small auditing has plenty of its own scandals! Breakups fail but nationalization solves.

Richard Murphy 18, part-time Professor of Accounting at Sheffield University Management School, “The time has come to nationalise auditing,” Tax Research UK, 8/30/2018, https://www.taxresearch.org.uk/Blog/2018/08/30/the-time-has-come-to-nationalise-auditing/

the whole future of auditing is under review because problems within auditing do not exist solely in the Big 4 they extend well beyond to pretend the problem can be resolved by simply expanding the market is just wrong . All that will happen is conflicts of interest and lack of judgement will be spread wider There is a solution to nationalise auditing The time has come.

The issue is incredibly important the whole future of auditing is under review because what it makes clear is that the problems within auditing and accounting do not exist solely in the Big 4 they extend well beyond that to pretend that the problem of auditing can be resolved by simply expanding the market is just wrong . All that will happen is that conflicts of interest and the lack of professional judgement that underpin the issues that are arising will be spread a little wider . There is a solution . That is to nationalise auditing . The time has come.

incredibly important whole future of auditing is under review clear problems within auditing and accounting do not exist solely in the Big 4 well beyond that pretend expanding the market just wrong conflicts of interest lack of professional judgement spread a little wider . There is a solution . That is to nationalise auditing . The time has come.

['The problems within auditing in the UK (and I strongly suspect elsewhere) were highlighted yesterday when the fifth largest U.K. firm, Grant Thornton, was fined for serious breaches of the code of ethics relating to auditing. As the BBC reported:', 'Accounting firm Grant Thornton has been fined £3m by a watchdog for misconduct over its audits of Vimto-maker Nichols and the University of Salford.', "This related to former senior partner Eric Healey joining the two organisations' audit committees despite being employed for consultancy work.", 'The Financial Reporting Council (FRC) said this created "serious familiarity and self-interest threats".', 'A Grant Thornton spokesman said it had fallen short of expected standards.', "Three of the firm's senior auditors also admitted misconduct.", 'The FRC fined Mr Healey £200,000 - discounted to £150,000 on settlement - and excluded him from the Institute of Chartered Accountants for five years.', 'The issue is incredibly important at a time when the whole future of auditing is under review because what it makes clear is that the problems within the auditing and accounting profession do not exist solely in the Big 4 firms: they extend well beyond that as well. In that case to pretend that the problem of auditing can be resolved by simply expanding the market to include the likes of Grant Thornton is just wrong. All that will happen is that the conflicts of interest and the lack of professional judgement that underpin all the issues that are arising will be spread a little wider.', 'There is a solution. That is to nationalise auditing. As Anthony Hilton said in the Evening Standard a week ago:', 'I agree with him. The time has come.']

[(8, 17)]

914d68c9611a30dee3d613f98baa60cd0d4a55f3dd72fc3a758729da311619f1

The accountancy market is deconcentrating

Christopher C. McKinnon 15, J.D. Candidate and Lawrence Lederman Fellow in Law & Economics, 2015, New York University School of Law; B.A., 2012, Business Economics, University of California, Santa Barbara, Awarded the 2015 Flora S. and Jacob L. Newman Prize for most outstanding note by the NYU Journal of Law & Business, “Auditing the Auditors: Antitrust Concerns in the Large Company Audit Market,” 11 N.Y.U. J.L. & Bus. 533, Spring 2015, WestLaw

the audit market as a whole has been deconcentrating since SOX Big 4's share of mid-sized companies dropped In IPO mid-sized auditors are gaining Small IPO retained non-Big 4 auditors on 40% of offerings the Big 4's Gini coefficient reveals less discrepancy between respective shares the market as a whole is responding by deconcentrating

the audit market as a whole has been steadily deconcentrating since SOX was implemented the Big 4's market share of mid-sized companies dropped between 2002-2006 There are now more mid-sized auditors servicing public companies of all sizes In the IPO market mid-sized auditors are gaining ground Small IPO companies retained non-Big 4 auditors on 40% of offerings Adding to this apparent deconcentration of the audit industry since SOX was enacted, the Big 4's Gini coefficient reveals less discrepancy between their respective market shares dropped from 40.1 to 31.4 consistent with increased equality among the Big 4 auditors Markets with suppliers that are more or less equal are thought to be more competitive than those with great disparities These figures illustrate that the audit market as a whole is responding by deconcentrating

audit market as a whole steadily deconcentrating SOX Big 4's mid-sized dropped more mid-sized auditors all sizes IPO gaining ground Small non-Big 4 auditors 40% of offerings Big 4's Gini coefficient less discrepancy respective dropped 40.1 to 31.4 increased equality more competitive whole deconcentrating

['V. APPROPRIATE LEGISLATION IN A DECONCENTRATING MARKET', "Notwithstanding each proposal's shortcomings, the audit market as a whole has been steadily deconcentrating since SOX was implemented in 2002. For example, the Big 4's market share of mid-sized companies (with revenues between $100-500 million) dropped from 90% to 71% between 2002-2006.229 There are now more mid-sized auditors servicing public companies of all sizes, except those with revenues greater than $1 billion, which categorically continue to use the Big 4.230 In the IPO market as well, mid-sized auditors are gaining ground on the Big 4. Small IPO companies (with revenues less than $150 million) retained non-Big 4 auditors on 40% of offerings in 2007, up from 18% in 2003.231 Mid-sized IPO companies (with revenues greater than $150 million) retained non-Big 4 auditors on 13% of offerings in 2007, up from 0% in 2003.232 The largest IPO companies continue to use the Big 4 almost exclusively.233", "Adding to this apparent deconcentration of the audit industry since SOX was enacted, the Big 4's Gini coefficient reveals less discrepancy between their respective market shares.234 The Gini index measures the equality of shares held by suppliers in a given market. Big 4 firms' Gini coefficient dropped from 40.1 to 31.4 between 2001 and 2007, which is “consistent with increased equality among the Big 4 auditors.”235 Markets with suppliers that are more or less equal are thought to be more competitive than those with great disparities in market share.236", "These figures illustrate that the audit market as a whole is responding to SOX by deconcentrating. There has yet to be any significant change in the Big 4's market share of the country's largest corporations, however. In due time, mid-sized auditors *567 may successfully challenge the Big 4's command over the large company audit market as well. Audit clients are in agreement: 76% of companies polled favor allowing market forces to operate without further governmental intervention.237"]

[(15, 26)]

a47840474f5eb82f8da4d9ac7513fd6640d49b0f694dd126e40cc686d17954ce

Concentration isn’t key---doesn’t cause anticompetitive behavior OR result in increasing fees

Bernard Ascher 8, Research Fellow, American Antitrust Institute, “The Audit Industry: World’s Weakest Oligopoly?,” SSRN Scholarly Paper, ID 1337105, Social Science Research Network, 09/18/2008, papers.ssrn.com, doi:10.2139/ssrn.1337105

FTC opened investigation of restrictions on competition DOJ challenged regulations FTC closed its case because found restraints had been dropped decisions favoring competition among professionals caused associations to reduce restrictions Mid‐tier and smaller firms face barriers to entry although are gaining market share fees are reflecting costs more fully and realistically GAO found no clear, definitive link between accounting market structure and anticompetitive behavior Clients complain about reg s which contribute cost not cost themselves no cases reflect antitrust violations

prior to consolidation the FTC opened an investigation of restrictions on competition The Commission was to study the effects of restrictions The study also was to include “the degree of possible control by major accounting firms over the accounting industry the reasons for such dominance, and its possible effects At about the same time, the DOJ challenged regulations that prohibited competitive bidding by accountants the FTC closed its case because the Commission found the restraints had been dropped voluntarily and that since the case was opened, Supreme Court decisions favoring competition among professionals had caused “a significant number of states and associations to cancel or reduce accounting restrictions the Italian government took action against anticompetitive behavior of accounting companies Since 02 the Big 4 have been engaged in a milder form of competition for audit clients than in the 80s and 90s Mid‐tier and smaller accounting firms face formidable barriers to entry in the market for audits of global public companies, although they are gaining market share fees are higher reflecting costs more fully and realistically In its study of the Big 4, GAO found that there is “ no clear, definitive link between accounting market structure and anticompetitive behavior .” There appears to be general agreement that the higher fees are attributable more to new regulatory requirements than to industry concentration Clients of the Big 4 are complain ing about the burden of reg ulatory requirement s which contribute to cost but not the cost of the audits themselves There appears to be no evidence of anticompetitive behavior in recent public literature and there are no cases reflect ing antitrust violations

prior consolidation restrictions on competition control major accounting firms accounting industry reasons effects DOJ closed its case dropped voluntarily Supreme Court competition professionals cancel or reduce accounting restrictions Italian 02 milder form 80s 90s Mid‐tier smaller formidable barriers to entry gaining market share fees higher fully realistically “ no clear, definitive link between accounting market structure and anticompetitive behavior .” regulatory requirements Clients reg ulatory requirement s contribute cost not cost audits themselves no cases reflect ing antitrust violations

['Anticompetitive Behavior', 'In March 1977 (prior to consolidation of the eight major accounting firms), the Federal Trade Commission (FTC) opened an investigation of restrictions on competition in accountancy. The Commission was to study the effects of state restrictions on advertising by accountants (all states except Nevada); prohibitions on those in other occupations (e.g., lawyers, real estate agents) also practicing as accountants (46 states); and prohibitions on accountants bidding competitively for accounting engagements (19 states, including Massachusetts, Michigan, Pennsylvania and Ohio). The study also was to include “the degree of possible control by major accounting firms over the accounting industry, the reasons for such dominance, and its possible effects.” 97 The investigation was prompted by collapse of the Penn Central Railroad, the Equity Corporation of America scandal, and a Senate subcommittee staff report charging that “big accounting firms tend to serve their corporate clients rather than the investing public.” 98 ', 'At about the same time, the DOJ challenged Texas regulations that prohibited competitive bidding by accountants in the state. If successful the decision could apply in other states.99 In 1978, a U.S. District Court in Texas ruled that Texas’ regulations constituted a violation of the Sherman Act with the purpose or effect of suppressing or eliminating price competition and that the state board of accountancy was not immune from federal antitrust law. 100 This overturned the prevailing doctrine that price competition was unethical, undermined professional integrity and would not deliver the desired type and quality of services to the customer. The decision was affirmed, but modified, in 1979 by the U.S. Court of Appeals. 101 ', 'Subsequently, in 1980, the FTC closed its case because the Commission found that many of the restraints had been dropped voluntarily and that since the case was opened, Supreme Court decisions favoring competition among professionals had caused “a significant number of states and associations to cancel or reduce accounting restrictions.” 102 The FTC was to continue monitoring the situation, including state rules against “encroachment,” the practice of one accounting firm soliciting another firm’s clients. 103 These and various other court decisions in the United States helped to unleash vigorous price competition among the major accounting firms in the 1980s and 1990s, especially as audit fees became used as loss leaders to attract more lucrative consulting business.', 'More recently, the Italian government took action against anticompetitive behavior of accounting companies. In 2000, the Italian government levied fines on the Italian Association of Public Accountants (ASSIREVI) and its members, the Big 6 global accounting firms. At the time. the six firms‐‐‐ Arthur Andersen, Coopers & Lybrand, Deloitte & Touche, KPMG, Price Waterhouse, and Reconta Ernst & Young‐‐‐ handled roughly 90 percent of the business of those entities in Italy which are required to have outside accountants. The firms violated Italian antitrust law by concluding agreements that covered virtually every aspect of competition between the auditing firms. The violations were of two distinct types: setting prices for the services offered on the market by the members of ASSIREVI; and, more generally, coordinating competitive behavior. 104 ', "The agreements set the fees for auditing based on circulation of “an annual benchmark audit fee and working‐hours table according to the size and the sector of activity of the client firms. The agreement also laid down rules to be followed when acquiring new clients in order to protect the market positions of each firm. In particular these rules prohibited any form of competition in relation to each audit firm's ‘client portfolio.’ By applying these rules, the auditing firms were able to agree, for example, on how to respond to requests for discounts from client companies, and to establish in advance the firm that would be awarded auditing contracts, in many cases making competitive tendering a mere formality.”105 ", '“In view of the serious nature of these offenses, the Authority imposed fines on the six firms totaling 4.5 billion lire (about $2.3 million): 1.223 million ($0.63 million) on Arthur Andersen, 840 million ($0.43 million) on Coopers & Lybrand, 788 million ($0.41 million) on Reconta Ernst & Young, 687 million ($0.35 million) on KPMG, 539 million ($0.28 million) on Price Waterhouse and 470 million ($0.24 million) on Deloitte & Touche.” ) 106 The fines were equivalent to between 1.15 percent and 1.4 percent of their revenues from auditing services.107 ', 'In its 2003 report on concentration in the audit industry, the U.S. General Accountability Office found, with respect to audit fees, there is “no clear definitive link between accounting market structure and anticompetitive behavior.”108', 'In Short', 'Since 2002 the Big 4 accounting firms have been engaged in a milder form of competition for audit clients than occurred in the 1980s and 1990s. Mid‐tier and smaller accounting firms face formidable barriers to entry in the market for audits of global public companies, although they are gaining market share in the audits of smaller companies. Audit fees are much higher than before, reflecting costs more fully and realistically. In its study of the Big 4, GAO found that there is “no clear, definitive link between accounting market structure and anticompetitive behavior.” There appears to be general agreement that the higher fees are attributable more to new regulatory requirements than to industry concentration. Clients of the Big 4‐‐‐ large, sophisticated multinational corporations with huge resources ‐‐‐ are complaining about the burden of regulatory requirements (which contribute to the cost of audits), but not the cost of the audits themselves. Small public firms complain about the requirements and the disproportionately high costs of audits. Actions by regulatory authorities are constrained by the fear of driving another major accounting firm out of business and thereby compounding the lack‐of‐choice problems of global public companies in selecting an audit firm. There appears to be no evidence of anticompetitive behavior in recent public literature and there are no cases reflecting antitrust violations by major accounting firms in the United States. Nevertheless, recalling the example of the industry’s anticompetitive practices in Italy in recent years, regulatory authorities would be well advised to remain vigilant so that similar anticompetitive activities do not occur in the future.']

[(8, 16)]

e070f898b8d6397659d5b624e46dbb7e4191c87b07c9aa8555c1fdaccee7f947

They didn’t cause the 08 crisis---auditors are supposed to make sure dumb decisions are disclosed, NOT stop them

Christopher C. McKinnon 15, J.D. Candidate and Lawrence Lederman Fellow in Law & Economics, 2015, New York University School of Law; B.A., 2012, Business Economics, University of California, Santa Barbara, Awarded the 2015 Flora S. and Jacob L. Newman Prize for most outstanding note by the NYU Journal of Law & Business, “Auditing the Auditors: Antitrust Concerns in the Large Company Audit Market,” 11 N.Y.U. J.L. & Bus. 533, Spring 2015, WestLaw

criticism against accounting is misplaced Auditing is not meant to stop companies making dumb moves , just make sure those are disclosed This distinguishes auditors in 08 from 02 when accounting were the center of the [crisis] SOX was instituted immediately and has been working well Further calls for reform are unadvisable

Much recent criticism waged against accounting is misplaced . Auditors were not involved in many of the “primary causes of the [most recent] crisis : bad lending and investing decisions; a lack of understanding of risk ; and flaws in credit-rating Auditing is not meant to stop companies making dumb business moves , just to make sure those moves are properly disclosed This distinguishes the role auditors played in 08 from the 02 bubble, when accounting firms “ were at the center of the [crisis] SOX was instituted immediately and has been working well to reform the audit industry for the better. Further calls for reform to instantly decrease concentration among large auditors are unadvisable .

accounting misplaced not involved many of the “primary causes of the [most recent] crisis lending investing understanding of risk credit-rating not meant to stop companies making dumb business moves properly disclosed distinguishes 08 02 center SOX was instituted immediately working well instantly decrease concentration unadvisable

['Much of the recent criticism waged against accounting firms is misplaced. Auditors were not involved in many of the “primary causes of the [most recent] crisis: bad lending and investing decisions; a lack of understanding of risk; and flaws in the credit-rating system. Auditing is not meant to stop companies from making dumb business moves, just to make sure those moves are properly disclosed.”238 This distinguishes the role auditors played in the 2008 financial crisis from the 2002 dot-com bubble, when accounting firms “were at the center of the [crisis] when companies such as Enron Corp. and WorldCom Inc. collapsed amid scandals.”239 SOX was instituted immediately after the 2002 technology bubble burst, and has been working well to reform the audit industry for the better. Further calls for reform to instantly decrease concentration among large auditors are unadvisable.']

[(15, 26)]

7f9bad725de75e9d631b3617e5529af82b0eeab2665dccbd61c2d5745bb70d6f

Companies are prioritizing reducing debt overhang but they need low rates to continue.

Sam Goldfarb 21, reporter at the Wall Street Journal, “Pandemic Hangover: $11 Trillion in Corporate Debt,” WSJ, 6-14-2021, https://www.wsj.com/articles/pandemic-supercharged-corporate-debt-boom-record-11623681511

BMO doesn’t expect debt to be a problem but it could in a few years companies didn’t add debt to buy back stock They borrowed on an emergency basis, and could pay down debt once that is over The goal is to reclaim investment-grade ratings Boeing will make debt a priority Some have already started to pay back Delta expects to return to investment-grade within two years Target issued bonds Its earnings actually improved Sysco reduced debt by $3 billion corporations make an active attempt to improve balance as long as we’re seeing that, we’re not concerned

portfolio manager and co-head of U.S. fixed income at BMO Global Asset Management, said he doesn’t expect debt to be a problem in the near term, but that it could start causing headaches in a few years One encouraging fact is that many companies didn’t add debt to buy back stock They borrowed money on an emergency basis, and could be in position to pay down debt once that emergency is over The goal is to reclaim investment-grade ratings Boeing has said it will make debt reduction a priority once cash flow becomes more normal. Some companies that borrowed money in the pandemic have already started to pay it back . Delta has said it expects to return to its investment-grade profile within two years Target issued bonds when state and local governments were issuing lockdown orders. Its earnings actually improved during the pandemic, and in October, the company paid down $1.8 billion of its bonds before maturity food distributor Sysco issued $4 billion of bonds in March of last year to bolster its cash holdings. Since last September, it has reduced its debt by roughly $3 billion What we’re seeing is corporations make an active attempt to improve their balance sheets as long as we’re seeing that, we’re not going to be concerned

doesn’t expect debt to be a problem headaches few years encouraging didn’t add debt buy back stock emergency pay down over reclaim investment-grade ratings Boeing priority already pay back Delta return two years Target improved paid down $1.8 billion of its bonds before maturity Sysco reduced debt $3 billion active attempt to improve their balance sheets as long as we’re seeing that, we’re not going to be concerned

['Scott Kimball, a portfolio manager and co-head of U.S. fixed income at BMO Global Asset Management, said he doesn’t expect debt to be a problem in the near term, but that it could start causing headaches for businesses and investors in a few years when companies have to start thinking about refinancing some of the bonds they recently issued. Then, he said, “in the next recession, it’s going to be a major issue.”', 'One encouraging fact for investors is that many companies didn’t add debt over the past year to buy back stock, increase dividends or otherwise juice returns for shareholders. They borrowed money on an emergency basis, and could be in position to pay down debt once that emergency is over.', 'Mr. Bernstein, Carnival’s CFO, said the company will reduce its debt in coming years by paying off bonds and loans as they come due, using cash generated from operations. The goal, he said, is to reclaim the same investment-grade ratings that the company had before the pandemic.', 'Boeing has said it will make debt reduction a priority once its cash flow becomes more normal.', 'Some companies that borrowed money in the pandemic have already started to pay it back.', 'Delta has said it expects to return to its investment-grade profile within two years. It paid down a $1.5 billion loan in March and said in April that it would repay $850 million of additional debt by the end of this quarter.', 'The retailer Target Corp. TGT 1.34% issued $2.5 billion of bonds in March 2020 when state and local governments were issuing lockdown orders. Its earnings, though, actually improved during the pandemic, and in October, the company paid down roughly $1.8 billion of its bonds before their maturity dates.', 'Similarly, food distributor Sysco Corp. SYY -0.49% issued $4 billion of bonds in March of last year to bolster its cash holdings. Since last September, it has reduced its debt by roughly $3 billion, including the early repayment of roughly $700 million of its bonds.', '“What we’re seeing is corporations make an active attempt to improve their balance sheets,” said Matt Brill, senior portfolio manager and head of North American investment grade at the asset manager Invesco Ltd. “And as long as we’re seeing that, we’re not going to be concerned.”']

[(4, 15)]

36f2ff36ad56a484f87f3ada023b139658b40974f0843da7167f71e46c4148ba

Even severe shocks don’t cascade to systemic threats

Emilie Giraud-Bel 20, European and International Affairs expert with a financial background and a decade-long experience working in Brussels and Paris, “Financial regulation in the face of COVID-19: Resilient but complex clockwork,” Atlantic Council, 8-11-2020, https://www.atlanticcouncil.org/blogs/new-atlanticist/financial-regulation-in-the-face-of-covid-19-resilient-but-complex-clockwork/

COVID is unprecedented far worse than 08 yet the system has shown resilience . Reg s helped weather the storm the system held losses of $2.1 trillion the shock has passed the system has shown resilience able to absorb very sharp market shock and losses the Financial Stability Board confirmed banks were better than 08 insurance being well capitalized , also confirmed ability to absorb losses Central Banks reacted swiftly After Lehman reg s limit investments absorb rather than amplify shock

COVID is an unprecedented crisis The economic situation is far worse than 08 yet the financial system has shown resilience . Reg ulation s have helped economies weather the storm COVID presented the financial system with its most challenging test since the global financial crisis and the system held up S&P forecasts losses for banks of about $2.1 trillion It is too early to forecast the full fallout However the initial shock has passed and the financial system has shown its resilience the banking system has been able to absorb a very sharp financial market shock and large prospective losses the Financial Stability Board confirmed the solid position of the financial system At the global level banks were in a much better position to face the COVID crisis than the 08 crisis. The insurance being very well capitalized , also confirmed its ability to absorb losses Central Banks reacted swiftly By providing additional liquidity and enhancing dollar liquidity through swap line arrangements, they have played a critical role in preserving stability Reforms in the aftermath of 08 aimed at improving economic resilience, including to a shock that was not financial COVID turned out to be just that Bolstering resilience meant developing tools to detect vulnerabilities that create conditions for adverse shocks to turn into crises excessive leverage, toxic assets, cross-border interconnectedness, etc After the collapse of Lehman the G20 devised an action plan and created the Financial Stability Board Based on the G20 plan, and thanks to strong cooperation The U S introduced reg ulatory measure s adding agencies in charge of ensuring that no bank reaches a size where its failure would risk collapsing the entire financial system the Volcker Rule limit speculative investments by banks As a result of these reforms better-capitalized banks were able to absorb rather than amplify the shock of the COVID turmoil and markets were responsive to quick and decisive policy actions

COVID unprecedented crisis far worse than 08 financial system resilience Reg s weather the storm most challenging test global financial crisis held up S&P forecasts losses $2.1 trillion full fallout initial shock passed resilience very sharp financial market shock large prospective losses Financial Stability Board confirmed solid position global better position 08 insurance very well capitalized also absorb Central reacted swiftly critical role 08 shock not financial just that vulnerabilities shocks crises Lehman G20 action plan Financial Stability Board U S reg s absorb amplify responsive policy actions

['While the depth and length of the economic fallout from the COVID-19 pandemic remain difficult to evaluate, one thing is for certain: this is an unprecedented crisis. For the first time since the Great Depression both advanced and developing economies are in recession.', 'The current economic situation is far worse than in the 2008-09 crisis, yet the financial system has shown its resilience. Regulations set up in the aftermath of the last downturn have helped economies weather the COVID-19 storm.', 'As governments now balance supporting economic recovery with safeguarding financial stability, however, they should remember that the now global regulatory framework is delicate clockwork that requires, above all, coordination and commitment.', 'A resilient financial sector', 'The COVID-19 outbreak has presented the financial system with its most challenging test since the global financial crisis ten years ago—and the system has held up.', 'Worldwide, S&P forecasts\xa0credit losses for banks of about $2.1 trillion for 2020 and 2021 due to the pandemic, with $1.3 trillion this year alone. Regarding the insurance sector (non-life), a Lloyd’s study into the impact of COVID-19 in 2020 estimated both significant underwriting losses ($107 billion) and a reduction of the value of its global assets by $96 billion, together making it the industry’s largest ever loss ($203 billion).', 'It is too early to forecast the full evolution of the pandemic and its economic fallout. However, we know today that the initial shock has passed and the financial system has shown its resilience. As highlighted by Sir Jon Cunliffe, Deputy Governor for Financial Stability of the Bank of England, the banking system has been able to absorb a very sharp financial market shock and large prospective losses. This is in line with the Financial Stability Board (FSB), which confirmed as early as March, and then again in July, the solid position of the financial system.', 'At the global level, with substantially stronger capital and liquidity resources, banks were in a much better position to face the COVID-19 crisis than the 2008-09 global financial crisis. The insurance sector, being very well capitalized, also confirmed its ability to absorb losses.', 'Finally, Central Banks reacted swiftly to the COVID-19 shock. By cutting policy rates, providing additional liquidity to the financial system, and enhancing the provision of US dollar liquidity through swap line arrangements, they have played a critical role in preserving economic stability. Tellingly, as former Italian Prime Minister Enrico Letta highlighted, the European Central Bank did in a few weeks what required a few years during the previous crisis.', 'The result of ambitious reforms', 'Reforms implemented in the aftermath of the 2008-09 crisis aimed at improving economic resilience, including to a shock that was not financial in origin. COVID-19 turned out to be just that.', 'Economic resilience, according to the OECD, is the capacity of an economy to reduce vulnerabilities, to resist to shocks, and to recover quickly. Bolstering resilience therefore meant mitigating both the risks and consequences of severe crises. Concretely, that entailed developing adequate tools to detect vulnerabilities that could create the conditions for adverse shocks to turn into crises (excessive leverage, toxic assets, cross-border interconnectedness, etc.), and then to take quick actions to reduce them.', 'After the collapse of Lehman Brothers in 2008, the Group of Twenty (G20) nations devised—together for the first time given the scale of the threat—an action plan and created the Financial Stability Board (FSB). Its task was to coordinate, with the International Monetary Fund (IMF) \xa0and the Bank for International Settlements (BIS) committees, international financial regulation and supervision reforms, especially the too-big-to-fail package, measures that have subsequently been implemented worldwide.', 'Based on the G20 action plan, and thanks to strong cooperation between its member states, the European Union embraced ambitious reforms. This has led to game-changers such as 1) the European Stability Mechanism to help euro area countries in severe financial distress by providing emergency loans in return for reforms; 2) the single rulebook (stronger prudential requirements for banks, improved protection for depositors, as well as rules for preventing/managing bank failures) and the European Supervisory Authorities to ensure adequate implementation in all member states of the strengthened regulatory and supervisory architecture; 3) the Banking Union, a unified framework for bank supervision and crisis management, along with a Capital Markets Union fusing together European financial markets to increase their shock-absorption capacity.', 'The United States also introduced a series of regulatory measures—although watered down since 2018—to stop another potential financial crisis. The Dodd-Frank Wall Street Reform and Consumer Protection Act was passed to improve accountability and transparency in the US financial system by adding regulatory mechanisms, including the creation of federal agencies in charge of ensuring that no bank reaches a size where its failure would risk collapsing the entire financial system. One of the most significant measures of the package was the Volcker Rule aiming to limit speculative investments by banks.', 'As a result of these reforms, as underlined by the FSB, better-capitalized banks were able to absorb rather than amplify the shock of the COVID-19 turmoil and markets were responsive to quick and decisive policy actions.']

[(7, 20)]

cf620851187c483d95dddba6fba283b2271c824922290c86a3603ee2f9ab5554

In the most common scenario for cyberattacks on the US---directed by a foreign subject but routed through computers on US soil, owned by US persons, targeting US civilian assets---threat response is failing because ambiguous civilian and military authorities are undermining information sharing. This risks grid AND infrastructure collapse.

Susan W. Brenner 16, Samuel A. McCray Chair in Law, University of Dayton School of Law, “Cyberthreats and the Posse Comitatus Act: Speculations,” 03/14/2016, Journal of International and Comparative Law, vol. 4, no. 1, https://scholarship.law.stjohns.edu/jicl/vol4/iss1/2

the U S employs bifurcated threat-response predicated on the assumption that threats are readily divisible into “inside” (law enforcement) and “outside” ( military) this breaks down in cyberspace as spatial boundaries erode PLA hacking is a federal crime on behalf of their sovereign China would not extradite law enforcement can, as a result, do nothing the P C A has implications for threat control neither law enforcement nor the military can protect from Chinese military infiltrating U.S. infrastructures , such as the grid and financial system to sabotage them, in whole the military cannot participate in law enforcement The P C A then bars cooperation The P C A does not prohibit using law enforcement to support military efforts law enforcement might contribute threat information cyberattacks tend to direct at civilian targets PLA exploring U.S. infrastructure Civilians have much greater access to info about this, because while there may be no prohibition on military monitoring this would encounter opposition involving the civilian sector would enhance threat response of law enforcement and the military give both access to more detailed data

the U nited S tates employs a bifurcated threat-response and control system which is predicated on the assumption that threats to social order are readily divisible into “inside” threats (law enforcement) and “outside” threats ( the military) . this system breaks down as threat activity migrates “ in to” cyberspace , i.e., as malefactors use digital technology to attack individual or governmental targets in their own country or halfway around the world. Cyberspace transcends spatial boundaries and thereby erode s the distinction between “inside” and “outside” threats. It can be difficult to determine whether cyberattacks came from “inside” or “outside" a particular state. And even if it is clear that an attack came from “outside,” the attack may not otherwise conform to the definition of an “outside” attack , i.e., an act of war Conversely, when an attack comes from “inside,” it may not otherwise conform to the definition of an “inside” attack, i.e., it may not clearly qualify as crime or terrorism PLA hacking computers and stealing proprietary information is a federal crime The members who were engaging in this activity were therefore committing a crime “in” the U S on behalf of their sovereign That raises a number of difficult issues. For one thing, it is almost certain that China would not extradite the PLA members because China is, at the very least, complicit civilian law enforcement system can, as a result, do nothing to retaliate For another, the scenario seems to mix metaphors: since the activity that would otherwise constitute a crime was carried out by military personnel who were acting on behalf of their sovereign, does it constitute war? Or consider “hackers in Ukraine and Russia ” What has all this to do with the P osse C omitatus A ct? It has several implications for the system of threat control upon which the United States relies while states have historically had an incentive to cooperate in the apprehension and prosecution of traditional criminals whose activities can threaten social order in more than one state, they may not have an incentive to cooperate when the crimes at issue are virtual Cybercrime can bring billions And if the haven state’s law enforcement will not cooperate with U.S. law enforcement that effectively means no one will be sanctioned for crime(s) If these examples seem trivial neither U.S. law enforcement nor the U.S. military can protect American citizens from Chinese military personnel PLA members are infiltrating U.S. infrastructures , such as the power grid and financial system , in order to sabotage them, in whole or in part the U S threat response are of little utility in dealing with attacks from abroad. Law enforcement has little ability to operate in other countries, and what ability it has depends on the acquiescence and support of the government in a particular state. The military not only has the ability to operate in other countries, that is its default mission But the military cannot participate in law enforcement , at least not under the P C A The P C A then bars cooperation between law enforcement and the military The P C A prohibits using the military in civilian law enforcement. It does not prohibit using law enforcement to support the military ’s efforts to deal with attacks from other nation-states we could allow U.S. law enforcement officers to support the military’s efforts to deal with cyberattacks directed at U.S. targets carried out by another nation-state the U.S. military do not need any assistance in developing the appropriate weaponry or skills law enforcement officers would add little to the military’s ability to deal with cyberattacks from other states There is at least one thing that law enforcement might be able to contribute to the military’s efforts threat information . Unlike conventional warfare, which is conducted in public and has traditionally been directed at military targets only , cyberattacks tend to be direct ed at civilian targets PLA members exploring the networks used by U.S. infrastructure providers to learn how to sabotage them Civilians , including law enforcement , have much greater access to info about activity such as this, because while there may be no statutory prohibition on the U.S. military ’s monitoring U.S. civilian entities to detect possible cyberthreats, this type of activity would encounter opposition While it would probably not eliminate the opposition, allowing law enforcement to share information it collected while legitimately carrying out its professional duties might significantly mitigate it involving the civilian sector would not only enhance threat - detection and response capabilities of law enforcement and the military , it would also give both access to more detailed threat data than they currently have

U S bifurcated threat-response and control system divisible “inside” threats “outside” threats breaks down in cyberspace spatial boundaries erode the distinction definition of an “outside” attack act of war crime terrorism PLA federal crime members crime “in” the U S behalf nothing to retaliate does it constitute war? Ukraine and Russia P C A system of threat control may not have an incentive to cooperate when the crimes at issue are virtual bring billions law enforcement no one will be sanctioned for crime(s) nor the military Chinese military personnel infiltrating U.S. infrastructures power grid financial system sabotage them, in whole or in part U S threat response little utility cannot participate in law enforcement P C A P C A bars cooperation P C A military civilian not law enforcement military nation-states military’s weaponry skills threat information military targets only cyberattacks civilian targets PLA members infrastructure sabotage them Civilians law enforcement much greater access to info statutory prohibition military detect opposition law enforcement civilian sector enhance threat - detection and response law enforcement military more detailed threat data

['II. Cyberthreats and the Posse Comitatus Act ', 'This section reviews how cyberthreats undermine the viability of the threat response system examined in Section I. 27 It also analyzes whether it would be possible, and prudent, to modify the system in ways that could allow for more flexible responses to threats of both types. ', 'A. The Problem ', 'As noted above, the United States, like most twenty-first century nation-states, employs a bifurcated threat-response and control system which is predicated on the assumption that threats to social order are readily divisible into “inside” threats (law enforcement) and “outside” threats (the military). While this system has proven quite satisfactory in dealing with real-world threats, it breaks down as threat activity migrates “into” cyberspace, i.e., as malefactors use digital technology to attack individual or governmental targets in their own country or halfway around the world. ', 'Cyberspace transcends spatial boundaries and thereby erodes the distinction between “inside” and “outside” threats. It can be difficult to determine whether cyberattacks came from “inside” or “outside" a particular state. And even if it is clear that an attack came from “outside,” the attack may not otherwise conform to the definition of an “outside” attack, i.e., an act of war. Conversely, when an attack comes from “inside,” it may not otherwise conform to the definition of an “inside” attack, i.e., it may not clearly qualify as crime or terrorism. ', 'For example, in the spring of 2013, Mandiant, a U.S. computer security firm, issued a report that described how a specialized unit of the People’s Liberation Army28 (“PLA”) was, and had for years been, hacking into computers of U.S. businesses and stealing proprietary information. 29 Stealing proprietary information is a federal crime.30 The PLA members who were engaging in this activity were therefore committing a crime “in” the United States, but this was not a conventional crime. Uniformed members of a nation-state’s military acting on behalf of their sovereign were committing it. ', 'That raises a number of difficult issues. For one thing, it is almost certain that China would not extradite the PLA members to the United States to be prosecuted for their crimes because China is, at the very least, complicit in those crimes.31 The civilian law enforcement system can, as a result, do nothing to retaliate against or halt this type of activity. For another, the scenario seems to mix metaphors: since the activity that would otherwise constitute a crime was carried out by military personnel who were acting on behalf of their sovereign, does it constitute war? ', 'Or consider a different scenario: in June of 2009, cybercriminals surreptitiously extracted $415,989 from an account at the First Federal Savings Bank in Shepherdsville, Kentucky.32 The account belonged to Bullitt County. The transfers were not discovered until the money was gone. Officials contacted the Federal Bureau of Investigation, which determined the transfers originated in Ukraine. The thieves used a Trojan Horse program installed on the County Treasurer’s computer to extract the funds.33 ', 'No one was, and no one will be, charged with the Bullitt County theft, which is unfortunate because online bank robbery is far from uncommon: in the spring of 2013, “hackers in Ukraine and Russia” extracted $1.3 million from a Washington hospital.34 Since the United States does not have an extradition treaty with Russia, 35 and Ukraine is a cybercrime haven,36 no one will be prosecuted for this crime, and, like Bullitt County, this hospital will never recover the lost funds. ', 'What has all this to do with the Posse Comitatus Act? It has several implications for the system of threat control upon which the United States relies. One consequence of that system is, as noted earlier, that law enforcement officers deal with “inside” threats, which logically implies that they do not pursue “outside” threats. That, of course, is not literally true, nations have developed systems in which officers from various countries can cooperate and offenders can be extradited for prosecution in the United States.37 ', 'The problem is that, while states have historically had an incentive to cooperate in the apprehension and prosecution of traditional criminals whose activities can threaten social order in more than one state, they may not have an incentive to cooperate when the crimes at issue are virtual and have little, if any, likelihood of negatively affecting the host country. Cybercrime can bring billions into a country, like Ukraine or Russia; while the state itself is usually not complicit in this type of activity, it still benefits from it.38 And if the haven state’s law enforcement will not cooperate with U.S. law enforcement that effectively means no one will be sanctioned for the crime(s). ', 'If these examples seem trivial in their import, consider this: the bank theft cases illustrate the extent to which U.S. law enforcement cannot protect American citizens from external crime. The Mandiant report illustrates the extent to which neither U.S. law enforcement nor the U.S. military can protect American citizens from Chinese military personnel who are stealing their proprietary information. And to make that scenario more interesting, assume that instead of simply stealing trade secrets, the PLA members are infiltrating U.S. infrastructures, such as the power grid and financial system, in order to acquire the ability to sabotage them, in whole or in part.39 ', 'B. Implications for the Posse Comitatus Act? ', 'As we saw above, the United States’ threat response systems are of little utility in dealing with attacks from abroad. Law enforcement has little ability to operate in other countries, and what ability it has depends on the acquiescence and support of the government in a particular state. This is not surprising, since U.S. authorities are unlikely to acquiesce in and support the efforts of foreign law enforcement officers – Russian police, for example – who wish to conduct an investigation in the United States that targets U.S. citizens. Law enforcement has been, and continues to be, parochial. ', 'The military not only has the ability to operate in other countries, that is its default mission (absent an armed invasion of U.S. territory). But the military cannot participate in law enforcement, at least not under the Posse Comitatus Act.40 While it is not clear if the Act applies extraterritorially, the Department of Defense operates on the premise that it does, subject to certain exceptions.41 The Posse Comitatus Act, then, is the only legal principle that bars cooperation between law enforcement and the military. Nothing in the Constitution prohibits this: when the Constitution was drafted the nation’s threat control system consisted of the able-bodied men of the nation, who acted as law enforcers or as members of the military, depending on the circumstances. ', 'Logically, that approach has a certain appeal in a world in which computer and other technology erodes the import of national boundaries, especially as far as threat control is concerned. Should we reassess the Posse Comitatus Act, with an eye to modifying or repealing it? So far, I continue to be agnostic on that issue, but I think it is worth exploring to determine if there was a way to think about how we might approach threat control differently. To that end, therefore, I shall speculate about what might be involved in relaxing or eliminating the Act’s prohibition on cooperation between civilian law enforcement and the military. ', 'C. Repeal or Modify the Posse Comitatus Act ', 'I begin with the most drastic option – eliminating the Act. Actually, I begin with what I see as two, more or less equally drastic options: one is to simply repeal the Posse Comitatus Act, thereby eliminating the prohibition on law enforcement-military collaboration. The other, somewhat less drastic option, would be to modify the Posse Comitatus Act so that it bars law enforcementmilitary collaboration in the physical world but not when the activity at issue involves cyberattacks. ', 'While the notion of repealing the Posse Comitatus Act has an attractive simplicity, I cannot contemplate such a step without trepidation. As one author noted, “there is something inherently repugnant to most Americans at the thought of the military patrolling the streets of our cities and towns.”42 This is not because we do not trust our military, but because we fear what it might become if we took this step. Also, we would likely gain little from repealing the Posse Comitatus Act because the military has no expertise in civilian law enforcement.43 If we went down this path, we might actually undermine the effectiveness of the military and law enforcement by eroding the distinctiveness of their respective missions. And, finally, repealing the Act would be overkill, since the bifurcated response system seems to work quite well with regard to activity in the physical world. ', 'That brings us to the other option – modifying the Posse Comitatus Act so it does not bar law enforcement-military collaboration with regard to activity that occurs in or is vectored through cyberspace. Since the impetus for reconsidering it is the difficulties law enforcement and the military respectively confront in dealing with cyberthreats, this would seem a more logical, more focused approach. ', 'The question then becomes, what, precisely, would we seek to achieve by modifying the Posse Comitatus Act? Do we, for example, want our military to be able to act as law enforcement agents (or surrogates) when it is necessary to deal with cyberattacks from abroad? If the answer to that question is yes, then I have another question: what, precisely, would we want the military to do? ', 'In both of the scenarios we examined earlier, foreign nationals were committing crimes by stealing property (funds in one case, trade secrets in the other) from American citizens who were in the United States. In one case, the perpetrators were members of the Chinese military; in the other, they were Ukrainian citizens. Unless and until we modify our conceptualization of the threat array, the activity in both instances constituted crime, rather than warfare. ', 'It might, therefore, seem as if the U.S. military would have no conceivable role to play in responding to these and similar attacks, since I assume no rational person would argue that the United States should launch a retaliatory military strike on China (or on Ukraine) in response to these thefts. That does not necessarily mean that the U.S. military might not be able to assist law enforcement in ways that could enhance the latter’s ability to respond effectively to cross-border crimes. ', 'As we saw above, in neither case will U.S. law enforcement be able to have the perpetrators extradited so they can be charged, prosecuted and presumably convicted in the United States. Some, though, argue that law enforcement should be able to employ other measures to create at least something of a disincentive to attack Americans. They contend that U.S. law enforcement should be able to use “electronic sanctions” to react to cybercrimes.44 Relatively recently, I discussed this issue with a former Department of Homeland Security official who, as far as I could determine, seemed to be arguing that this type of a response is lawful under Model Penal Code § 3.09(1) either to prevent the theft of “movable property” or to retake such property. ', 'If we accept that argument, at least for the purposes of analysis, then we need to address the practicalities it presents: how is U.S. law enforcement going to use virtual force to strike back at someone attempting theft who is located in another country? I have not found any authority for this proposition, but I strongly suspect U.S. law enforcement does not have the constitution, statutory or common law authority to attack targets in another country. The military, of course, does have such authority, at least as a general matter. So if (and I regard that as a significant qualifier) we were to decide we want to employ online strike-back techniques as a way to create disincentives to use cyberspace to attack American targets, and if we made the appropriate modifications to the Posse Comitatus Act, the military could either support law enforcement’s efforts in this regard or actually be responsible for carrying out the strike-back attacks. ', 'This is but one obvious example of what allowing U.S. law enforcement and the U.S. military to collaborate in dealing with extraterritorial cybercrime might involve. I offer this scenario purely for the purposes of analysis – as a way of illustrating the possible utility of modifying the Posse Comitatus Act to allow this type of collaboration. Personally, I have serious reservations about our going down this path. Aside from anything else, I fear it could have serious consequences, i.e., that what began as a law enforcement strike-back attack could escalate until the two countries were at war with each other, on- and/or off-line. ', 'D. Allow U.S. Law Enforcement to Support Military’s Efforts in Cyberspace ', 'The Posse Comitatus Act prohibits using the military in civilian law enforcement. It does not prohibit using law enforcement to support the military’s efforts to deal with attacks from other nation-states. Logically, then, we could allow U.S. law enforcement officers to support the military’s efforts to deal with cyberattacks that are directed at U.S. targets and that are carried out by another nation-state (presumably by its military). ', 'The question then becomes, what might we gain from taking this step? From the little I know about the U.S. military’s preparation for cyberwar, I am quite confident they do not need any assistance in developing the appropriate weaponry or skills necessary for this endeavor. I am also assuming that law enforcement officers would add little to the military’s ability to deal with cyberattacks from other states. This assumption is basically the converse of the assumption we made above, i.e., that the military can add little, if anything, to law enforcement’s ability to deal with crime, including cybercrime. ', 'There is at least one thing that law enforcement might be able to contribute to the military’s efforts in this regard: threat information. Unlike conventional warfare, which is conducted in public and has traditionally been directed at military targets only, cyberattacks tend to be directed at civilian targets. Earlier, I raised the scenario in which PLA members are exploring the networks used by U.S. infrastructure providers to learn how to sabotage them.45 Civilians, including law enforcement, have much greater access to information about activity such as this, because while there may be no statutory or constitutional prohibition on the U.S. military’s monitoring U.S. civilian entities to detect possible cyberthreats, this type of activity would probably encounter opposition from the public, and their representatives.46 While it would probably not eliminate the opposition, allowing law enforcement to share information it collected while legitimately carrying out its professional duties might significantly mitigate it.47 ', 'E. Create an Entirely New Entity ', 'Another option I do not support would be to create a new entity, which was neither wholly law enforcement nor wholly military but was able to deal with threats that were purely internal, purely external, and that had elements of each. I do not favor this because I believe adding another layer of institutional bureaucracy would only further impede the nation’s ability to deal effectively with cyberthreats. ', 'F. Regress ', 'Since cyberthreats do not fall neatly into the “inside” – “outside” threat dichotomy and consequently tend to resist the efforts of the correlate threat response systems on which we currently rely, another option would be to begin to decentralize threat response systems to place at least some responsibility for identifying and resisting threats on the civilian entities that are most likely to be targeted. The effort might eventually expand to do something similar with individual civilians, as well, but it would be more reasonable, and more feasible, to begin with corporate and other entities. ', 'Such an effort would, in effect, involve extrapolating the common law militia and the posse comitatus into the cyber arena so that companies and other essential institutions would be charged with protecting themselves from attacks. Government entities, including law enforcement and the military, could support them in this regard, with expertise, technologies and other assets. The advantage of involving the civilian sector is that it would not only enhance the threat-detection and response capabilities of law enforcement and the military, it would also give both access to more detailed threat data than they currently have. ']

[(9, 19)]

8ca247b5840f2785db207c181ef7cd230fb8dd4118c3057e8f88f53c5c8b4a82

Successful attacks trigger a “black start” scenario---distinct from blackouts AND an existential risk

Benjamin Monarch 20, University of Kentucky College of Law, J.D. May 2015, LLM in Energy, Natural Resources, and Environmental Law and Policy from the University of Denver Sturm College of Law, Deputy District Attorney at Colorado Judicial Branch, and Term Member at the Council on Foreign Relations, “Black Start: The Risk of Grid Failure from a Cyber Attack and the Policies Needed to Prepare for It,” Journal of Energy & Natural Resources Law, vol. 38, no. 2, Routledge, 04/02/2020, pp. 131–160

if power cannot be restored presents an existential threat ‘Black start’ , not to be confused with ‘blackout’ , is how one restore power if the entire network is compromised the question is not how , but whether we survive grid failure unleash a parade of horrors food scarcity communication cease, garbage pile up water become a luxury hospitals go dark transactions stop social chaos would reign diseases would re-emerge Russia shut off power to Ukraine an attack akin in the U S could be catastrophic this across an entire grid take years to return look at COVID to appreciate how delicate critical infrastructure are when under unexpected severe stress attack on the grid would far exceed disruptions as a result of the pandemic

even in prolonged power outages, we expect that electricity will be restored and, consequently, life will return to normal however, what if power cannot be restored in a timely manner? how did we reach a point where something so critical to routine life now presents an existential threat , and what can we do to mitigate the risk of a catastrophic grid attack? grid attacks pose existential risk ‘Black start’ , not to be confused with ‘blackout’ , is the process of restoring an electric grid to operation without relying on the external electric power transmission network to recover At first glance, this is unremarkable, but it implies a disturbing catch-22 – how might one restore power if the entire network is compromised ? If an electric disruption occurs at a household level, some homes may be equipped with a modest gasoline generator to temporarily restore power. If a hospital loses power, it will almost invariably be resupplied by automatic, industrial-scale generators. These micro considerations hardly give anyone pause But what happens, at a macro level, when an electric grid supplying power to large portions of the U S goes black, or what happens if all grids go down simultaneously? the ominous question is not how , but whether or not we can survive the vastness of the grid makes the opportunities for intrusion seemingly infinite By any measure , grid failure will unleash a parade of horrors . Stores would close , food scarcity would follow, communication would cease, garbage would pile up , planes would be grounded, clean water would become a luxury , service stations would yield no fuel , hospitals would go dark transactions would stop , and this is only the tip of the iceberg social chaos would reign , once-eradicated diseases would re-emerge and hope of returning to a normal life would fade Thus far, intrusions into U S grid assets have not resulted in damage to such facilities These events are often classified as ‘surveillance’ tactics However, evidence abounds of utility hacks that have resulted in real-world, negative impacts. In 2015, a ‘ Russia n intelligence unit shut off power to hundreds of thousands of people in western Ukraine ’ . Events like this are not unique Should an attack akin to the Ukraine intrusion come to fruition in the U S the results could be catastrophic in scope Blackouts are troubling in their own right, but the crux of this entire topic rests on one overarching concern – when faced with a black start , how will power be restored and how long will it take? A blackout lasting a few hours is very different from a blackout that lasts weeks or months Expand a situation of this type across an entire grid system , and it could take years to return all systems to normal working order. This sort of dismal situation is known as a black start, and it could prove extremely difficult to overcome one need to only look at the present challenges created by COVID to appreciate how delicate these critical infrastructure systems are when placed under unexpected and severe stress . An attack on the grid resulting in prolonged power loss would in many ways mirror , and in some ways far exceed , the disruptions presently occurring as a result of the virus pandemic .

cannot critical routine life existential threat mitigate existential risk ‘Black start’ ‘blackout’ external recover how might one restore power if the entire network is compromised ? micro anyone pause grid large portions U S all simultaneously? ominous question not how whether or not we can survive vastness seemingly infinite any measure failure parade of horrors Stores close food communication garbage pile up water luxury no fuel hospitals go dark transactions tip of the iceberg social chaos diseases re-emerge U S Russia Ukraine not unique akin U S catastrophic in scope troubling crux black start hours months entire grid system years extremely difficult COVID delicate these critical infrastructure systems are unexpected and severe stress mirror far exceed virus pandemic

['In the industrial world, when a switch is flipped, we take for granted that it will produce light, boot a computer, illuminate a stadium or activate a power plant. We know, of course, that power losses can and do occur. Many of us have lit candles during a thunderstorm or brought out extra blankets when a blizzard takes down transmission lines. As of this writing, the most populated state in the United States, California, is experiencing rolling blackouts.1 Yet even in prolonged power outages, we expect that electricity will be restored and, consequently, life will return to normal. Perhaps we need ask, however, what if power cannot be restored in a timely manner? Concern is growing that in the not-too-distant future our electricity supply could be irreparably compromised by a cyber attack. The issue when considering a systemic grid failure of this nature is twofold: how did we reach a point where something so critical to routine life now presents an existential threat, and what can we do to mitigate the risk of a catastrophic grid attack?', 'This article posits that the emergence of cyber attacks on industrial control systems, as a means of war or criminal menace, have reached a level of sophistication capable of crippling those systems. This article argues that a new grid security policy paradigm is required to thwart catastrophic grid failure – a paradigm that recognises the inextricable link between commercial power generation and national security. In section 5, seven policy recommendations are outlined that may, in part, mitigate a future where grid attacks pose existential risk to nations and their citizenry. Those recommendations are: first, develop a comprehensive insurance programme to minimise the financial risk of grid disruption; second, train more cybersecurity professionals with particular expertise in industrial control systems; third, institute a federally mandated information-sharing programme that is centralised under United States Cyber Command; fourth, subsidise and/or incentivise cybersecurity protections for small to mid-size utilities; fifth, provide university grants for grid security research; sixth, integrate new technologies with an eye towards securing the grid; and, lastly, formulate clear rules of engagement for a military response to grid disruption.', 'The purpose of this article is to provide the reader with an introduction to this complex topic. It is the aim of the author to give orientation to this issue and its many branches in the hope that better understanding will animate further curiosity and, ultimately, positive action on the part of the reader. Although many skilled and earnest people work tirelessly to prevent a grid failure scenario, it is essential that more be added to their ranks each day. Advisors, engineers, regulators, private counsel to power generators, and many others who play roles in electric power production are crucial to this subject. So, while this article provides entrée to the topic of grid security, its long-term objective is to spur action by the entire energy-related community. In the end, no one is immune to consequences of grid failure and, therefore, everyone is responsible, in part, for promoting grid integrity.2 In this regard, lawyers who represent various actors in the energy sector are going to be faced with questions and potential legal risks of a magnitude that they have never experienced before.', '1.2. Turning the power back on in a powerless world', '‘Black start’, not to be confused with the term ‘blackout’, is the name given to the process of restoring an electric grid to operation without relying on the external electric power transmission network to recover from a total or partial shutdown.3 At first glance, this description is unremarkable, but it implies a disturbing catch-22 – how might one restore power if the entire external transmission network is compromised? ', 'If an electric disruption occurs at a household level, some homes may be equipped with a modest gasoline generator to temporarily restore power. If a hospital loses power, it will almost invariably be resupplied by automatic, industrial-scale generators. These micro considerations hardly give anyone pause; they are hiccups on a stormy night or a snowy day. In other words, their ‘black start’ is a quick and effective process for restoring power. But what happens, at a macro level, when an electric grid supplying power to large portions of the United States goes black, or worse, what happens if all of the United States’ electric grids go down simultaneously?4 In that scenario, how might enough non-grid power be harnessed and transmitted to turn the United States’ lights back on? Moreover, how might such a catastrophe occur in the first place? Perhaps the more ominous question is not how, but whether or not we can survive such circumstances if they persist in the long term. ', 'The United States electric grid (‘the grid’) is the ‘largest interconnected machine’ in the world.5 It consists of more than 7000 power plants, 55,000 substations, 160,000 miles of high-voltage transmission lines and millions of low-voltage distribution lines.6 The scale and complexity of the grid in the context of the modern digital world are beyond comprehension because within it are innumerable industrial control systems; incalculable connections to digital networks; millions, if not billions, of analogue or digital sensors; many thousands of human actors; and trillions of lines of programming code.7 Further complexifying the grid is that it is comprised of generations of technologies, stitched together in ways that are not inherently secure in a world of cyber threats.8 The vastness of the grid makes security of it challenging. Likewise, the vastness of the grid makes the opportunities for intrusion seemingly infinite.', 'By any measure, grid failure will unleash a parade of horrors. Stores would close, food scarcity would follow, communication would cease, garbage would pile up, planes would be grounded, clean water would become a luxury, service stations would yield no fuel, hospitals would eventually go dark, financial transactions would stop, and this is only the tip of the iceberg – in a prolonged grid failure social chaos would reign, once-eradicated diseases would re-emerge and, increasingly, hope of returning to a normal life would fade.9 The notion of complete grid failure, once relegated to science fiction comics or James Bond movies, is now not only possible but also one of the most pressing national security threats today.10', 'Attacks on electric facilities are already occurring. In 2017, Duke Energy Corporation, one of the United States’ largest electricity producers, recorded more than 650 million cyber attempts to breach its utility systems.11 Duke Energy provides electricity to 7.6 million customers in six states.12 Aside from the obvious risk that a successful breach poses to Duke Energy, the effort to combat these attacks is costing the company hundreds of millions of dollars in security upgrades.13 Duke Energy is not alone; according to a recent study conducted by the cybersecurity firm BitSight, about ten per cent of electric utility companies are infected by malware.14 Perhaps one the most worrisome instances of a cyber intrusion came recently when a Kansas nuclear facility was hacked – the perceived purpose of the hack remains either unknown or undisclosed.15', 'Thus far, intrusions into United States grid assets have not resulted in damage to such facilities (or, at least, such an event has not been disclosed). These events are often classified as ‘surveillance’ tactics, not disruptive.16 However, evidence abounds of utility hacks that have resulted in real-world, negative impacts. In 2015, a ‘Russian intelligence unit shut off power to hundreds of thousands of people in western Ukraine’.17 Although the power was only off for a few hours, American investigators discovered similarities between the Ukraine disruption and surveillance of comparable United States utilities.18 A year later, in 2016, Ukraine was attacked again, and the results were similar to those of the 2015 attack.19 However, the sophistication of the reconnaissance and the attack method had improved noticeably.20 Events like this are not unique to Ukraine; for example, a petrochemical plant in Saudi Arabia was attacked in 2017.21 That breach focused on the safety control system of the plant, which could have resulted in wide-scale destruction and/or deaths of plant workers.22 In the past several weeks, reports of Iranian attacks on United States grid operations have been disclosed.23 These are just a few publicised incidents, and they illustrate the breadth of the threat and the potential consequences facing industrial nations. Should an attack akin to the Ukraine intrusion come to fruition in the United States, the results could be catastrophic in scope.', 'In light of the severity of this risk and the ever-growing likelihood of attack success, nations must take immediate action to both prevent a blackout scenario and, if needed, be prepared to confront a black start. Blackouts are troubling in their own right, but the crux of this entire topic rests on one overarching concern – when faced with a black start, how will power be restored and how long will it take? A blackout lasting a few hours is very different from a blackout that lasts weeks or months. Thus, the lynchpin in thinking about grid security is how to prevent a failure so that we may avoid the immense challenges that would surely follow.', 'In the coming sections, this article will explain why we find ourselves faced with this troublesome challenge. It will also delve into some of the technical aspects of grid security as well as offer a step-by-step look at how an attack occurs. Finally, this article will provide solutions aimed reducing the peril of a black start reality.', '2. A brief history of the grid and what threatens it', '2.1. How the United States produces and distributes power', 'The power transmission grid of the United States at its most expansive level is known as the North American Reliability Councils and Interconnections (or, as it is commonly called, the ‘North American Grid’).24 The North American Electric Reliability Corporation (NERC) governs the North American Grid.25 The North American Grid includes two major and three minor NERC interconnections, which extend as far north as Alaska and as far south as Baja California near Mexico.26 In effect, the United States and Canada share power through various interconnection networks.27', 'The contiguous United States grid is generally comprised of three distinct grid systems.28 The Eastern Interconnection grid comprises most of the Great Plains eastward to the Atlantic coast (excluding Texas).29 The Western Interconnection includes the Rocky Mountain States, portions of the Great Plains, and all states westward to the Pacific Ocean (excluding Texas).30 Finally, the Electric Reliability Council of Texas (ERCOT) covers most of Texas.31 These interconnections make up the electric power system of the contiguous United States.32 For purposes of considering grid failure, it is critical to note that the three interconnections discussed here function as largely independent systems with limited exchanges of power between them. Thus, when the phrase ‘grid failure’ is used, it could refer to the failure of one of these interconnections, all of these interconnections or some combination of them. ', 'Each of the aforementioned interconnections has a grid architecture that is similar and is generally divided into two categories: the ‘bulk power system, often referred to as the “transmission grid,”’ and the smaller distribution grids.33 The bulk power system is the backbone of the grid. ‘It connects high-capacity power plants, transmission wires and substations that collectively generate and transport huge quantities of electricity over hundreds or thousands of miles’.34 At this macro level of power generation and transmission, regulatory standards are at their most uniform and strongest. Moreover, at the bulk power system level, most security regulations are mandatory, which yields consistent safeguards across large swathes of the grid.35 Collaboration among utility companies at the bulk power system level is often proficient, and their cybersecurity practices are often cutting edge. This is not to suggest, however, that the bulk power system is impervious to disruption. ', 'The bulk power system has three fundamental weaknesses. First, even with the most advanced cybersecurity monitoring technology and personnel resources to prevent an attack, it can still be hacked.36 Second, an attack on the bulk power system could have systemic ramifications given its overall importance to power generation and transmission throughout the United States. Third, the bulk power system is integrated with smaller distribution grids that are far less secure. This characteristic creates a weak link in even the best cyber defence of the bulk power system because the smaller distribution grids are less secure against cyber intrusion.37', 'The smaller distribution grids (ie the non bulk power system) that are connected to the transmission grid are key in delivering electricity to homes and businesses. Additionally, smaller utility companies, as opposed to the corporations that manage the bulk power system, readily manage these smaller distribution networks.38 To put this in some context, the United States has approximately 3000 utilities, and many of those oversee small portions of the overall grid.39 With fewer resources than large public utilities as well as fewer regulatory safeguards, small utilities companies are less equipped to thwart cyber attacks.40 Hackers, notably those connected with Russia, have taken notice of this fact and have exploited smaller, weaker utilities.41 These utilities ‘have trouble finding sufficiently skilled workers who understand how the computerized and physical components of the grid work together and how to protect them’.42 Although bigger utility companies often establish best cyber defence practices, smaller utility companies either cannot afford or are not inclined to adopt those protections.43 The only upside when assessing the vulnerabilities of smaller distribution grids is that if an attack is limited to a single, minor grid, then the attack will likely have fewer negative consequences. ', 'While efforts are underway to promote better cyber defence management across the entire grid, small or large, another element of power generation and distribution poses a risk: the grid component supply chain. All utilities rely on complex, global supply chains for equipment and software.44 It is not easy nor is it customary to ensure the integrity of each component of grid technology. For instance, an industrial control system in a safety component of a power planet may have software developed in Germany and hardware developed in China. Unbeknownst to the utility, the Chinese hardware may be equipped to provide Chinese hackers with backdoor access to the device because of an undetected bug in the German software. This scenario could, in effect, give Chinese hackers direct and surreptitious control of the safety equipment. This type of intrusion is known as ‘phoning home’.45 The burden and cost that would be inflicted upon utility companies to inspect integrity at each step of their supply chains is significant.46', 'Thankfully, the federal government has recognised the supply chain dilemma and has taken steps to mitigate this danger. The Committee on Foreign Investment in the United States (CFIUS), which is an inter-agency committee of the federal government, promotes national security by regulating foreign commercial efforts to influence United States business.47 In 2018, Congress expanded CFIUS’ authority by passing the Foreign Investment Risk Review Modernization Act (FIRRMA).48 Among many expansions of authority, FIRRMA equipped CFIUS to review transactions that may impact ‘critical infrastructure’ such as the grid.49 While this is an improvement, the change does not go so far as to give CFIUS authority over vendor relationships that lack an investment component.50 Thus, utility companies, large and small, continue to rely on technology from third-party vendors that may contain exploitive features that permit grid disruption. ', 'In effect, the United States grid is a patchwork quilt of digital and physical technology from innumerable sources. To provide absolute cyber defence of this system would require surveillance and analysis of every single component of the grid, yet it is impossible to even properly inventory every single component of the grid let alone monitor it perfectly. ', 'To add further complexity to the grid, new technology is emerging each day that expands the vectors of potential cyber attacks. The phrase ‘Internet of Things’ is used to describe physical devices that are linked to Internet communication systems.51 An example of an Internet of Things device would be a refrigerator that automatically orders more avocadoes from Amazon when only one avocado remains within it.52 This may seem like an innocuous and overall convenient approach to modern life, but such devices pose immense security challenges. ', 'In the world of electricity distribution, Internet of Things instruments often come in the form of so-called ‘smart meters’.53 A smart meter is a device that monitors electricity consumption in real time and relays that information back to consumers and/or utilities.54 This is done through a two-way communication system, much like the download/upload function of a smart television.55 Smart meters also have the ability to decrease or increase energy supply based on real-time energy-demand monitoring.56 It is expected that 588 million smart meters will be installed worldwide by 2022.57', 'The problem here is the vast amount of infrastructure needed to support such a setup. Any smart electric grid needs a parallel telecommunications network to collect and harness the volumes of data it will generate, and that makes every connected thermostat or smart refrigerator a potential entry point for cyber intruders.58', 'The bottom line is that Internet of Things devices have the potential to transform the ‘largest interconnected machine in the world’ into a machine that is infinitely more complex and more vulnerable that it is presently. That being said, if smart grid technology is developed with grid security as a fundamental objective then it may afford greater security, rather than less.59', "Finally, no understanding of the grid is complete without a glimpse at its regulator. The US Department of Energy is the principal federal agency responsible for regulating the nation's electricity generation and distribution system. The specific division of the Department of Energy tasked with grid integrity is the Office of Electricity Delivery & Energy Reliability (OEDER).60 The OEDER works in coordination with other federal agencies tasked with cybersecurity matters, but it spearheads the Department of Energy’s planning and implementation of grid security. The OEDER Multiyear Plan for Energy Security Cybersecurity (‘plan’), released in March 2018, details how the federal government will deepen partnerships with energy sector producers – notably, however, the plan states that ‘energy owners and operators have the primary responsibility to protect their systems from all types of risk’.61 The plan states that it has three priorities: first, strengthen energy sector cybersecurity partnerships; second, coordinate cyber incident response and recovery; and, third, accelerate game-changing research and development of resilient energy delivery systems.62", "Among the Department of Energy's various grid security concerns, one overarching point of frustration is the high cost that energy providers must absorb to protect their utilities. In 2015, cybercrime attacks generated an average direct cost per company of $27 million per year, which is added on top of the $150 million to $800 million spent by the average utility to protect its assets.63 Moreover, these costs are increasing at approximately 11 per cent per year.64 At the present time, there is little reason to believe that the US federal government will absorb some or all of these costs, although efforts are underway to nationalise grid security protocols.65", 'The Department of Energy may have the most direct regulatory authority over the electric grid, but as the grid becomes more elemental to broader national security concerns, oversight of the grid will broaden to other federal agencies. In the event of a crippling grid attack, the United States would face three overarching issues: first, there would be a national security issue related to defending the United States from a potential aggressor; second, there would likely be immediate and severe economic disruption; and, lastly, there would be social dislocation and a burden placed on emergency services.66 Due to these concerns, federal management of the grid is likely to expand beyond the purview of the Department of Energy and become more of an interagency concern.67 This is already occurring, but as grid attacks multiply the interest of a wider government role becomes essential. The principal agencies that will likely continue to expand their authority over grid management are the Department of Homeland Security, Department of Defense, Department of Commerce and Department of the Treasury. This underscores the fact that the electric grid is essential to multiple facets of modern life. It is in effect a keystone to national security, and to economic and social normalcy.', '2.2. What are cyber attacks, and how do they impact the grid?', 'Cyber attacks manifest in numerous ways, from credit-card-data heists to physical destruction of uranium enrichment facilities.68 Because of this feature, it is often challenging to sufficiently define a cyber attack, but Merriam-Webster defines it as ‘an attempt to gain illegal access to a computer or computer system for the purpose of causing damage or harm’.69 It is in the nature of the damage or harm inflicted that cyber attacks take on so many forms. Generally, cyber attacks come in two varieties, either cybercrime or cyber warfare.70', 'Cybercrime includes financial fraud, identify theft, corporate espionage, hacktivism and a myriad of other forms that are notable for their lack of national security implications.71 Frequently, the tools of the trade used in cyber aggression are developed and honed in the cybercrime domain. In cybercrime, the individual or entity initiating an attack may go up against a secure system, but one that is not as well equipped to respond as the United States military or other branches of the government. Russian hackers in the Heartland Payment Systems data breach, although ultimately caught and sentenced to time in a federal prison, gained valuable training in the cyber attack field when they stole 130 million credit card numbers.72 Similarly, ongoing acts of Chinese cyber espionage, known as ‘Titan Rain’, have resulted in extensive data collection from federal government systems (including, but not exclusive to, the United States Department of Defense).73 Cybercrime, not to be discounted in its severity and destructive capacity, can be thought of as a precursor for the more sophisticated and existential threats posed by cyber warfare. The data collected through cybercrime, along with the tools and tactics that are honed, in effect sharpen the sword that can be used in cyber war.', 'Cyber war, much as the name suggests, is the execution of war strategies through cyber attacks.74 Unlike cybercrime, cyber war is often the result of state action as opposed to non-state actors, and it often carries higher stakes than cybercrime. A caveat to this point, however, is that state actors may rely on non-state actors to administer cyber attacks as a means of making attribution more difficult.75 In its most direct form, cyber warfare involves attacks on military assets. However, the National Intelligence Council Report Global Trends 2025 made a distressing comment that suggests cyber attacks could extend beyond the battlefield of traditional military targets: ‘Cyber and sabotage attacks on critical US economic, energy, and transportation infrastructure might be viewed by some adversaries as a way to circumvent [United States] strengths on the battlefield and attack directly [United States] interests at home’.76', "For purposes of this article, it is the National Intelligence Council's reference to critical infrastructure that is most relevant. Properly functioning transportation systems, energy production, Internet services and financial markets are essential to modern life, but among the various forms of critical infrastructure none is perhaps more essential than electricity production and distribution. Without a functioning grid, the aforementioned elements of society are all diminished. This fact makes grid security a leading concern in any discussion of cyber attack risk. In other words, we have entered a phase in modern life where war strategy may, and likely will, include tactics designed to disrupt or disable an essential element of our civilisation – our ability to produce and distribute electricity to our population. At the risk of hyperbole, this feature of 21st century war-making turns a cyber threat into a potential existential threat.", '3. The current situation', '3.1. Global order vs global mayhem', 'It is fair to question whether our electric grid is truly at risk of a major attack and subsequent disruption. After all, it is a premise that supports billions of dollars of private security expenses, animates fear among the public and could prompt elected officials to over-react and over-regulate, and it may be used by military institutions to justify expanded powers into everyday life. Therefore, we must ask ourselves if catastrophic grid failure as a result of a cyber attack is really the risk that it might appear to be in modern life. Put differently, are we in a pre-September-11 moment or are we simply dabbling in apocalyptic paranoia? ', 'The topic of nation state hacking often leads to Russia because few countries have demonstrated both the will and the acumen needed to execute large-scale cyber attacks.77 To answer the question of whether electric grid hacking is a figment of science fiction or a tangible threat, we start with Ukraine.', 'The first wave of Ukrainian grid attacks occurred on 23 December 2015, when a third party successfully gained entry into and control over electricity distribution substations (the systems of a distribution network essential to transmit electric power to end consumers).78 The outages lasted several hours, shut off power for approximately 225,000 individuals, and occurred through discrete attacks about every half hour.79 Switching to manual override systems eventually restored power, which is an essential component of attack mitigation. To add insult to injury, the responsible party also jammed call centres to prevent affected customers from reporting power outages.80', 'Robert Lee, a former cyber warfare operations officer for the United States Air Force and co-founder of Dragos Security, said the Ukraine attack was ‘brilliant’.81 He went on to highlight that the attack was sophisticated in terms of logistics, operations and the malware tools used.82 Lee also suggests that the attack was likely coordinated among various actors, including but not exclusive to cybercriminals and nation states.83 Lee is reluctant to attribute the hack to any one actor, including Russia; however, that has not stopped Ukraine from blaming their former Soviet master.84 This highlights a recurring problem with cyber attacks: namely, that it is often difficult, if not impossible, to attribute blame to the responsible party.85', "It may be that the 2015 Ukrainian grid attack was simply a harbinger of things to come, because the Ukrainian grid was struck again almost a year later, in 2016.86 The 2016 attack impacted fewer electric customers, but demonstrated improved sophistication compared with the 2015 shut down.87 Marina Krotofil, a Ukrainian researcher for Honeywell Industrial Cyber Security Lab, surmised that the 2016 hack was more of a ‘demonstration of capabilities’ than an attack meant to cripple Ukraine's grid.88", 'In the end, Ukraine emerged from these attacks mostly unscathed, but the events marked a far more troubling revelation: that Ukraine is merely a testing ground for cyber warfare tools and tactics.89 Since 2016, Ukraine has become ground zero for cyber war shows of force:', " ‘Ukraine is [a] live-fire space’, says Kenneth Geers, a veteran cybersecurity expert and senior fellow at the Atlantic Council who advises NATO's Tallinn cyber center and spent time on the ground in Ukraine to study the country's cyber conflict. Much like global powers [that] fought proxy wars in the Middle East or Africa during the Cold War, Ukraine has become a battleground in a cyberwar arms race for global influence.90", 'While it may at first seem desirable to other nations for Ukraine to bear the burden of being a proverbial testing ground, what happens in Ukraine is not staying in Ukraine. Rather, Ukraine is simply a sharpening stone for the swords that are likely to be used against stronger adversaries like the United States and its NATO allies.', 'Contemporaneous with the Ukraine attacks, US grid systems were suffering similar intrusions. Unlike the Ukraine hacks, the US grid intrusion did not result in a lights-out scenario; however, Jonathan Homer, chief of industrial-control-system analysis for the Department of Homeland Security, said that attacks ‘got to the point where they could have thrown switches’.91 To this day, the grid is still under frequent attack.92 Many grid security experts suspect Russia is involved in the bulk of the grid intrusion efforts, but also express concern that Iran and North Korea are probing weaknesses in grid defence.93 Attempts to infiltrate and possibly disrupt power distribution has extended to attacks on nuclear power plants.94 The plant in question – the Wolf Creek Generating Station in Burlington, Kansas – suffered intrusions into its business network, which suggests that hackers were probing for possible ways to access industrial control systems within the plant.95 Fortunately, the intrusion did not result in an operational impact. However, the incident proves that efforts are underway to exploit even the most sensitive and dangerous components of the grid. ', 'The testing of cyber weaponry abroad and the discoveries of foreign reconnaissance at home all raise the same alarming question: if these are the means, what is the end? In part, foreign actors likely see cyber warfare as a way of asymmetrically confronting the vast power of the United States military (and its NATO allies).96 It remains merely speculative at this time whether a large-scale grid disruption is the goal of foreign actors engaged in these activities. Nonetheless, it is evident that the will is present and the methods are growing more sophisticated; thus, it is reasonable to conclude that under certain geopolitical circumstances a massive grid attack in the United States could occur as a consequence of advancing larger asymmetrical military and/or political objectives. This possibility, combined with the increasing volume of threats in the cyber realm, suggests that world affairs are trending more towards conflict and less towards peace, and it further suggests that such conflict may manifest itself in ways that extend beyond the confines of traditional battlefields.', '3.2. What the United States is doing now – offence and defence', 'There is no question that grid security is a top issue for policymakers, and, relatedly, there is no shortage of efforts underway or aspired to for purposes of fortifying the grid. At a federal level, the Federal Energy Regulatory Commission (FERC) has been stepping up its reporting mandates. New standards published by FERC last summer require the NERC to report cybersecurity attacks that ‘compromise or attempt to compromise electronic security perimeters, electronic access control or monitoring systems, and physical security perimeters’.97 While this is certainly a positive development favouring a stronger grid, there is wide discretion granted by FERC to NERC on what sorts of attacks constitute an incident98 that would then trigger disclosure.', 'In addition to disclosure requirements, the government recently announced the Pathfinder programme, which is a collaborative effort among the Departments of Energy, Homeland Security and Defense.99 The purpose of Pathfinder is to ‘advance information sharing, improve training and education to understand systemic risks, and develop joint operational preparedness and response activities\u2009…\u2009’.100 In addition to Pathfinder, there are more than 27 other programmes within the federal government tasked with protecting the electric grid from some form of failure.101', 'At a legislative level, the United States Congress has been busy as well. Most notably, the Securing Energy Infrastructure Act (SEIA), which passed last summer, establishes a pilot programme designed to decrease grid digitisation and bolster manual backup systems.102 The idea behind SEIA is that if grid systems have a reliable manual backup available to operators in the event that a cyber attack disrupts digital systems, then the duration of potential blackout will be less severe.103 Inspiration for this approach is varied, but it is supported in part because the Ukrainian grid attack of 2015 was mitigated somewhat by the use of backup manual controls.104', 'At a regulatory level, states are also taking an active role in grid security. This is particularly important because much of the power distribution system in the country falls outside of federal jurisdiction (the federal government focuses mainly on the bulk power system).105 Therefore, states are establishing cybersecurity taskforce groups, promulgating rules and standards, and establishing state-specific disclosure requirements. In 2019, 16 states considered enacting measures aimed at promoting grid resilience; California and Texas are leading the pack in implementing cyber defence policies.106 Should this trend continue, then it will help ameliorate a major concern in grid protection, which is the need to standardise and monitor small utility platforms that may not receive the attention they deserve at the federal level.', "Lastly, the United States has made clear that cyber offence is an essential complement to cyber defence. The United States government has made clear through word and deed that it is prepared to wage cyber attacks in an offensive capacity as may be necessary. In September 2019, Secretary of Defense Mark Esper, while addressing the annual Cyber Security Summit in Washington, DC, stated, ‘We need to do more than play goal line defense. As such, the department's 2018 Cyber Strategy articulates a proactive and assertive approach to defend forward our own virtual boundaries’.107 Secretary Esper elaborated that to ‘defend forward’ means to ‘disrupt threats at the initial source before they reach our networks and systems’.108 The government has articulated this point in greater detail in both the White House Cyber Policy and the Department of Defense Cyber Strategy.109 In the former, the Trump administration details that consequences will be imposed on any actors that threaten or attack the United States through cyber means. Moreover, the White House asserts that it will establish a cyber deterrence initiative with partnering nations. The international coalition envisioned by the deterrence initiative mirrors prior collective defence arrangements that have been used in more traditional military contexts.110", "Beyond rhetoric and policy pronouncements, there is strong evidence to suggest that the United States government has already used cyber weaponry to disrupt industrial control systems in other countries. The most well-documented instance of such an effort is the Stuxnet computer virus.111 This virus, which emerged worldwide in 2010, was a cyber weapon designed to infect the industrial control systems of the Iranian nuclear programme, such that nuclear centrifuges used to produced weapons-grade fissile material would spin out of control to the point of self destruction.112 To that end, Stuxnet was successful. It is estimated that approximately 1000 centrifuges were destroyed at the Natanz nuclear facility, or approximately ten per cent of the centrifuges at that location. Although Stuxnet achieved a significant policy objective of the United States, namely to set back the Iranian nuclear programme, there has never been an official acknowledgement that the United States had anything to do with Stuxnet. However, it is believed that the United States and Israel jointly engineered Stuxnet to strike at the core of Iran's nuclear ambitions. Regardless of whether Stuxnet can be firmly attributed to an American-led effort, the virus illustrates that computer code can cause tangible damage to industrial control systems. Moreover, if the United States did originate Stuxnet, then it demonstrates the United States is both capable of inflicting and willing to inflict a kinetic blow against its enemies through the use of cyber weaponry.", '4. Anatomy of an attack', '4.1. A grid attack, step by step', 'Building on the information discussed in the prior sections of this article, this section will explore what a grid attack could look like at the micro level. Understanding the nature of the threat on a global scale is essential for appreciating the nature and extent of the risk posed to grid security, but ultimately this challenge will be met on a detailed operational level. Therefore, it is key for individuals or entities that may have responsibility for thwarting a grid attack to comprehend on a granular level how such an attack could occur.', 'It is the aim of the author to equip the reader of this article with a general knowledge of how a grid attack may unfold so that the reader may become aware of instances in which their role or responsibilities might entail opportunities to mitigate the risk of grid disruption. For example, a reader of this article advising a power distribution company should know that marketing materials for the company should never include photographs of equipment (specifically, industrial control systems) used at the power generation facility. Cyber aggressors, in reconnaissance missions, may use imagery that unintentionally reveals critical systems. Furthermore, this section borrows heavily from the critical infrastructure report titled When the Lights Went Out, published by Booz Allen Hamilton.113', 'Lastly, it is important to bear in mind that this overview is hypothetical and simply one of many possible strategies to effectuate a cyber attack. An actual attack may mirror many of the steps discussed here, could vary slightly or significantly, and/or could utilise methods that are presently unknown to the author or to the cybersecurity community. Therefore, the reader should appreciate that the following is but one script among many that a utility cyber attack could follow. Accordingly, it is imperative to stay abreast of changes in cyber offensive capabilities as well as to understand that the greatest threats likely come from attack strategies that are novel and not yet clearly envisioned.', ' (1) Reconnaissance and intelligence gathering:114 In advance of an attack, the cyber aggressor will research the target through any manner of publicly available information and/or through surreptitious non-digital means. The example alluded to above of a marketing brochure containing a photo of an industrial control system is the type of publicly available information that may be instrumental in planning an attack. If an attacker can determine the type of operational platform in use, then that attacker can begin a plan to exploit that device. This step may also include traditional spycraft methods, such as gaining access to a target facility by seeking employment at that facility or attempting to leverage someone presently employed at that facility, perhaps through blackmail. Although a cyber attack against a grid facility is a sophisticated, technical operation, it often begins with non-technical fact gathering activities. Facilities should, therefore, develop thorough employee monitoring procedures, prohibit visual or photographic access to critical systems, eliminate public tours of critical facilities, install port-scanning detection sensors, deny employees use of personal email or similar applications while using facility networks, etc.', ' (2) Malware development and weaponisation: Once an aggressor gains insight into the systems used by a target facility, the aggressor will commence procurement or development of the malware necessary to effectuate an attack. Depending on the target, an attacker may need to develop a novel cyber tool to gain access. In other instances, if an attacker can utilise existing malware then they will often take that course rather than write an entirely new programme. This is known as ‘living off the land’.115 An infamous example of this occurred in 2017 when National Security Agency hacking tools were leaked in the EternalBlue exploit.116 The malware gained from EternalBlue has been used repeatedly to ransom data held by governments and corporations.117 While development and weaponisation occur external to a target, it is critical that a target facility take steps to understand the types of malware that are available and test those exploits against their own systems in an effort to strengthen and inoculate critical operations against known malware threats.', ' (3) Deliver remote access trojan: Once an attacker has determined the vulnerabilities of a facility and developed or procured the malware necessary to exploit those vulnerabilities, the next step is to begin the intrusion. The first step of intrusion is the delivery of a remote access trojan (‘RAT’) or some similar software to the business network. The business network is distinct from the network that controls industrial operation systems because the business network is where routine corporate activity occurs, such as financial activity, legal work, human resources, customer service and so forth. The industrial network, on the other hand, is how the facility operates electricity generation and distribution. Gaining access to a corporate network is a necessary step towards gaining access to an industrial control network, which is the ultimate target in successfully disrupting the grid. The RAT or similar software grants the attacker access to the corporate network, which then opens doors to a wider reconnaissance of the facility. RATs achieve this end often by tricking corporate personnel into granting the attack deeper network access; the trick can come in the form of a phishing email that prompts a corporate employee to give their network credentials or to download a seemingly innocuous file to their computer. In the end, this step affords the attacker deeper intrusion into a facility and puts the attacker one step closer to disrupting operations. Methods of combating delivery of a RAT range from having effective malware detection software to a prohibition on using USB drives or accepting files from untrustworthy sources.', " (4) Install RAT: Secondary to the delivery of the RAT, the RAT must be installed. This typically occurs when an employee of the business unwittingly installs the RAT to the corporate network. This is often through a ‘social engineering’ method of attack because it exploits human weakness to achieve an objective. An example of this would be sending what appears to be an email from an employee's friend, spouse, etc, that encourages the employee to download a file, such as a party invitation, whereas it is actually an email from the attacker with malware cloaked in a benign attachment. Another example of this would be an attack where the attacker ostensibly applies for a job by sending an application to human resources, but has embedded malware within the attached resume. To combat RAT installation, much like the methods discussed in the previous section, requires both employee education and file monitoring on the corporate network.", " (5) Establish command-and-control connection: Once malware is successfully installed within a corporate network, the attacker utilises that malware to establish a command and control connection (CCC) back to an external server of the aggressor. It is at this point that the attacking party gains actionable and unauthorised access to a grid facility's corporate network. Having gained this access, the attacker can now monitor traffic on the corporate network, research files held on the network, harvest network user credentials such as passwords and critical facility codes, upload additional malware and so on. For facility defence at this level, a robust network firewall is essential because by monitoring all communication done with an external server a facility has a strong chance of detecting the attacker's activities.", " (6) Deliver malware plugins: Building upon recently installed malware, the attacker will now deliver malware plugins. The purpose of additional plugins is to expand the range of network reconnaissance. An example of a malware plugin would be a keystroke logger, which functions as a recording device on an employee's computer that records each keyboard input and then transmits that keystroke record back to the attacker. Much like the antidote for other forms of malware, the target can defend against this manner of intrusion with sophisticated and updated malware detection software.", " (7) Harvest credentials: Similar to the delivery of malware plugins, the attacker will pursue a strategy of credential harvesting, or, in lay terms, username and password theft. This is a critical step, because by obtaining the login credentials of individuals with broad network authority access the attacker can expand their reach throughout the corporate network and, most importantly, into the industrial control system network. This is a significant step towards both the disruption of the grid and the attack's ability to navigate network traffic largely undetected. In effect, the attacker subsumes the grid control authority and access of an individual or individuals with the ability to alter conditions of the industrial control network.", ' (8) Lateral movement and target identification on the corporate network: This stage marks when an attacker effectively maps an entire corporate network, or at least its essential components. This step may require months of execution, but by the end of this phase the attacking party should have full understanding of and access to relevant servers, employee work stations, telecommunication infrastructure, power supply and so on. Aside from monitoring for suspicious activity, network defence should make efforts to compartmentalise network functions as a means of thwarting comprehensive network movement. Another strategy to detect intrusion at this level is to establish what are known as honeypots, or network decoys, which are network files that serve no useful purpose and would not be accessed by any employees in the normal course of their work. If a series of these decoy files were accessed, this would suggest some form of nefarious reconnaissance is underway.', " (9) Lateral movement and target identification on Industrial Control System (ICS) network: This is the stage of the attack in which the attacking party jumps from the corporate network to the industrial control network, ie the systems that provide operational control of the facility's power generation and distribution network. An industrial control system functions like a traditional, manual system except that at key points of its operation it receives digital commands from either automated operating instructions or human input. For example, a hydroelectric power plant may continue producing power through the physics of water-pressure-driven turbines until a human actor, interacting with the facility through a digital control system like a computer or more basic workstation, gives an instruction to the plant control system to either cease power production or ramp it up, or to do something else. These command systems can take many forms, but a basic form is a human–machine interface workstation, which would likely be a laptop type device that is directly connected to an industrial control system, like a programme that has the authority to adjust the speed of a hydroelectric turbine. Within the physical world of the facility, a properly credentialed employee would be able to walk up to this human–machine interface workstation and send a command to the control system for the turbine to alter its operation. In the case of an outside attack on the grid, the attacker would gain access to this workstation remotely and use it to give a command as if the attacker were physically present at the facility. At this stage, an attacker would not yet know how to initiate an attack, but this would be the time when the attacker explores the industrial control system network in an attempt to uncover its vulnerabilities and to identify targets necessary to disrupt the facility's operation. To prevent this stage from occurring, the facility should configure a third, intermediate network between the corporate network and the industrial control system network, wherein the intermediate network acts as holding centre for cross-network traffic to be evaluated. This is akin to a decontamination room that is used when a virologist exits a secure room where they have been studying a dangerous pathogen; the virologist is not permitted to exit a possibly contaminated room without first going through a decontamination room and then, upon approval, being released from that room back into a normal, presumably virus-free environment. While this is not a foolproof method of defending an industrial control system network, it does ensure that an attacker's efforts are more closely scrutinised. Of note, this measure is not the same as an air-gap system, ie a system that separates the industrial control system network from the corporate network. It has been demonstrated that an air-gap system is not practical nor is it as secure as it may seem in theory.118", ' (10) Develop malicious firmware: Once an attacker has explored the industrial control system network, uncovered its vulnerabilities, and established control system targets, the attacker will develop a weapon appropriate for disrupting those targets. The weapon will be some form of malicious firmware. The attacker does not require access to either the corporate or the industrial control system network during the malicious firmware development stage; rather, the actor will perform this process completely externally to the target facility. However, the attacker may test the malicious firmware on other, similar targets as a means of fine-tuning the efficacy of the weapon. This brings us back to the issue of Ukraine. Ukraine has been and is the testing ground for a host of cyber weapons, and it is generally accepted that malware developed to strike grid-critical facilities are often tested in Ukraine before being executed against their actual target.', " (11) Deliver data destruction malware: Preceding an attack, the aggressor will utilise its access to the facility networks (both corporate and industrial control systems) to upload data-destruction malware. The purpose of this malware is to preschedule the deletion of pertinent data that would be relevant to restoring a system's operational integrity. Although the deletion itself is not formally the attack, it complements the attack by frustrating the assessment of what is occurring during an attack as well as hobbling a defensive response to an attack. The only means of confronting this stage of the attack is to maintain robust scanning measures for malware.", ' (12) Schedule uninterruptable power supply disruption: Grid facilities rely a continuous operation of critical systems during normal operation. During an attack it is even more important to maintain power as a means of ameliorating the disruption. However, using harvested credentials, an attacker will preschedule the termination of otherwise uninterruptable power supply (UPS) sources so that it becomes easier to execute multiple attacks, to do so undetected and to debilitate restoration efforts. A method of combating this tactic is to isolate UPS systems from the corporate and/or industrial control system networks.', " (13) Trip breakers: After months or even years of preparation, the attack finally commences. Using access to the industrial control system network and credentials that enable the manipulation of human–machine interface systems, the attacker will issue a command to open the breakers within the facility's power generation and distribution system. The end result will be the disruption of power to a wide range of consumers, measurable in the hundreds of thousands or millions. As discussed above, it is essential to tightly control user access to the industrial control system network, both internally and externally. At this stage, the attack will become known to the facility and corrective measures will likely ensue. For this reason, the attacker will then commence additional attacks to derail any attempted defensive procedures.", ' (14) Sever connection to field devices: Knowing that a facility control centre will take immediate steps to close the breakers and restore power to the grid, the attack will trigger malware that disrupts power converters and cuts communication between the facility control centre and its substations. The result is that breakers cannot be closed remotely over the network and can only be closed manually. While this may sound like an easy solution, the larger the attack, the longer manual restoration will require. A robust system for monitoring industrial control system network traffic and simulated attack and restoration exercises are necessary to avoid this scenario.', ' (15) Telephony denial-of-service attack: At a corporate network level, measures will immediately commence to register consumer complaints and formulate a company action plan. As with most power outages, consumers will begin calling the corporate call centre to report a disruption, only now the attacker will flood the call centre with a telephony denial-of-service attack so that the call centre effectively drowns in fake calls and is rendered incapable of addressing legitimate consumer complaints. In order to avoid this frustration, a power company should partner with its phone service provider to develop a means of filtering legitimate from fraudulent calls.', " (16) Disable critical systems via UPS: At this stage, step 12 becomes relevant as the attacker's prescheduled power outages begin to wreak havoc on the response effort. Commonly, facility operators will take steps to rely on backup power systems, but here they will find them suspended and useless. This will add more chaos to an already chaotic situation.", ' (17) Destroy critical system data: Finally, with the power disrupted, control stations neutered and the power company thrown into a technical maelstrom, the attacker will cut the jugular of the facility. With vast access to the corporate and industrial control system networks, the attack will trigger malware that systematically deletes data critical to the operations of the facility. This step of the attack has the potential to make internal restoration of power impossible. Moreover, with the physical components of the facility effectively turned off and the digital systems wiped of all critical data, the likelihood of power restoration in the foreseeable future becomes questionable at best.', ' (18) Physical destruction of plant systems: Although the 17 prior steps are adequate to turn the lights out, another element of a successful attack warrants attention. Had the attacker initiated a command that caused a power surge sufficient to burn up necessary critical infrastructure, then not even manual restoration would remedy the disruption.119 Under this scenario, power could only be restored by installing new equipment, which, depending on the severity of the attack, could be a protracted solution that requires years of work.', '4.2. Post-mortem or restoration', "If a large-scale cyber attack does come to fruition, what might be some of the second-order effects? One example comes from a situation that occurred in Wyoming in February 2017, when a strong windstorm knocked down a large number of power lines.120 Because of the inoperable power lines, along with heavy snow, power was not restored for approximately a week. Generators initially powered sewage treatment facilities, but eventually the generators began to fail and as a result sewage began backing up. To avoid wastewater flooding into homes, the area's water supply was cut off. One needs only a modest imagination to consider the impact that a similar situation might have in New York City, Los Angeles, London or any other major metropolitan area. And, to make matters worse, curtailment of clean water could be only one of many challenges resulting from lost power.121 This grave concern prompted Lawrence Susskind at Massachusetts Institute of Technology (MIT)'s urban systems department to remark, ‘Millions\u2009…\u2009could be left with no electricity, no water, no public transportation, and no waste disposal for weeks (or even months)\u2009…\u2009. No one can protect critical urban infrastructure on their own’.122", 'Combined with the social and economic turmoil that could be caused by a crippling grid attack, there could be further difficulties caused by the disruption to supply chains that would be necessary to restore power. At an MIT facility doing work on wind turbine power generation, a mechanical failure to the turbine took almost three months to fix because a necessary part had to be developed and delivered from Germany.123 Expand a situation of this type across an entire grid system, and it could take years to return all systems to normal working order. This sort of dismal situation is known as a black start, and it could prove extremely difficult to overcome. Moreover, one need to only look at the present challenges created by the COVID-19 viral pandemic to appreciate how delicate these critical infrastructure systems are when placed under unexpected and severe stress. An attack on the grid resulting in prolonged power loss would in many ways mirror, and in some ways far exceed, the disruptions presently occurring as a result of the virus pandemic.']

[(9, 19)]

9d6f73a9791b5e831b4d97bc035a2b3fafc7f8fa6e40264942194494f3784833

Broadly ripples to critical infrastructure---turns every impact

Dennis Pamlin & Stuart Armstrong 15, Dennis Pamlin, Executive Project Manager Global Risks, Global Challenges Foundation; Stuart Armstrong, James Martin Research Fellow, Future of Humanity Institute, Oxford Martin School, University of Oxford, “Global Challenges: 12 Risks that threaten human civilization: The case for a new risk category,” February 2015, Global Challenges Foundation,

risks threaten human civilisation in critical infrastructure a small disruption cause a highly non-linear effect networks are strongly coupled intensified by globalisation while governance seem inadequate a failure cascade wrought by ongoing cyber conflict may trigger “ social collapse” far out of proportion to initial disruption secondary effects such as conflict or starvation cause great death and suffering collapse could spread and undermine combating ecosystem collapse loss of trade , poverty , wars Climate change and mono-cultures

risks that threaten human civilisation System Collapse Societal collapse usually refers to the fall or disintegration of human societies, often along with their life support systems. It broadly includes both quite abrupt societal failures typified by collapses, and more extended gradual declines of superpowers. Here only the former is included systemic risk occurs when parts that individually may function well become vulnerable when connected as a system to a self-reinforcing joint risk that can spread from part to part (contagion), potentially affecting the entire system and possibly spilling over to related outside systems in critical infrastructure (such as power grids) are characterised by the possibility that a small internal or external disruption could cause a highly non-linear effect The possibility of collapse becomes more acute when several independent networks depend on each other , as is increasingly the case ( water supply, transport , fuel and power stations are strongly coupled , for instance) This dependence links social and technological systems as well This trend is likely to be intensified by continuing globalisation while global governance and regulatory mechanisms seem inadequate to address the issue a failure cascade wrought by ongoing cyber conflict may exacerbate some of the other risks in this paper, or as a trigger . But a simple global systems collapse still poses risks on its own modern societies largely dependent on the careful matching of different types of capital social, technological, natural with each other. If this matching is disrupted, this could trigger a “ social collapse” far out of proportion to the initial disruption institutional collapses can create knock-on effects , such as the descent of formerly prosperous states to much more impoverished and destabilising entities Such processes could trigger damage on a large scale if they weake n global political and economic systems to such an extent that secondary effects ( such as conflict or starvation ) could cause great death and suffering Increased global coordination and cooperation may allow effective regulatory responses, but it also causes the integration of many different aspects of today’s world, likely increasing systemic risk Building resilience – the ability of system components to survive shocks – should reduce systemic risk A system collapse could spread to other areas, infecting previously untouched systems (as the subprime mortgage crisis affected the world financial system, economy, and ultimately its political system) A collapse that spread to government institutions would undermine the possibilities of combating the collapse A natural ecosystem collapse could be a cause or consequence of a collapse in humanity’s institutions If the current world system collapses, there is a risk of casualties through loss of trade , poverty , wars and increased fragility It is not obvious that the world’s institutions and systems can be put together again after a collapse; they may be stuck in a suboptimal equilibrium Climate change , mass movements of animals and agricultural mono-cultures are interlinking ecosystems with each other and with human institutions

risks that threaten human civilisation System Collapse systemic risk self-reinforcing joint risk critical infrastructure small internal or external disruption highly non-linear effect several independent networks depend on each other increasingly the case water transport fuel power strongly coupled global governance regulatory mechanisms inadequate cyber conflict trigger still poses risks on its own social collapse” far out of proportion to the initial disruption knock-on effects destabilising entities secondary effects conflict starvation great death and suffering Building resilience reduce systemic risk ecosystem collapse trade poverty wars Climate change mono-cultures

['Global Challenges – Twelve risks that threaten human civilisation – The case for a new category of risks 89 ', '3.1 Current risks ', '3.1.5 Global System Collapse ', 'Global system collapse is defined here as either an economic or societal collapse on the global scale. There is no precise definition of a system collapse. The term has been used to describe a broad range of bad economic conditions, ranging from a severe, prolonged depression with high bankruptcy rates and high unemployment, to a breakdown in normal commerce caused by hyperinflation, or even an economically-caused sharp increase in the death rate and perhaps even a decline in population. 310 ', 'Often economic collapse is accompanied by social chaos, civil unrest and sometimes a breakdown of law and order. Societal collapse usually refers to the fall or disintegration of human societies, often along with their life support systems. It broadly includes both quite abrupt societal failures typified by collapses, and more extended gradual declines of superpowers. Here only the former is included. ', '3.1.5.1 Expected impact ', 'The world economic and political system is made up of many actors with many objectives and many links between them. Such intricate, interconnected systems are subject to unexpected system-wide failures due to the structure of the network311 – even if each component of the network is reliable. This gives rise to systemic risk: systemic risk occurs when parts that individually may function well become vulnerable when connected as a system to a self-reinforcing joint risk that can spread from part to part (contagion), potentially affecting the entire system and possibly spilling over to related outside systems.312 Such effects have been observed in such diverse areas as ecology,313 finance314 and critical infrastructure315 (such as power grids). They are characterised by the possibility that a small internal or external disruption could cause a highly non-linear effect,316 including a cascading failure that infects the whole system,317 as in the 2008-2009 financial crisis. ', 'The possibility of collapse becomes more acute when several independent networks depend on each other, as is increasingly the case (water supply, transport, fuel and power stations are strongly coupled, for instance).318 This dependence links social and technological systems as well.319 ', 'This trend is likely to be intensified by continuing globalisation,320 while global governance and regulatory mechanisms seem inadequate to address the issue.321 This is possibly because the tension between resilience and efficiency322 can even exacerbate the problem.323 ', 'Many triggers could start such a failure cascade, such as the infrastructure damage wrought by a coronal mass ejection,324 an ongoing cyber conflict, or a milder form of some of the risks presented in the rest of the paper. Indeed the main risk factor with global systems collapse is as something which may exacerbate some of the other risks in this paper, or as a trigger. But a simple global systems collapse still poses risks on its own. The productivity of modern societies is largely dependent on the careful matching of different types of capital325 (social, technological, natural...) with each other. If this matching is disrupted, this could trigger a “social collapse” far out of proportion to the initial disruption.326 States and institutions have collapsed in the past for seemingly minor systemic reasons.327 And institutional collapses can create knock-on effects, such as the descent of formerly prosperous states to much more impoverished and destabilising entities.328 Such processes could trigger damage on a large scale if they weaken global political and economic systems to such an extent that secondary effects (such as conflict or starvation) could cause great death and suffering. ', '3.1.5.2 Probability disaggregation ', 'Five important factors in estimating the probabilities of various impacts: ', '1. Whether global system collapse will trigger subsequent collapses or fragility in other areas. ', '2. What the true trade-off is between efficiency and resilience. ', '3. Whether effective regulation and resilience can be developed. ', '4. Whether an external disruption will trigger a collapse. ', '5. Whether an internal event will trigger a collapse. ', '[[CHART OMITTED]]', '1. Increased global coordination and cooperation may allow effective regulatory responses, but it also causes the integration of many different aspects of today’s world, likely increasing systemic risk. ', '2. Systemic risk is only gradually becoming understood, and further research is needed, especially when it comes to actually reducing systemic risk. ', '3. Since systemic risk is risk in the entire system, rather than in any individual component of it, only institutions with overall views and effects can tackle it. But regulating systemic risk is a new and uncertain task. ', '4. Building resilience – the ability of system components to survive shocks – should reduce systemic risk. ', '5. Fragile systems are often built because they are more efficient than robust systems, and hence more profitable. ', '6. General mitigation efforts should involve features that are disconnected from the standard system, and thus should remain able to continue being of use if the main system collapses ', '7. A system collapse could spread to other areas, infecting previously untouched systems (as the subprime mortgage crisis affected the world financial system, economy, and ultimately its political system). ', '8. The system collapse may lead to increased fragility in areas that it does not directly damage, making them vulnerable to subsequent shocks. ', '9. A collapse that spread to government institutions would undermine the possibilities of combating the collapse. ', '10. A natural ecosystem collapse could be a cause or consequence of a collapse in humanity’s institutions. ', '11. Economic collapse is an obvious and visible way in which system collapse could cause a lot of damage. ', '12. In order to cause mass casualties, a system collapse would need to cause major disruptions to the world’s political and economic system. ', '13. If the current world system collapses, there is a risk of casualties through loss of trade, poverty, wars and increased fragility. ', '14. It is not obvious that the world’s institutions and systems can be put together again after a collapse; they may be stuck in a suboptimal equilibrium. ', '15. Power grids are often analysed as possible candidates for system collapse, and they are becoming more integrated. ', '16. The world’s financial systems have already caused a system collapse, and they are still growing more integrated. ', '17. The world’s economies are also getting integrated, spreading recessions across national boundaries. ', '18. The world’s political and legal systems are becoming more closely integrated as well. Any risk has not been extensively researched yet, and there remain strong obstacles (mainly at the nation state level) slowing down this form of integration. ', '19. The politics of the post-system collapse world will be important in formulating an effective response instead of an indifferent or counterproductive one. ', '20. System collapses can be triggered internally by very small events, without an apparent cause. ', '21. External disruptions can trigger the collapse of an already fragile system. ', '22. The trade-off between efficiency and resilience is a key source of fragility in a world economy built around maximising efficiency. ', '23. Climate change, mass movements of animals and agricultural mono-cultures are interlinking ecosystems with each other and with human institutions. ', '24. There is a lot of uncertainty about systemic risk, especially in the interactions between different fragilities that would not be sufficient to cause a collapse on their own.']

[(7, 15), (23, 35)]

497eda65b4b218811ab7fb27c8e948a8e018ef3066243f708d49d9f119a968c1

Even attempted attacks cause nuclear retaliation

Vladimir Orlov 20, Founder & Director of the PIR Center, President of the Trialogue Club International, Head of the Center for Global Trends and International Organizations at the Diplomatic Academy, Ministry of Foreign Affairs of the Russian Federation, Co-Founder and Academic Supervisor of the International Dual Degree MA Program in Nonproliferation and Global Security Studies, MGIMO University, Professor at MGIMO University, author (or coauthor) of more than a dozen books and monographs and more than three hundred research papers, articles, and essays, publishes his views in Russian and foreign periodicals, “‘No Holds Barred’ and the New Vulnerability: Are We in for a Re-Run of the Cuban Missile Crisis in Cyberspace?,” SSRN Scholarly Paper, ID 3538078, Social Science Research Network, 02/14/2020, papers.ssrn.com, doi:10.2139/ssrn.3538078

cyber lead to military escalation that trigger nuclear exchange explicit with the current N P R third parties may invoke conflict between Russia and the U S by attacking critical infrastructure and making it look as if the aggressor were the other acts in cyber diminish trust the world is sliding to major crisis There are no rules tension is out of control And no guarantees the next crisis will be controllable

cyber -attacks could lead to a military escalation that trigger a nuclear exchange explicit with the adoption of the current N P R third parties may have the capabilities to invoke a cyber conflict between Russia and the U S a country or a non-state actor could put the two countries on the verge of an armed conflict by attacking critical infrastructure and making it look as if the aggressor were the other Malicious acts in cyber space are contributing to diminish ing trust Do we really have to survive a cyber equivalent of the Cuba n Missile Crisis to realize the importance of achieving some kind of agreement on cyber issues, ? I don’t want to sound a fatalist, but I am even less keen on sounding like an ostrich that’s buried its head in the sand . We cannot ignore the obvious the world is sliding to another major crisis like the one in 1962. The cyber war is already raging There are no rules of engagement The uncertainty is high . The spiral of tension is getting out of control . The cyber arms race is gaining momentum. And there are no guarantees that the next crisis will be controllable , or that it will result in a catharsis There’s no telling what will happen once the cyber genie is out of the bottle

escalation nuclear exchange explicit N P R third parties invoke Russia U S critical infrastructure look other cyber diminish trust Cuba Crisis importance ? ostrich that’s buried its head in the sand obvious sliding to another major crisis already raging no rules of engagement uncertainty high tension getting out of control no guarantees that the next crisis will be controllable catharsis

['Not hundred per cent of the dialogue has been frozen, fortunately. Certain informal, mostly offthe-record, meetings of US and Russian experts on cyber agenda continue taking place, both through Track 2 and Track 1.5. One of the most intellectually stimulating meetings, with frank exchanges, took place in Vienna in December 2018. The report produced after the meeting stressed “the significant risk […] that cyber-attacks could conceivably lead to a military escalation that may further trigger a nuclear weapons exchange, a fact that became more explicit with the adoption of the current Nuclear Posture Review. This issue gets complicated given that third parties may have the capabilities to invoke a cyber conflict between Russia and the United States. Whether a country or a non-state actor, they could put the two countries on the verge of an armed conflict by attacking critical infrastructure of either of them and making it look as if the aggressor were the other one”[22]. However, one should have no illusion: such informal meetings may be fully fruitful only when their reports and policy recommendations are utilized by the governments. And for that, a warmer climate in bilateral relations is a must. So far, we see exactly the opposite: mercury falling to freezing levels.', 'Risk of cyber clashes growing into a chaotic global cyber war has been emphasized by the UN Secretary-General Antonio Guterres in his Agenda for Disarmament: “Malicious acts in cyberspace are contributing to diminishing trust among States… States should implement the recommendations elaborated under the auspices of the General Assembly, which aim at building international confidence and greater responsibility in the use of cyberspace.[23]” However, as the members of the US-Russian Track 1.5 working group on strategic stability recently concluded, “without a constructive dialogue on cyber issues between the United States and Russia, the world would most likely fail to agree on any norms of responsible behavior of states in cyber space”[24].', 'Do we really have to survive a cyber equivalent of the Cuban Missile Crisis to realize the importance of achieving some kind of agreement on cyber issues, and on the broader agenda of international information security?[25] Or is that kind of talk plain old alarmism?', 'I don’t want to sound a fatalist, but I am even less keen on sounding like an ostrich that’s buried its head in the sand. We cannot ignore the obvious: whether the world’s most powerful actors like it or not, the world is sliding to another major crisis like the one in 1962. The cyber war is already raging. There are no rules of engagement in that war. The uncertainty is high. The spiral of tension is getting out of control. The cyber arms race is gaining momentum. And there are no guarantees that the next crisis will be controllable, or that it will result in a catharsis as far as international information security regulation is concerned. There’s no telling what will happen once the cyber genie is out of the bottle.']

[(9, 17)]

f9dfde4949301f64c24420c568c7cba79f0bf7d012118a230cbbc3ed69e3455d

Malware spreads between interlinked systems---causing use or lose pressures AND nuclear use

James M. Acton 20, holds the Jessica T. Mathews Chair and is Co-Director of the Nuclear Policy Program at the Carnegie Endowment for International Peace, “Cyber Warfare & Inadvertent Escalation,” Daedalus, vol. 149, no. 2, MIT Press, 03/23/2020, pp. 133–149

vulnerability of nuclear risk inadvertent escalation from op s not intended to escalat lead the state to employ nuc s Malware into IT with non-nuclear could spread into nuclear affecting systems other than intended Minimizing such relies on intel about the target Obtaining is difficult a state concerned about nuclear might be inclined in crisis to interpret in the worst light generate significant escalation states could remove p a l s or predelegate risk unauthorized use the target might conclude its nuclear forces or C3I were under deliberate attack even if air-gapping

The vulnerability of nuclear forces and C3I systems creates the risk of inadvertent escalation resulting from op eration s or threats not intended to be escalat ory could lead the state to employ nuc lear weapon s in its own preemptive attempt to disarm its adversary a cyberattack could have a more significant effect than intended . Malware implanted into IT systems associated with non-nuclear could accidentally spread into more sensitive nuclear systems cyber operations present significant risks of unanticipated collateral effects affecting IT systems other than the intended target Minimizing such effects relies on detailed intel ligence about the target network and on connections between it and other networks. Obtaining the intelligence is difficult To complicate matters further, sophisticated malware must be tailored As a result, the effects of cyber weapons cannot usually be understood through testing , further increasing the likelihood of unanticipated collateral damage a state concerned about its nuclear forces and C3I systems coming under cyberattack might be inclined in crisis to interpret ambiguous indicators in the worst possible light a false positive that occurred in a crisis could generate significant escalation pressures Concerned states could remove p ermissive a ction l ink s Alternatively or additionally could predelegate authority increases the risk of unauthorized use A state that eschewed cyber operations of any kind against an opponent’s nuclear forces or C3I systems might still launch such operations against adversary networks If, because of design flaws, imperfect intelligence, or mistakes in execution, the malware used in such attacks spread and infected networks that were involved in nuclear operations , the target might conclude that its nuclear forces or C3I systems were under deliberate cyber attack There could be collateral effects even if a state’s networks for nuclear operations were entirely isolated; air-gapping is, after all, not a cyber security panacea Moreover, achieving perfect isolation could prove difficult in practice every nuclear-armed state has dual-use delivery systems Such delivery systems represent a potential point of contact between the C3I systems The U S has a number of dual-use C3I assets for communications and early warning that support both nuclear and non-nuclear operations there may be a high risk of their being subject to collateral effects

vulnerability inadvertent escalation op s not intended to be escalat employ nuc s preemptive significant effect intended implanted IT non-nuclear accidentally spread sensitive nuclear systems significant risks unanticipated collateral effects other intended Minimizing detailed intel Obtaining difficult malware tailored testing increasing concerned inclined crisis worst possible light false positive significant escalation pressures remove p a l s predelegate authority unauthorized use nuclear still adversary networks malware spread nuclear operations target conclude under deliberate cyber attack even if air-gapping not a cyber security panacea difficult in practice dual-use delivery systems contact U S number nuclear and non-nuclear high risk collateral effects

['The vulnerability of nuclear forces and C3I systems creates the risk of inadvertent escalation: that is, escalation resulting from military operations or threats that are not intended to be escalatory. So-called crisis instability, for example, could arise if a state were afraid of being disarmed more or less completely in a preemptive strike by an adversary, whether or not such fears were well founded.4 In the most extreme case, “use-’em-or-lose-’em” pressures could lead the state to employ nuclear weapons, conceivably in its own preemptive attempt to disarm its adversary, but more likely in a limited way to try to terrify the opponent into backing down. In less extreme scenarios, a state afraid of being disarmed might take steps–issuing nuclear threats, for example, or dispersing mobile nuclear forces– that raised the likelihood of nuclear use later.', 'This danger is likely to be exacerbated by any cyber vulnerabilities affecting nuclear forces and C3I systems. Most directly, the existence of such vulnerabilities could intensify existing fears of being disarmed–fears that are already acute in China and Russia (as well as in Pakistan and, most likely, North Korea).5 However, because of their unique characteristics and effects, cyber threats could create at least three qualitatively new mechanisms by which a nuclear-armed state might come to the incorrect conclusion that its nuclear deterrent was under threat. First, the purpose of cyber interference could be misinterpreted. In particular, espionage could be mistaken for an attack. Second, a cyberattack could have a more significant effect than intended. Malware implanted into information technology (IT) systems associated with non-nuclear weapons could accidentally spread into more sensitive nuclear-related systems, for instance. Third, the initiator of a cyber operation could be misidentified. An operation carried out by a third party, for example, could be misattributed by one state in a bilateral confrontation to its opponent. What makes these pathways so pernicious is that the catalyst for escalation could appear to its initiator to be a relatively benign action.', 'To make matters worse, such pathways could lead to inadvertent escalation even if the target of the cyber interference were not afraid of being completely disarmed. Today at least, this description fits the United States. If, in a conflict against Russia, say, the United States wrongly concluded that its strategic early-warning system was under cyberattack, it might reason that Moscow was seeking to undermine U.S. missile defenses, which use early-warning data, prior to launching a nuclear attack.6 Given that U.S. declaratory policy explicitly highlights the option of a nuclear response to non-nuclear attacks on nuclear C3I assets, such a “misinterpreted warning” might lead Washington to use nuclear weapons.7 But even if it did not, its response, which might include nuclear threats, could still be escalatory.', 'My focus here is narrowly limited to inadvertent cyber threats against, or interference with, one state’s nuclear forces or C3I systems by another nuclear-armed state (C3I systems encompass not only communication capabilities, but also the intelligence, surveillance, and reconnaissance capabilities, including early warning, that would be critical to decision-making). To be sure, cyber vulnerabilities probably create other escalation risks too, though, in my judgment, they are less serious.8 For example, while no state would likely try to detonate another’s nuclear weapons, a nihilistic terrorist group might (though it is unclear whether such a group could obtain the requisite cyber capabilities). Separately, vulnerabilities associated with conventional forces or their C3I systems could increase the likelihood of a conventional war’s escalating to a higher level of violence, thus making nuclear use more credible.9', 'Cyber interference with nuclear forces and C3I systems can involve two (not mutually exclusive) types of operations: espionage and attack. Cyber espionage involves collecting data from a target IT system without otherwise damaging it. A cyberattack involves undermining the operations of the target system, typically by compromising the integrity or availability of data. Cyber tools suitable for surveilling or attacking nuclear forces or C3I systems have innumerable differences from noncyber tools, which are themselves quite varied. Six of these differences are particularly salient to the risk of inadvertent nuclear escalation.', 'First, cyber espionage offers the potential to obtain information about an adversary’s military forces and operations that cannot plausibly be obtained in any other way. By accessing an adversary’s C3I systems directly, cyber tools may be capable of exfiltrating exceptionally sensitive information, such as the locations of mobile delivery systems. This is not to suggest that cyber surveillance is infallible. As a security measure, for example, a state could choose not to track the movements of its mobile delivery systems (or it could do so only approximately). Alternatively or additionally, it could try to use a cyber intrusion in its networks to feed misinformation to the adversary. In spite of these and other limitations, however, cyber espionage almost certainly offers unique advantages. For example, no practical constellation of high-resolution surveillance satellites in low Earth orbit could provide continuous coverage of a given location on Earth’s surface.10 Cyber surveillance, by contrast, may allow for continuous monitoring of an adversary’s military posture.', 'Second, cyber weapons offer an unparalleled capability to manipulate the data that go into decision-making. Other types of weapons, by destroying or disabling sensors or communication systems, can also deny data to decision-makers. However, their use generally alerts the target to the fact it is under attack. By contrast, if a well-designed cyber weapon is used, a loss of data may appear to be, say, the result of a malfunction, potentially allowing the attacker to conduct surprise follow-on attacks. Even more significant, cyber weapons can be used to feed false information to decision-makers. For example, the Stuxnet virus, which was reportedly developed by the United States and Israel, was designed not only to destroy centrifuges at Iran’s Natanz enrichment plant, but also to hinder plant operators from discovering the cause of these failures by producing falsely reassuring readings on monitoring equipment.11 In a similar vein, sophisticated cyber weapons offer a unique capability to shape an adversary’s perception of a battlefield by feeding misinformation into C3I systems.12 To be sure, information operations have always been a part of warfare. However, cyber weapons represent a sea change because their effects can be tailored with great precision in real time, and because they could be used to directly influence the perceptions of high-level decision-makers.', 'Third, cyber operations–whether conducted for espionage or offensive purposes–can present particularly significant risks of unanticipated collateral effects, that is, of affecting IT systems other than the intended target.13 Noncyber weapons can, of course, lead to collateral damage. Yet such effects are inherently constrained by geography. Moreover, the likelihood of physical collateral damage can be often quantified, at least to some extent (military planners may be able to estimate, for example, the probability of an incoming weapon missing its military target and hitting a nearby civilian facility).14 The risks of collateral effects in cyberspace are much more difficult to estimate. Minimizing such effects relies, in part, on detailed intelligence about the target network and on connections between it and other networks. Obtaining the requisite intelligence is potentially much more difficult than identifying what surrounds a target in physical space (as is verifying that the resulting picture is complete). To complicate matters further, sophisticated malware must generally be tailored to each target and, if revealed, will become ineffective once the adversary can clean its networks and fix whatever exploit was used to gain access. As a result, the effects of cyber weapons cannot usually be understood through testing, further increasing the likelihood of unanticipated collateral damage (simulations can be used but they are only as good as the available intelligence on the target).', 'Fourth, in peacetime, malware used to enable a cyberattack may often be inserted into an enemy’s networks–but not activated–in the hope that it will remain undetected and thus can be used in a potential future crisis or conflict. (In theory, not only can a vulnerability in an operational IT system be exploited in this way, but so too could security weaknesses in the supply chain for the system’s components.) Noncyber weapons, by contrast, are generally used as and when the decision to authorize a strike on a particular target is taken.15 One consequence of this difference is that, if a state discovers dormant malware in its networks, it can be faced with the challenge of attributing it–that is, identifying which entity is responsible for its implantation–before activation. The equivalent challenge rarely arises with the kinds of noncyber weapons typically used in interstate warfare (though it does arise in irregular warfare or counterterrorism with unexploded ordnance).', 'Fifth, and relatedly, cyberattacks are generally easier to conceal than other forms of attack. As a result, decision-makers may be more inclined to authorize them. In fact, if the goal is for a cyber weapon to have either a persistent effect or an effect when triggered at some future time, the malware used in the attack must remain hidden to be effective because exposure could enable the adversary to take countermeasures.', 'Sixth, and finally, distinguishing between offensive operations and espionage is significantly more challenging in cyberspace than in other domains.16 To be sure, the line dividing espionage and offensive operations in physical space is not always entirely clear. Aircraft–unmanned aerial vehicles (UAVs), in particular –are used for both surveillance and offensive operations. But the distinction is much murkier in cyberspace. One challenge is that identifying the purpose of a piece of malware–understanding whether it can be used for espionage, offensive purposes, or both–can be time-consuming. In a fast-moving conflict or crisis, this process might move slower than decision-making. Moreover, even if a state quickly and confidently established that a piece of malware could be used solely for espionage, it could not be confident that whatever vulnerability was used to introduce the malware would not also be exploited for offensive purposes–at least until it had identified and fixed the vulnerability.', 'States can threaten each other’s nuclear forces through a combination of offensive “counterforce” operations to target nuclear-weapon delivery systems preemptively, and air and missile defense operations to intercept whatever remained. The United States openly acknowledges it would seek to limit the damage it would suffer in a nuclear war.17 Russian doctrine is believed to embrace a similar concept.18 India may be moving in the same direction.19', 'The question of whether, in practice, a state could actually succeed in limiting the damage it would suffer in a nuclear war to an extent that decision-makers would consider meaningful is currently a subject of considerable debate.20 However, from the perspective of inadvertent escalation, what matters is not whether damage-limitation operations would actually prove effective, but whether a potential target believes they might. In this context, Chinese and Russian fears that the United States is seeking the capabilities–non-nuclear capabilities, in particular–to negate their nuclear deterrents could prove escalatory in a crisis or conflict by generating “crisis instability,” that is, pressures to use nuclear weapons before losing the capability to do so.21 And even though the United States is not concerned today about the possibility of being disarmed, Washington appears to be less sanguine about the future, given growing threats to its C3I assets, in particular.', 'Cyber capabilities could contribute to damage-limitation operations in two distinct ways. First, cyber espionage could prove useful in collecting intelligence that might increase the effectiveness of counterforce attacks and air and missile defenses, especially if complemented by effective analytic tools for synthesizing large amounts of data from multiple sources.22 If cyber espionage helped reveal the locations of mobile weapons, for example, it could enable preemptive attacks against them. And if it helped to reveal targeting data, it could assist defenses in intercepting missiles and aircraft after launch.', 'Second, cyber weapons could be used, alongside other capabilities, to conduct counterforce strikes. A hypothetical cyber “kill switch” that could permanently shut down an adversary’s nuclear C3I systems would certainly be attractive to any state with a damage-limitation doctrine. In practice, this kind of perfect capability seems fanciful, not least because a state could find analog or even nonelectronic ways to use its own nuclear forces given enough time (in fact, some states may even prepare such means in advance). At best, therefore, a cyberattack could be a “pause button” that delayed an adversary’s ability to use its nuclear weapons. Real cyber weapons are likely to be still less effective, however. All nuclear-armed states likely operate multiple C3I systems with some degree of redundancy between them. Cyber operations would probably not prove equally effective against these different systems, potentially delaying the target from using some elements of its nuclear forces for longer periods of time than others.', 'Even given these limitations, however, cyberattacks could still assist with damage limitation. They could buy more time for counterforce operations to attrite an opponent’s nuclear forces and reduce the coherence of any retaliatory attacks, somewhat simplifying the task of air and missile defenses. Moreover, the potential for cyberattacks to shape an adversary’s perceptions could prove valuable. For example, an attacker might try to “blind” its adversary’s early-warning system just before launching counterforce strikes on its nuclear forces.', 'Just how effective cyber-enabled damage-limitation operations might prove in an actual conflict is far from clear, not least because of the difficulty of testing cyber weapons. That said, any state that has made the enormous investments necessary to develop damage-limitation capabilities is likely to spend relatively modest additional sums on developing complementary cyber tools, and it might reach a different conclusion about their potential efficacy. Even more important, from the perspective of inadvertent escalation, its potential adversaries might do so too.', 'China, in particular, appears to be concerned about cyber-enabled damage limitation. Summarizing the thinking of their peers on this subject, two Chinese scholars, Tong Zhao and Li Bin, have concluded that “Chinese analysts have demonstrated an acute awareness of the potential vulnerabilities of the country’s nuclear C3I system, particularly against cyber infiltrations.”23 Russian views have been less aired. In fact, a dichotomy has emerged in what little public discussion there has been. For example, three respected experts, including a former general officer in Russia’s Strategic Rocket Forces, have recently played down the threat, arguing that “because the command-and-control systems of strategic nuclear forces are isolated and highly protected, they are, in all probability, not vulnerable to cyber attacks.”24 At about the same time, however, another influential Russian scholar argued that, among the emerging non-nuclear technologies that could threaten nuclear forces, “probably the most dangerous development is cyber weapons, which could be used for non-nuclear disarming and decapitating attack by completely paralysing the entire command-and-control system.”25 News reports that Russia has created cyber defense units for its nuclear forces suggest that the Russian military may be less than sanguine about the cyber threat.26', 'Fears about cyber-enabled damage limitation may be particularly pernicious because of the potential difficulty of detecting a cyberattack. A sophisticated cyberattack on nuclear forces or C3I systems could conceivably occur without being detected. In the extreme case, a state might only find out that it had been attacked when it attempted to launch nuclear weapons and discovered that its ability to do so had been impeded in some way. If a state believed that it would be unlikely to detect an ongoing cyberattack, then it could rationally conclude that it might be under attack even in the absence of attack indicators. The simple belief that an opponent had highly sophisticated cyber capabilities could, therefore, precipitate a false positive–the incorrect assessment that an attack was underway–by itself. By contrast, if a state’s nuclear forces were under assault from kinetic strikes, the target would likely be aware. To be sure, it is still not entirely impossible that a state could wrongly come to believe it was under kinetic attack. Early-warning systems, for example, have produced false warnings of incoming ballistic missile strikes.27 But mistakes of this kind could be identified once the incoming weapons ceased to exist (though the window of time before they disappeared could be particularly dangerous).', 'To make matters worse, a state that was concerned about its nuclear forces and C3I systems coming under cyberattack might be inclined, especially in a crisis or conflict, to interpret ambiguous indicators in the worst possible light. For example, if one of its nuclear C3I systems malfunctioned because of, say, bad design or aging components, it might wrongly attribute the failure to a cyberattack (in fact, the temptation among operators to do so might be particularly strong if they would otherwise be held responsible for an internal failure). Regardless of precisely how it arose, however, a false positive that occurred in a crisis or conflict could generate significant escalation pressures.', 'Concerns about the potential for cyber operations to enhance the effectiveness of damage limitation can have effects beyond generating crisis instability at a time of heightened tensions or during a conflict. In peacetime, such concerns may induce nuclear-armed states to take steps to try to ensure that nuclear weapons could be employed when duly ordered in a crisis or conflict, even at the expense of exacerbating the danger of inadvertent or unauthorized use. Concerned states, for example, could remove permissive action links–electronic “locks” designed to prevent the unauthorized use of nuclear weapons–because of the perceived danger that they could be hacked and thus subverted to prevent authorized use.28', 'Alternatively or additionally, states could make plans to predelegate the authority to use nuclear weapons down the chain of command to guard against the possibility of the communication links serving national leaders being severed. The dangers of predelegation depend, in part, on the degree of flexibility afforded to commanders in determining whether and how to use nuclear weapons. Nevertheless, certain risks are inherent in any model. A localized communications failure might be mistaken for an attack, for example, leading to inadvertent use.29 Predelegation also increases the risk of unauthorized use because a field commander could order the use of nuclear weapons in a scenario in which he or she was not permitted to do so. This danger becomes greater as more people are granted launch authority. In this respect, cyber threats could promote a particularly dangerous form of predelegation by inducing a state to entrust launch authority to the relatively large number of lower-level officers who are capable of issuing a launch order without electronic communications.', 'Surveillance operations in cyberspace, even if conducted exclusively for defensive purposes, pose unique risks of escalation. Cyber surveillance of an adversary’s nuclear forces can serve purposes besides damage limitation. In any dyad involving two nuclear-armed states, each has a strong incentive to monitor the status of the other’s nuclear forces at all times–and particularly during a crisis or conflict–including for the exclusively defensive purpose of spotting any preparations for nuclear use. Several intelligence collection techniques, including overhead imagery and signals intelligence, are likely used for this purpose. Given the potentially unique advantages of surveillance in cyberspace, however, states may see good reason to adopt it alongside these other approaches, especially if they judge that the likelihood of cyber espionage being detected is small.', 'Depending on the sophistication of the malware used and the target’s defenses, the true likelihood of being detected may or may not be small, but the consequences of being caught could be significant. In fact, if the target detected ongoing cyber espionage of networks associated with its nuclear forces or C3I systems, inadvertent escalation could result from either of two concerns that are distinct from those that might plausibly be generated by other forms of surveillance.', 'First, even if the target of cyber interference were convinced that the operation was being conducted exclusively for the purpose of espionage, it might worry that the data being collected could be used against it in damage-limitation operations. Intelligence collection in physical space could also enable damage limitation, but it differs from cyber surveillance in one critical respect. In a crisis or conflict, a state would generally have no way of knowing whether or not countermeasures against physical surveillance (such as camouflage or concealment) had proved effective–unless its nuclear forces were successfully attacked. By contrast, if it detected an ongoing effort to collect intelligence through its C3I networks, it would know definitively that at least some of its cyber defenses had failed. This realization might lead the state to fear that attacks on its nuclear forces were imminent.', 'Second, because of the difficulty of rapidly distinguishing cyber espionage from a cyberattack, espionage against nuclear forces or C3I systems would risk being misinterpreted as an attack. In theory, the use of armed UAVs for surveillance of an adversary’s nuclear forces could generate a similar risk. However, a state motivated by purely defensive considerations would have strong and obvious reasons not to use armed UAVs in this way.', 'The risks resulting from cyber espionage being mistaken as an attack would depend on who had initiated the operation and who was the target. China or Russia might assess that U.S. cyber surveillance was actually an offensive effort intended to undermine–or, more likely, give Washington the option of undermining– Beijing’s or Moscow’s ability to launch nuclear weapons, thus potentially generating crisis instability. By contrast, because Washington is apparently more confident in the survivability of its nuclear deterrent, cyber espionage directed against U.S. nuclear forces or C3I systems would be less likely to have the same result. Nonetheless, such operations would likely be of real concern to Washington and could, for example, be misinterpreted as a prelude to nuclear use by China or Russia.', 'Even if the two states involved in a crisis or conflict did not engage in any kind of deliberate cyber interference with one another’s nuclear forces or C3I systems, one of them might wrongly conclude that the other had. Such a misperception, which could be the result of collateral effects or third-party action, could also induce escalation through crisis instability or misinterpreted warning.', 'A state that eschewed cyber operations of any kind against an opponent’s nuclear forces or C3I systems might still launch such operations against adversary military networks involved exclusively in non-nuclear operations. If, because of design flaws, imperfect intelligence, or mistakes in execution, the malware used in such attacks spread and infected networks that were involved in nuclear operations, the target might conclude that its nuclear forces or C3I systems were under deliberate cyberattack or cyber surveillance.', 'There could be collateral effects even if a state’s networks for nuclear operations were entirely isolated; air-gapping (physically isolating one particular network from others) is, after all, not a cyber security panacea.30 Moreover, achieving perfect isolation could prove difficult in practice.31 To give but one reason, every nuclear-armed state, apart from the United Kingdom, has dual-use delivery systems, which can be used to deliver nuclear or non-nuclear weapons. Such delivery systems represent a potential point of contact between the C3I systems supporting nuclear operations and those supporting non-nuclear operations.', 'In practice, some nuclear-armed states–perhaps many or even all of them– have not tried to isolate their nuclear C3I systems. The United States, for example, has a number of dual-use C3I assets for communications and early warning that support both nuclear and non-nuclear operations.32 Other nuclear-armed states, including China and Russia, may as well, but are less transparent.33 Because the networks supporting dual-use C3I assets are likely to be connected directly to others involved in non-nuclear operations, there may be a particularly high risk of their being subject to collateral effects.']

[(9, 17)]

31efa2b8c8ad6733b683df6b0d13d8b8160fa85e07dc8e5983bc0b5164371f4b

First, CIVILIANS---the potential for info-sharing to serve as a backdoor for military policing of US citizens undermines it

Gregory T. Nojeim 15, Senior Counsel and Director of the Freedom, Security and Technology Project The Center for Democracy and Technology, “Hearing Before the Senate Homeland Security and Government Affairs Committee on Protecting America From Cyber Attacks: The Importance of Information Sharing,” 1/28/15, CDT, https://cdt.org/files/2015/02/Testimony-Nojeim-2015-01-28.pdf

sharing info about cyber is valuable benefits include : awareness of threats, and defenses , development of robust threat indicators, enhanced defensive agility, rapid notification , and improved ability to process criminal ev it is critical that if private entities share info for cybersecurity that info should be controlled by a civilian rather than military agency civilian s are more transparent privacy protections are more available NSA multiple missions security and SIGINT conflict fundamentally military agencies receiving info would mean less trust , and less corporate participation Thus civilian control would increase security proposals have inadequately addressed this sharing from DHS to NSA ensure info shared is warped into a backdoor wiretap for investigation of unrelated offenses Doing so undermines independent criminal and foreign intel investigations user info could be mined for crime using identifiers of U.S. persons

Congress can embrace cybersecurity information sharing policies with appropriate authorities and safeguards that enhance both privacy and security Cyber attacks represent a significant and growing threat. the global cost of cyber crime has reached over $445 billion annually. Frequency and intricacy of attacks has increased the number of successful attacks per company per year has risen by 144 percent since 2010, while the average time to resolve attacks has risen by 221 percent Major cyber attacks represent an ongoing hazard to our financial and commercial sectors, with potential to harm both important institutions and individual users In addition to direct harms – which are substantial – these large scale and highly publicized attacks threaten to chill use of online services. there is no “silver bullet” that will wipe away the danger Cyber attacks are constantly evolving, and defending against them requires a range of actions There is widespread agreement that the sharing of info rmation about cyber attacks, threats and vulnerabilities is a valuable component of an effective cybersecurity policy benefits include : 1) Greater awareness of specific cyber threats, and of defenses against them , 2) development of more robust threat indicators, 3) enhanced defensive agility, 4) rapid notification to victims of cyber attacks , and 5) improved ability to efficiently process and preserve criminal ev idence .5 While cyber attacks sometimes employ malware that exploits “zero-day” vulnerabilities – previously undiscovered vulnerabilities – many cyber attacks are repetitive Information sharing can limit the effectiveness of these “recycled” threats: the victim of the first can share information that can be used by other victims to defend against future iterations Further, by making cyber criminals take additional steps to modify their attacks the cost of cyber attacks increases, thereby decreasing the incentive to engage in them. Privacy protections should be applied prior to any info sharing with the government the American public should not – and need not – be forced to choose between being hacked by cyber criminals and being snooped on by the government it is critical that if private , civilian entities are authorized to share users’ communications info rmation with governmental entities for cybersecurity reasons , that info rmation should be controlled by a civilian agency rather than a military agency , such as the NSA civilian agencie s are more transparent intelligence agencies are more opaque . Details about the scope and nature of civilian agency activities, privacy protections and interpretation of relevant law are all more available The Snowden disclosures demonstrate the contrasting approach of military intelligence agencies the NSA multiple missions can create conflicts about how to treat the cyber threat information that it receives. In addition to its mission of defending information security , the NSA is also tasked with gathering intelligence and The SIGINT function and the information assurance function conflict fundamentally military agencies receiving cyber threat info rmation from communications service providers would certainly mean less trust , and less corporate participation Thus , preserving civilian control by putting a civilian agency in charge of cyber threat indicators shared by the civilian sector with the government will not only enhance civil liberties , it would increase security proposals have inadequately addressed this issue sharing from DHS to NSA ensure info rmation shared for cybersecurity purposes is Cybersecurity should not be warped into a backdoor wiretap , whereby communications shared to respond to cyber threats are use for investigation of unrelated offenses Doing so undermines privacy protections and the critical role of independent criminal and foreign intel l igence investigations . For example, the user communications info rmation that a company shares with the government could be mined for information relevant to crime using identifiers of U.S. persons . Instead of applying for the court order the government could simply pull the information fro m “the corporate store” as the NSA does Overbroad use create a perverse incentive for government to retain communications content, and even pressure companies into providing it more frequently than necessary

Congress embrace cybersecurity information sharing policies authorities safeguards privacy security 144 percent resolve 221 percent ongoing hazard valuable component : 1) , 2) threat indicators, 3) defensive agility, 4) notification , 5) ev Privacy protections prior to any info sharing with the government critical governmental entities cybersecurity reasons civilian agency military agency NSA civilian s transparent opaque privacy protections contrasting multiple missions conflicts and conflict fundamentally military agencies certainly less trust less corporate participation civilian control civil liberties increase security inadequately addressed this issue from DHS to NSA info warped backdoor wiretap investigation of unrelated offenses privacy protections independent criminal and foreign intel l igence investigations mined crime identifiers of U.S. persons NSA does perverse incentive pressure more frequently than necessary

['Today I will explain how Congress can embrace cybersecurity information sharing policies with appropriate authorities and safeguards that enhance both privacy and security. I will first describe the cybersecurity threat and explain the role that information sharing can play in countering that threat. I will then identify different approaches to encouraging information sharing as well as the essential civil liberties attributes of a successful information sharing policy. I will also measure pending legislative proposals against those attributes. ', 'Cyber attacks represent a significant and growing threat. Earlier this year, a study by the Center for Strategic and International Studies estimated that the global cost of cyber crime has reached over $445 billion annually.1 According to an HP study released in October 2014, the average cost of cyber crime to each of 50 U.S. companies surveyed had increased to $12.7 million per company, up from $6.5 million per company just four years ago.2 Frequency and intricacy of attacks has increased as well. The same study concluded that the number of successful attacks per company per year has risen by 144 percent since 2010, while the average time to resolve attacks has risen by 221 percent.3 ', 'Major cyber attacks represent an ongoing hazard to our financial and commercial sectors, with potential to harm both important institutions and individual online users. 2014 saw major attacks affecting large numbers of people against companies such as Target, J.P. Morgan Chase, Home Depot, and most recently, Sony Pictures. 4 In addition to direct harms – which are substantial – these large scale and highly publicized attacks threaten to chill use of online services. ', 'Unfortunately, there is no “silver bullet” that will wipe away the danger of cyber attacks. Cyber attacks are constantly evolving, and defending against them requires a range of actions from both governmental and private entities. Most successful attacks could be stopped by basic security measures, such as frequently changing passwords, patching servers, detecting insider attacks, and educating employees about risks. Thus, while information sharing is an important tool for enhancing cybersecurity, it is also important to maintain a broad perspective and encourage other measures that would also increase digital hygiene. ', 'I. Information sharing is an important component of an effective cybersecurity policy and must be accompanied by appropriate privacy protections at all levels. ', 'There is widespread agreement that the sharing of information about cyber attacks, threats and vulnerabilities is a valuable component of an effective cybersecurity policy. As detailed by the National Institute of Standards and Technology’s draft “Guide to Cyber Threat and Information Sharing,” benefits of information sharing include: 1) Greater awareness of specific cyber threats, and of defenses against them, 2) development of more robust threat indicators, 3) enhanced defensive agility, 4) rapid notification to victims of cyber attacks, and 5) improved ability to efficiently process and preserve criminal evidence.5 ', 'While cyber attacks sometimes employ malware that exploits “zero-day” vulnerabilities – previously undiscovered vulnerabilities – many cyber attacks are repetitive. Cyber criminals often recycle previously used vulnerabilities, deploying old exploits on systems and software that were not previously attacked. Information sharing can limit the effectiveness of these “recycled” threats: the victim of the first attack can share information that can be used by other potential victims to defend against future iterations of the same attack. Further, by making cyber criminals take additional steps to modify their attacks rather than simply replicating attacks on previously used vulnerabilities, the cost of engaging in cyber attacks increases, thereby decreasing the incentive to engage in them.', 'Many information sharing mechanisms are already in place, are providing benefits, and should be supported, improved, and built upon. They include sector-specific Information Sharing and Analysis Centers (ISACs) and the DHS Enhanced Cybersecurity Services Program.6 ', 'The cybersecurity proposal the Administration announced earlier this month7 includes an important requirement for cybersecurity information sharing: Privacy protections should be applied prior to any level of information sharing. Privacy safeguards apply to 1) company sharing with the government, 2) company sharing with the private information sharing hubs the proposal would authorize, and 3) inter-agency sharing. The Administration proposal requires front-end protections prior to a company’s sharing of cyber threat indicators – reasonable steps to remove personally identifiable information believed to be unrelated to the threat – as well as privacy guidelines to govern information sharing among government agencies. 8 This contrasts with the Cyber Intelligence Sharing and Protection Act (CISPA),9 which does not require reasonable efforts to remove such PII prior to sharing, and requires instantaneous, real-time transfer of information, including communications content, from the Department of Homeland Security (DHS) to other government agencies – including the National Security Agency (NSA). While the Administration proposal has ambiguities and omissions that might render it less effective than it could be in protecting privacy,10 it demonstrates that a viable information sharing policy can empower all players in the cybersecurity ecosystem to rapidly transmit cyber threat information with civil liberties protections built in. ', 'Quite simply, the American public should not – and need not – be forced to choose between being hacked by cyber criminals and being snooped on by the government. ', 'II. Information sharing among private entities avoids significant civil liberties concerns and should be encouraged. ', 'In this section and the next, I describe two approaches to information sharing that we favor because they minimize civil liberties risks – 1) private-to-private information sharing and 2) information sharing facilitated by limited amendments to the surveillance statutes that do not necessitate creation of complex, new programs. ', 'The most important type of information sharing to incentivize is that between private entities. This is because entities in the private sector own and operate most of the critical infrastructure in the country that must be protected against cyber attacks. Information sharing can occur directly between private entities, without any government involvement. Threat analysis would occur more often at the private company level as opposed to within the government. ', 'This not only makes the process more efficient, it does not raise many of the privacy and civil liberties concerns attendant to private-to-government information sharing. For example, privateto-private sharing of information does not convey communications content to the NSA, and does not raise concerns that this sharing of information could result in a new surveillance program through a backdoor, which Congress did not intend to authorize. ', 'The White House proposal does little to encourage company-to-company information sharing – it extends no liability protection for this sharing – and this is a significant shortcoming. Instead, the Administration proposal encourages private-to-private sharing only through informationsharing hubs that the government has designated as such. This approach may have been taken because the Administration and industry have had difficulty in agreeing on a mechanism to ensure that companies play by the rules when they share information company-to-company. We believe such a mechanism is a pre-requisite to expanding such sharing. ', 'One barrier to company-to-company information sharing – antitrust concerns – was largely put to rest by a Department of Justice/Federal Trade Commission policy guidance issued last year.11 The U.S. Chamber of Commerce correctly read the guidance as a positive step and as a statement, “…that antitrust concerns are not raised when companies share cyber threat information with each other….12 ', 'In addition to sharing between private entities, sharing from governmental to private entities represents an area for opportunity. To the extent that the government has information that would be useful for private entities to defend themselves, it should declassify it as necessary and share it. It can do this under current law. As with private-to-private sharing, government-toprivate sharing can augment cybersecurity without the same risks to privacy that private-togovernment sharing creates. ', 'III. Current law permits sharing to protect oneself, but not to protect others. This can and should be addressed with a narrow amendment. ', 'The other approach to information sharing that we commend to you involves only limited amendments to surveillance statutes. Current law does allow some degree of cybersecurity information sharing, but it does not meet present cybersecurity needs. Communication service providers are permitted to monitor their own systems and to disclose to governmental entities, and other service providers, information about cyber attacks for the purpose of protecting their own networks. In particular, the Wiretap Act provides that it is lawful for any provider of electronic communications service to intercept, disclose or use communications passing over its network while engaged in any activity that is a necessary incident to the protection of the rights and property of the provider.13 This includes the authority to disclose communications to the government or to another private entity when doing so is necessary to protect the service provider’s network. Likewise, the Electronic Communications Privacy Act (ECPA) permits providers to disclose stored communications14 and customer records15 to any governmental or private entity in order to protect its own systems. Furthermore, the Wiretap Act provides that it is lawful for a service provider to invite in the government to intercept the communications of a “computer trespasser” if the owner or operator of the computer authorizes the interception and there are reasonable grounds to believe that the communication will be relevant to an investigation of the trespass.16 ', 'While current law authorizes providers to monitor their own systems and to voluntarily disclose communications necessary to protect their own systems, the law does not authorize service providers to make disclosures to other service providers or to the government to help protect the systems of other service providers. Thus, there may be a need for an exception to the Wiretap Act and ECPA to permit disclosures to others about specific attacks. ', 'Any such exception should be narrow so that routine disclosure of Internet traffic to the government or other service providers remains clearly prohibited. It should bar unrestricted disclosure to the government of vast streams of communications data, and permit only the disclosure of carefully defined cyber attack signatures, cyber attack attribution information, and the method or the process of a cyber attack. It should also include privacy protections such as those described below. Rather than taking the dangerous step of overriding the surveillance statutes, such a narrow exception could operate within them, limiting the impact of cybersecurity information sharing on personal privacy. Companies that share information under such a narrow exception will enjoy the liability protections already built into theses statutes. As other statutes that limit information sharing for cyber security purposes are identified, Congress may consider additional exceptions. ', 'We encourage you to embrace this focused approach to enhancing cybersecurity information sharing. If it proves inadequate to promote information sharing, broader, riskier approaches that operate “notwithstanding any law” can be considered. However, because all of the major cybersecurity information sharing proposals take what we believe to be the overbroad, risky approach of trumping all other laws, they are addressed in some detail below. The civil liberties protections we describe are an important part of any cybersecurity information sharing program, but are particularly important for the broader, riskier approaches. ', 'IV. Civilian control of cybersecurity activity involving the civilian private sector should be maintained. ', 'For numerous reasons, it is critical that if private, civilian entities are authorized to share users’ communications information with governmental entities for cybersecurity reasons, that information should flow to and be controlled by a civilian agency – DHS – rather than a military agency, such as the NSA or Cyber Command. ', 'First, civilian agencies are more transparent; for understandable reasons, intelligence agencies are more opaque. Details about the scope and nature of civilian agency activities, privacy protections – such as minimization rules – and interpretation of relevant law are all more available from civilian agencies. The Snowden disclosures demonstrate the contrasting approach of military intelligence agencies. Until June 2013, the public was unaware that the PATRIOT Act had been interpreted to authorize bulk collection of metadata, and that domestic phone call and Internet activity records were being collected, used, and retained for years. ', 'Second, DHS has a well-established, statutory, and well-staffed privacy office. The NSA’s privacy office was established just last year, with a huge mandate and relatively tiny staff. ', 'Third, the NSA has multiple missions that can create conflicts about how to treat the cyber threat and cyber vulnerability information that it receives. In addition to its mission of defending information security, the NSA is also tasked with gathering signals intelligence, including through use of vulnerabilities. If the NSA receives information regarding a cyber threat or cyber vulnerability, its intelligence-gathering mission may be prioritized, leading the agency to hide, preserve and exploit the vulnerability, rather than disclose it to the entity that could patch the vulnerability.17 It is for this precise reason that the President’s independent Review Group on Intelligence and Communications Technologies recommended moving NSA’s information assurance mission into a separate agency in the Department of Defense. 18 ***BEGIN FOOTNOTE*** 18 See, The President’s Review Group on Intelligence and Communications Technologies, Liberty and Security in a Changing World, (Dec. 12, 2013), 185, available at http://www.whitehouse.gov/sites/default/files/docs/2013-12- 12_rg_final_report.pdf (“Those charged with offensive responsibilities still seek to collect SIGINT or carry out cyber attacks. By contrast, those charged with information assurance have no effective way to protect the multitude of exposed systems from the attacks. The SIGINT function and the information assurance function conflict more fundamentally than before. This conclusion supports our recommendation to split the Information Assurance Directorate of NSA into a separate organization.”) ***END FOOTNOTE*** Further, while information may be shared to respond to cyber threats, NSA may re-purpose it to support its intelligence-gathering mission, creating a new surveillance program operating under a cybersecurity umbrella. ', 'Finally, public trust in military intelligence agencies was severely compromised in both the U.S. and abroad by the NSA activities that Edward Snowden disclosed. Mass collection of sensitive communications and communications information pertaining to individuals not suspected of wrongdoing has led to strong demands for greater protections. If NSA or Cyber Command were to serve as the government entity receiving cyber threat information from communications service providers, it would almost certainly mean less trust, and therefore less corporate participation. Indeed, in the wake of revelations regarding the PRISM program, many major tech companies stated that they would not voluntarily share users’ information or private communications with the NSA.19 Thus, preserving civilian control by putting a civilian agency in charge of cyber threat indicators shared by the civilian sector with the government will not only enhance civil liberties, it would increase the effectiveness of this effort to promote security. ', 'Main cybersecurity proposals have inadequately addressed this issue. While the Administration proposal requires application of privacy guidelines before information shared with DHS is sent to military agencies including the NSA, it is not clear that the guidelines will offer sufficient protections.20 CISPA is even more problematic. It requires real-time sharing from DHS to NSA,21 effectively creating the same concerns as company information sharing directly to the military. The Senate Intelligence Committee’s Cybersecurity Information Sharing Act (CISA), reported out in 2014 takes the same problematic approach as does CISPA. 22 ', 'V. Use restrictions should ensure that information shared for cybersecurity purposes is only used for cybersecurity, with narrow exceptions. ', 'Cybersecurity legislation should not be warped into a backdoor wiretap, whereby communications shared to respond to cyber threats are provided to law enforcement agencies that use them for investigation of unrelated offenses, or to intelligence agencies that use them for national security purposes other than cybersecurity. Doing so undermines the privacy protections built into the Wiretap Act, ECPA, and the Foreign Intelligence Surveillance Act, and the critical role of an independent judiciary in authorizing surveillance for criminal and foreign intelligence investigations. For example, the user communications information that a company shares with the government could be stored, then mined for information relevant to crime or national security using identifiers of U.S. persons. Instead of applying for the court order that would permit access to such information under a surveillance statute when the information pertains to a US person or a person in the U.S., the government could simply pull the information from “the corporate store” as the NSA does for the telephone call records it collects in bulk under Section 215 of the PATRIOT Act.23 Overbroad use permissions also create a perverse incentive for government to retain communications content, and even pressure companies into providing it more frequently than is necessary for cybersecurity.']

[(11, 20)]

16b51ebd25fd846c1b828f00311435aaa892c478a6af6e9911c9f19bcc67c42d

Streamlining the PCA solves---it signals that data sharing’s shielded from the DoD.

Hank Johnson & Keith Alexander 12, Johnson is Rep from Georgia; Gen Alexander is Commander, U.S. Cyber Command, U.S. Department of Defense, “Budget Request for Information Technology and Cyber Operations Programs,” 03-20-12, GPO, https://www.gpo.gov/fdsys/pkg/CHRG-112hhrg73790/pdf/CHRG-112hhrg73790.pdf

the NSA is D o D the P C A on legal authority to intercept impacts collecting in the U S we need DHS for the public face people have to know we are protecting civil liberties in a transparent manner they are the ones that set standards there is synergy in doing that

the NSA is an agency of the D o D CYBERCOM commander are a director of the N S A the P osse C omitatus A ct on the NSA’s legal authority to intercept domestic communications impacts collecting in the U S we need DHS for a couple of reasons . The D H S should be the public face The American people have to know that what we are doing is right that we are protecting civil liberties and privacy in a transparent manner By having DHS there is transparency the government and everybody will know that we are doing it right they are the ones that need to set standards for other government agencies and work with them to ensure those networks are defensible. If we tried to do that, it would sap our manpower that you really want us focused on defending the country and going after the adversaries in foreign space . That is where we should operate there is synergy in doing that

D o D CYBERCOM N S A P C A legal authority intercept domestic communications collecting U S need DHS couple of reasons D H S public face right civil liberties privacy transparent manner DHS transparency know that we are doing it right standards we sap our manpower foreign space we synergy

['Mr. JOHNSON. Thank you. General, the NSA is an agency of the Department of Defense. And you are, in addition to your responsibilities as CYBERCOM commander, you are a director of the National Security Agency. What limitations does the Posse Comitatus Act place on the NSA’s legal authority to intercept domestic communications?', 'General ALEXANDER. Well, I think the intent of the Posse Comitatus, and the impacts that we have for collecting in the United States are the same. And the fact is we do not do that in the United States without a warrant.', 'Mr. JOHNSON. Thank you. And I will yield back.', 'Mr. THORNBERRY. I thank the gentleman. Let me—I am not sure. This may be Ms. Takai and General Alexander, but in the 2010 Defense Authorization Act, we passed Section 804, that directed DOD to develop and implement a new acquisition process for IT systems. And then in the 2011 Defense Authorization Act, we directed DOD to develop a strategy to provide for rapid acquisition of tools, applications, and other capabilities for cyber warfare for the United States Cyber Command, and cyber operations of the military departments. Can either or both of you all give us an update on where each of those authorities or requirements stand now?', 'Ms. TAKAI. Yes, perhaps I can start. And General Alexander can add on. Let me start with the acquisition reform which is the 804. I think that report was delivered. And we are in the process of implementing those changes. Those are going—some of those changes that were in the report are going into the DOD 5000 process which I think all of you know is our acquisition process. In addition, we are implementing many of the recommendations, particularly around what we call ‘‘agile development methodologies’’ that allow us to turn out product much more quickly, in a much more cyclical fashion, if you will, and to take large projects and put them into smaller deliverable chunks. So there are any number of actions against the 804 that we are in the process of developing and delivering on. And we are actually using those in our project delivery. As it relates to the rapid acquisition from a cybersecurity perspective, we have all been working with the Acquisition, Technology, and Logistics organization on the response to Congress on that which is known as our 933 Report. 22 We are actually now all coordinating on what we believe is the final version of that report. In fact, we all saw it over the weekend with the request that we would get our comments back in, because I think that Mr. Kendall knows that that needs to come forward. It is looking at any number of different areas. It is looking at actually being able to provide General Alexander with several different ways of going at acquisition to make sure that he can turn them more quickly. But also taking recognition that there will be some large project expenditures included in that as well. So I think you can expect to see that report fairly shortly.', 'Mr. THORNBERRY. Well, I will just say for myself, if as you work through those issues, if you believe additional authorities are needed, please let us know. Because it makes no sense at all for us to operate at the speed of the industrial age in cyberspace, and then basically that is what we are talking about here. And so, you know, I will look forward to receiving the 933 Report. But please keep in mind that if you all decide you need additional authorities, we want to know that. General Alexander it was kind of an interesting conversation with Mr. Andrews a while ago. And part of—it seemed like that conversation was—we know for sure who is launching an attack or exploitation—just in this setting in a brief way, can you summarize the threat in cyberspace as you are seeing it and as Cyber Command has to calibrate its efforts to deal with?', 'General ALEXANDER. I characterize the threat, Chairman, in three ways. Largely what we see is exploitation and the theft of intellectual property. That is what is going on in the bulk of the cyber events that we see in the United States. In May of 2007, we witnessed a distributed denial-of-service attack. Think of that as a disruptive attack against Estonia by unknown folks in the Russian area and around the world, and then subsequently we have seen in Latvia, Lithuania, Georgia, Azerbaijan, Kyrgyzstan. What we are concerned about is shifting from exploitation to disruptive attacks to destructive attacks. And what concerns us is that the destructive ones, those attacks that can destroy equipment, are on the horizon. And we have to be prepared for them. I do think the two things—if I could just state two things more clearly. We talked about the rules of engagement which would be key on this. We do have rules of engagement in 2004. What we are talking about is updating those to meet this evolving threat. So that is the key that the Department is working on. The second is we do need DHS in this mix for a couple of reasons. The Department of Homeland Security, I think, should be the public face for all the reasons. And Mr. Johnson brings out a good one. The American people have to know that what we are doing is the right thing, that we are protecting civil liberties and privacy. And that we are doing this in a transparent manner. 23 By having DHS working with FBI, NSA, and DOD all together, there is transparency in that. At least the government and everybody will know that we are doing it right. Two, I think they are the ones that need to set the standards for other government agencies and work with them to ensure those networks are defensible. If we tried to do that, it would sap much of our manpower that you really want us focused on defending the country and going after the adversaries in foreign space. That is where we should operate. And I think there is synergy there in doing that.']

[(5, 14), (21, 33)]

bd17625da800b2f736965977d5b04c89df457cb0c227651096ed3b46199e2c05

Expanded military roles in CMR make nuclear war inevitable. A 2020 reset is necessary.

Carrie A. Lee 20, Assistant Professor of International Security Studies at the U.S. Air War College, "Sleepwalking Into World War III," Foreign Affairs, 10/19/2020, https://www.foreignaffairs.com/articles/united-states/2020-10-19/sleepwalking-world-war-iii

Military officers assume worst-case intentions prefer the offensive their security strategy reflect institutional biases imbalance in c m r led to heightened tensions , closed diplomacy , and risk of accidental war with China or Russia in the S C S or Baltic s the military’s assumptions are likely to miscalculate risks nuclear use in regional conflicts strong civilian control help avoid great-power war Biden should reset the balance Civilian leadership co-opted makes war inevitable

Military officers and civilians see foreign affairs differently . Military officers tend to assume worst-case intentions and capabilities in order to be best prepared When called upon to act they often prefer the offensive . When civilians lose their voice in the process, military preferences shape security strategy in ways that reflect institutional biases as these preferences have increasingly dominated American foreign policy the current imbalance in c m r has led to a foreign policy that has heightened international tensions , closed avenues for productive diplomacy , and increased the risk of inadvertent escalation or even accidental war strategy filters the meaning of the changing geopolitical environment almost exclusively through military perceptions a war with China or Russia in the S C S or the Baltic s the military’s worst-case assumptions in the event of a crisis are likely to miscalculate increases the risks of nuclear use to use nuclear strikes in regional conflicts strong civilian control to find diplomatic solutions can help avoid another great-power war Biden should reset the balance Civilian leadership co-opted lead to the cult of the offensive makes war all but inevitable Without strong civilian oversight , the U S risks this catastrophic fate .

see foreign affairs differently worst-case intentions capabilities prepared act offensive lose their voice shape security strategy institutional biases dominated imbalance c m r foreign policy heightened international tensions closed diplomacy inadvertent escalation accidental war filters exclusively military perceptions war S C S Baltic s miscalculate nuclear use nuclear strikes regional conflicts civilian diplomatic solutions avoid another great-power war Biden reset the balance co-opted lead cult of the offensive war inevitable strong civilian oversight U S catastrophic fate

['Military officers and civilians see foreign affairs differently. Military officers tend to assume worst-case intentions and capabilities in order to be best prepared for potential threats. When called upon to act, they often prefer solutions that enable them to take the offensive. When civilians lose their voice in the process, military preferences shape security strategy in ways that reflect these institutional biases toward action and confrontation. And as civilian control of the U.S. armed forces has declined, these preferences have increasingly dominated American foreign policy. Thus, the current imbalance in civil-military relations has led to a foreign policy that has heightened international tensions, closed off avenues for productive diplomacy, and increased the risk of inadvertent escalation or even accidental war. ', 'Mattis and McMaster principally authored the 2017 United States National Security Strategy and the 2018 National Defense Strategy. These documents defined security almost exclusively in terms of great-power competition and state actors, emphasizing the threat from China in particular. The strategies largely approach the world as a zero-sum competition in which maintaining an advantage matters far more than cooperating for mutual benefit. ', 'Current U.S. strategy therefore filters the meaning of the changing geopolitical environment almost exclusively through military perceptions of threat. In the event of a war with China or Russia, the military would face a daunting task in the South China Sea or in the Baltic states. Its instinct, then, is to develop the strategies and build the capabilities that are most likely to win such a confrontation at the lowest cost possible. ', 'But these strategies can have dangerous consequences. With their emphasis on “globally integrated operations,” senior military commanders are developing retaliatory military strategies that emphasize speed and could lead to quick escalation, effectively limiting the options of political bodies like the North Atlantic Council in the event of a conflict. And by officially labeling China a “revisionist” state, Mattis and McMaster assume its hostility, forcing decision-makers to start from the premise that diplomatic approaches are unproductive and preventive action is the only way to contain China’s ambitions. ', 'Military leaders need civilian input in order to mitigate these risks. Military operational preferences privilege offensive action—civilian officials are best positioned to articulate the pitfalls of such an approach, lest the concern about a great-power war become a self-fulfilling prophecy.', 'The military naturally seeks to modernize and acquire new weapons systems. In response to this desire, the Trump administration withdrew from at least three major arms control agreements, and it looks unlikely to renew the New START agreement with Russia. But without arms control, the United States not only risks setting off arms races but also loses transparency into its adversaries’ systems, capabilities, and intent. Decision-makers must then adopt the military’s worst-case assumptions in the event of a crisis, and they are likely to miscalculate.', 'The military’s priority of seeking ever more lethal and modern weapons increases the risks of nuclear use and proliferation. The 2018 Nuclear Posture Review advocated for the development and deployment of low-yield nuclear weapons in response to Russia’s alleged intention to use limited nuclear strikes in regional conflicts. But by acquiring nuclear weapons specifically designed to be used in a much wider set of circumstances than the current inventory, the military has effectively lowered the threshold for using nuclear weapons—a fact that did not escape congressional leaders during their hearings on the document.', 'Furthermore, as the United States modernizes its arsenal, states with vulnerable stockpiles may feel the need to invest even more in their nuclear programs, increasing their inventories and investing in second-strike capabilities. The United States has proposed to develop new weapons systems capable of dismantling nascent nuclear programs. Some states may therefore conclude that nuclear latency—the ability to develop a nuclear weapons program from existing peaceful infrastructure—is no longer a sufficient deterrent and choose to proliferate instead. The United States is rushing even now to introduce hypersonic weapons into its arsenal. Such missiles serve essentially no defensive purpose—and their development is leading to a new nuclear arms race.', 'REASSERTING CIVILIAN CONTROL', 'The White House and Congress must reestablish strong civilian control over military priorities if the United States is to find diplomatic solutions that can help avoid another great-power war. The next administration, whether under Joe Biden or Donald Trump, should refrain from equating military experience with foreign policy expertise. Rather, at the top levels of government, the president should reset the balance of power toward civilians, appointing officials whose backgrounds yield a variety of perspectives on foreign policymaking.', 'The next president’s priority upon taking office should be to fill positions within the civilian office of the secretary of defense that have been largely taken over by uniformed military officers. These new civilians should be hired in a manner that maximizes the office’s demographic, experiential, and intellectual diversity. Current hiring laws privilege hiring veterans, which limits the diversity of those in policymaking positions. Civilian hiring initiatives must therefore act as a counterweight to that tendency.', 'Finally, the administration should comprehensively review engagements, programs, and posture to ensure that U.S. actions are in fact aligned with strategic intent. Such a review should encompass all military programs. Many may seem like good ideas in isolation, but in combination they may prove to be provocative or threatening. Civilian leaders should make political determinations about the risks and rewards of military spending on offensive weapons programs; in particular, they should review the constraints on the new Space Force that may be necessary in order to both encourage service pride and avoid an arms race and conflict.', 'In 1962, the Soviet Union placed nuclear missiles just 90 miles from the United States’ shore. President John F. Kennedy and the rest of the civilian leadership did not allow the military to continue with its standard operating procedures and preferred courses of action. Instead, they carefully orchestrated a series of signals that narrowly avoided the outbreak of open hostilities between the world’s two nuclear superpowers.', 'Current U.S. policy resembles the firm civilian control and oversight of the Kennedy administration far less than it does the posture of the great powers before the outbreak of World War I. Civilian leadership was either co-opted or pushed aside as French, German, and Russian militaries pursued strategies that prioritize offensive operations and doctrines—leading to the now famous cult of the offensive. Privileging the military’s perceptions of threat over those of diplomats makes war all but inevitable. Without strong civilian oversight, the United States risks this catastrophic fate.']

[(10, 16)]

08062fe904e3d9add0ca1bbbd397b07a7db083d8799910a74ed596fdcd9940e5

Mismanaged transitional crises risk nuclear escalation

Michael T. Klare 17, Professor of Peace and World Security Studies, Hampshire College, “Tomgram: Michael Klare, Twenty-First-Century Armageddons,” Tom Dispatch, 01/17/17, http://www.tomdispatch.com/post/176231/tomgram%3A_michael_klare%2C_twenty-first-century_armageddons/#more

crises risk nuclear escalation especially No Ko S C S the Baltic Sea and Mid East changeover from one administration to another a time of uncertainty , given inclination of powers to test new leader Poli sci remind that transition often prove disruptive , as the U S resist “revisionist” states entail proxy wars and sparring Putin and Xi facing difficulties view adventurism as distracting attention truly dangerous reliance on early use of nuc s to overcome deficiencies in “conventional” the “firebreak” seems narrow every crisis may be nuclear

crises entailing a risk of nuclear escalation with many potential flashpoints involving such a risk of explosive conflict. the situation appears especially ominous now given Trump’s pledge to bring American military force swiftly to bear on any threats of foreign transgression. four areas appear to pose an especially high risk of sudden crisis and conflict : No rth Ko rea , the S outh C hina S ea , the Baltic Sea region, and the Mid dle East . Each of them has been the past site of recurring clashes, and all are primed to explode Why now the changeover from one presidential administration to another can be a time of global uncertainty , given America’s pivotal importance in world affairs and the natural inclination of rival powers to test the mettle of the country’s new leader other factors that make this moment particularly worrisome, including the changing nature of the world order, the personalities of its key leaders, and an ominous shift in military doctrine Just as the U S is going through a major political transition, so is the planet at large The sole-superpower system of the post-Cold War era is finally giving way to a multipolar increasingly fragmented, world Poli tical sci entists remind us that transition al periods can often prove disruptive , as “status quo” powers (in this case, the U nited S tates) resist challenges to their dominance from “revisionist” states seeking to alter the global power equation. this can entail proxy wars and other kinds of sparring over contested areas , as has recently been the case in Syria, the Baltic, and the South China Sea. Both Putin and Xi , moreover, are facing economic difficulties at home and view foreign adventurism as a way of distracting public attention from disappointing domestic performances. These factors alone would ensure that this was a moment of potential international crisis, but something else gives it a truly dangerous edge: a growing strategic reliance in Russia and elsewhere on the early use of nuc lear weapon s to overcome deficiencies in “conventional” firepower As a result, the “firebreak” between conventional and nuclear warfare -- that theoretical barrier to escalation -- seems to be narrow ing , and you have a situation in which every crisis involving a nuclear state may potentially prove to be a nuclear crisis

nuclear escalation high risk of sudden crisis No Ko S C S Baltic Sea Mid East changeover from one presidential administration to another uncertainty inclination of powers to test new leader Poli sci transition often prove disruptive U S proxy wars sparring over contested areas Putin and Xi adventurism as distracting attention dangerous early use of nuc s “firebreak” narrow every crisis nuclear

['Within months of taking office, President Donald Trump is likely to face one or more major international crises, possibly entailing a risk of nuclear escalation. Not since the end of the Cold War has a new chief executive been confronted with as many potential flashpoints involving such a risk of explosive conflict. This proliferation of crises has been brewing for some time, but the situation appears especially ominous now given Trump’s pledge to bring American military force swiftly to bear on any threats of foreign transgression. With so much at risk, it’s none too soon to go on a permanent escalation watch, monitoring the major global hotspots for any sign of imminent flare-ups, hoping that early warnings (and the outcry that goes with them) might help avert catastrophe. ', 'Looking at the world today, four areas appear to pose an especially high risk of sudden crisis and conflict: North Korea, the South China Sea, the Baltic Sea region, and the Middle East. Each of them has been the past site of recurring clashes, and all are primed to explode early in the Trump presidency. ', 'Why are we seeing so many potential crises now? Is this period really different from earlier presidential transitions? ', 'It’s true that the changeover from one presidential administration to another can be a time of global uncertainty, given America’s pivotal importance in world affairs and the natural inclination of rival powers to test the mettle of the country’s new leader. There are, however, other factors that make this moment particularly worrisome, including the changing nature of the world order, the personalities of its key leaders, and an ominous shift in military doctrine. ', 'Just as the United States is going through a major political transition, so is the planet at large. The sole-superpower system of the post-Cold War era is finally giving way to a multipolar, if not increasingly fragmented, world in which the United States must share the limelight with other major actors, including China, Russia, India, and Iran. Political scientists remind us that transitional periods can often prove disruptive, as “status quo” powers (in this case, the United States) resist challenges to their dominance from “revisionist” states seeking to alter the global power equation. Typically, this can entail proxy wars and other kinds of sparring over contested areas, as has recently been the case in Syria, the Baltic, and the South China Sea. ', 'This is where the personalities of key leaders enter the equation. Though President Obama oversaw constant warfare, he was temperamentally disinclined to respond with force to every overseas crisis and provocation, fearing involvement in yet more foreign wars like Iraq and Afghanistan. His critics, including Donald Trump, complained bitterly that this stance only encouraged foreign adversaries to up their game, convinced that the U.S. had lost its will to resist provocation. In a Trump administration, as The Donald indicated on the campaign trail last year, America’s adversaries should expect far tougher responses. Asked in September, for instance, about an incident in the Persian Gulf in which Iranian gunboats approached American warships in a threatening manner, he typically told reporters, “When they circle our beautiful destroyers with their little boats and make gestures that… they shouldn’t be allowed to make, they will be shot out of the water.” ', 'Although with Russia, unlike Iran, Trump has promised to improve relations, there’s no escaping the fact that Vladimir Putin’s urge to restore some of his country’s long-lost superpower glory could lead to confrontations with NATO powers that would put the new American president in a distinctly awkward position. Regarding Asia, Trump has often spoken of his intent to punish China for what he considers its predatory trade practices, a stance guaranteed to clash with President Xi Jinping’s goal of restoring his country’s greatness. This should, in turn, generate additional possibilities for confrontation, especially in the contested South China Sea. Both Putin and Xi, moreover, are facing economic difficulties at home and view foreign adventurism as a way of distracting public attention from disappointing domestic performances. ', 'These factors alone would ensure that this was a moment of potential international crisis, but something else gives it a truly dangerous edge: a growing strategic reliance in Russia and elsewhere on the early use of nuclear weapons to overcome deficiencies in “conventional” firepower. ', 'For the United States, with its overwhelming superiority in such firepower, nuclear weapons have lost all conceivable use except as a “deterrent” against a highly unlikely first-strike attack by an enemy power. For Russia, however, lacking the means to compete on equal terms with the West in conventional weaponry, this no longer seems reasonable. So Russian strategists, feeling threatened by the way NATO has moved ever closer to its borders, are now callingfor the early use of “tactical” nuclear munitions to overpower stronger enemy forces. Under Russia’s latest military doctrine, major combat units are now to be trained and equipped to employ such weapons at the first sign of impending defeat, either to blackmail enemy countries into submission or annihilate them. ', 'Following this doctrine, Russia has developed the nuclear-capable Iskander ballistic missile (a successor to the infamous “Scud” missile used by Saddam Hussein in attacks on Iran, Israel, and Saudi Arabia) and forward deployed it to Kaliningrad, a small sliver of Russian territory sandwiched between Poland and Lithuania. In response, NATO strategists are discussing ways to more forcefully demonstrate the West’s own capacity to use tactical nuclear arms in Europe, for example by including more nuclear-capable bombers in future NATO exercises. As a result, the “firebreak” between conventional and nuclear warfare -- that theoretical barrier to escalation -- seems to be narrowing, and you have a situation in which every crisis involving a nuclear state may potentially prove to be a nuclear crisis.']

[(11, 19)]

8f8ffcbd25c31924981a8f4f273036a94c40fc1211941f3f435b62812c22f933

More broadly, weak CMR exacerbates every existential risk

Marcia Byrom Hartwell 16, Embedded civilian advisor with the US. Army in Iraq, 2013 CSCMO Scholar at the Center for the Study of Civil-Military Operations at USMA, West Point, 2011 Public Policy Scholar, Woodrow Wilson International Center for Scholars, DC, received her PhD from the University of Oxford, “6 The ‘New War’ Challenge,” in Negotiating Civil-Military Space: Redefining Roles in an Unpredictable World, 2016, Routledge/Taylor & Francis Group

humanitarian crisis caused by violent mass displacement is the tip of the iceberg unparalleled crises on a global scale where power relationships are unpredictable will form cascading crises accelerated destabilization of fragile areas through disasters climate change pandemics merging natural disasters with tech to impact critical infrastructure propel regional conflict to the global stage these complex risks to civilian and military forces will demand resetting attitudes developing a more resilient civil-military mindset and negotiating more effective models emerging terror groups seek to establish themselves space electronic warfare challenge civilian organizations and military forces to identify synergies Hyper-risks trigger “cascading” failures in interdependent networks Averting future crises will necessitate that agencies broaden their scope to develop c m r

The operating environment is changing fast Military and civilian leaders talk of volatility that is out of control Pushed by rapidly evolving communication and other technologies the line between war and “not war” continues to blur underscoring warnings about “new” wars with perpetually chaotic environments and no clear winners No longer fought within national boundaries wars would evolve into regions of chronic insecurity where cyclical violence and recurring civil wars would facilitate the formation of transnational terrorist networks The recent humanitarian crisis caused by the violent mass displacement of Syrian civilians is just the tip of the iceberg . As personal dangers for civilians increase unparalleled humanitarian crises erupt on a global scale where international power relationships are unpredictable and the international community is unable to stop conflicts “new” war scenarios will form future conflict environments and cascading crises , which will in turn shape international responses by civilian aid and military forces the potential for accelerated destabilization of fragile areas through a random combination of natural disasters , environment and climate change , complex infectious health crises and pandemics , and the merging of natural disasters with tech to impact critical infrastructure can be used by non-state actors and criminal networks to take advantage of situations to synchronize and/or propel regional conflict s on to the global stage these complex risks present to civilian organizations and military forces and will demand resetting attitudes and developing a more resilient civil-military mindset that will support increased bottom-up development of aid, development, and security policies by affected individuals and communities and re negotiating more effective civil-military models IS , Boko Haram , and other emerging terror ist groups are seek ing to establish themselves US enemies were developing anti- ship , anti air , counter- space , cyber , electronic warfare , and spec op s capabilities with goals to counter and neutralize traditional US military advantages A growing challenge for international civilian humanitarian, aid, development organizations and military forces to successfully identify synergies ” Hyper-risks trigger s another series of unpredictable effects and events with the potential to cross borders. All are usually shaped by a rapid clustering of what previously appeared to be mutually exclusive causes that combine to trigger “cascading” or domino effects , also described as cascading failures in infrastructure and interdependent networks . In contrast to traditional risk management techniques these encompass a range of natural, social, technological, natural and human-caused risks that merge a combination of “drivers” that overlap and intersect to create a larger disaster Averting future crises of this type will necessitate that previously specialized agencies broaden their scope to develop coordination The impact that sophisticated users of i nformation and c ommunication t echnologies can have on c ivil- m ilitary r elations and the operating environment has been explored Tech that facilitate global economic development and cooperation can conversely act as drivers of complex risks . Their interconnectedness fostered by the rapid expansion of users and accompanied by dependence on the internet leaves core systems vulnerable to cyber attacks . This poses significant threats to international infrastructure as many remain relatively easy to hack and capable of causing widespread damage Aside from the potential for inciting violence and spreading panic, an equal if not greater and less predictable threat is posed by natural disasters that trigger technological disasters as witnessed in Fukushima This merging of a natural disaster with vulnerabilities in technological systems has given rise to a new concept of hyper-risks and the threats and costs that their interdependent social/ecological/physical/economic/political networks pose to global systems . Tied to more than single events these hyper-risks can also be tied to processes that set up conditions for a series of unpredictable events likely to cross borders setting off a series of cascading effects

volatility out of control communication war “not war” blur “new” wars chaotic environments clear winners regions of chronic insecurity transnational terrorist networks tip of the iceberg global scale unpredictable cascading crises international responses civilian aid military forces accelerated destabilization natural disasters environment climate change health crises pandemics natural disasters tech critical infrastructure propel regional conflict s on to the global stage civilian organizations and military forces resetting attitudes resilient civil-military mindset negotiating effective civil-military models IS Boko Haram other emerging terror groups ship air space cyber electronic warfare spec op s civilian humanitarian, aid, development organizations military forces synergies ” Hyper-risks series unpredictable effects and events “cascading” or domino effects failures in infrastructure interdependent networks range larger disaster broaden their scope coordination sophisticated users of i c t c m r economic development cooperation drivers of complex risks cyber attacks international infrastructure widespread damage natural disasters trigger technological Fukushima new concept of hyper-risks global systems unpredictable events cross borders cascading effects

['The operating environment is changing fast. By 2015 the large scale civil-military experiences in Afghanistan and Iraq already felt like distant memories. Military and civilian leaders talk of volatility that is out of control, the “worst they’ve seen it in forty years” (Odierno in Sterman 2015; Guterres 2013). Pushed by rapidly evolving communication and other technologies the line between war and “not war” continues to blur (Rosa Brooks in Sterman 2015) underscoring Mary Kaldor’s earlier warnings about the “new” wars with their perpetually chaotic environments and no clear winners, losers, or negotiated settlements. No longer fought within national boundaries wars would evolve into regions of chronic insecurity where cyclical violence and recurring civil wars would facilitate the formation of new militias, gangs, and financial networks linking transnational criminal activities with terrorist networks in mutually beneficial arrangements. Fast moving conflicts would become the new normal and with the advent of sophisticated social media and communication technology users capable of launching disruptions and violence at any time in any place throughout the world (Kaldor 2012; see Chapter 4). The recent humanitarian crisis caused by the violent mass displacement of Syrian civilians is just the tip of the iceberg. As personal dangers for civilians increase UNHCR’s High Commissioner Antonio Guterres has warned about unparalleled humanitarian crises erupting on a global scale in a world where international power relationships are unpredictable and the international community is unable to stop conflicts (World Development Report 2011; Guterres 2013). ', 'This chapter describes the importance of monitoring areas of potential trouble and why identifying and understanding potential causes of complex crises is crucial in an era when random events and technologies can combine with natural and other disasters to instigate unpredictable disruptions and violence at any time, any place throughout the world. This chapter sets the stage for Chapters 7 and 8 by describing current “new” war scenarios and anticipated challenges that will form future conflict environments and cascading crises, which will in turn shape international responses by local populations and their communities, civilian aid and development organizations, and military forces. Building upon earlier chapters, current research and analysis it defines trans-border regions of violence that can be supported and shaped by long simmering conflicts, forgotten trouble spots and rapid urbanization. It describes the potential for accelerated destabilization of these fragile areas through a random combination of natural disasters, environment and climate change, complex infectious health crises and pandemics, and the merging of natural disasters with technological developments to impact critical infrastructure and systems. These unpredictable combinations can be used by non-state actors and criminal networks to take advantage of these situations to synchronize and/or propel regional conflicts onto the global stage for political or financial gain. This chapter concludes by outlining challenges that these complex risks present to civilian organizations and military forces and describing how these new war scenarios will demand resetting attitudes and developing a new more resilient civil-military mindset that will support increased bottom-up development of aid, development, and security policies by affected individuals and communities described as in Chapter 7 and renegotiating more effective civil-military models discussed in the final Chapter 8. ', 'Cross-border violence ', 'There is very little contemporary violence contained within international borders. Instead it masses within regions that threaten to engulf more territory if the right combination of timing and circumstances converge. These regions of violence can be defined as geographic territory that crosses legal borders. They can be controlled by governments and/or armed groups who almost always target civilians and govern by fear. Their borders may be diplomatically recognized as is the case with Syria and Iraq but in reality they can also be redrawn and redefined by the group in power. This has been the case with the newly formed caliphate combining northern Syria with northwestern Iraq declared by the Islamic State (IS, formerly ISIL or ISIS). Boko Haram, a group aspiring to establish a similar territorial caliphate in northern Nigeria and neighboring countries proclaimed their allegiance to IS in March 2015. Announced via social media this statement is as strategic and purposeful as any formal diplomatic maneuver made by an established nation state. It is meant to convey an image of Boko Haram’s rising regional and global power, an illusion of legitimacy, and to use the reputation of IS to spread fear among their enemies (Wooldridge 2015). Both IS, Boko Haram, and other emerging terrorist and insurgent groups are seeking to establish themselves as legitimate states. This raises two questions for the international community. What constitutes a nation state? What role can violence play in shaping it? While these questions often elicit exhaustive and elusive discussions they are worth briefly considering in this context. ', 'The Montevideo Convention attempted to define a state in the 1930s by listing four requirements: a permanent population; a defined territory; a government; and the capacity to enter into relations with other states. Strictly speaking the self-declared Caliphate of the Islamic State in Syria and Iraq fits that description; however, the international community has added a moral and political dimension to this definition that decrees violence and terror cannot be rewarded. This ignores the fact that North Korea, which regularly targets its civilians, is a full member of the UN and that Taiwan, which has treated its citizens well under peacefully elected governments, is not a UN member having been sidelined due to its longstanding dispute with mainland China and is only formally recognized by a few countries (Boyle 2015). ', 'Joe Boyles compares three contemporary strategies in which regions can officially become states in his BBC article “Islamic State and the idea of statehood.” One is to get UN membership, which requires the support of the Security Council and two-thirds of the General Assembly. If attempts to achieve UN membership fail then the next best option is to gain official recognition by as many other countries as possible while functioning as a de facto state. Regions that aspire to be states can begin by initiating trading and developing business deals with other states with which they have formed alliances. If successful, they may receive official recognition or that type of approval may no longer be necessary if they have highly developed unofficial networks (Boyle 2015). He maintains that there is no universal definition of a state demonstrated by three simultaneous and differing interpretations of statehood that have emerged from the Syria, Iraq and IS situation in 2015. One is where Syria as a UN member with internationally recognized borders, partial control of land, has a government disliked by western powers who have appeared to bypass Syria’s right to protect its own territory. The other is Iraq, also a UN member with defined borders but with only partial control of their territory. It enjoys both political and military support of the West, especially the US, who having recently ended the long and mostly unsuccessful Iraq War began resending military advisors joined by other NATO allies after IS overran Mosul and other areas in northwestern Iraq. The third major interpretation reinforced by combining captured sophisticated military weapons with medieval era military tactics is IS, which has declared itself a caliphate despite a lack of international recognition of its borders and partial control of its territory with no legal right to protect it (Boyle 2015). These subjective geopolitical interpretations of what constitutes a nation gives armed insurgent and terrorist groups such as IS, Boko Haram, and others who make declarations reinforced by developing governance and other infrastructure in territory they hold a stronger claim that they are being victimized by the international system (Boyle 2015). ', 'Modern violence carried out by IS and Boko Haram is descended from a thousand year lineage that includes war, revolution, and terrorism used to conquer territory, establish statehood, and solidify power. (Ginsberg 2013: B7) In a different century their actions might have been viewed as a legitimate part of the process of establishing colonies and consolidating empires on behalf of powerful distant kingdoms aspiring to be world powers. Indiscriminate violence with little or no regard for what would later be called human rights determined which nations would exist, how their boundaries would be drawn, and which groups would ascend to political power within them. It has been claimed that the composition of the ruling elite within every country has been shaped by some form of violence incorporated into their laws, legal processes and systems that structurally reinforces what has been called “law-making violence” (Walter Benjamin quoted in Ginsberg 2013: B7). Peaceful acquisition of territory and creation of new countries are rare. Most modern western powers have a long legacy of some variation of unrestrained violence that has shaped their borders and directly influenced their institutions. This is borne out by the formation of the United States, one of the world’s most successful democracies that emerged from a long and violent history. ', 'Established governments and terrorist groups in contemporary regions of violence such as Syria, Iraq, northern Nigeria are once again using an old strategy that Hugo Slim calls “limitless war” to justify and solidify the dominant group’s position. These “winners” view violence as a positive “cleansing and creative” agent of change that displaces or kills all designated “undesirable” individuals and groups while consolidating the victors’ political and military power (Slim 2008: 25-8; see Chapter 4). Destroying a population’s culture and heritage by attacking their revered historic sites and symbols is intended to extend a limitless war strategy beyond physical killing of designated enemies to eliminating all physical evidence of their identity as a group and civilization in ways that deny their existence for future generations. ', 'In its latest manifestations these acts of killing and desecration are staged to be captured by digital cameras that technology savvy IS members can quickly upload as images and video that are transmitted via social media networks and communication platforms. They have developed a similar strategy for instilling and manipulating fears and anxieties held by individuals and groups in regions of the world they cannot physically invade. Particularly skilled in targeting and provoking reactions from major western powers, especially the US (societies with which a number of IS members are familiar), they have also mastered the art of using these and other images to recruit potential followers inside these countries and to inspire others to carry out internal acts of violence on their behalf. This has extended what can only be described as psychological operations designed to increase fear, anxiety, and feelings of vulnerability among their enemies by raising the possibility of random attacks by IS proxies inside their home countries. Once again IS had discovered another means of extending their reach. IS held the type of momentum that gave them an ephemeral but undeniable psychological military advantage that inspired admirers among similar groups in areas of the Middle East and North Africa including Egypt, Yemen, Libya. Their proteges in Boko Haram, Al Quaeda and other terrorist organizations were taking notes. ', 'The problem for opposing countries and military forces has been the undeniable and unanticipated success of IS, which has created greater problems for their enemies. Once ignited violence flowed into vulnerable communities like leaking water and spread like burning oil. A clear demonstration for a classic case study on “new” war scenarios these strategies and tactics are intended to synchronize local and international political and criminal violence, infiltrate local conflicts, social protests, gang violence, and organized crime and terrorism networks to cross and minimize borders while simultaneously threatening a range of countries with similar or different incomes, identities, religions, and ideologies (Kaldor 2012; World Development Report 2011). ', 'The irony is that many of these operations are rooted in textbook military strategies and tactics as basic as divide and conquer. Aside from acquiring US weapons after overrunning Mosul, IS demonstrated the type of clear cut military victory that can be established by combining the right technological skills with sophisticated information and psychological operations and military tactics (in the case of IS borrowed from earlier centuries) that the US and international military forces had never managed to accomplish after over a decade in Afghanistan and Iraq (TRADOC Pamphlet 525-3-1 2014: 14). ', 'In September 2014 then US Secretary of Defense Chuck Hagel stated that US enemies were also developing anti-ship, anti-air, counter-space, cyber, electronic warfare, and special operations capabilities with goals to counter and neutralize traditional US military advantages, especially the “Army’s ability to project power” (TRADOC Pamphlet 525-3-1 2014: 49, 11). By early 2015 US Army Chief of Staff, Ray Odierno acknowledged the success of IS (aka ISIL) while discussing a new army operating concept stating that while “our enemy creates multiple dilemmas for us, we don’t create multiple dilemmas for them” (Yergun 2015). A 2014 US Army Training and Doctrine Command (TRADOC) paper “Win in a Complex World, 2020-2040” outlined these challenges and the success of IS (aka ISIL) in using a range of strategies and tactics to create and dominate their operating environment (TRADOC Pamphlet 525-3-1 2014). It described how IS used a strategy of murder and brutality against civilians while forming alliances of convenience to organize people, money, and weapons that allowed them to take advantage of the opportunities offered by regional conflicts and weak governance to consolidate their gains and to further intimidate and marginalize competing insurgent groups. By declaring a caliphate IS (ISIL) provided their followers with a type of sanctuary and “strategic depth” that would allow them to launch a broader regional and ultimately global campaign that reinforced their image of invincibility(TRADOC Pamphlet 525-3-1 2014: 14). Terrorist and insurgent groups can easily access weapons equal to those used by international military forces. ', 'For the first time the new army operating concept focused on all three levels of fighting wars—strategic, operational, and tactical, while declaring that the future operating environment is composed of a series of unknowns. The enemy is unknown, the location is unknown and the answer to questions of who, what, where of involved coalitions is unknown (TRADOC Pamphlet 525-3-1 2014: iii). While indicating the necessity for land forces to defeat determined enemies who operate among civilian populations they control, the US Army acknowledged that the challenges presented by “ISIL” also highlighted the need to “extend efforts” beyond physical battlegrounds to “other contested spaces such as public perception and political subversion” (TRADOC Pamphlet 525-3-1 2014: 14). ', 'A growing challenge for international civilian humanitarian, aid, development organizations and military forces is to successfully identify areas of chronic and potential destabilization where the “right” circumstances can rapidly transform a random combination of risk factors, vulnerabilities, and catalytic events into “unexpected synergies” between otherwise independent risks that evolve into larger cross-border regions of violence that support the formation of “new” war scenarios and magnify their consequences (Gamper 2014: 4). This requires a deeper understanding of the characteristics of contemporary complex, interconnected risks. ', 'Understanding complex risks ', 'Complex risks, also known as compound risks, interdependent or interconnected risks, and hyper-risks, can be generally described as a rapid set of events with severely disruptive consequences that cross administrative and national borders with the ability to produce ripple effects on both local and global infrastructure networks, economic sectors, and international civil-military operations (OECD in Gamper 2014: 4). Compound disasters have been described as events causing extensive damage that multiplies the effect of the original cause to prolong recovery. Hyper-risks describe an event or process that triggers another single or series of unpredictable effects and events with the potential to cross borders. All of these are usually shaped by a rapid clustering of what previously appeared to be mutually exclusive causes that combine to trigger “cascading” or domino effects, also described as cascading disasters and failures in infrastructure systems and interdependent networks. In contrast to traditional risk management techniques where assessments have focused separately on each risk, these encompass a range of natural, social, technological, natural and human-caused risks that merge a combination of “drivers” that overlap and intersect to create a larger disaster (Gamper 2014: 5). These drivers include forgotten crises that form areas of chronic violence, urbanization, complex infectious diseases, environment, and the impact of technological developments on critical infrastructure and systemic risks (Gamper 2014). ', 'Forgotten crises ', 'Identifying potential regions of future violence requires that international focus be redirected away from highly publicized conflicts toward quieter but no less potentially violent areas. Many of these regions have been relegated to a lower priority status by the international community when compared to highly visible complex crises and emergencies that demand an immediate response. However recent history has clearly demonstrated how quickly the “right” set of circumstances can merge to link and interact with international 98 Part III: Looking ahead The “new war” challenge 99 causes to suddenly erupt into large scale regional violence. Sidelined by the international community these “forgotten,” overlooked potential “trouble” areas experiencing unresolved, chronic local conflicts offer opportunities for insurgents, terrorists, and criminal networks to hone their skills, develop financial links, and establish human and arms trafficking networks away from public scrutiny (UN Department of Economic and Social Affairs 2014: 7). ', 'The 2014 European Commission’s Department of Humanitarian Aid and Civil Protection (ECHO) Forgotten Crisis Index regularly publishes a list of indicators for future regional problems. This index has consistently demonstrated a large disparity between countries receiving a high level of international attention and the location of countries that have repeatedly appeared on the index since 2004. The Central African Republic with an ongoing armed conflict that has caused a range of humanitarian crises, Algeria which is home to the longstanding Sahrawi Crisis, and Columbia with its long term unresolved and continuing armed conflict are all top of the index. Other countries appearing on the index six to nine times within the previous 10 years include Nepal, which has Bhutanese refugee issues, Bangladesh with Chittagong Hill Tracts and Rohingyas disputes, Mynanmar with conflict in the Rakhine and Kachin States and Myanmar refugees in Thailand, Thailand in the Myanmar border area, India in the Naxalite affected regions, Jamma and Kashmir and the North East India conflicts, and Yemen (Global Humanitarian Assistance Team 2014: Annex I). ', 'Those that have appeared one to three times in the same decade are Georgia, Abkhazia, the Russian Federation in Chechnya, Sudan with humanitarian crises caused by armed conflict, the western Sahara on the Algeria border, Haiti, Guinea, Chad, Uganda with ongoing armed conflict, and the Democratic Republic of Congo affected by conflict caused humanitarian crises. Somalia, Kenya which has a Somali refugee crisis, Tanzania, Sri Lanka undergoing the impact of returning internally displaced persons, Indonesia, the Philippines with its longstanding Mindanao insurgency and Papua New Guinea are also included on the list (Global Humanitarian Assistance Team 2014: Annex I). ', 'Placed on ECHO’S high risk list for most of the last decade Yemen began fragmenting into a highly unstable phase in late January 2015 when western-backed President Abed-Rabbo Mansour Hadi and the Prime Minister resigned following the capture of the presidential palace and control of the capital by the militarily dominant Huthi fighters. This was triggered by a dispute between the Huthis, a mostly Zaydi/Shiite movement also known as Ansar Allah, and the President over a constitution that divided the country into six federal regions and used language that the Huthis found objectionable. They suspected the President’s advisor, who they had kidnapped earlier in January, of trying to push through the constitution without their consent. While there were few external actors other than Saudi Arabia and Iran to influence the outcome, Yemen’s location is in proximity to Al-Qaeda in the Arabian Peninsula and there is the potential for internal violent opposition from the Shafai (Sunni) areas and southern separatists. Al-Qaeda in the Arabian Peninsula is the group that claimed responsibility for the 7th January attacks on the satirical magazine Charlie Hebdo in Paris and Yemen’s police academy, which was bombed the same day. Yemenis have been faced with the choice of either compromising and forming an inclusive political settlement or undergoing a violent break up of the country, which would mirror a Libyan type of scenario. The longer the crisis continues the greater the potential for external interference, both positive and negative (ICG 2015b: Syria Calling; ICG 2015c: Yemen Conflict Alert). ', 'In 2015 the International Crisis Group (ICG) identified Central Asia, including Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan as a region with potential for future destabilization. This is linked to the growing numbers of men and women travelling to the Middle East from countries in the region to support and fight with IS. ICG estimates between 2,000 and 4,000 joined in the 3 years prior to 2015 for a range of political, social, and economic reasons, attracted by the prospect of combat experience and a more devout religious life. If significant numbers of these IS recruits return to Central Asia they have the potential to destabilize not only their own countries but the entire region, which shares borders with Russia, Afghanistan, Iran, and China. Ethnic Uzbeks, including Uzbekistan citizens make up the greatest numbers of IS recruits and are primarily coming from southern Kyrgyzstan, a country that borders Afghanistan, where the Uzbek community was alienated by targeted ethnic violence in Osh in 2010. Kyrgyz, Kazakhs, Turkmen, and Tajiks recruits are also numerous. They are all coming from secular countries plagued by poor governance, corruption, and criminal networks. None of these nations have the resources or skills to cope with the expected return of battle hardened and politically experienced radical Islamists. Instead of attempting to promote religious freedom, safeguard secular institutions, and support European style attempts to rehabilitate jihadis these countries have reacted to these potential threats by implementing laws that increase restriction of religion and sending badly trained police who enforce them by carrying out heavy handed crackdowns that further exacerbate the problem (ICG 2015b, Syria Calling: 1-2). ', 'Urbanization ', 'Global urbanization, increasing at a pace that threatens to overwhelm local and national infrastructure, is another important potential contributor to creating regions of violence as socioeconomic inequality rises both inside cities and in surrounding areas (UN Department of Economic and Social Affairs 2014: 7). Due to unprecedented urbanization over the past 60 years more people now live in urban than in rural areas. This is in stark contrast to 1950 when over 70 percent of the world’s population lived in rural areas. Most of the world’s largest urban areas were previously located in the more developed regions, but large cities are now clustered in the less developed “global South.” In 2014 54 percent of the global population was urbanized, with expectations that will increase to 66 percent by 2050. India, China, and Nigeria are expected to account for 37 percent of the global urban population between 2014 and 2050 (UN Department of Economic and Social Affairs 2014: 1, 7). The potential for these regions to evolve and connect into regions of violence is high. ', 'Much of the world’s future population growth is projected to occur in highly vulnerable, less developed countries where many of these dense urban areas are home to densely concentrated and interdependent populations, buildings and services. They are often located along coastal areas threatened by climate change and weather-related emergencies. Many individuals who voluntarily relocated to cities in search of employment find that the only available housing they can afford is structures built on illegal sites from discarded materials and mud without access to public services. Making up a large proportion of growing cities these impoverished and over-populated sites have been generally ignored by local governments who have not integrated them into their planning or public infrastructure strategies. Inadequate construction materials, garbage disposal and sewage systems increase the potential for regional destabilization by leaving them vulnerable to growing pressures on the availability and safety of food supplies, water, energy sources, and the possibility of new health-related risks. With no growth restrictions these urban centers often expand onto lands prone to geographic hazards such as landslides and environmental problems such as toxic waste disposal sites. Increased flows of legal and illegal migrants fleeing other areas, along with internally displaced populations and refugees fleeing conflicts, accelerate this undisciplined urban growth that increases the likelihood that these cities will become incubators for disease and violence (Gamper 2014: 8-9; Patel and Burke 2009: 741; Mancini 2014). This has resulted in a chaotic and disorganized urban landscape where expectations for a better quality of life have not been met. ', 'International concerns about destabilization in North and South East Asia have increased as these areas become more vulnerable to combined risks of urbanization, new and rapidly transmitted diseases, and climate related disasters that put large segments of their population at risk. Asia, likely to be home to fifteen of the top global cities by 2070, is especially at risk from future (2030-40) coastal and urban flooding that would cause widespread destruction to infrastructure, livelihoods, and settlements (Peters 2014: 2-3). Countries at greatest risk in this region include Lao PDR, Myanmar, Thailand, Vietnam, China, Japan, Philippines, Indonesia, Cambodia, Malaysia, and Timor-Leste. It is worth noting that more than 71 million people were displaced in North and South East Asia between 2008 and 2012, and that a number of these countries were listed on the Forgotten Crisis Index, with several others experiencing recent violent conflicts (Peters 2014: 9, 4). ', 'Similar to forgotten crises these areas of chaotic urbanization are ideal for incubating illegal gangs and activities that provide safe havens and support home base environments for dangerous criminals, terrorists, and insurgents who can easily operate undetected by the police and military forces. If local and national governments continue to fail to provide adequate security, employment, infrastructure and services to their urban constituents they leave these populations open to recruitment and exploitation by these armed groups. Cities have also become ideal stages for carrying out politically motivated attacks against innocent civilians. The 2013 Boston Bombing and the 2014 attacks on coffee shop customers in Sydney, Australia are two examples. US and international military forces are especially concerned about terrorists and other criminal groups using uncontrolled urbanized environments to launch long range missiles and other powerful weapons that could threaten external populations (TRADOC Pamphlet 525-3-1 2014: 12). ', 'To successfully meet the challenge of future complex crises the international civilian organizations and military forces will need to develop a deeper understanding of the ways in which urbanization creates its own urban “fabric,” ecosystem, climate, society, culture, economy, and governance systems. These urban systems influence and interact within their own geographic boundaries of urban territory, sociocultural activities, and politics to assume characteristics of mega city-states, that have more in common with other giant urban metropolises than with the national governance structure of the country where they are located (Warmsler and Brink 2014, 11). The United Nations has stated that the battle for future sustainable development will be won or lost in urban areas. Their projects are beginning to focus on cities, especially those located in the lower-middle-income countries experiencing rapid urbanization. City and regional governments will need to review their governance strategies to integrate human, national and international security into their policies (Patel and Burke 2009, 741: Mancini 2014). ', 'Successfully meeting challenges posed by these urban areas requires developing better strategies to identify and anticipate the evolution of complex risks specifically linked to these urban areas that are independent from the countries in which they are located (Warmsler and Brink 2014: 11). Operating in congested and restrictive urban terrain will require that international military forces understand the specific political, geographic, technological, and military challenges posed by these and similar urban environments that are either located within or have themselves turned into regions of violence. Both civilian and military responders will need to develop broader more flexible urban focused approaches to humanitarian aid, development and security to be effective when conflicts and emergencies occur in these environments (TRADOC Pamphlet 525-3-1 2014: 12; UN Department of Economic and Social Affairs 2014: 1). ', 'Complex, infectious diseases ', 'The destabilizing potential of infectious disease on vulnerable regions that have recently emerged from long term conflict was clearly demonstrated during the 2014 Ebola crisis. First the crisis began in Guinea, Liberia, and Sierra Leone, countries that had only recently emerged from long term regions of violence and conflict, which had destroyed their basic health infrastructure. This left these countries with a ratio of one or two doctors per 100,000 people (compared to Spain with 370 and US with 245 doctors) and a young adult population who had little or no education or knowledge about how diseases spread. Initially misdiagnosed as cholera then Lassa fever, the Ebola virus was not correctly identified until it had been circulating in Guinea for 3 months. Once it had taken root it decimated the already small number of health care workers in these countries. Having been considered a rare disease unlikely to appear in well developed countries there were no vaccines and the only controls, early detection, isolation, infection control and quarantine dated back to the Middle Ages. By the beginning of 2015 almost 24,000 cases and 10,000 deaths were reported inside Guinea, Liberia, and Sierra Leone. (Chan 2015; GHA Crisis Briefing 2015). ', 'The drivers behind the spread of infectious diseases share characteristics similar to complex risks in urban environments but they are further complicated by the rapid pace of global mobility and transport networks that extend their impact throughout interconnected systems (Gamper 2014: 14-15). Warning flags and scares about the potential catastrophic effects caused by large scale pandemics had been raised for years prior to the Ebola crisis, but as long as diseases were treatable, eventually contained and for the most part had little or no effect on populations living inside western developed countries few outside of the health field took serious note. Earlier outbreaks such as Dengue and Chikungunya fever in the 1990s had been spread by the global trade in used tires but more recently diseases have spread faster and farther through interlinking networks of tourism, energy, transportation and agriculture that have resulted in a wider range of international consequences. The world health community made pre-Ebola assumptions that “exotic” pathogens, which caused problems in the developing world, would not be a threat to wealthier more developed countries with their higher standards of living and sophisticated health systems. This theory was seriously challenged by the 2002 and 2003 severe acute respiratory syndrome outbreak that began in wildlife markets and restaurants in southern China and quickly spread by air travel to urban areas in Hong Kong, Vietnam, Taiwan, Singapore, Toronto, Thailand, and the US. The international health community also erroneously assumed that future health threats could be predicted. While many were focused on the 2009 H5N1 avian influenza pandemic in Asia along with African forests and Asian cities as the most likely sources of the next pandemic, the 2012 Middle East respiratory syndrome suddenly emerged from the arid desert environment of Saudi Arabia where camels, not chickens were the source of disease (Gamper 2014: 14-15; Chan 2015). The appearance, spread, and adaptability of the Ebola virus in 2014 broke through all previous assumptions and rules. ', 'Three key lessons learned by the international health community about stopping the spread of global health risks following the Ebola outbreak were outlined by the World Health Organization’s Director Dr Margaret Chan in a March 2015 speech to the London School of Hygiene and Tropical Medicine. The first is that competent functioning health systems need to be in place before a health crisis occurs. This requires developing a system that is designed to identify early warning signs of unusual disease events, establishing response teams that can track and investigate cases, and designating capable laboratory services to support these outbreaks. Another lesson has been to expect the unexpected (Chan 2015). Do not assume a virus will behave in the same way as previous outbreaks when introduced into a new setting. Ebola emerged at a time when the WHO and other global health experts were focused on acute respiratory infections as the leading global cause of sickness and death (WHO 2014). While Ebola had been a known entity for 40 years it mutated in an entirely new way during 2014. The spread of the disease also highlighted the important role of community engagement and the necessity of establishing trust while seeking their cooperation. Distrust of authorities prompted many communities to hide patients, conduct secret and unsafe burials, and refuse to cooperate with those attempting to track the virus. In 2015 the World Health Organization collaborated with the World Food Programme to bring WHO teams of social anthropologists and epidemiologists to isolated villages to assist in establishing trust with communities in an effort to track down the remaining Ebola patients until all cases were resolved (WHO/WFP 2015). A third lesson is the importance of creating incentives for research and development of medical vaccines and other interventions for diseases mostly associated with impoverished populations. Ebola demonstrated how easily and quickly a sidelined disease could jump socioeconomic groups and global barriers (Chan 2015). More public health spending on general health care, vaccines, antivirals, and antibiotics has the potential to reverse overall vulnerability to pandemics (Gamper 2014: 14-15). ', 'In many ways Ebola was an international wake-up call about the destabilizing potential of infectious diseases that begin in distant locations. It points out the dangers of weak health infrastructure in areas recently emerging from or currently experiencing long term chronic violence and their connection to global systems. It also highlights the link between environment and the spread of infectious diseases. Changes in the global environment and land use for agriculture, irrigation, hunting, and deforestation have directly contributed to an increase in the spread of zoonotics (animal diseases that can be transmitted to humans), food, and water-borne diseases. Migration and climate change have eased the transmission of vector-borne diseases such as malaria, transmitted by mosquitoes. Changes in social and demographic factors such as aging, migration, unemployment, displacement can also contribute to disease outbreaks. These risks are further aggravated in areas where there are persistent socioeconomic inequalities, where resources are lacking and where disasters and conflicts have occurred (Gamper 2014: 14-15). Developing integrated global strategies and interventions to identify and counter future outbreaks of infectious disease and having functional health systems in place that can withstand future shocks whether from climate change or unchecked viruses is the only way they will be slowed or stopped (Chan 2015). ', 'Environment and climate change ', 'Environment and climate change are widely considered to be interwoven into and underpinning almost all complex risks. While the impact of the environment and climate change on reshaping everyday lives has been widely discussed in the context of disastrous weather events and forced migration of populations due to degradation of land and availability of water, it is more recently considered to be the factor driving an increased frequency and intensity of future complex risks. ', 'Increased rainfall causes flood; accelerating wind speeds can cause hurricanes, cyclones, tornadoes and similar destructive storms. More frequent and longer periods of warm weather can lead to intense heat waves and droughts that are associated with a rise in sea levels, and rapid melting of glaciers and permafrost that destabilize hillsides and increase coastal flooding. Flood risk has been estimated to be the greatest natural catastrophic risk to the largest number of global inhabitants as most of the world’s cities are located on coastlines, rivers, and other bodies of water. This includes world financial centers like London and New York (Gamper 2014: 14-15). ', 'Climate change has been progressively pressuring cities into a vicious cycle of cause and effect between themselves and complex disasters. Massive urban areas have been increasingly viewed not only at risk to climate change but also the cause of additional climate-related risks through interconnected systems that combine geographic and spatial, environmental, sociocultural, economic and political institutions. These include urban sprawl, lack and inefficient delivery of services, unsafe construction, traffic, paving over earth and overcrowded informal settlements. Sustainability of urban environments is challenged by a lack of green areas, biodiversity, pollution, scarce water sources, waste and wastewater contamination, and radiation. Sociocultural challenges include a lack of security, segregation, aging populations, loss of cultural and historic heritage, unequal access to services, disease, traffic accidents. Economic issues are poverty, inflation, unemployment. Political challenges are a lack of access to political power that controls economic, social, and legal institutions that shape policy affecting urban populations. ', 'This sets up a feedback loop that is caused by the impact of climate change on shaping climate-related disasters, the influence of the resulting disasters on climate change, the impact of inadequate urban development on climate change, and the reciprocating impact of climate change on inadequate urban development (Wamsler and Brink 2014: 5, 25, 26). ', 'This indicates that a timely and adequate response to one disaster may be the key to preventing another meaning that the “right” response to each environmental and climate-caused disaster is the key to preventing another and should include actions that diffuse or stop a potential chain of cascading effects. There have been suggestions that the nuclear power plant disaster in Japan that followed the 2011 tsunami triggered by the Great East Japan Earthquake could have been better controlled or contained if there had been a more flexible response that combined experience, better understanding of the range of potential disaster scenarios, and a willingness for responders to anticipate, react, and improvise to the unfolding situation. The type of cross-sector engagement and collaboration that was necessary to address this crisis included disaster management, environment, energy, public health, and local economic, industrial, and international relations. Averting future crises of this type will necessitate that previously specialized agencies broaden their scope to develop multi-sector policies and coordination processes (Gamper 2014: 22). ', 'Impact of technological developments on critical infrastructure and systemic risks ', 'The impact that sophisticated users of information and communication technologies can have on civil-military relationships and the operating environment has been explored in Chapters 3, 4 and 5. Technological improvements in information, communication, space, and transport networks that facilitate global economic development and cooperation can conversely act as drivers of complex risks. Their interconnectedness fostered by the rapid expansion of users and accompanied by dependence on the internet leaves core systems vulnerable to cyber attacks. This poses significant threats to international financial and infrastructure systems as many remain relatively easy to hack and capable of causing widespread damage. However recent international analysis has also focused on ways in which the presence of technology itself can facilitate and accelerate risks (Gamper 2014: 13). ', 'Aside from the potential for inciting violence and spreading panic, an equal if not greater and less predictable threat is posed by natural disasters that trigger technological disasters (also known as NATECHs), as witnessed in the 2011 destruction of the Fukushima nuclear power plant in Japan. When a devastating earthquake hit Japan on 11 March 2011, it caused a massive tsunami that killed more than 15,844 people, destroyed homes and businesses and set off a chain of nuclear accidents that resulted in the meltdown of three nuclear reactors in the Fukushima Daiichi Njuclear Power Plant. This nuclear meltdown resulted in widespread contamination of water, food, plants, animals, and fish on the Japanese mainland up to 200 miles away from the nuclear plant and directly caused over 150,000 people to be displaced. The total economic loss has been estimated at between $250 and $500 billion and seen as responsible for a slowdown or elimination of plans to build new nuclear power plants in many countries that in turn affected the global energy market (Ray-Bennett et al 2014: 14). ', 'This merging of a natural disaster with vulnerabilities in technological systems has given rise to a new concept of hyper-risks and the threats and costs that their interdependent social/ecological/physical/economic/political networks pose to local, national, and global systems. Tied to more than single events these hyper-risks can also be tied to processes that set up conditions for a series of unpredictable events that are likely to cross borders setting off another series of cascading effects (Ray-Bennett et al 2014: 7). ']

[(13, 24)]

605500039c59a165f5caf23f44151623cb37ac2d92ccfc36d66faf497dfcc940

Restricting military surveillance is key---first, it’s a unique license for mission creep.

Daniel J. Sennott 10, LL.M. The JAG School, Charlottesville. J.D., University of Illinois, Champaign, “How the Posse Comitatus Act Restricts Department of Defense Information Sharing,” 06/11/10,

the underlying problem with domestic intel was sweeping authority provided to DoD the DoD received thousands of reports that had little connection to force protection from political protests to student e-mail s vulnerable to “mission creep” when you go down that road, you are into everything The more DoD distributed domestic info to law enforcement , the more agencies requested . This mushroomed into collection collateral to force protection these reinforces the need for clear parameters to insulate the military from mission creep while providing guidelines to civilian authorities on limit s

the rapid expansion of DoD domestic intelligence gathering led to ill-defined boundaries the government relied on the DoD to produce evidence because of its substantial resources sweeping authority leads to abuses ; the government continues to look to the military to solve problems because of its significant assets the first underlying problem with domestic intel ligence was the sweeping authority provided to the DoD “Army intelligence may always receive information , if only to determine its intelligence value and whether it can be collected, retained, or disseminated in accordance with governing policy.” the DoD received thousands of reports that had little connection to force protection on subjects ranging from political protests to student e-mail transmission s . When the analysts who collected this information failed to dispose of it the revelation that such information was being stored by DoD was an embarrassment In retrospect, DoD should have been more discerning in its collection domestic intelligence was vulnerable to “mission creep” once the DoD began collecting it “‘[The military] started with force protection from terrorists, but when you go down that road, you soon are into everything . . . where terrorists get their money from, who they see, who they deal with.’” The more DoD distributed domestic info rmation to law enforcement , the more the agencies requested . This phenomenon soon mushroomed into the collection and distribution of information collateral to force protection domestic intelligence expanded because of requests from federal and local law enforcement these cases reinforces the need for clear ly defined parameters for military involvement in domestic affairs. These parameters serve to both insulate the military from domestic intelligence mission creep while providing clear guidelines to civilian authorities on the limit ation s of military intelligence. Without these clearly delineated boundaries, civilian authorities may be tempted to assign the military with an ever-expanding role in domestic intelligence, an area that is ripe for mission creep . the military is extremely capable, well-resourced, and eager to assist in homeland security missions. As a result, clearly defined limitations like the PCA keep the military from unconsciously foraying into areas better left to civilian law enforcement.

ill-defined boundaries sweeping authority abuses first underlying problem sweeping authority provided to the DoD always receive information thousands of reports little connection to force protection political protests student e-mail transmission s dispose of it embarrassment more discerning in its collection “mission creep” soon into everything distributed domestic info rmation law enforcement requested mushroomed collateral to force protection expanded requests clear parameters insulate domestic intelligence mission creep civilian limit s ever-expanding role ripe for mission creep clearly defined limitations like the PCA unconsciously foraying

['Post-11 September Lessons', 'Although the abuses of Vietnam-era Army intelligence were staggering in comparison to the Post-11 September CIFA initiatives, the parallels between the two case studies are notable. In both cases, the rapid expansion of DoD domestic intelligence gathering led to ill-defined boundaries. In addition, like Vietnam-era domestic intelligence, the government relied on the DoD to produce the evidence because of its substantial resources. Finally, the policy determinations made in the wake of 11 September were later changed because of over-aggressive interpretations. The lessons of the Vietnam-era domestic intelligence programs were learned again post-11 September, although DoD was able to remedy the issues before they became as widespread as Vietnam-era experiences. Specifically, Post-11 September domestic intelligence once again revealed three lessons: vague guidance and sweeping authority often leads to abuses; the government continues to look to the military to solve problems because of its significant assets; and the government often comes to regret policy determinations made during times of crisis. ', 'Much like Vietnam-era intelligence issues, the first underlying problem with Post11 September domestic intelligence was the vague guidance and sweeping authority provided to the DoD. As the Deputy Chief of Staff for Intelligence made clear in the months following the attacks, “Army intelligence may always receive information, if only to determine its intelligence value and whether it can be collected, retained, or disseminated in accordance with governing policy.” This statement was reinforced by GEN Eberhart, NORTHCOM Commander, when he was quoted as saying “It is important to ‘not just look out, but we’re also going to have to look in,’. . . ‘we can’t let culture and the way we’ve always done it stand in the way.’”280 Following these statements, the DoD received thousands of reports that had little connection to force protection on subjects ranging from political protests to student e-mail transmissions. When the analysts who collected this information failed to dispose of it within DoD intelligence oversight time limits, the revelation that such information was being stored by DoD was an embarrassment to the Department. In retrospect, DoD should have been more discerning in its collection guidance, much like it did in clarification Directives sent after the TALON program was criticized in the press.281 ', 'In addition to vague guidance, the government’s reliance on DoD’s substantial intelligence assets also led to the rapid domestic intelligence expansion. As highlighted above, in the months after 11 September 2001, the President established an entire combatant command dedicated to the defense of the Homeland. Within this organization, CIFA, with a budget of over $1 billion over four years, rapidly provided the domestic intelligence needed by both internal and external customers. This almost instantaneous expansion was only possible because the DoD already managed the majority of intelligence assets, so granting them a mechanism to compile and share this information with other agencies was a logical decision. However, the government soon realized that domestic intelligence was vulnerable to “mission creep” once the DoD began collecting it. One Defense Department official stated, “‘[The military] started with force protection from terrorists, but when you go down that road, you soon are into everything . . . where terrorists get their money from, who they see, who they deal with.’” The more DoD distributed domestic information to federal and local law enforcement, the more the agencies requested. This phenomenon soon mushroomed into the collection and distribution of information collateral to the DoD’s force protection mission. Just as Vietnam-era intelligence expanded because of external requests, Post-11 September domestic intelligence expanded because of requests from federal and local law enforcement. ', 'The final lesson from the Post-11 September expansion of DoD domestic intelligence is that policy crafted during times of crisis is often regretted later. The attacks of 11 September 2001 were unprecedented in our history. The entire Nation united in defense of the homeland, and the government, and specifically DoD, enjoyed widespread support. However, the decision to create a counter-intelligence agency within the DoD that would manage a database consisting of reports collected from military members across the country was ill-considered in retrospect. Although force protection is a legitimate and crucial function of DoD, both CIFA and TALON smacked of the Army intelligence activities of the Vietnam era. Coupled with vague guidance on the parameters of domestic intelligence collection, CIFA was a public relations problem waiting to happen. Although no legal violations occurred, DoD was clearly tone-deaf to the public’s predictable opposition to CIFA activities. Just like the other aspects of this case study, the government forgot the hard-taught lessons of Vietnam-era intelligence when designing Post-11 September DoD domestic intelligence. ', 'Conclusion ', 'The three case studies discussed above reinforce two major points. First, these case studies, played out over the course of the past ninety years, illustrate remarkably similar problems. In each case, the military and civilian authorities struggled with the appropriate balance between leveraging all available intelligence assets to protect the homeland while adhering to the PCA and the spirit of the act. In each case, either the PCA or the principles of the PCA (civilian control of military activities) influenced both the public’s perception and the decisions made by government officials related to military domestic intelligence gathering activities. In addition, each of these cases reinforces the need for clearly defined parameters for military involvement in domestic affairs. These parameters serve to both insulate the military from domestic intelligence mission creep while providing clear guidelines to civilian authorities on the limitations of military intelligence. Without these clearly delineated boundaries, civilian authorities may be tempted to assign the military with an ever-expanding role in domestic intelligence, an area that is ripe for mission creep. In addition, as the case studies illustrate, the military is extremely capable, well-resourced, and eager to assist in homeland security missions. As a result, clearly defined limitations like the PCA keep the military from unconsciously foraying into areas better left to civilian law enforcement.']

[(10, 20)]

0b6d14c2c5aaad9c86c8c4045be675faa9db5463a3a5f9ab5c3933455717e309

It cascades globally AND it’s irreversible---extinction

Martin Rees 18, Astronomer Royal, founded the Centre for the Study of Existential Risk, Fellow of Trinity College and Emeritus Professor of Cosmology and Astrophysics at the University of Cambridge, “2. Humanity’s Future on Earth,” in On the Future: Prospects for Humanity, 10/16/2018, Princeton University Press, pp 61-119

Our world depends on elaborate power grids these could breakdown Cities would be [gridlocked] without electricity uninhabitable and anarchic ‘civilisations’ have been extinguished it’s unlikely a catastrophe could hit any region without cascading globally a collapse would be a global setback so devastating that survivors could never regenerate

Our world increasingly depends on elaborate networks : electricity power grids , air traffic control , international finance , globally dispersed manufacturing , and so forth. Unless these networks are highly resilient , their benefits could be outweighed by catastrophic breakdown s Cities would be [gridlocked] without electricity — the lights would go out, but that would be far from the most serious consequence. Within a few days our cities would be uninhabitable and anarchic The historical record reveals episodes when ‘civilisations’ have crumbled and even been extinguished . Our world is so interconnected it’s unlikely a catastrophe could hit any region without its consequences cascading globally . For the first time, we need to contemplate a collapse that would be a truly global setback to civilisation . The setback could be so devastating (and could have entailed so much degradation ) that the survivors could never regenerate

power grids air traffic control international finance manufacturing highly resilient breakdown [gridlocked] without electricity uninhabitable anarchic extinguished any region cascading globally global setback to civilisation so devastating degradation never regenerate

['2.5. TRULY EXISTENTIAL RISKS? ', 'Our world increasingly depends on elaborate networks: electricity power grids, air traffic control, international finance, globally dispersed manufacturing, and so forth. Unless these networks are highly resilient, their benefits could be outweighed by catastrophic (albeit rare) breakdowns— realworld analogues of what happened in the 2008 global financial crisis. Cities would be paralysed [gridlocked] without electricity— the lights would go out, but that would be far from the most serious consequence. Within a few days our cities would be uninhabitable and anarchic. Air travel can spread a pandemic worldwide within days, wreaking havoc on the disorganised megacities of the developing world. And social media can spread panic and rumour, and economic contagion, literally at the speed of light. ', 'When we realise the power of biotech, robotics, cybertechnology, and AI— and, still more, their potential in the coming decades— we can’t avoid anxieties about how this empowerment could be misused. The historical record reveals episodes when ‘civilisations’ have crumbled and even been extinguished. Our world is so interconnected it’s unlikely a catastrophe could hit any region without its consequences cascading globally. For the first time, we need to contemplate a collapse— societal or ecological— that would be a truly global setback to civilisation. The setback could be temporary. On the other hand, it could be so devastating (and could have entailed so much environmental or genetic degradation) that the survivors could never regenerate a civilisation at the present level.']

[(7, 14)]

e7c7351b4acccdf0c717fd43687084814893cb4f274d47694ba2d6e9ec166d62

Solves the case AND its claim of authority forces courts to accord Chevron deference to FTC rulemaking.

Royce Zeisler 14, J.D. Candidate 2014, Columbia Law School; B.S., B.A. 2012, University of British Columbia, “Chevron Deference and the FTC: How and Why the FTC Should Use Chevron to Improve Antitrust Enforcement Note,” Columbia Business Law Review, vol. 2014, no. 1, 2014, pp. 266–312

FTC should use notice-and-comment rulemaking to regulate competition for the purpose of attaining Chevron in antitrust this allow FTC to fulfill its design to be norm-creators FTC and courts have neglected this balance and turned FTC into another enforcement agency As a result courts have been deprived of FTC's norm-creating powers and stymie FTC litigation more effective enforcement can be achieved by using Chevron FTC can create antitrust capable of regulating changing practices

In response to business practices , commentators are calling on the FTC Bureau of Competition to adopt previously rejected forms of regulation .' some argue that the FTC should use notice-and-comment rulemaking to regulate competition these proposals lack an in-depth consideration of Chevron deference the FTC should promulgate notice-and-comment regulations for the express purpose of attaining Chevron deference in antitrust litigation More than a pragmatic litigation strategy, this will allow the FTC to finally fulfill the ideals at the heart of its antitrust mandate . The FTC was design ed to be an agency of norm-creators . Its powers and structure were also explicitly limited , however , to prevent it from becoming a technocracy Regrettably, in the rollback of antitrust enforcement the FTC and courts have neglected this carefully-crafted balance and have turned the FTC into another enforcement agency As a result of this approach, generalist courts have been deprived of the FTC's norm-creating powers and have used incorrect presumptions to stymie FTC litigation economic and political considerations urge case-by-case adjudication however a more effective enforcement regime can be achieved if the FTC uses notice-and-comment rulemaking to attain Chevron deference in litigation by using the Chevron framework the FTC can create an antitrust regime capable of regulating ever- changing business practices Chevron deference offers the FTC a route between technocracy and simple enforcement

business practices FTC rejected regulation use notice-and-comment rulemaking regulate competition Chevron deference should promulgate notice-and-comment regulations for the express purpose of attaining Chevron deference in antitrust litigation More litigation fulfill design norm-creators limited technocracy neglected carefully-crafted balance turned another enforcement agency courts deprived of FTC's norm-creating powers incorrect presumptions stymie FTC litigation case-by-case however effective notice-and-comment rulemaking attain Chevron deference in litigation Chevron framework antitrust regulating changing between technocracy and simple enforcement

['In response to modern business practices, commentators are calling on the Federal Trade Commission\'s ("FTC" or "Commission") Bureau of Competition to adopt two previously rejected forms of regulation.\' Most prominently, some argue that the FTC should ask courts to expand section 5 of the Federal Trade Commission Act ("FTC Act")2 to enjoin anti-competitive practices not currently prohibited by the Sherman Act.3 More tentatively, others argue that the FTC should use notice-and-comment rulemaking to regulate competition.4 Notably, both of these proposals lack an in-depth consideration of the role of Chevron deference.5 Advocates of expanding section 5 liability neglect to explore how the FTC can use Chevron deference to do so; advocates of rulemaking rarely look to the consequences of these formal interpretations on future litigation. With these possibilities in mind, this Note proposes that the FTC should promulgate notice-and-comment regulations for the express purpose of attaining Chevron deference in antitrust litigation.', 'More than a pragmatic litigation strategy, this approach will allow the FTC to finally fulfill the competing ideals at the heart of its antitrust mandate. The FTC was designed to be an agency of norm-creators. Its powers and structure were also explicitly limited, however, to prevent it from becoming a technocracy run by, as President Woodrow Wilson worried, a "smug lot of experts. \'\'6 Regrettably, in the rollback of antitrust enforcement since the 1980s, the FTC and courts have neglected this carefully-crafted balance and have turned the FTC into another enforcement agency, which acts parallel to the Department of Justice ("DOJ") Antitrust Division.7 As a result of this enforcement-only approach, generalist courts have been deprived of the FTC\'s norm-creating powers and have at times used incorrect presumptions to stymie FTC litigation.8 Importantly, these losses do not mean that the FTC should turn to regulation via technocratic rules: economic and political considerations urge case-by-case adjudication. They do suggest, however, that a more effective enforcement regime can be achieved if the FTC uses notice-and-comment rulemaking to attain Chevron deference in future litigation. That is, by using the Chevron framework, the FTC can create an antitrust regime capable of regulating ever-changing business practices. Simply stated, Chevron deference offers the FTC a route between technocracy and simple enforcement.']

[(6, 16)]

b45f2f841df3c7de44196bddd6fb3350d98d5638f86005bc4b84b83356077cb4

2) EXPERTISE---Courts are incompetent due to the complexity of antitrust enforcement. Granting the FTC Chevron deference makes enforcement stronger.

Christian Carlson 14, Vanderbilt University, J.D.; University of Oxford, M.Sc. (forthcoming); Colorado College, B.A., served in various governmental offices, including with the Federal Trade Commission, the Washington State Attorney General's Office, the Tennessee Attorney General's Office, the Seattle City Attorney's Office, and the chambers of Federal District Judge John T. Nixon, “Antitrusting the Federal Trade Commission: Why Courts Should Defer to Federal Trade Commission Antitrust Decision Making,” 12 DePaul Bus. & Com. L.J. 361, https://via.library.depaul.edu/cgi/viewcontent.cgi?article=1012&context=bclj

FTC should assert deference to protect FTC decisions from meddling the judiciary has yet to grant Chevron to protect FTC's role as experts would more likely receive Chevron if it used rulemaking it seems doubtful antitrust will get less technical complex, or opaque . The economy will grow more specialized economics will require a more discerning eye one hopes FTC will seize this shift, invoke Chevron and courts will trust FTC's superiority

The FTC should assert Chevron deference to protect FTC expert decisions from judicial meddling and establish the technocratic institutional structure that Congress sought in 1914 antitrust law reached a "technical" tipping point in 1914 contrary to Congressional desires, the judiciary has charted a path to maintain the same institutional role it had prior to the FTC Act's passing courts have recognized their institutional foibles as antitrust law has grown more com plex; indeed, courts have erected procedural barriers and created heightened substantive standards to protect themselves from false positive rulings. But the judiciary has yet to grant the FTC Chevron deference to protect the FTC's role as experts and policymakers. The FTC would be more likely to receive Chevron if it used its rulemaking power and bolstered its expertise it seems doubtful that antitrust will get less technical , less complex, or less opaque . The economy will likely grow more specialized , and antitrust economics will require a more discerning eye For the sake of this modern economy, one hopes the FTC will be proactive seize on this technocratic shift, invoke Chevron and courts will trust the FTC's relative superiority

should assert Chevron deference to protect FTC expert decisions from judicial meddling technocratic institutional structure that Congress sought in 1914 "technical" tipping point judiciary same institutional role have grown procedural barriers substantive standards yet to grant the FTC Chevron deference FTC's experts more likely used its rulemaking power bolstered its expertise doubtful less technical , less complex, or less opaque more more FTC proactive seize invoke Chevron courts trust the FTC's relative superiority

['VI. CONCLUSION', 'The FTC should assert, and courts should grant, Chevron deference to protect FTC expert decisions from judicial meddling and to ultimately establish the technocratic institutional structure that Congress sought in 1914. Congress may have felt that antitrust law had reached a "technical" tipping point in 1914 when it founded the FTC to be "more competent to deal with the practical ... dissolution of [business] combinations than any court or Attorney General could be." 219 Yet contrary to Congressional desires, the judiciary has charted a path to maintain the same institutional role that it had prior to the FTC Act\'s passing. It is true that courts have recognized their institutional foibles as antitrust law has grown more complex; indeed, courts have erected procedural barriers and created heightened substantive standards to protect themselves from false positive rulings. But the judiciary has yet to grant the FTC Chevron deference to protect the FTC\'s role as experts and policymakers. The FTC would be more likely to receive Chevron deference if it used its rulemaking power and bolstered its expertise in key areas.', "In closing, it seems doubtful that antitrust will get less technical, less complex, or less opaque. The economy will likely grow more specialized, and antitrust economics will require a more discerning eye. Perhaps antitrust is merely at an interim point; despite not adhering strictly to Congress's 1914 desires, courts have gradually been moving in a technocratic direction with the modern economy. For the sake of this modern economy, one hopes the FTC will be proactive, seize on this technocratic shift, invoke Chevron deference, and courts will trust the FTC's relative superiority."]

[(10, 20)]

7143d36bc011f28b18bcb4e943494bb7cba1452850e600ffa1f04d4a5f19f978

3) PARTICIPATION---the rulemaking process is transparent and open to stakeholder input, which results in substantively superior rules.

Rohit Chopra & Lina M. Khan 20, Chopra is Commissioner, Federal Trade Commission; Khan was Academic Fellow, Columbia Law School, Counsel, Subcommittee on Antitrust, Commercial, and Administrative Law, US House Committee on the Judiciary, former Legal Fellow, Federal Trade Commission, “The Case for “Unfair Methods of Competition” Rulemaking,” The University of Chicago Law Review, Vol. 87, pp 357-379

rulemaking would establish a transparent participatory process APA procedures require an opportunity to comment The agency must address submitted comments This is more participatory judges are confined to the trial record the Commission can consider comprehensive info this allow FTC to draw on its info advantage ability to aggregate and study trends and practices over the long term and outside litigation

rulemaking would enable the Commission to establish rules through a transparent and participatory process , ensuring that everyone who may be affected by a new rule has the opportunity to weigh in granting the rule greater legitimacy APA procedures require an agency provide meaningful opportunity to comment on the rule’s content through submission of written “data, views, or arguments.” The agency must then consider and address all submitted comments This is far more participatory than adjudication. Unlike judges , who are confined to the trial record when developing precedent the Commission can put forth rules after consider ing a comprehensive set of info rmation this would also allow the FTC to draw on its own info rmational advantage —namely, its ability to collect and aggregate information and to study market trends and practices over the long term and outside the context of litigation Drawing on this expertise to develop rules will help antitrust enforcement and policymaking better reflect empirical realities and better keep pace with evolving business practices.

transparent participatory weigh in legitimacy comment content all submitted comments far more participatory judges trial record Commission consider comprehensive info own info advantage aggregate information market trends practices long term outside context of litigation better reflect empirical realities keep pace with evolving business practices.

['And third, rulemaking would enable the Commission to establish rules through a transparent and participatory process, ensuring that everyone who may be affected by a new rule has the opportunity to weigh in on it, granting the rule greater legitimacy.49 APA procedures require that an agency provide the public with meaningful opportunity to comment on the rule’s content through the submission of written “data, views, or arguments.”50 The agency must then consider and address all submitted comments before issuing the final rule. If an agency adopts a rule without observing these procedures, a court may strike down the rule.51', 'This process is far more participatory than adjudication. Unlike judges, who are confined to the trial record when developing precedent-setting rules and standards, the Commission can put forth rules after considering a comprehensive set of information and analysis.52 Notably, this would also allow the FTC to draw on its own informational advantage—namely, its ability to collect and aggregate information and to study market trends and industry practices over the long term and outside the context of litigation.53 Drawing on this expertise to develop rules will help antitrust enforcement and policymaking better reflect empirical realities and better keep pace with evolving business practices.']

[(6, 14), (23, 30)]

959df6b50e0cc2ff8071b58c4a091d0602261714e0cef0bd46cf05935b9d5574

Rulemaking can create standards for the application of rule of reason determinations. Doesn’t have to be a blanket ban.

Rohit Chopra & Lina M. Khan 20, Chopra is Commissioner, Federal Trade Commission; Khan was Academic Fellow, Columbia Law School, Counsel, Subcommittee on Antitrust, Commercial, and Administrative Law, US House Committee on the Judiciary, former Legal Fellow, Federal Trade Commission, “The Case for “Unfair Methods of Competition” Rulemaking,” The University of Chicago Law Review, Vol. 87, pp 357-379

“Rulemaking” evokes the idea of some inflexible prescription This is not what we are suggesting rulemaking can also be standards, guidelines, pointers, criteria, or presumptions While not promulgated as rules the merger guidelines came to serve as rules stipulate the analytical framework to enforce law rulemaking could do the same for “ unfair competition

“Rulemaking” often evokes the idea of gov ernment imposing some inflexible prescription up on the marketplace . This is not what we are suggesting rulemaking can also be related to “ standards, guidelines, pointers, criteria, or presumptions Rules come from courts legislative bodies, and agencies . While they were not promulgated as agency rules , certain elements of the merger guidelines eventually came to serve as rules once courts adopted them stipulate the analytical framework agencies rely on to enforce the law . Agency rulemaking could do the same for “ unfair methods of competition .”

idea gov inflexible prescription up on the marketplace not what we are suggesting also standards, guidelines, pointers, criteria, or presumptions courts legislative agencies promulgated as merger guidelines as courts analytical framework could do the same unfair methods of competition

['“Rulemaking” often evokes the idea of government imposing some inflexible prescription upon the marketplace. This is not what we are suggesting. As former Commissioner Elman rightly noted, rulemaking can also be related to “standards, guidelines, pointers, criteria, or presumptions.”41 Rules come from courts, legislative bodies, and agencies. While they were not promulgated as agency rules, certain elements of the merger guidelines eventually came to serve as rules once courts adopted them.42 The merger guidelines stipulate the analytical framework that the agencies rely on to enforce the merger law. Agency rulemaking could do the same for “unfair methods of competition.”']

[(6, 14), (23, 30)]

b395dd7afd47d399d9c70df4d6f66fe35fb20896e4af962feca70e44f5dfed98

Empirics from the NLRB prove that such ‘balancing test’ rulemaking can receive Chevron deference---AND, it can be flexible over time

Royce Zeisler 14, J.D. Candidate 2014, Columbia Law School; B.S., B.A. 2012, University of British Columbia, “Chevron Deference and the FTC: How and Why the FTC Should Use Chevron to Improve Antitrust Enforcement Note,” Columbia Business Law Review, vol. 2014, no. 1, 2014, pp. 266–312

FTC Chevron form presumptions for adjudication this is a different style than traditional notice-and-comment reg s set standards to use while judging claims of "unfair practices." these differ from direct regulation they would not directly prohibit but instead set the legal framework for review create a continually-adapting section 5 jurisprudence free of ossifying effects this occurred with NLRB was challenged and a unanimous Court upheld based on Chevron section 5 can promulgate fine-grained presumptions applied formulaically Alternatively expand liability by adopting frameworks for assessing e.g., essential facilities

The Expertise-Driven Nature of Antitrust Jurisprudence Further Justifies the FTC's Use of Chevron this Note advocates that the FTC take advantage of Chevron deference to form presumptions needed for antitrust adjudication this form of regulation is of a different style than traditional notice-and-comment Often, reg ulation s set out standards In comparison , these regulations are legal presumptions to use while judging claims of "unfair business practices." Thus, these rules differ from direct regulation becau se they would not directly prohibit conduct, but would instead set out the legal framework for a review ing court to use this has ability to create a continually-adapting section 5 jurisprudence free of the ossifying effects of stare decisis An instructive use of this style of regulation occurred with the NLRB the NLRB promulgated its first rule seeking to cease the costly, frequent, and ineffective litigation aimed at determining collective bargaining units in hospitals Specifically, the regulation created the legal presumption that, absent "extraordinary circumstances," there were only eight possible collective bargaining units in acute care hospitals In limiting the presumed form of bargaining units, the NLRB specifically intended to overrule conflicting precedent After promulgation, this rule was challenged and a unanimous Court upheld the regulation based on Chevron Turning to section 5 , the FTC can promulgate fine-grained presumptions that will be applied formulaically ; e.g., when evaluating predation claims, the appropriate marginal cost of commodity Y is X. Alternatively could expand liability by adopting entire frameworks for assessing liability, e.g., the essential facilities doctrine In assessing the merits of any of these uses, the fundamental considerations are that a presumption must (1) take advantage of the FTC's unique ability to form these presumptions, and (2) actually be within the FTC's delegated authority the interaction of the Sherman Act with section 5 means that FTC Chevron space has an outer and an inner limitation. The outer limitation prevents section 5 from being interpreted to prevent conduct that is clearly permitted by antitrust The inner limitation prevents Chevron deference from extending to common law legal terms The FTC cannot simply conclude that a "monopoly is X." The FTC can , however, conclude that an "unfair section 5 monopoly is X."

Expertise-Driven Further Justifies the FTC's Use of Chevron take advantage of Chevron deference form presumptions antitrust adjudication different style traditional notice-and-comment reg s standards comparison these legal presumptions while judging claims differ direct not directly prohibit instead legal framework review continually-adapting section 5 jurisprudence free ossifying effects NLRB litigation legal presumption eight possible collective bargaining units overrule conflicting precedent challenged unanimous Court upheld the regulation based on Chevron promulgate fine-grained presumptions that will be applied formulaically Alternatively expand liability frameworks assessing essential facilities doctrine ability form permitted can conclude that an "unfair section 5 monopoly is X."

["B. The Expertise-Driven Nature of Antitrust Jurisprudence Further Justifies the FTC's Use of Chevron", 'The above limitations take on particular salience within antitrust jurisprudence. Courts often decide antitrust cases not based on certainty, but by referring to a legal presumption about market structure. The advantage of these presumptions is that they obviate the need for an extended analysis.1 28 Some of these presumptions are simply about the likelihood of particular conduct actually occurring. For example, "predatory pricing schemes are rarely tried, and even more rarely successful. 129 Others are fundamental presumptions regarding the merit of the conduct: e.g., the standard for per se liability.1 30 While it makes sense to use these presumptions, the basis on which courts actually form hese broad determinations is unclear. Are courts limited to information provided by litigants? Or do they leverage a wider scope of judicial understanding?', 'With these institutional differences in mind, this Note advocates that the FTC take advantage of Chevron deference to form, with judicial oversight and consent, the presumptions needed for antitrust adjudication. Crucially, this form of regulation is of a different style than traditional notice-and-comment regulation. Often, regulations set out standards to which regulated parties must adhere. In comparison, these proposed regulations are legal presumptions for the judiciary to use while judging claims of "unfair business practices." Thus, these rules differ from direct regulation of business, because they would not directly prohibit certain conduct, but would instead set out the legal framework for a reviewing court to use. In this sense, the FTC has the ability to create a continually-adapting section 5 jurisprudence free of the ossifying effects of stare decisis.', 'An instructive use of this style of regulation occurred in 1991 with the National Labor Relations Board\'s ("NLRB") promulgation of 29 C.F.R. § 103.30. There, the NLRB promulgated its first rule seeking to cease the costly, frequent, and ineffective litigation aimed at determining collective bargaining units in hospitals.1 3 1 Specifically, the regulation created the legal presumption that, absent "extraordinary circumstances," there were only eight possible collective bargaining units in acute care hospitals. 132 In limiting the presumed form of bargaining units, the NLRB specifically intended to overrule conflicting precedent and create a legal presumption for courts to employ. After promulgation, this rule was challenged and a unanimous Supreme Court upheld the regulation partly based on Chevron deference. 33 Notably, this regulation did not turn litigation into a simple application of predetermined values (as the rules in Vermont Yankee did). 3\'4 It simply set the presumption for generalist courts to deploy in deciding the existence of bargaining units.', 'Turning to section 5, the FTC can promulgate fine-grained presumptions that will be applied formulaically; e.g., when evaluating predation claims, the appropriate marginal cost of commodity Y is X.\'135 Alternatively, the FTC could expand liability by adopting entire frameworks for assessing liability, e.g., the essential facilities doctrine.13 6 In assessing the merits of any of these uses, the fundamental considerations are that a presumption must (1) take advantage of the FTC\'s unique ability to form these presumptions, and (2) actually be within the FTC\'s delegated authority. As previously discussed, the interaction of the Sherman Act with section 5 means that FTC Chevron space has an outer and an inner limitation. The outer limitation prevents section 5 from being interpreted to prevent conduct that is clearly permitted by antitrust norms.1 37 The inner limitation prevents Chevron deference from extending to common law legal terms. The FTC cannot create the norms of the Sherman Act, and therefore cannot receive Chevron deference for its interpretations of those parts of section 5 that simply incorporate these principles. As a practical matter, this often amounts to a procedural drafting requirement rather than a substantive limitation.1 38 The FTC cannot simply conclude that a "monopoly is X." The FTC can, however, conclude that an "unfair section 5 monopoly is X."']

[(6, 16)]

316f58642d3faa178cdba07a13b38ec598503f79ebec50a1b0d55871cd4ae12d

It’s a prototypical Chevron case. Courts would apply deference and uphold the rule.

Justin (Gus) Hurwitz 14, Assistant Professor of Law, University of Nebraska College of Law, “Chevron and the Limits of Administrative Antitrust,” University of Pittsburgh Law Review, vol. 76, no. 2, 2, 2014, lawreview.law.pitt.edu, doi:10.5195/lawreview.2014.324

Section 5 is precisely the sort of statute to which Chevron apply every word rife with ambiguity Absent clarifying language ambiguity is sufficient The task of courts is to ensure construction is permissible statutory history demonstrated broad discretion a case study in the rationales for Chevron intent expertise courts’ limited accountability and s o p It is hard to imagine a statute better suited

As a threshold matter, Section 5 is precisely the sort of statute to which Chevron is meant to apply At a mechanical level, Chevron instructs to first ask whether the statute is clear u m c are inherently ambiguous Nearly every word is rife with ambiguity : What is unfair? Unfair to whom? What is a method? A practice? What is competition? As the Court has noted , the standard is “ by necessity elusive Absent clarifying language in the statute itself the ambiguity inherent in the language of Section 5 is sufficient to trigger Chevron The sole task of the courts is to ensure that construction is permissible The statutory history has consistently demonstrated a congressional intent to grant the FTC broad discretion Section 5 was enacted in response to concerns that the courts had interpreted the antitrust laws too narrowly When the Court imposed an overly narrow construction Congress amended the statute to overcome that narrowing interpretation Section 5 is, thus, a case study in each of the four rationales for Chevron deference congressional intent ; agency expertise ; concern about courts’ limited political accountability and s eparation o f p owers—all of which urge deference to the FTC’s interpretation of Section 5. It is hard to imagine a statute better suited to Chevron deference

threshold precisely the sort of statute to which Chevron is meant to apply mechanical u m c inherently ambiguous every word unfair? whom? method? practice? competition? Court has noted by necessity elusive Absent clarifying language statute itself inherent sufficient to trigger Chevron courts permissible statutory history consistently demonstrated a congressional intent to grant the FTC broad discretion response courts too narrowly amended overcome case study in each of the four rationales for Chevron deference congressional intent ; agency expertise ; concern about courts’ limited political accountability s o p hard to imagine a statute better suited to Chevron deference

['A. Section 5 is Precisely the Sort of Statute to Which Chevron Applies ', 'As a threshold matter, Section 5 is precisely the sort of statute to which Chevron deference is meant to apply.167 At a mechanical level, Chevron instructs courts to first ask whether the meaning of the statute is clear.168 Both “unfair methods of competition” and “unfair or deceptive acts or practices” are inherently ambiguous; courts need not turn to historical documents to determine whether a specific meaning was intended by Congress or whether Congress clearly intended to delegate interpretive authority to the FTC. Nearly every word of the statute is rife with ambiguity: What is unfair? Unfair to whom? What is deceptive? What is a method? An act? A practice? What is competition? As the Court has noted, the standard is “by necessity, an elusive one.”169 ', 'Absent clarifying language in the statute itself, or in some cases references outside the statute that indicate contrary congressional intent,170 the ambiguity inherent in the language of Section 5 is sufficient to trigger Chevron deference. The sole task of the courts is—or should be—to ensure that, whatever construction the FTC gives to Section 5, that construction is permissible within the boundaries of the statute.171 ', 'The argument for deference is even stronger when we consider outside references. The statutory history has consistently demonstrated a congressional intent to grant the FTC broad discretion to define the scope of Section 5 and, in particular, that the scope of Section 5 is broader than that of the antitrust laws.172 Section 5 was enacted in response to concerns that the courts had interpreted the antitrust laws too narrowly;173 it was deliberately drafted with language that had not previously been considered by the courts.174 When the Court imposed an overly narrow construction on the statute in the 1950s, Congress amended the statute to overcome that narrowing interpretation.175 ', 'Section 5 is, thus, a case study in each of the four rationales for Chevron deference:176 congressional intent; agency expertise; concern about the courts’ limited political accountability as compared to Congress and its agencies; and the separation of powers—all of which urge deference to the FTC’s interpretation of Section 5. It is hard to imagine a statute better suited to Chevron deference than Section 5. ']

[(13, 23)]

f4647422170a73ce2eef7605a25c8dc2adafb08dc55fc3005cc1656393a5a1f3

First, DETERRENCE---the threat of enforcement deters infractions.

Justin (Gus) Hurwitz 14, Assistant Professor of Law, University of Nebraska College of Law, “Chevron and the Limits of Administrative Antitrust,” University of Pittsburgh Law Review, vol. 76, no. 2, 2, 2014, lawreview.law.pitt.edu, doi:10.5195/lawreview.2014.324

FTC Section 5 u m c claims high-profile cases have ultimately settled litigation uncertainty can be leverage in securing a settlement the complaint cite only Section 5 In the vast majority of cases, this is sufficient to settle prior to filing

Most FTC use of Section 5 u m c claims focus ed on high-profile cases that have ultimately settled . When bringing a claim, the FTC need not allege anything more than a reason to believe Section 5 has been violated The FTC need not frame its allegations with any greater specificity This increases litigation uncertainty which can be used as leverage in securing a favorable settlement Often, the complaint will cite only Section 5 as the legal basis for the complaint. In the vast majority of cases, this is sufficient to spur the target of the investigation to settle typically, the settlement will have been agreed to prior to filing

Most FTC u m c focus high-profile cases settled reason to believe specificity uncertainty leverage settlement only Section 5 vast majority of cases, this is sufficient to spur the target of the investigation to settle prior to filing

['Cases in which the FTC has asserted a broader understanding of Section 5 have generally been resolved in one of two ways: settlement or litigation. Most of the attention paid to the FTC’s expanded use of Section 5 unfair methods of competition claims has focused on high-profile cases that have ultimately settled. When initially bringing a claim, the FTC need not allege anything more than a reason to believe that Section 5 has been violated.147 The FTC need not frame its allegations with any greater specificity; in particular, it need not specify whether it asserts a violation of the traditional antitrust laws (which it can enforce under Section 5) or a standalone Section 5 claim. Rather than limit its options, the FTC typically does not specify a precise legal theory but rather embraces the expansive ambiguity inherent in Section 5’s “unfairness” standard. This approach increases the litigation uncertainty faced by the targets of an FTC investigation, which can be used as leverage by the FTC in securing a favorable settlement.148 This was the pattern used in McWane (discussed below). The FTC also used it in three recent high-profile investigations into high-tech industries: Intel,149 N-Data,150 and Google.151 This approach has also been the basis of the FTC’s privacy and data security jurisprudence, spanning more than one hundred cases.152 ', 'While the FTC’s use of Section 5 in high-profile cases has garnered the most attention, its use of Section 5 in lower profile cases, especially those that do not settle, is more revealing. As an administrative agency, a case brought by the FTC is typically heard by an Administrative Law Judge (“ALJ”).153 The FTC prepares and files a complaint, the subject of the investigation files an answer, and both parties submit briefs of their arguments to the ALJ, who will then submit findings of fact and law in an Initial Decision to the Commission.154 ', 'A curious thing has happened between the complaint and briefing stages of unfair method of competition cases that the FTC brings before an ALJ. Often, the complaint will cite only Section 5 as the legal basis for the complaint. In the vast majority of cases, this is sufficient to spur the target of the investigation to settle, and, typically, the settlement will have been agreed to prior to the filing of the complaint. In those cases that do not settle, the FTC explains in its brief that Section 5 unfair methods of competition claims incorporate Sections 1 and 2 of the Sherman Act.155 ']

[(13, 23)]

fe656f21b1a850f93081a6eed425bdc0403e316701f2953defa4645a635624bc

That solves even without a ruling

Paolo Morante et al. 10, Paolo Morante, Stuart Pollack and Jarod Bona are attorneys with DLA Piper; Morante and Pollack are based in the firm’s New York office, and Bona is in the firm’s Minneapolis and San Diego offices, “Does My Reverse-Payment Settlement Violate the Antitrust Laws?,” Pharmaceutical Law & Industry Report, 8 PLIR 732, 06/04/2010, https://www.theantitrustattorney.com/files/2013/12/BNA_Pharmaceutical_Law_Industry_Report_Jun10.pdf

Even if FTC cannot persuade courts antitrust should prohibit it can rely on Section 5 no court yet ruled on Section 5 alone . Even absent such companies proceed with caution , as FTC investigation can be nsome and expensive regardless of ultimate merit

Even if the FTC cannot persuade the courts that federal antitrust laws should prohibit it can reach beyond traditional antitrust law and rely instead on the unfair competition prong of Section 5 of the FTC A most commentators agree that Section 5 is broader than Sherman the FTC rarely invoked it as the stand-alone basis for a cause of action to reach conduct that would be legal no court has yet ruled on legality under Section 5 alone . Even absent such a ruling, companies considering proceed with caution , as an FTC investigation can be significantly burde nsome and expensive regardless of ultimate merit

persuade the courts prohibit beyond traditional antitrust law unfair competition prong of Section 5 of the FTC A most commentators agree broader Sherman rarely invoked it stand-alone basis would legal ruled legality Section 5 alone absent considering proceed with caution FTC investigation significantly burde nsome expensive regardless ultimate merit

['Even if the FTC cannot persuade the courts that the federal antitrust laws should prohibit reverse-payment settlements, it can reach beyond traditional federal antitrust law and rely instead on the unfair competition prong of Section 5 of the FTC Act to challenge these arrangements. Although most commentators agree that Section 5 is broader than the Sherman Act, the FTC rarely has invoked it as the stand-alone basis for a cause of action to reach conduct that would be legal under the antitrust laws. The FTC did test Section 5’s boundaries in the early 1980s, but mostly was rebuffed and, until very recently, has shied away from basing its actions exclusively on Section 5. Recent statements and speeches by some FTC commissioners, however, have emphasized that the agency, as a matter of policy, is determined to seek opportunities to bring pure Section 5 cases in the future. Indeed, in late 2009, the FTC exercised this policy goal when it filed a massive antitrust action against Intel that was expressly based upon a substantive Section 5 claim. The law governing Section 5 claims is sparse and, not surprisingly, no court has yet ruled on the legality of reverse-payment settlements under Section 5 alone. Even absent such a ruling, companies considering a reverse-payment settlement should proceed with caution, as an FTC investigation can be significantly burdensome and expensive regardless of its ultimate merit.']

[(6, 23)]

7b1143e3bdfd50248f7d67c1e5a4bea3ec9b1cbeeb7f2b82ff1fc0f9408d6b8f

Deference is way more likely if there’s a rule rather than just ad hoc enforcement.

Tim Wu 13, Isidor and Seville Sulzbacher Professor of Law at Columbia Law School, “Tim Wu on Section 5 Guidelines Would Make the FTC Stronger and Better,” Truth on the Market, 8-1-2013, https://truthonthemarket.com/2013/08/01/tim-wu-on-section-5-guidelines-would-make-the-ftc-stronger-and-better/

a policy could be useful for litigation . If the agency stand up and say here are our standards for Section 5, and here’s why this firm violated them , that s much stronger than we didn’t like this so we trotted out section 5 The former seems likely to get deference , the latter mockery policy would eliminate uncertainty

for the agency’s work, a policy statement could be a useful thing for litigation . If the agency can stand up in appellate court and say here are our standards for Section 5, and here’s why we think this firm violated them , that s trikes much stronger than we didn’t like this so we trotted out section 5 The former seems much more likely to get deference , the latter mockery for those subject to Section 5 a policy would eliminate uncertainty if the agency repudiated some of the wilder visions of what section 5 covers

useful litigation here are our standards for Section 5, and here’s why we think this firm violated them that s much stronger we didn’t like this so we trotted out section 5 former much more likely to get deference latter mockery subject policy eliminate uncertainty wilder

['Relatedly, for the agency’s work, a policy statement could be a useful thing for litigation. If the agency can stand up in appellate court and say, (1) here are our standards for Section 5, and (2) here’s why we think this firm violated them, that strikes me as much stronger than something along the lines of, “we didn’t like what this firm was doing so we trotted out section 5 to deal with it.” The former position seems much more likely to get at least Skidmore deference, the latter position, judicial mockery.', 'Externally, and I’m sure others have said this, for those subject to Section 5 (and by this I suppose I mean just about every business other than common carriers) a policy statement would obviously eliminate some uncertainty, particularly if the agency repudiated some of the wilder visions of what section 5 covers. For example, I think the FTC could and should walk away from:']

[(4, 9)]

64ee0cb059772c26e2231a97962347af2206c73acc62b37f6be11e15f5f97ea7

Jones and Kovacic is about FTCA Section 5 enforcement actions, NOT about rulemaking.

Alison THEIR AUTHORS Jones & William E. Kovacic 20, Alison Jones, King’s College London, London, United Kingdom; William E. Kovacic, King’s College London, George Washington University, and United Kingdom Competition and Markets Authority, “Antitrust’s Implementation Blind Side: Challenges to Major Expansion of U.S. Competition Policy,” The Antitrust Bulletin, vol. 65, no. 2, SAGE Publications Inc, 06/01/2020, pp. 227–255

One solution is for the FTC to rely on prosecution based on Section 5 the FTC undertook ambitious enforcement of claims predicated on Section 5

One possible solution to rigidities that have developed in Sherman Act jurisprudence is for the FTC to rely more heavily on the prosecution based on Section 5 of the FTC Act In the 1970s, the FTC undertook an ambitious program to make the enforcement of claims predicated on the distinctive reach of Section 5

FTC prosecution based on Section 5 of the FTC Act enforcement claims

['One possible solution to rigidities that have developed in Sherman Act jurisprudence is for the FTC to rely more heavily on the prosecution, through its own administrative process, of cases based on Section 5 of the FTC Act and its prohibition of “unfair methods of competition.”93 This section allows the FTC94 to tackle not only anticompetitive practices prohibited by the other antitrust statutes but also conduct constituting incipient violations of those statutes or behavior that exceeds their reach. The latter is possible where the conduct does not infringe the letter of the antitrust laws but contradicts their basic spirit or public policy.95', 'There is no doubt therefore that Section 5 was designed as an expansion joint in the U.S. antitrust system. It seems unlikely to us, nonetheless, that a majority of FTC’s current members will be minded to use it in this way. Further, even if they were to be, the reality is that such an application may encounter difficulties. Since its creation in 1914, the FTC has never prevailed before the Supreme Court in any case challenging dominant firm misconduct, whether premised on Section 2 of the Sherman Act or purely on Section 5 of the FTC Act.96 The last FTC success in federal court in a case predicated solely on Section 5 occurred in the late 1960s.97', 'The FTC’s record of limited success with Section 5 has not been for want of trying. In the 1970s, the FTC undertook an ambitious program to make the enforcement of claims predicated on the distinctive reach of Section 5, a foundation to develop “competition policy in its broadest sense.”98 The agency’s Section 5 agenda yielded some successes,99 but also a large number of litigation failures involving cases to address subtle forms of coordination in oligopolies, to impose new obligations on dominant firms, and to dissolve shared monopolies.100 The agency’s program elicited powerful legislative backlash from a Congress that once supported FTC’s trailblazing initiatives but turned against it as the Commission’s efforts to obtain dramatic structural remedies unfolded.101']

[(7, 28), (40, 50)]

92633bdc1ced303264d9ea7fc77f50827b27148f32840f0bbc955b679876f6e6

Past decisions prove it would be covered.

Royce Zeisler 14, J.D. Candidate 2014, Columbia Law School; B.S., B.A. 2012, University of British Columbia, “Chevron Deference and the FTC: How and Why the FTC Should Use Chevron to Improve Antitrust Enforcement Note,” Columbia Business Law Review, vol. 2014, no. 1, 2014, pp. 266–312

Had Chevron existed in the 70s the case for deference to FTC would have been clear the FTC exercised exclusive rulemaking authority over a statute with reach and interpretation the initial requirement for deference was present: delegation through ambiguity the Court regularly recognized section 5's separate and ambiguous scope

Had Chevron deference existed in the 19 70s the case for granting deference to the FTC would have been clear . A t that time , the FTC exercised exclusive rulemaking authority over a statute with a unique reach and interpretation Likewise, the initial requirement for Chevron deference was present: delegation through ambiguity the Supreme Court regularly recognized section 5's separate and ambiguous scope

70s FTC clear that time exclusive rulemaking authority over a statute with a unique reach and interpretation initial requirement delegation through ambiguity regularly recognized separate ambiguous scope

["Had Chevron deference existed in the 1970s, the case for granting deference to the FTC would have been clear. At that time, the FTC exercised exclusive rulemaking authority over a statute with a unique reach and interpretation. Likewise, the initial requirement for Chevron deference was present: delegation through ambiguity. Granted, the DOJ was acting as an antitrust enforcer with the same goal, but the Supreme Court regularly recognized section 5's separate and ambiguous scope.96 "]

[(6, 16)]

287065a034dd52bb1cfc2cbfe9d5ee1427041181f16e01e8bfeb5b7f550a2270

If it had, there’d have been a clear case for deference.

Royce Zeisler 14, J.D. Candidate 2014, Columbia Law School; B.S., B.A. 2012, University of British Columbia, “Chevron Deference and the FTC: How and Why the FTC Should Use Chevron to Improve Antitrust Enforcement Note,” Columbia Business Law Review, vol. 2014, no. 1, 2014, pp. 266–312

Had Chevron existed in the 70s the case for deference to FTC would have been clear the FTC exercised exclusive rulemaking authority over a statute with reach and interpretation the initial requirement for deference was present: delegation through ambiguity the Court regularly recognized section 5's separate and ambiguous scope

Had Chevron deference existed in the 19 70s the case for granting deference to the FTC would have been clear . A t that time , the FTC exercised exclusive rulemaking authority over a statute with a unique reach and interpretation Likewise, the initial requirement for Chevron deference was present: delegation through ambiguity the Supreme Court regularly recognized section 5's separate and ambiguous scope

70s FTC clear that time exclusive rulemaking authority over a statute with a unique reach and interpretation initial requirement delegation through ambiguity regularly recognized separate ambiguous scope

["Had Chevron deference existed in the 1970s, the case for granting deference to the FTC would have been clear. At that time, the FTC exercised exclusive rulemaking authority over a statute with a unique reach and interpretation. Likewise, the initial requirement for Chevron deference was present: delegation through ambiguity. Granted, the DOJ was acting as an antitrust enforcer with the same goal, but the Supreme Court regularly recognized section 5's separate and ambiguous scope.96 "]

[(6, 16)]

0788915155e3c94cee8b6614b770beca14e69874cf88dbc87175ead6d9f73c17

BUT, even before Chevron was decided, courts showed willingness to defer to FTC interpretations.

Justin (Gus) Hurwitz 14, Assistant Professor of Law, University of Nebraska College of Law, “Chevron and the Limits of Administrative Antitrust,” University of Pittsburgh Law Review, vol. 76, no. 2, 2, 2014, lawreview.law.pitt.edu, doi:10.5195/lawreview.2014.324

Indiana Dentists is cited for de novo review this is an over-reading the case can be entirely in line with Chevron Indiana Dentists had been argued before Chevron was decided FTC was arguing for an uncontroversial interpretation never seek deference had no need to argue for any it would have been surprising had the Court cited Chevron today it is Chevron , not Indiana Dentists, that is the law of the land for every regulatory agency other than FTC Section 5 is ambiguous therefore the FTC choose the legal standard This is the standard established by Chevron the FTC has been shell-shocked from pre-Chevron losses and failed to recognize the current deferential state of law

Indiana Federation of Dentists bears special discussion . It is regularly cited for the proposition that courts conduct de novo review it seems remarkable that Indiana Federation of Dentists does not even mention Chevron —a fact that has led commentators to believe that “[o]ne cannot explain judicial posture in the antitrust arena in Chevron terms this is an over-reading Indeed, the case can instead be read as entirely in line with Chevron . it is unsurprising that Indiana Federation of Dentists does not cite Chevron. The Indiana Federation of Dentists petitioned for certiorari from a Seventh Circuit opinion that had been argued before Chevron was decided the FTC was arguing for an uncontroversial interpretation of Section 5 the FTC had never structured its case to seek deference , and it had no need to argue for any deference Given the case’s history and posture, it would have been more surprising had the parties or the Court cited to Chevron . Moreover, it took years for the importance of Chevron to become understood and to filter its way into judicial review of agency statutory interpretation most importantly, today it is Chevron , not Indiana Federation of Dentists, that is recognized as the law of the land —at least, for every regulatory agency other than the FTC the Court recognizes that Section 5 is inherently ambiguous . It is, therefore up to the FTC to choose the legal standard under which conduct will be reviewed This is precisely the standard established by Chevron The legal issues presented are for the courts to resolve—but according to the legal standard prescribed by the FTC because the FTC has been reluctant to advance a more deferential standard shell-shocked as it is from pre-Chevron losses and has failed to recognize the current agency- deferential state of administrative law

special discussion de novo review mention Chevron cannot explain judicial posture in the antitrust arena in Chevron terms over-reading instead entirely in line with Chevron argued before Chevron was decided uncontroversial interpretation of Section 5 seek had no need to argue for any deference more surprising cited years importance filter its way into judicial review today Chevron every regulatory agency other than the FTC recognizes inherently ambiguous up to the FTC to choose the legal standard under which conduct will be reviewed precisely the standard established by Chevron according legal standard prescribed by the FTC advance shell-shocked pre-Chevron losses failed to recognize the current agency- deferential state of administrative law

['C. Indiana Federation of Dentists Supports Application of Chevron ', 'Indiana Federation of Dentists bears special discussion. It is regularly cited for the proposition that courts conduct de novo review of FTC legal determinations under Section 5, according some (limited) deference to the FTC.219 It also bears special note as it is the most recent Supreme Court opinion considering the application of Section 5’s prohibition against unfair methods of competition—the only opinion to do so since Chevron.220 ', 'The most cited passage from Indiana Federation of Dentists explains that: ', 'The legal issues presented—that is, the identification of governing legal standards and their application to the facts found—are, by contrast, for the courts to resolve, although even in considering such issues the courts are to give some deference to the [FTC’s] informed judgment that a particular commercial practice is to be condemned as “unfair.”221 ', 'This language has been cited as requiring do novo review of all legal questions, including the legal meaning of Section 5.222 Dan Crane has called this an “odd standard,”223 noting that ordinarily “this is technically a question of Chevron deference, although the courts have not articulated it that way in the antitrust space.”224 Indeed, it seems remarkable that Indiana Federation of Dentists does not even mention Chevron—a fact that has led antitrust commentators to believe that “[o]ne cannot explain judicial posture in the antitrust arena in Chevron terms.”225 But this is an over-reading of Indiana Federation of Dentists. Indeed, the case can instead be read as entirely in line with Chevron. ', 'First, it is unsurprising that Indiana Federation of Dentists does not cite Chevron. The Indiana Federation of Dentists petitioned for certiorari from a Seventh Circuit opinion that had been argued before Chevron was decided, and the FTC was arguing for an uncontroversial interpretation of Section 5 as applying Section 1 of the Sherman Act.226 In other words, the FTC had never structured its case to seek deference, and it had no need to argue for any deference before the Court. Given the case’s history and posture, it would have been more surprising had the parties or the Court cited to Chevron. ', 'Moreover, it took several years for the importance of Chevron to become understood and to filter its way into judicial review of agency statutory interpretation. Over the next several years, the circuits regularly cited Indiana Federation of Dentists to explain the standard of review for an agency’s interpretation of its organic statutes.227 Importantly, these cases recognized that there was some confusion as to the changing standard of review,228 framed their analysis in terms of Skidmore (the precursor to Chevron in this line of cases),229 and largely reached Chevron-like conclusions, despite Indiana Federation of Dentists’s suggestion of a lower level of deference.230 Perhaps most importantly, today it is Chevron, not Indiana Federation of Dentists, that is recognized as the law of the land—at least, for every regulatory agency other than the FTC. ', 'Indeed, a close reading of Indiana Federation of Dentists finds that it accords with Chevron. The continuation of the paragraph quoted above goes on to explain that: ', 'The standard of “unfairness” under the [FTCA] is, by necessity, an elusive one, encompassing not only practices that violate the Sherman Act and the other antitrust laws, but also practices that the [FTC] determines are against public policy for other reasons. Once the [FTC] has chosen a particular legal rationale for holding a practice to be unfair, however, familiar principles of administrative law dictate that its decision must stand or fall on that basis, and a reviewing court may not consider other reasons why the practice might be deemed unfair. In the case now before us, the sole basis of the FTC’s finding of an unfair method of competition was [its] conclusion that the [alleged conduct] was an unreasonable and conspiratorial restraint of trade in violation of § 1 of the Sherman Act. Accordingly, the legal question before us is whether the [FTC’s] factual findings, if supported by evidence, make out a violation of Sherman Act § 1.231 ', 'This language alters the paragraph’s initial proposition that the legal issues are for determination by the courts. Rather, the Court recognizes that Section 5 is inherently ambiguous. It is, therefore, up to the FTC to choose the legal standard under which that conduct will be reviewed: “[A] reviewing court may not consider other reasons why the practice might be deemed unfair.” ', 'This is precisely the standard established by Chevron: First, the courts determine whether the statute is ambiguous, and, if it is not, the court’s reading of the statute is binding; but if it is ambiguous, the court defers to the agency’s construction.232 Part of why Chevron is a difficult test is that both parts of this analysis do, in fact, present legal questions for the court. The first step is purely legal, as the court determines on its own whether the statute is ambiguous. Then, at step two, the legal question is whether the agency correctly applied the facts to its declared legal standard—as the Court recognized in Indiana Federation of Dentists, “the legal question before us is whether the FTC’s factual findings make out a violation of Sherman Act § 1.”233 Thus, the opening, oft-quoted first sentence of the paragraph234 is correct and in accord with Chevron: The legal issues presented are for the courts to resolve—but according to the legal standard prescribed by the FTC. ', 'The most likely reason that Indiana Federation of Dentists is viewed as the standard of review for the FTC’s interpretation of Section 5 is because the FTC has not sought greater deference. This is in part because, where the FTC couches enforcement of Section 5 in the antitrust laws, it can safely rely on judicially- crafted understandings of the antitrust laws without any need to seek deference. Thus, in Schering-Plough, where the FTC’s finding was based on Section 1 of the Sherman Act, the FTC’s brief recounted Indiana Federation of Dentists as requiring de novo review of its legal determinations—a standard that was then used by the Eleventh Circuit in its opinion.235 But it is also surely in part because the FTC has been reluctant to advance a more deferential standard (shell-shocked as it is from pre-Chevron losses)236 and has failed to recognize the current agency- deferential state of administrative law. ']

[(13, 23)]

31c62f942bb3dabe4008fb0e4e8736e2d7987bfb2036ee357c52c96e029ea840

AND, recent clarification of FTC authority reassures the courts.

Steven C. Salop & Charlotte Slaiman 21, Steven C. Salop, Professor of Economics and Law, Georgetown University Law Center; and Charlotte Slaiman, Public Knowledge Competition Policy Director, “A New Section 5 Policy Statement Can Help the FTC Defend Competition,” Public Knowledge @ Medium, 7/19/21, https://publicknowledge.medium.com/a-new-section-5-policy-statement-can-help-the-ftc-defend-competition-a76451eacb39

a new statement explaining how they plan to use Section 5 would be a valuable way to show courts what is coming rules under Section 5 will face scrutiny At that time, it help to have a clear Policy Statement This maximize the impact FTC have assuaging detractors who say there is no limit

the decision to rescind its 2015 Section 5 Policy Statement is particularly relevant in light of the growing recognition of the hurdles preventing effective antitrust enforcement. replacing the Statement with a new statement explaining how they plan to use Section 5 to increase competition would be a valuable way to show parties and courts what is coming the distinction between Section 5 and other statutes is often ignored or suppressed by commentators who object to more vigorous antitrust enforcement by the FTC. Eventually, the FTC’s rules under Section 5 will face the scrutiny of the courts . At that time, it may be particularly help ful to have a clear Policy Statement of how the FTC is interpreting Section 5. This can maximize the impact the FTC can have while assuaging concerns of detractors who say there is no limit ing principle .

2015 Section 5 Policy Statement particularly hurdles effective antitrust enforcement. new explaining how use Section 5 to increase competition valuable way what is coming other statutes ignored suppressed rules will scrutiny of the courts that particularly help ful to have a clear Policy Statement maximize the impact the FTC can have assuaging detractors no limit

['We generally agree with the Federal Trade Commission’s decision to rescind its 2015 Section 5 Policy Statement. Just as the Department of Justice and Federal Trade Commission Merger Guidelines are regularly updated on the basis of agency experience, legal and economic developments, so should this type of policy statement. Rescinding the old statement is particularly relevant in light of the growing recognition of the hurdles preventing effective antitrust enforcement.', 'Calls for reform have not come solely from Neo-Brandeisian commentators (including both FTC Chair, Lina Khan, and Tim Wu, now a member of the National Economic Council). The need for reform and a varied set of proposals has also been expressed by economics-oriented commentators, including this group of former Justice Department enforcers, Jonathan Baker and Herbert Hovenkamp, among others. Chair Khan in her statement suggested that the Commission would next consider replacing the Policy Statement with a new statement explaining how they plan to use Section 5 to increase competition. We think this would be a valuable way to show parties and courts what is coming. This article provides several suggestions that would be useful to consider and possibly include in the revised Section 5 Policy Statement. It should not be taken as an exhaustive list; there certainly may be other approaches to a revised statement that could also be effective.', 'A revised Policy Statement should make it clear that Section 5 is not identical to the Sherman and Clayton Act and that conduct can be challenged as an unfair method of competition under Section 5 even if it would not violate these other antitrust laws. In fact, even the original 2015 Policy Statement explicitly made this point. But the distinction between Section 5 and these other statutes is often ignored or suppressed by commentators who object to more vigorous antitrust enforcement by the FTC. Eventually, the FTC’s cases and rules under Section 5 will likely face the scrutiny of the courts. At that time, it may be particularly helpful to have a clear Policy Statement of how the FTC is interpreting Section 5. This can help maximize the impact the FTC can have, while assuaging concerns of detractors who say there is no limiting principle.']

[(10, 17), (28, 38)]

b28b0c47cf17d9ca2b273395e9a2759a6fe45e601dc417cdfef9e109e90b70b5

Section 5 rulemaking with Chevron deference can reach extraterritorially.

William S. Dodge 17, Martin Luther King, Jr. Professor of Law, University of California, Davis, School of Law, “Chevron Deference and Extraterritorial Regulation,” 95 N.C. L. Rev. 911,

FTC’s reg s using general rulemaking authority to define geographic scope of a statute to give agencies chance to review whether they violate the FTC A prohibiting u m c great deference to agencies in antitrust includes power to “ define terms in this section no express delegation define geographic scope it seems doubtful a court would cast aside FTC’s guidance and determine geographic scope for itself , whether by the presumption against extraterritoriality or otherwise FTC reg s are evaluated at Chevron step two gives great discretion FTC did not apply presumption against extraterritoriality But did consider commerce and comity that should be sufficient to find reg s reasonable at Chevron

The FTC’s reg ulation s provide a good example of an agency using general rulemaking authority to define the geographic scope of a statute The aim is to give agencies the chance to review in order to determine whether they would violate Clayton or the FTC A prohibiting u m c text does not define geographic scope gives the FTC rulemaking authority to implement the Act Such delegations are rare in antitrust although great er deference to agencies in antitrust the Supreme Court is moving towards authority includes the power to “ define terms used in this section ;” Beyond authority in these grants, there is no express delegation to the FTC of authority to define geographic scope From the start it used its rulemaking authority to define the Act’s geographic scope It seems doubtful that a court asked to determine the geographic scope of HSR without the benefit of the FTC’s guidance would have landed in exactly the same place . But it also seems doubtful that a court would cast aside the FTC’s guidance and seek to determine geographic scope for itself , whether by applying the presumption against extraterritoriality or otherwise As a general matter, FTC reg ulation s are evaluated for reasonableness at Chevron step two HSR gives the FTC “ great discretion to define statutory terms and to promulgate rules to facilitate Government identification of mergers and acquisitions likely to violate federal antitrust laws In determining the geographic scope the FTC did not apply the presumption against extraterritoriality But did consider both the “impact on United States commerce ” and “considerations of comity ” when it decided to exempt “some acquisitions the FTC’s regulations implementing HSR reflect the same values that lie behind the presumption against extraterritoriality the fact that the agency took into account the normative values underlying the presumption should be sufficient to find its reg ulation s reasonable at Chevron step two.

FTC’s reg s general rulemaking authority to define the geographic scope of a statute review Clayton FTC A u m c not geographic scope FTC rulemaking implement the Act rare great deference agencies antitrust moving towards authority includes define terms used in this section no express delegation geographic scope start court geographic scope of HSR FTC’s guidance landed in exactly the same place also doubtful cast aside the FTC’s guidance and seek to determine geographic scope for itself presumption otherwise reg s reasonableness at Chevron step two great discretion not did commerce comity same values behind should be sufficient to find its reg s reasonable at Chevron step two.

['1. Hart-Scott-Rodino', 'The FTC’s regulations implementing HSR307 provide a good example of an agency using general rulemaking authority to define the geographic scope of a statute. HSR prohibits mergers and acquisitions that exceed certain thresholds, unless notification is given to the Department of Justice and the FTC and a waiting period has expired.308 The aim is to give these agencies the chance to review large mergers and acquisitions before they occur in order to determine whether they would violate the Clayton Act309 or the FTC Act.310 [FOOTNOTE 310 BEGINS] 310. Id. § 45(a) (prohibiting “[u]nfair methods of competition” and “unfair or deceptive acts or practices in or affecting commerce”). If the Department of Justice or FTC concludes that an acquisition would violate the Clayton or FTC Acts, it may seek to enjoin the acquisition. Id. § 18a(f). [FOOTNOTE 310 ENDS] HSR’s text does not define its geographic scope, instead speaking broadly of persons “engaged in commerce or in any activity affecting commerce.”311 As the FTC acknowledged when it issued its first regulations under HSR, the Act “contains no special provision for transactions having foreign aspects.”312', 'HSR expressly gives the FTC, with the concurrence of the Justice Department, rulemaking authority to implement the Act.313 [FOOTNOTE 313 BEGINS] 313. 15 U.S.C. § 18a(d). Such delegations are rare in antitrust law, although one author has argued for greater deference to administrative agencies in the antitrust context. See generally Justin (Gus) Hurwitz, Administrative Antitrust, 21 GEO.MASON L.REV. 1191 (2014) (arguing that the Supreme Court is moving towards bringing antitrust law within normal administrative law jurisprudence). [FOOTNOTE 313 ENDS] This authority includes the power to “define the terms used in this section;”314 to “exempt, from the requirements of this section, classes of persons, acquisitions, transfers, or transactions which are not likely to violate the antitrust laws;”315 and to “prescribe such other rules as may be necessary and appropriate to carry out the purposes of this section.”316 Beyond the authority contained in these grants, there is no express delegation to the FTC of authority to define the geographic scope of HSR. ', 'The FTC issued its first regulations implementing HSR in 1978.317 From the start it used its rulemaking authority to define the Act’s geographic scope.318 It defined “commerce” to have the same meaning as in the Clayton and FTC Acts.319 The FTC explained in the Federal Register that because HSR’s commerce criterion “requires only that either the acquiring or the acquired person be engaged in commerce or in any activity affecting commerce,” HSR “permits coverage of a great many transactions that have some or even predominant foreign aspects.”320 To avoid HSR’s application to foreign transactions “with only a minimal impact on United States commerce,”321 the FTC created three foreign commerce exemptions: one for the acquisition of foreign assets;322 a second for the acquisition of voting securities of a foreign issuer;323 and a third for acquisitions by or from foreign government entities.324', 'Although these regulations are phrased as exemptions, their practical effect is actually to subject many acquisitions of assets outside the United States and many acquisitions of securities in foreign companies to the requirements of HSR. The foreign assets exemption, for example, provides that HSR shall not apply to the acquisition of “assets located outside the United States . . . unless the foreign assets the acquiring person would hold as a result of the acquisition generated sales in or into the U.S. exceeding $50 million (as adjusted) during the acquired person’s most recent fiscal year.”325 In other words, the FTC’s regulation provides that HSR does apply to assets located in foreign countries if those assets generated U.S. sales above a certain threshold. This interpretation holds even when both the buyer and the seller are foreign.326 The foreign securities exemption similarly provides that HSR does apply to the acquisition of securities in foreign issuers whose U.S. assets or U.S. sales exceed certain thresholds whether the buyer is a U.S. person327 or a foreign person.328', 'It seems doubtful that a court asked to determine the geographic scope of HSR without the benefit of the FTC’s guidance would have landed in exactly the same place. But it also seems doubtful that a court would cast aside the FTC’s guidance and seek to determine the geographic scope of HSR for itself, whether by applying the presumption against extraterritoriality or otherwise.329 As a general matter, FTC regulations implementing HSR are evaluated for reasonableness at Chevron step two.330 The D.C. Circuit has noted that HSR gives the FTC “great discretion to define statutory terms and to promulgate rules to facilitate Government identification of mergers and acquisitions likely to violate federal antitrust laws.”331', 'In determining the geographic scope of HSR, the FTC did not apply the presumption against extraterritoriality.332 But the FTC did consider both the “impact on United States commerce” and “considerations of comity” when it decided to exempt “some acquisitions whose principal impact is foreign.”333 In other words, the FTC’s regulations implementing HSR reflect the same values—domestic conditions and comity—that lie behind the presumption against extraterritoriality. Under the fourth model for evaluating reasonableness discussed above,334 the fact that the agency took into account the normative values underlying the presumption should be sufficient to find its regulations reasonable at Chevron step two. ']

[(11, 19)]

bcd908e2fa027bb8bd2ece6238b34d4a3b31a546f40e6c1851d8ddd5fca12cdd

Regulations don’t ‘increase prohibitions by… law.’

John Roberts 15, Chief Justice, US Supreme Court, “Department of Homeland Security, Petitioner v. Robert J. MacLean,” 135 S.Ct. 913, WestLaw

is a disclosure prohibited by reg also prohibited by law no Congress used “law” standing alone acts intentionally when it uses particular language choice to say prohibited by law rather than by law, rule, or reg suggests to exclude rules and reg s laws and rule, or regulation cannot , unless we abandon all pretense at precise communication mean the same thing the Gov argues “law” includes at least reg s promulgated pursuant to congressional directive however was unable to find a single example of the word being used that way . Not a single dictionary not a statute not a case law can't be a rule or reg

The Government argues disclosure was prohibited by law MacLean does not dispute that regulations prohibited disclosure Thus, the question here is whether a disclosure that is specifically prohibited by reg ulation is also prohibited by law The answer is no Congress did not use the phrase “law, rule, or regulation ” in the statutory language it used the word “law” standing alone . That is significant because Congress acts intentionally when it uses particular language Congress's choice to say prohibited by law rather than prohibited by law, rule, or reg ulation suggests Congress meant to exclude rules and reg ulation s . laws and law, rule, or regulation cannot , unless we abandon all pretense at precise communication , be deemed to mean the same thing the Gov ernment argues the word “law” includes at least those reg ulation s that were “ promulgated pursuant to an express congressional directive .” however was unable to find a single example of the word “law” being used in that way . Not a single dictionary definition , not a single statute , not a single case . The Government's interpretation happens to fit this case but needs more than that to recommend it “law” meant “ legislative enactment ,” the word law can't be a rule or reg ulation, it means statute prohibited by law means statute fine-grained distinction comes not from Section 114(r)(1) itself but from the Under Secretary's discretion It is the regulations—not the statute —that prohibited And a regulation does not count as “law”

prohibited by law not regulations reg also law no not rule, or regulation “law” standing alone acts intentionally uses particular language say prohibited by law rather than rule, or reg exclude rules and reg s laws law, rule, or regulation cannot abandon all pretense at precise communication mean the same thing Gov includes least reg s pursuant to an express congressional directive unable single example of the word “law” being used in that way single dictionary definition single statute single case happens to fit this case needs more than that to recommend it legislative enactment can't rule or reg statute prohibited by law statute distinction not Section 114(r)(1) itself Under Secretary's discretion regulations—not the statute prohibited regulation not count as “law”

["The Government argues that this whistleblower statute does not protect MacLean because his disclosure regarding the canceled missions was “specifically prohibited by law” in two ways. First, the Government argues that the disclosure was specifically prohibited by the TSA's regulations on sensitive security information: 49 CFR §§ 1520.5(a)-(b), 1520.7(j) (2003). Second, the Government argues that the disclosure was specifically prohibited by 49 U.S.C. § 114(r)(1), which authorized the TSA to promulgate those regulations. We address each argument in turn.", '*390 A', '1', "*391 In 2003, the TSA's regulations prohibited the disclosure of “ [s]pecific details of aviation security measures ... [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations.” 49 CFR § 1520.7(j). MacLean does not dispute before this Court that the TSA's regulations prohibited his disclosure regarding the canceled missions. Thus, the question here is whether a disclosure that is specifically prohibited by regulation is also “ specifically prohibited by law ” under Section 2302(b)(8)(A). (Emphasis added.)", 'The answer is no. Throughout Section 2302, Congress repeatedly used the phrase “law, rule, or regulation.” For example, Section 2302(b)(1)(E) prohibits a federal agency from discriminating against an employee “on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation.” For another example, Section 2302(b)(6) prohibits an agency from “grant[ing] any preference or advantage not authorized by law, rule, or regulation.” And for a third example, Section 2302(b)(9)(A) prohibits an agency from retaliating against an employee for “the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation.”', "1In contrast, Congress did not use the phrase “law, rule, or regulation” in the statutory language at issue here; it used the word “law” standing alone. That is significant because Congress generally acts intentionally when it uses particular language in one section of a statute but omits it in another. Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983). Thus, Congress's choice to say “specifically prohibited by law” rather than “specifically prohibited by law, rule, or regulation” suggests that Congress meant to exclude rules and regulations.", "*392 The interpretive canon that Congress acts intentionally when it omits language included elsewhere applies with particular force here for two reasons. First, Congress used “law” and “law, rule, or regulation” in close proximity—indeed, in the same sentence. § 2302(b)(8)(A) (protecting the disclosure of “any violation of any law, rule, or regulation ... if such disclosure is not specifically prohibited by law”). Second, Congress used the broader phrase “law, rule, or regulation” repeatedly—nine times in Section 2302 alone. See §§ 2302(a)(2)(D)(i), (b)(1)(E), (b)(6), (b)(8)(A) (i), (b)(8)(B)(i), (b)(9)(A), (b)(12), (b)(13), (d)(5). Those two aspects of the whistleblower statute make Congress's choice to use the narrower word “law” seem quite deliberate.", '**920 We drew the same inference in Department of Treasury, IRS v. FLRA, 494 U.S. 922, 110 S.Ct. 1623, 108 L.Ed.2d 914 (1990). There, the Government argued that the word “laws” in one section of the Civil Service Reform Act of 1978 meant the same thing as the phrase “law, rule, or regulation” in another section of the Act. Id., at 931, 110 S.Ct. 1623. We rejected that argument as “simply contrary to any reasonable interpretation of the text.” Id., at 932, 110 S.Ct. 1623. Indeed, we held that a statute that referred to “laws” in one section and “law, rule, or regulation” in another “cannot, unless we abandon all pretense at precise communication, be deemed to mean the same thing in both places.” Ibid. That inference is even more compelling here, because the statute refers to “law” and “law, rule, or regulation” in the same sentence, rather than several sections apart.', 'Another part of the statutory text points the same way. After creating an exception for disclosures “specifically prohibited by law,” Section 2302(b)(8)(A) goes on to create a second exception for information “specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.” This exception is limited to action taken directly by the President. That suggests that the word “law” in the only other exception is limited to actions by Congress—after all, it would be unusual *393 for the first exception to include action taken by executive agencies, when the second exception requires action by the President himself.', 'In addition, a broad interpretation of the word “law” could defeat the purpose of the whistleblower statute. If “law” included agency rules and regulations, then an agency could insulate itself from the scope of Section 2302(b)(8)(A) merely by promulgating a regulation that “specifically prohibited” whistleblowing. But Congress passed the whistleblower statute precisely because it did not trust agencies to regulate whistleblowers within their ranks. Thus, it is unlikely that Congress meant to include rules and regulations within the word “law.”', '2', "2The Government admits that some regulations fall outside the word “law” as used in Section 2302(b)(8)(A). But, the Government says, that does not mean that all regulations are excluded. The Government suggests two interpretations that would distinguish “law” from “law, rule, or regulation,” but would still allow the word “law” to subsume the TSA's regulations on sensitive security information.", "First, the Government argues that the word “law” includes all regulations that have the “force and effect of law” (i.e., legislative regulations), while excluding those that do not (e.g., interpretive rules). Brief for Petitioner 19–22. The Government bases this argument on our decision in Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979). There, we held that legislative regulations generally fall within the meaning of the word “law,” and that it would take a “clear showing of contrary legislative intent” before we concluded otherwise. Id., at 295–296, 99 S.Ct. 1705. Thus, because the TSA's regulations have the force and effect of law, the Government says that they should qualify as “law” under the statute.", "The Government's description of Chrysler is accurate enough. But Congress's use of the word “law,” in close connection with the phrase “law, rule, or regulation,” provides *394 the necessary “clear showing” that “law” does not include regulations. Indeed, using “law” and “law, rule, or regulation” in the same sentence would be a very obscure way of drawing the Government's nuanced distinction between different **921 types of regulations. Had Congress wanted to draw that distinction, there were far easier and clearer ways to do so. For example, at the time Congress passed Section 2302(b)(8)(A), another federal statute defined the words “regulatory order” to include a “rule or regulation, if it has the force and effect of law.” 7 U.S.C. § 450c(a) (1976 ed.). Likewise, another federal statute defined the words “State law” to include “all laws, decisions, rules, regulations, or other State action having the effect of law.” 29 U.S.C. § 1144(c)(1) (1976 ed.). As those examples show, Congress knew how to distinguish between regulations that had the force and effect of law and those that did not, but chose not to do so in Section 2302(b)(8)(A).", "Second, the Government argues that the word “law” includes at least those regulations that were “promulgated pursuant to an express congressional directive.” Brief for Petitioner 21. Outside of this case, however, the Government was unable to find a single example of the word “law” being used in that way. Not a single dictionary definition, not a single statute, not a single case. The Government's interpretation happens to fit this case precisely, but it needs more than that to recommend it.", "Although the Government argues here that the word “law” includes rules and regulations, it definitively rejected that argument in the Court of Appeals. For example, the Government's brief accepted that the word “law” meant “legislative enactment,” and said that the “only dispute” was whether 49 U.S.C. § 114(r)(1) “serve[d] as that legislative enactment.” Brief for Respondent in No. 11–3231 (CA Fed.), pp. 46–47. Then, at oral argument, a judge asked the Government's attorney the following question: “I thought I understood your brief to concede that [the word “law”] can't *395 be a rule or regulation, it means statute. Am I wrong?” The Government's attorney responded: “You're not wrong your honor. I'll be as clear as I can. ‘Specifically prohibited by law’ here means statute.” Oral Arg. Audio in No. 11–3231, at 22:42–23:03; see also id., at 29:57–30:03 (“Now, as we've been discussing here, we're not saying here that [the word “law”] needs to encompass regulations. We're saying statute.”). Those concessions reinforce our conclusion that the Government's proposed interpretations are unpersuasive.", "In sum, when Congress used the phrase “specifically prohibited by law” instead of “specifically prohibited by law, rule, or regulation,” it meant to exclude rules and regulations. We therefore hold that the TSA's regulations do not qualify as “law” for purposes of Section 2302(b)(8)(A).", 'B', "3We next consider whether MacLean's disclosure regarding the canceled missions was “specifically prohibited” by 49 U.S.C. § 114(r)(1) itself. As relevant here, that statute provides that the TSA “shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security ... if the Under Secretary decides that *396 disclosing the information would ... be detrimental to the security of transportation.” § 114(r)(1)(C).", 'This statute does not prohibit anything. On the contrary, it authorizes something—it authorizes the Under Secretary to “prescribe regulations.” Thus, by its terms Section 114(r)(1) did not prohibit the disclosure at issue here.', "The Government responds that Section 114(r)(1) did prohibit MacLean's disclosure by imposing a “legislative mandate” on the TSA to promulgate regulations to that effect. See Brief for Petitioner 28, 33; see also post, at 2–3 (SOTOMAYOR, J., dissenting). **922 But the Government pushes the statute too far. Section 114(r)(1) says that the TSA shall prohibit disclosures only “if the Under Secretary decides that disclosing the information would ... be detrimental to the security of transportation.” § 114(r)(1)(C) (emphasis added). That language affords substantial discretion to the TSA in deciding whether to prohibit any particular disclosure.", "The dissent tries to downplay the scope of that discretion, viewing it as the almost ministerial task of “identifying whether a particular piece of information falls within the scope of Congress' command.” Post, at 3. But determining which documents meet the statutory standard of “detrimental to the security of transportation” requires the exercise of considerable judgment. For example, the Government says that Section 114(r)(1) requires the Under Secretary to prohibit disclosures like MacLean's. The Government also says, however, that the statute does not require the Under Secretary to prohibit an employee from disclosing that “federal air marshals will be absent from important flights, but declining to specify which flights.” Reply Brief 23. That fine-grained distinction comes not from Section 114(r)(1) itself, but from the Under Secretary's exercise of discretion. It is the TSA's regulations—not the statute—that prohibited MacLean's disclosure. And as the dissent agrees, a regulation does not count as “law” under the whistleblower statute. See post, at 1."]

[(5, 15)]

4fa00a7299855fe79de725b229a543e69b8418750b90658a1c138f7724491805

That means specifying a class of activity covered by Section 5 does NOT expand the scope.

FTC 9, Federal Trade Commission, Federal Register, “Guides Concerning the Use of Endorsements and Testimonials in Advertising Federal Acquisition Regulation; Final Rule,” Federal Register, Vol. 74, No. 198, 10/15/9, https://www.ftc.gov/sites/default/files/documents/federal_register_notices/guides-concerning-use-endorsements-and-testimonials-advertising-16-cfr-part-255/091015guidesconcerningtestimonials.pdf

Commission enforcement decisions are made evaluating specific facts Guides do not expand the scope of Section 5 ; they simply provide guidance as to how the Commission intends to apply law to various facts

All Commission law enforcement decisions are made on a case-by-case basis, evaluating the specific facts Guides do not expand the scope of Section 5 ; they simply provide guidance as to how the Commission intends to apply governing law to various facts thus, not including the examples would simply deprive advertisers of guidance they otherwise could use in planning their activities

law enforcement case-by-case specific facts Guides not expand the scope of Section 5 guidance how the Commission intends to apply governing law to various facts not including examples simply guidance otherwise planning activities

['b. Examples 7-9 – New Media ', 'Several commenters raised questions about, or suggested revisions to, proposed new Examples 7-9 in Section 255.5, in which the obligation to disclose material connections is applied to endorsements made through certain new media.91 Two commenters argued that application of the principles of the Guides to new media would be inconsistent with the Commission’s prior commitment to address word of mouth marketing issues on a case-by-case basis.92 Others urged that they be deleted in their entirety from the final Guides, either because it is premature for the Commission to add them, or because of the potential adverse effect on the growth of these (and other) new media.93 Two commenters said that industry self-regulation is sufficient.94', 'The Commission’s inclusion of examples using these new media is not inconsistent with the staff’s 2006 statement that it would determine on a case-by-case basis whether law enforcement investigations of ‘‘buzz marketing’’ were appropriate.95 All Commission law enforcement decisions are, and will continue to be, made on a case-by-case basis, evaluating the specific facts at hand. Moreover, as noted above, the Guides do not expand the scope of liability under Section 5; they simply provide guidance as to how the Commission intends to apply governing law to various facts. In other words, the Commission could challenge the dissemination of deceptive representations made via these media regardless of whether the Guides contain these examples; thus, not including the new examples would simply deprive advertisers of guidance they otherwise could use in planning their marketing activities.96']

[(0, 5)]

223c56cce12142c9f213ccf4069fc86ca49149f5d521dded5c1984c904b46cc6

Only the CP alone solves the case---the plan is a joint offer to both Russia and China, necessitating trilateral negotiations---that collapses agreement due to increased complexity, cultural disparities, and differences in approach---the CP offers the same content but structured it as dual parallel bilateral agreements to each---that’s key

Michael Listner 9, JD from Regent University School of Law, Attorney and Founder and Principal of Space Law and Policy Solutions, President and CEO of the International Space Safety Foundation, BS from Franklin Pierce College, Peer Reviewer for Space Policy, Former Vice President of Legal Affairs for the International Space Safety Foundation, “A Bilateral Approach From Maritime Law To Prevent Incidents In Space”, The Space Review, 2/16/2009,

There are three nations with demonstrated capacity for space flight U S Russia and China Applying goals would begin with separate invitations by the U S to Russia and China to enter into bilateral discussions concerning operations. Because of sensitivity and complexity opening trilateral agreements would be cumbersome and have less probability of effective agreement given multiplicity of varying interests , cultural disparities , and differences in space operations bilateral agreements would encourage —the two nations to adopt a similar measure

There are currently three nations with the demonstrated capacity for manned space flight and the demonstrated capacity to affect or interfere with the space capability of each other: the U nited S tates, the Russia n Federation, and the People’s Republic of China Applying the principles and goals of freedom from interference would begin with separate formal invitations by the U S to the Russia n Federation and the People’s Republic of China to enter into bilateral discussions concerning space operations. Because of the sensitivity and complexity of the topic, opening trilateral agreements would be more cumbersome and have less probability of producing an effective agreement given the multiplicity of varying national interests , cultural disparities , and differences in space operations . S uch bilateral agreements with the Russian Federation and the People’s Republic of China would not prohibit and in fact might encourage —the two nations to adopt a similar measure

three U S Russia formal invitations U S Russia China bilateral discussions sensitivity complexity cumbersome less probability agreement varying national interests cultural disparities differences bilateral agreements prohibit encourage

['“The Incidents in Space Agreement”', 'The principles and goals of the Incidents on the High Seas Agreement are applicable to the emerging issue of space weaponry, albeit there are differences given the nature of space and the rules of present international space law. There are currently three nations with the demonstrated capacity for manned space flight and the demonstrated capacity to affect or interfere with the space capability of each other: the United States, the Russian Federation, and the People’s Republic of China.', 'Applying the principles and goals of freedom from interference and the prevention of incidents involving spacecraft would begin with separate formal invitations by the United States to the Russian Federation and the People’s Republic of China to enter into bilateral discussions concerning space operations. Because of the sensitivity and complexity of the topic, opening trilateral agreements would be more cumbersome and have less probability of producing an effective agreement given the multiplicity of varying national interests, cultural disparities, and differences in space operations. Such bilateral agreements with the Russian Federation and the People’s Republic of China would not prohibit—and in fact might encourage—the two nations to adopt a similar measure.']

[(8, 17)]

1eadfd70819d5bdb47d931644daade1550dcfafcc05a4458b25f18a2e82c2aa2

2. Trilateral agreements structurally increase the risk of deal failure due to lowest-common-denominator effects

Muhui Zhang 18, PhD Candidate at the Graduate School of Interdisciplinary Information Studies, The University of Tokyo, former political affairs officer at the Trilateral Cooperation Secretariat among China, Japan and South Korea, master's degree in East Asian studies from Harvard University, bachelor's degree in political science from Peking University, “Proceeding in Hardship: The Trilateralism–Bilateralism Nexus and the Institutional Evolution of China–Japan–South Korea Trilateralism”, The Pacific Review, Volume 31, Issue 1

trilateralism confront structural uncertainties constraints characterize the trilateral bilateral nexus and institutional vulnerability of trilateral groupings First trilat is overwhelmingly subject to fluctuations The weakest tie is the Achilles heel Multilat generally reduc transaction costs and creat economies of scale However, with only three benefits are insignificant in a trilateral setting cooperation will drop and be diluted payoffs must amount to more than sum of relations a agreement is established only on the condition each realizes payoffs are higher than coop with the other two bilateral payoffs are offset by negative impacts payoffs of a trilateral yielded to aggregate payoffs of separate bilateral bargains

Trilateralism refers to building of cooperative institutions among three states Nonetheless trilateralism has been constantly confront ed with structural uncertainties . Two factors – bilateral constraints and dilution effects – help characterize the trilateral ism– bilateral ism nexus and the institutional vulnerability of trilateral groupings First , the operability of trilat eralism is overwhelmingly subject to fluctuations of its embedded bilateral relationships. The weakest bilateral tie among three pairs is most likely to be the Achilles heel of a trilateral arrangement the relatively weak bilateral tie creates uncertainty for trilateralism the dilution effect approaches poses a nother threat to the operability of trilateralism. Multilat eralism generally has the advantage of reduc ing transaction costs and creat ing economies of scale . It allows a set of negotiations to be conducted in a way that incorporates views of all relevant stakeholders. In contrast, the bilateral multiplies transaction costs because ‘a new contract has to be negotiated for each participant’ However, with only three member nations , the benefits of reducing transaction costs are relatively insignificant within a trilateral regime. For a member country in a trilateral setting , the cooperation will for constructing a trilateral arrangement is likely to drop and be diluted by bilateral approaches the payoffs of a trilateral grouping must amount to more than the sum of the bilateral relations between countries that are willing to cooperate. In other word, a trilateral agreement is likely to be established only on the condition that each of three actors realizes that the payoffs of trilateralism are higher than they would be when coop erating with the other two actors in bilateral approaches respectively Hence, the payoffs with a trilateral grouping are offset by negative impacts of ‘bilateral constraints’ and ‘dilution effects.’ Trilateral cooperation is likely to emerge under special circumstances , such as exogenous crises On the other hand, it is important to examine the sustainability post-crisis whether and to what extent the three countries have committed to developing cooperation after the shock has ended in areas of high politics , once common problems have dissipated, trilateralism remains not capable of overcoming bilateral constraints and dilution effects. The payoffs of a trilateral setting seemingly yielded to the aggregate payoffs of separate bilateral diplomatic bargains

confront structural uncertainties constraints dilution effects characterize trilateral bilateral institutional vulnerability trilat overwhelmingly subject to fluctuations weakest Achilles heel uncertainty dilution effect a Multilat generally reduc transaction costs creat economies of scale only three benefits relatively insignificant cooperation will drop diluted amount to more than the sum of the bilateral relations only condition realizes payoffs higher coop erating with the other two actors in bilateral approaches offset negative impacts special circumstances sustainability post-crisis high politics not capable The payoffs of a trilateral setting seemingly yielded to the aggregate payoffs of separate bilateral diplomatic bargains

['2. Theorizing the payoffs of trilateralism', 'Minilateralism has emerged as a widely discussed phenomenon in international politics. Due to the relatively small number of total cooperative partners, minilateralism is widely known for its efficiency, given that complications and transaction costs are expected to be proportional to the number of actors involved in any multilateral arrangement. Trilateralism is the most minimized format of multilateralism, marking a point of juncture between bilateralism and multilateralism. It refers to ‘the building of cooperative institutions among three states or strategic polities to promote specific values and orders’ (Tow, Thomson, & Yamamoto, 2007). Admittedly, trilateralism functions effectively in helping to reduce transaction costs and enhancing the efficiency of collective undertakings. Nonetheless, this study argues that trilateralism has been constantly confronted with structural uncertainties. Two factors – bilateral constraints and dilution effects – help characterize the trilateralism–bilateralism nexus and the institutional vulnerability of trilateral groupings.', 'First, the operability of trilateralism is overwhelmingly subject to fluctuations of its', 'embedded bilateral relationships. The weakest bilateral tie among three pairs of embedded', 'bilateral relationships is most likely to be the Achilles heel of a trilateral arrangement.', 'The creation of trilateral groupings is highly prevalent in East Asia, including the', 'US–Japan–India Strategic Dialogue, the US–Japan–Australia Security Dialogue, and the', 'US–Japan–Korea Trilateral Coordination and Oversight Group. In all these trilateral groupings, the role of the United States as a hegemonic power is deemed vital (Green, 2014, p. 761). For instance, the relatively weak Japan–Korea bilateral tie creates uncertainty for US–Japan–Korea trilateralism. In this case, the United States has mobilized substantial diplomatic resources in mediating and encouraging conflict avoidance between Japan and Korea (Tow et al., 2007, p. 24). In contrast, trilateralism among China, Japan and Korea follows the pattern of two great powers plus one relatively small power in the middle and lacks a dominant great power to lead this form of trilateral cooperation, a role which the United States has played for other triangles in the region. The fragility of China–Japan relations, as well as the rising competition for regional hegemony between the two, creates uncertainty and challenges for the solidarity of the trilateral regime (Zhang, 2016).', 'In the meantime, the dilution effect caused by bilateral approaches poses another threat to the operability of trilateralism. Multilateralism generally has the advantage of reducing transaction costs and creating economies of scale. It allows a set of negotiations or agreements to be conducted in a way that incorporates the views of all relevant stakeholders. In contrast, the bilateral approach multiplies transaction costs because ‘a new contract has to be negotiated, drafted, and safeguarded for each participant’ (Thompson & Verdier, 2010). However, with only three member nations, the benefits of reducing transaction costs are relatively insignificant within a trilateral regime. For a member country in a trilateral setting, the cooperation will for constructing such a trilateral arrangement is likely to drop and be diluted by bilateral approaches. Jo and Mo (2010) posited that the payoffs of a trilateral grouping must amount to more than the sum of the bilateral relations between countries that are willing to cooperate. In other word, a trilateral agreement or institution is likely to be established only on the condition that each of three actors realizes that the payoffs of trilateralism are higher than they would be when cooperating with the other two actors in bilateral approaches respectively.', 'Hence, the payoffs associated with a trilateral grouping are likely to be offset by the negative impacts of ‘bilateral constraints’ and ‘dilution effects.’ Trilateral cooperation is, therefore, more likely to emerge under special circumstances, such as those arising from common exogenous crises, in which the demand for trilateral cooperation and the payoffs of trilateralism rise accordingly. Scholars refer to such pivotal turning points as ‘critical junctures.’ The effects of these events may spread from the financial and economic sectors in such a way as to affect functional dimensions, such as environmental protection and disaster relief. Critical junctures have significant influences on institutional development. A crisis or other emergency event calls the legitimacy of existing institutional arrangements into serious question, and creates windows of opportunity for change, which then generates a demand for establishing new institutional forms, powers and precedents (Yoshimatsu, 2016). In addition to being widely used in understanding East Asian regionalism under the APT, the critical juncture approach has more recently been applied in studies of regionalism and multilateralism in northeast Asia (Calder & Ye, 2010). In the face of contingent exogenous crises, a timely trilateral joint response is more efficient and cost-saving than separate bilateral talks.', 'On the other hand, it is also important to examine the sustainability of trilateralism in post-crisis processes; that is, whether and to what extent the three countries have committed to developing their trilateral cooperation after the crucial exogenous shock has ended. The main finding of this study is that institutional innovations based in trilateralism have seemingly revealed greater solidarity and stability at the functional level. However, in areas of middle and high politics, once these common problems and crises have dissipated, trilateralism remains not capable of overcoming bilateral constraints and dilution effects. The payoffs of a trilateral setting seemingly yielded to the aggregate payoffs of separate bilateral diplomatic bargains.']

[(6, 14)]

964fa7542e79934fcc1904038c280a274dde8ec28150ba77330750c79d6cc62d

3. Game theory proves. Either each of the U.S., Russia, and China will have a veto which blocks a deal by incentivizing hold outs, or they don’t, which creates coalitional side deals that undermine optimal efficiency and overall effectiveness. Bilateral structures are better.

Robert H. Mnookin 3, Samuel Williston Professor of Law at Harvard Law School, JD from Harvard Law School, “Strategic Barriers to Dispute Resolution: A Comparison of Bilateral and Multilateral Negotiations”, Journal of Institutional and Theoretical Economics (JITE), Volume 159, Number 1, 20th International Seminar on the New Institutional Economics - Causes and Management of Conflicts, March 2003, p. 209-212

additional complications act as barriers first value in Pareto-efficiency A feature of bilat is whenever parties agreed can be presumed better than the status quo less straightforward in multiparty efficiency may be very inefficient criterion requires every party have veto power unanimity creates holdout problems aspects become extremely difficult and time consuming Whenever 9 out of 10 agree the 10th may threaten to veto because wants a larger share more than one play this game, and negotiations break down probability of bargaining failure increase as number of parties goes up even if a deal is made costs are much higher in contexts unanimity requirements are by-passed Those left out may be worse off than before coalitional dynamics becomes part and parcel of negotiation. Without attempting to plumb fully conceptual complexities a variety of strategic barriers arise that do not exist in bilat game theory demonstrates the problem is not too many equilibria - but none a game is unstable whatever the payoff , some coalition has power and motivation to break up and go off on its own Coalitional instability lead to a strategic barrier

additional strategic complications act as barriers in the multiparty context alone first concerns the meaning of value and efficiency I define value in terms of Pareto-efficiency whenever there is a resolution that makes both parties better off A n important feature of bilat eral negotiation is whenever parties agreed that outcome can be presumed to better serve interests than the status quo Things are much less straightforward in a multiparty context. Indeed, the requirement of Pareto- efficiency may paradoxically be very inefficient . The criterion requires every party to a negotiation have veto power over the deal Pareto-efficiency in a multiparty negotiation requires unanimity Unfortunately, a unanimity rule creates the strategic risk of holdout problems . Assume that a multiparty context includes many possible deals - with different distributive implications - all of which make all negotiators better off With a unanimity rule distributive aspects can become extremely difficult and time consuming to manage. Whenever 9 out of 10 negotiators agree the 10th may credibly threaten to veto because wants a larger share of the pie more than one negotiator can play this game, and as a consequence, the transaction costs of attempting to achieve unanimous agreement may be very high , and indeed negotiations may break down the probability of a bargaining failure increase as the number of the parties to a negotiation goes up , if each has a veto even if a deal is made the transaction costs of reaching agreement are likely much higher in multiparty context, there may be situations where gains for winners substantially outweigh losses of losers. What if a possible agreement benefits nearly all parties but imposes slight losses Because the Pareto- criterion imposes a distribution requirement that privileges the status quo , the losers veto . And yet in terms of ordinary notions of efficiency, the community would be better off with the deal in many contexts unanimity requirements are by-passed coalitions may form and act in concert Those left out may be worse off than before negotiations began. Unlike bilateral negotiations, where one party cannot affect the other party in multiparty negotiations, those left out find themselves worse off Whenever actions by less than all parties can change the status quo , the potential for coalitional dynamics becomes part and parcel of multiparty negotiation. Without attempting to plumb fully the conceptual complexities of coalitions, it is safe to assert that a variety of strategic barriers may arise that do not exist in bilat eral negotiations game theory demonstrates that the problem is not too many equilibria - but none . “If a game has no core, it is unstable in the sense that whatever the payoff , some coalition has the power and motivation to break up the imputation and go off on its own ” Coalitional instability may lead to a n obvious strategic barrier in such instances

barriers alone Pareto-efficiency a A bilat much less straightforward very inefficient veto power unanimity strategic risk holdout problems many possible deals extremely difficult time consuming agree veto larger share transaction costs very high negotiations may break down probability bargaining failure increase number of the parties goes up even if a deal is made much higher veto better off with the deal by-passed left out worse off party worse off coalitional dynamics part and parcel conceptual complexities variety of strategic barriers do not exist in bilat eral negotiations game theory not too many equilibria none unstable whatever the payoff some coalition power motivation break up go off on its own Coalitional instability a obvious strategic barrier

['3 Multiparty Negotiations', 'My analysis of bilateral negotiations explains why a negotiator’s pursuit of distributive gain can often lead to negotiation failures; even though there are possible agreements that would better serve the parties, agreement may not be reached at all, or even if resolution is achieved, may not satisfy the economist’s Pareto-criterion of efficiency. These same strategic problems - and the underlying tension between creating and claiming value - exist in multiparty negotiations as well. But in this section, I would like to explore several additional strategic complications that may act as barriers in the multiparty context alone.', 'The first problem concerns the meaning of creating value and efficiency in the multiparty context. Like other negotiation analysts, in bilateral negotiations I define creating value in terms of Pareto-efficiency. This measure does not require inter- personal utility comparisons. It simply suggests that efficiency is improved whenever there is an alternative resolution that either makes both parties better off, and at least makes one party better off, when the other party is no worse off. An important feature of bilateral negotiation is that whenever the parties have agreed to an outcome, that outcome can be presumed to better serve the interests of each party than the status quo - otherwise there would have been no agreement.', 'Things are much less straightforward in a multiparty context. Indeed, the requirement of Pareto-efficiency may paradoxically be very inefficient. The Pareto-criterion requires that every party to a negotiation have veto power over the deal. If there are ten parties to a negotiation, the only way we can know that a negotiated agreement is Pareto-superior to the status quo is if all ten parties agree to make the deal. In other words, Pareto-efficiency in a multiparty negotiation requires unanimity.', 'Unfortunately, a unanimity rule creates the strategic risk of holdout problems. Assume, for the moment, that the ZOPA in a multiparty context includes many possible deals - with different distributive implications - all of which make all 10 negotiators better off than the status quo. With a unanimity rule, the distributive aspects of multiparty bargaining can become extremely difficult and time consuming to manage. Whenever 9 out of 10 negotiators have agreed to a particular deal, the 10th person may credibly threaten to veto that deal because he wants a deal that gives him a larger share of the pie. Obviously, more than one negotiator can play this game, and as a consequence, the transaction costs of attempting to achieve unanimous agreement may be very high, and indeed negotiations may break down.', 'A few years back I saw an example of this. A Cambridge, Massachusetts’s neighborhood was given the opportunity to have its electrical wires put underground. The city would provide a partial subsidy, but the 10 neighbors all had to consent to an allocation of the remaining costs for installing the new main wire. Whatever the allocation, each neighbor would also need to pay his own hook-up costs for bringing the power from the new underground wire to his house. Most neighbors quickly agreed to allocate the cost of the main wire based on frontage feet of each lot. But one neighbor, “Mr. Jones,” whose house was set farther back from the street, objected. He argued that since his connection cost to a new underground wire would be higher, he should pay a smaller share of the joint costs. Two other neighbors saw Jones’ suggestion as strategic - as holding out to get more of the surplus - and as a consequence no deal could be made at all: the electrical wires were not placed underground, and the subsidy was lost.', 'My own intuition is that the probability of a bargaining failure - even though there is a ZOPA - will increase as the number of the parties to a negotiation goes up, if each has a veto. And even if a deal is made, I would also predict that the transaction costs of reaching agreement are likely to be much higher than with a less strict decision rule.', 'Putting the holdout issue to one side, there is an even more fundamental issue. As parties are added, if each has a veto, it would stand to reason that the risk of there being no ZOPA increases. This is not a problem if one believes a negotiated deal should not be possible if it has even slightly unfavorable distributional consequences for even one party. But in multiparty context, there may often be situations where the gains for the winners from a social perspective are thought to substantially outweigh the losses of the losers. What if a possible agreement benefits nearly all of the parties a great deal, but imposes slight losses on a few. Because the Pareto- criterion imposes a distribution requirement that privileges the status quo, the losers might be expected to exercise their veto. And yet in many contexts, especially if side-payments are not possible, one might conclude that at least in terms of wealth maximization and ordinary notions of efficiency, the community would be better off with the deal even though it does not meet the requirements of Pareto-efficiency.', 'Interestingly, using the Kaldor-Hicks compensation criterion as a way of defining', 'economic efficiency avoids the constraints of the classical Pareto-criterion. Kaldor-', 'Hicks asks whether it is possible for the winners to make side payments to the losers so that the losers would be indifferent between the new arrangement and the status quo. No such side payment is actually required to be paid, however. If as a theoretical proposition the gains were sufficient to permit such payments, that was enough to conclude that the proposed arrangement was more efficient than the status quo. In Kaldor’s words, whether the losers “should in fact be given compensation ... is a political question on which an economist, qua economist, could hardly pronounce an opinion” (Kaldor [1939, p. 550]).', 'Because the Kaldor-Hicks test asks whether it might be possible to make a com- pensatory payment, not whether in fact one is going to be made, it mitigates the holdout problem. Some parties might be made worse off but the new arrangement would nonetheless be viewed as more efficient than the old status quo. But Kaldor-Hicks is hardly a complete solution to determining economic efficiency in a multiparty negotiation. As a matter of economic theory, the criterion is not without its problems, whether because of potential changes in relative prices or income effects.6 While applied economists and policy makers may use cost-benefit analysis or “wealth maximization” principles to evaluate economic efficiency, they are implicitly making “a leap of faith,” and “weigh[ing] together Eve’s losses and Adam’s gains” (Friedman [1998, p. 421]). More fundamentally, in a negotiation no social planner is trying to weigh overall costs and benefits to assess whether a sufficient side-payment is theoretically possible. If less than all can impose costs on a minority without the need to make side-payments, how can we be confident that the new arrangement improves social welfare in comparison with the status quo?', 'Notwithstanding these conceptual difficulties, in many contexts unanimity requirements are simply by-passed because subgroups can form coalitions and make their own agreements, unconstrained by a veto of those who might be disadvantaged. “Once three or more conflicting parties are involved, coalitions may form and act in concert against the other disputants” (Raiffa [1982, p. 11]). Those left out of a coalition may often be worse off than they were before negotiations began. Unlike bilateral negotiations, where typically one party cannot affect the other party’s BATNA, in multiparty negotiations, those left out of deal may often find themselves worse off if no deal were made. Consider, for example, merger negotiations in an industry with three competing companies. Although a “grand coalition” involving a merger of all three parties may be possible, so too would be mergers between any two of the firms. Moreover, a merger between any two firms may make the company left out worse off than if no deal were made (Raiffa [1982, pp. 257-262]).', 'Whenever coordinated actions or decisions by less than all the parties can change the status quo, the potential for coalitional dynamics becomes part and parcel of multiparty negotiation. Without attempting to plumb fully the conceptual complexities of coalitions, it is safe to assert that a variety of strategic barriers may arise that do not exist in bilateral negotiations. n-person game theory demonstrates, for example, that with respect to games that have no “core,” the problem is not too many equilibria - but none. “If a game has no core, it is unstable in the sense that whatever the payoff, some coalition has the power and motivation to break up the imputation and go off on its own” (DAVIS [1983, p. 184]). Coalitional instability may lead to an obvious strategic barrier in such instances.']

[(10, 19)]

2906181982e833554e9c3f4153762fee6113a33597ba5965ef565eaf2b1f0f3e

The only part of this card that’s actually about possession is about when hostages were sent to other states as collateral to prove commitments were genuine in ancient Mesopotamia, with commitment breaches deterred by curses. That’s clearly not a predictable foundation for the topic.

Tongfi Kim 16, M.A. in Political Science at Ohio State University, “The Supply Side of Security: A Market Theory of Military Alliances,” 1st ed., Stanford University Press, 2016, JSTOR, doi:10.2307/j.ctvqsdr7d

Williamson has written on hostages as mechanism for commitment Mesopotamia Tablets show curses were used to deter breach of treaties

Williamson , a leading scholar of transaction cost economics, has written on the use of hostages as a mechanism for commitment unearthed in Mesopotamia . Tablets show curses were used to deter the breach of treaties

Williamson hostages Mesopotamia Tablets curses deter the breach of treaties

['Because betrayal by one’s ally is costly, management of opportunistic behavior is a central part of alliance politics. Oliver Williamson, a leading scholar of transaction cost economics, has written on the use of hostages as a mechanism for commitment—which we know was common among military allies. The following example he refers to also reveals the importance of commitment to military alliances:', 'A still earlier example of an effort to craft a credible commitment was recently unearthed in Mesopotamia. Tablets dated around 1750 B.C. show that curses were used to deter the breach of treaties. One of these reads as follows: When you ask us for troops, we will not withhold our best forces, we will not answer you with evasions, we shall brandish our maces and strike down your enemy . . . As wasted seeds do not sprout, may my seed never rise, may someone else marry my wife under my very eyes, and may someone else rule my country. (Williamson 1996, 91)']

[(7, 13)]

6375431fdc7137398a53d8b885536e171d7b746c8881c6101e9b4388f090e10c

Nuclear war.

Mun Suk Ahn 14 & Young Chul Cho, Associate Professor in the Dept. of Political Science and Diplomacy at Chonbuk National University; Korea Foundation Visiting Professor at Leiden University, “A nuclear South Korea?”, International Journal, Vol. 69, Issue 1, March 2014,

deterrence is difficult to apply to Korea battles broke nuclear arming of both accidentally result in nuclear war. given tensions and recurring conflicts corollary would be Pyongyang's reinforcement No Ko is trying to miniaturize nuclearization would hasten that It would press Japan and Taiwan to go nuclear arms race would prevent growth nuclearization would undercut ties with the U S critical to the armed forces. the South has capability, but not intent . Nuclear tech in So Ko is constantly developing

stability can be affected by the degree of internal stability and command-control arrangement as well as by regional environments rational deterrence theory is difficult to apply to the Korea n peninsula A number of battles have broke n out since the truce Since the North infiltrates the NLL many times each year, no improvement is expected Under these antagonistic conditions, the nuclear arming of both North and South Korea could accidentally result in a nuclear war. The huge military organizations in North and South Korea are not likely to be exceptions given the very real tensions and recurring military conflicts . a corollary of Seoul's nuclear armament would almost certainly be Pyongyang's reinforcement of its own nuclear power. No rth Ko rea is trying to increase its stock of, and miniaturize , its nuclear warheads The South's nuclearization would only hasten that process. It would instigate a serious arms race in Northeast Asia by press ing Japan and Taiwan to go nuclear . In Japan, many politicians and activists are now arguing for nuclear armament Abe has sought to revise the constitution, which bans Japan from rearming and waging war An arms race would not only undermine stability in Northeast Asia but also prevent states in the region from economic growth . the nuclearization of South Korea would undercut ties with the U S This situation would be detrimental to Seoul's security because South Korea still requires American military intelligence, which is critical to the operation of South Korean armed forces. The Seoul government fully understands the reasons against a nuclear South Korea the South has the capability, but not the intent ion to go nuclear. Two further issues related to the South's going nuclear remain unresolved: the transfer of wartime operational control and the prestige of the scientific community In South Korea, the uranium enrichment experiment in 2000 was attributed to several scientists' desire to confirm their capabilities . Nuclear tech nology in So uth Ko rea is constantly developing and scientists' desire to increase their prestige may become a factor

rational deterrence theory is difficult to apply to the Korea peninsula broke the nuclear arming of both North and South Korea could accidentally result in a nuclear war. Pyongyang's reinforcement of its own nuclear power. No Ko The South's nuclearization would only hasten that process. press Japan and Taiwan to go nuclear . the South has the capability, but not the intent ion to go nuclear. tech So Ko

['Is going nuclear desirable or feasible?', "Rational deterrence theorists-Kenneth Waltz chief among them-claim that nuclear proliferation leads to stability since nuclear weapons are controlled by rational leaders' careful decisions. They argue that nuclear warheads can contribute to stable deterrence if states avoid preventive strikes, develop nuclear weapons that can survive a first strike, avert accidental nuclear war, and prevent terrorist theft of nuclear weapons.10", 'However, stability can also be affected by the degree of internal stability and the command-control arrangement of each state, as well as by regional environments. In practice, rational deterrence theory is difficult to apply to the Korean peninsula. A number of battles have broken out between the two Koreas since the 1953 truce agreement, undeterred by the fact that the North has had nuclear arms since 2006. In particular, on the West Sea of the peninsula, the two Koreas do not agree on the Northern Limit Line (NLL). This disagreement has led to the first Yeonpyeong Sea Battle (June 1999), the second Yeonpyeong Sea Battle (June 2002), the Daecheong Sea Battle (November 2009), the sinking of the corvette Cheonan (March 2010), and the artillery shelling of Yeonpyeong Island (November 2010). Since the North infiltrates the NLL many times each year, no improvement is expected in the near future. Under these antagonistic conditions, the nuclear arming of both North and South Korea could accidentally result in a nuclear war.', 'Organization theorists observe that military organizations often act in ways that contradict rational behaviours and lead to accidental or deliberate nuclear war.11 The huge military organizations in North and South Korea-with more than 1,000,000 and 600,000 troops, respectively-are not likely to be exceptions, especially given the very real tensions and recurring military conflicts.', "Furthermore, a corollary of Seoul's nuclear armament would almost certainly be Pyongyang's reinforcement of its own nuclear power. North Korea is reportedly trying to increase its stock of, and miniaturize, its nuclear warheads. The South's nuclearization would only hasten that process. It would also instigate a serious arms race in Northeast Asia by pressing Japan and Taiwan to go nuclear. In Japan, many politicians and activists are now arguing for nuclear armament. The current Abe government has sought to revise the constitution, which bans Japan from rearming and waging war, in order to change the status of the Self-Defense Forces and to restore Japan's right to use military power abroad.", 'An arms race would not only undermine stability in Northeast Asia but also prevent states in the region from developing economically. This consequence contradicts the argument presented by South Korean conservatives who value both strong national defence and economic growth.', "In addition, the nuclearization of South Korea would seriously undercut the country's close ties with the United States. The United States has long opposed Seoul possessing its own nuclear weapons, fearing that it would result in an arms race in Northeast Asia and damage to the integrity of the Nuclear Non-proliferation Treaty. Washington would, therefore, reduce its military cooperation with the South if it developed nuclear weapons. This situation would be detrimental to Seoul's security because South Korea still requires American military intelligence, which is critical to the operation of South Korean armed forces.", "The Seoul government fully understands the reasons against a nuclear South Korea and often reaffirms its desire for direct denuclearization talks with the North. This has been consistent government policy. South Korea is equipped with the technical and industrial capacity to produce nuclear warheads within a few years of any decision to go nuclear.12 The South is the world's fifth-largest producer of atomic energy, and it has not suffered a nuclear accident since the beginning of nuclear energy production in 1978. The literature on nuclearization does not derive consistent predictions from these circumstances. On the one hand, the theory that states equipped with cutting-edge nuclear technology tend to be nuclear-armed would point to the likelihood that Seoul will go nuclear. However, motivational theory, which emphasizes incentives and intentions, rather than technology, in relation to nuclear armament, leads to the opposite conclusion. In fact, the South has the capability, but not the intention to go nuclear.", "Two further issues related to the South's going nuclear remain unresolved: the transfer of wartime operational control and the prestige of the scientific community. The US is scheduled to transfer wartime operational control to South Korea in December 2015, according to the South Korea-US agreement. South Korean conservatives have been worrying that the subsequent dissolution of the South Korea-US Combined Forces Command will undermine the South's national defence. The concern is likely to grow as the date of the transfer approaches and may buttress the argument for Seoul's nuclear armament.", "At the same time, scientists may argue that further developments in technology and scientific knowledge will enhance the prestige of the South Korean scientific community. In the case of India's nuclear development, the scientific community was motivated to produce nuclear weapons in order to demonstrate its capabilities.13 In South Korea, the uranium enrichment experiment in 2000 was attributed to several scientists' desire to confirm their capabilities. Nuclear technology in South Korea is constantly developing and scientists' desire to increase their prestige may become a factor in the debate."]

[(8, 14)]

bddf4a97a36522114c8e6b0be233032129573f6efc00bcae2f49f7d7bbb663ee

Russia’s land missiles are vulnerable---only subs secure deterrence through a bastion strategy that depends on the Kuriles

Mina Pollmann 16, PhD Candidate in Political Science at MIT and Director of External Relations at CIMSEC, and J. Berkshire Miller, Senior Visiting Fellow with the Japan Institute of International Affairs, Senior Fellow on East Asia with the Asian Forum Japan, Senior Fellow at the EastWest Institute, Distinguished Fellow with the Asia-Pacific Foundation of Canada, “Russia vs. Japan: Asia's Forgotten Island Fight”, The National Interest, 4/26/2016, https://nationalinterest.org/print/feature/russia-vs-japan-asias-forgotten-island-fight-15942

islands became valuable because of “bastion strategy.” Soviets keep SSBNs) in defensible “bastions,” such as Okhotsk Under this Kurils became important If Japan were to regain it would mean U.S. sub s could enter and dramatically change the balance of power If, as some predicted land-based missiles became vulnerable importance of sea-based deterrent only increase

the islands became even more valuable because of changes in nuclear strategy—specifically, the “bastion strategy.” the Soviets could keep their ( SSBNs) in easily defensible “bastions,” such as the Sea of Okhotsk , and still reach targets on the U S West Coast. Under this the Kurils became even more important to Russia. If Japan were to regain these islands, it would mean that U.S. sub marine s and carriers could enter the Sea of Okhotsk through Kunashiri Strait— and dramatically change the balance of power If, as some analysts predicted , Russia’s land-based missiles became increasingly vulnerable , the importance of defending sea-based deterrent forces would only increase , making the bastion strategy more important

“bastion strategy.” such as the Sea of Okhotsk U S even more important sub s dramatically change the balance of power land-based increasingly vulnerable sea-based deterrent only increase more important

['During the 1970s, the islands became even more valuable to Russia because of changes in the Soviet Union’s nuclear strategy—specifically, the development of the “bastion strategy.” A new generation of long-range missiles meant that the Soviets could keep their ballistic-missile submarines (SSBNs) in easily defensible “bastions,” such as the Sea of Okhotsk, and still reach targets on the United States’ West Coast. Under this new doctrine, which makes the protection of SSBNs in Petropavlovsk on Kamchatka the Pacific Fleet’s top priority, the Kurils became even more important to Russia. If Japan were to regain these islands, it would mean that U.S. submarines and carriers could enter the Sea of Okhotsk through Kunashiri Strait—and dramatically change the balance of power to the Soviet Union’s disadvantage. Washington’s emphasis on targeting Soviet SSBNs in the early 1980s also fueled the Soviet obsession with maintaining the islands to safeguard their “bastion.”', 'How has the importance of the bastion strategy changed over time? If, as some analysts predicted, Russia’s land-based missiles became increasingly vulnerable, the importance of defending sea-based deterrent forces would only increase, making the bastion strategy more important. However, the importance of bastions—and specifically the strategic value of the Kuril Islands—could decrease if Russian submarine-quieting technology improves enough to the point where, like the United States, Russia can just deploy its SSBNs in the open ocean. Another factor that affects the importance of the bastion strategy is the geographic concentration of SSBNs: if Russia concentrates all of its SSBNs on the Kola Peninsula and scraps the Kamchatka base, the bastion strategy will be discarded as obsolete, but if Russia maintains even some of its SSBNs on Kamchatka, the importance of protecting the reduced number of SSBNs will only increase.']

[(5, 16)]

4aef884d5cbcd64c2cb8d624e32cfa9727f3fbe0d3a605e515b6b669f1d26e28

Increasing Russian sub vulnerability risks miscalculation

Mina Pollmann 16, PhD Candidate in Political Science at MIT and Director of External Relations at CIMSEC, and J. Berkshire Miller, Senior Visiting Fellow with the Japan Institute of International Affairs, Senior Fellow on East Asia with the Asian Forum Japan, Senior Fellow at the EastWest Institute, Distinguished Fellow with the Asia-Pacific Foundation of Canada, “Russia vs. Japan: Asia's Forgotten Island Fight”, The National Interest, 4/26/2016, https://nationalinterest.org/print/feature/russia-vs-japan-asias-forgotten-island-fight-15942

trend towards concentration of warheads onto fewer ships increase likelihood of miscalc Not only does concentration of eggs in fewer baskets increase risk it increases importance of protecting each SSBN if Russia chooses to concentrate in Okhotsk

Russia’s SSBN fleet carried out only five patrols, meaning it is more likely Russia will keep its SSBNs close to home and emphasize protection of bastions the recent trend towards greater concentration of Russian warheads onto fewer ships will increase the likelihood of miscalc ulation by Russia. Not only does the concentration of more eggs in fewer baskets increase the risk of miscalculation, but it also increases the importance of protecting each individual SSBN —and if Russia chooses to concentrate them in the Sea of Okhotsk , then its willingness to return the islands to Japan exponentially decreases

greater concentration increase the likelihood of miscalc ulation concentration of more eggs in fewer baskets increases the importance of protecting each individual SSBN concentrate them

['The Borei-class SSBN are significantly quieter; however, it is not yet apparent that this is changing Russia’s calculations about deploying them out in the open ocean. In fact, in 2012, Russia’s nine-SSBN fleet carried out only five deterrent patrols, meaning that it is much more likely that Russia will continue to keep its SSBNs close to home and emphasize the protection of its bastions. Instead of sailing in the Pacific, the Boreis are most likely to be deployed near the Kamchatka Peninsula, where Russian attack submarines will do their best to defend the SSBNs from U.S. attack submarines. Even though hunting down Russian SSBNs is no longer a core component of U.S. maritime strategy, as it was in the 1980s, Russian military planners cannot ignore the possibility of such a U.S. mission. Therefore, even though the Borei is a more advanced vessel, it is expected to stay close to the same areas that its predecessors patrolled in the 1980s and 1990s.', 'There is concern that the recent trend towards greater concentration of Russian warheads onto fewer ships, as Russia transitions to a smaller but more warhead-heavy fleet of new submarines, will increase the likelihood of miscalculation by Russia. Not only does the concentration of more eggs in fewer baskets increase the risk of miscalculation, but it also increases the importance of protecting each individual SSBN—and if Russia chooses to concentrate them in the Sea of Okhotsk, then its willingness to return the islands to Japan exponentially decreases.']

[(5, 16)]

e68a621772752bb067cd398e45ef98c3ef313ea490da6992912970f095fc34bc

The aff alone fails.

Rumer et al. 20, Eugene Rumer, senior fellow and director of the Asia program at the Carnegie Endowment for International Peace, former national intelligence officer for Russia and Eurasia at the U.S. National Intelligence Council, Ph.D. from the Massachusetts Institute of Technology; Richard Sokolsky, nonresident senior fellow in the Carnegie Endowment for International Peace’s Russia and Eurasia Program, M.A. from Johns Hopkins School of Advanced International Studies; Aleksandar Vladicic, James C. Gaither Junior Fellow with the Russia and Eurasia Program at the Carnegie Endowment for International Peace, B.A. in Russian, East European and Eurasian studies from Princeton University, “Russia in the Asia-Pacific: Less Than Meets the Eye,” Carnegie Endowment for International Peace, 09-03-2020,

Russia’s relationship with Japan unrealized potential, underscores Moscow’s tilt toward China improvement hostage to the Russian-Chinese partnership, and Japan’s alliance with the U S record is one of false starts, dashed hopes, and unrealistic expectations prospects remain bleak

Russia’s critical relationship in the Asia-Pacific is with Japan most important feature is its unrealized potential, which underscores Moscow’s heavy tilt toward China . Russia’s trade, investment, and economic relations remain underdeveloped, improvement are hostage to the Kuril Islands, the Russian-Chinese strategic partnership, and Japan’s alliance with the U nited S tates record of the relationship is one of false starts, dashed hopes, and unrealistic expectations . prospects for a breakthrough will remain bleak

most important feature is its unrealized potential, which underscores Moscow’s heavy tilt toward China . the Russian-Chinese strategic partnership, and Japan’s alliance with the U S prospects for a breakthrough will remain bleak

['Russia’s relations with Japan: Russia’s other critical relationship in the Asia-Pacific is with Japan. The most important feature of this relationship, however, is its unrealized potential, which underscores Moscow’s heavy tilt toward China. Russia’s trade, investment, and economic relations with Japan remain underdeveloped, and any significant improvement in political ties are hostage to the two countries’ unresolved territorial dispute over the Kuril Islands, the Russian-Chinese strategic partnership, and Japan’s alliance with the United States. The record of the Russian-Japanese relationship since the end of the Cold War is one of false starts, dashed hopes, and unrealistic expectations. The prospects for a breakthrough will remain bleak for the indefinite future.']

[(0, 15)]

67b095183247c424895de602c520445f53eaea669e7270e6f94cf176a5526e8f

State licensing boards are being coopted for industrial protectionism because they lack oversight---this is crushing innovation

Daniel A. Crane 19, Frederick Paul Furth Sr. Professor of Law, University of Michigan, “Scrutinizing Anticompetitive State Regulations Through Constitutional and Antitrust Lenses,” 60 Wm. & Mary L. Rev. 1175, Lexis

state governments adopt anticompetitive regulations cronyism pernicious to efficiency costs far outweigh benefits particularly in stifling new innovation lends a hand to incumbent tech Lochner left gun-shy about permitting judges to strike protectionist reg s Parker allowed a somewhat expanded role but review remains constricted incumbent firms block innovative competition by circling wagons around incumbent schemes incumbents have a decisive advantage for structural reasons Because the incumbent has more to gain will spend more discourages entrants "veto gates" to legislation empower incumbents to ride for decades it would be misguided to consider eventual success a reason not to worry No monopoly is permanent What incumbents buy is monopoly in extension Those decades are costly misallocat resources impair health lives lost what can be done ? hold Parker inapplicable This give power to challenge anticompetitive reg s a liberalizing force creating new market entry

state and local governments frequently adopt anticompetitive regulations for the benefit of economic special interests these acts of cronyism are pernicious to efficiency the costs far outweigh reasonable benefits particularly in stifling new innovation lends a hand to the beneficiaries of incumbent tech nologies as they deploy state power to block or to slow new tech that may eventually displace old innovative technologies developed by companies such as Tesla, Uber, Lyft, and Airbnb have encountered determined opposition from purveyors of predecessor s , who have often used state and local regulation to thwart innovation while there might be a broad consensus that state and local governments enact many unjustifiable anticompetitive regulations, there is not a clear consensus on which ones they are . The experience with economic substantive due process epitomized in Lochner has left the American political psyche gun-shy about permitting judges to strike down protectionist economic reg ulation s on constitutional grounds Shortly after getting out of the Lochner business, the Supreme Court announced that it would not get into the same business under the guise of the antitrust laws development of the Parker state action doctrine allowed the courts to play a somewhat expanded role with respect to anticompetitive state and local regulations, but the zone of judicial review remains relatively constricted contemporary regulatory battles between old and new technologies can be understood as follows. The incumbent regulatory scheme arose decades ago and may have been legitimately justified at the time of its adoption The passage of time and advent of new technologies has now eroded the original basis However, incumbent firms succeed in block ing or slowing innovative competition by circling the wagons around incumbent regulatory schemes In these wars, the incumbents have a decisive advantage for at least three structural reasons if the incumbent regulatory scheme has allowed the incumbent firms to collect monopoly rents , then there may be a sharp asymmetry of incentives between old and new firms This same asymmetry attends any struggle between incumbent monopolists and new competitive entrants: the monopolist is seeking to protect a large market share at a monopoly price , whereas the new entrant can only hope to gain a smaller market share at a competitive price Because the incumbent has more to gain than the new entrant has to lose, the incumbent will be willing to spend more to entrench the regulatory monopoly than the new entrant will be to challenge it. This discourages potential new entrants from investing in innovative new technologies and mounting political and market-oriented challenges to the incumbents Second, the incumbents have the advantage of status quo biases and fears about the consequences of technological change Costs of the existing system may be seen as an inevitable baseline , whereas potential risks from the new technology may be seen as incremental threats incumbent technologies may persuade regulators to force new technologies to play by rules that favor the incumbent a form of raising rivals' costs and creating regulatory entry barriers Finally, incumbents enjoy the generic benefits of incumbency The multiple "veto gates" to reform legislation empower technological incumbents to ride the status quo for decades In light of these factors it is unsurprising that regulation serves as a barrier to innovation it would be misguided to consider eventual success a reason not to worry about the structural factors entrenching anticompetitive regulations, especially those foreclosing innovation. No monopoly is permanent --even the most persistent are eventually eroded Innovative technologies will almost always find a way out eventually What incumbents can buy is not monopoly in perpetuity but in extension Those decades of extension are costly to society They represent significant overcharges misallocat ions of social resources impair ment to health even lives lost Not every instance of anticompetitive state or local regulation exhibits the full set of explanatory factors discussed Yet Across the economy, incumbent technologies are structurally advantaged what can be done about it ? One proposed route for increasing federal antitrust law over anticompetitive state and local regulation is to hold the Parker doctrine inapplicable This would give the FTC enhanced power to challenge anticompetitive state and local reg ulation s Not only would this limit the incidence of challenges to state regulation the FTC Act is not privately enforceable and only the Commission can initiate an action but it would also put the Commission itself in the position of making an initial decision on the case lodging the antitrust review function in the FTC would grant the Commission an initial regulatory review function and the power to make factual findings the FTC's preemptive agenda would be unlikely to focus on entrenching established economic interests and preserving the status quo the vision of what is wrong with Lochner . To the contrary the general tendency of anticompetitive state regulations is to entrench economic incumbents and incumbent technologies by denying entry to new firms and technologies In this context, enhanced antitrust preemption would be a liberalizing force creating opportunities for new market entry

anticompetitive regulations economic special interests cronyism pernicious efficiency costs far outweigh particularly new innovation incumbent tech state block slow tech displace old opposition predecessor s state and local regulation thwart innovation which they are Lochner gun-shy judges reg s not same guise of the antitrust laws Parker state action doctrine somewhat zone relatively constricted regulatory scheme decades ago may have time new eroded block slowing innovative competition circling the wagons incumbent regulatory schemes decisive advantage structural monopoly rents asymmetry of incentives monopolist large market share monopoly price new hope smaller competitive incumbent more to gain willing to spend more discourages existing inevitable baseline risks incremental threats regulators rules favor the incumbent costs regulatory entry barriers generic benefits of incumbency legislation ride the status quo decades regulation barrier to innovation misguided eventual not to worry structural factors No permanent eventually eventually buy not perpetuity extension decades of extension costly to society overcharges misallocat social resources impair health lives lost every instance full set structurally advantaged what can be done about it ? federal antitrust law state local regulation Parker inapplicable challenge anticompetitive state and local reg s incidence challenges privately Commission Commission itself preemptive agenda unlikely entrenching status quo what is wrong with Lochner contrary anticompetitive state regulations entrench economic incumbents incumbent technologies denying entry to new firms and technologies antitrust preemption liberalizing force new market entry

[' [*1177] INTRODUCTION', "This Article's intended audience holds a common view that state and local governments frequently adopt anticompetitive regulations for the benefit of economic special interests and that these acts of cronyism are pernicious to democracy, consumers, and economic efficiency. 1 In other words, the costs to society of these regulations far outweigh any reasonable benefits. A wise, beneficent, and all-knowing Platonic guardian of the state would have little trouble in striking down such regulations.", 'A further point of general consensus might relate to the particularly pernicious effect of anticompetitive state and local regulation in stifling new production innovation. In a variety of ways, our constitutional order is stodgy. Its conservatism lends a hand to the beneficiaries of incumbent technologies as they seek to deploy state power to block or to slow the advent of new technologies that may eventually displace the old, thereby preventing a realignment of wealth and position. In recent years, innovative technologies developed by companies such as Tesla, Uber, Lyft, and Airbnb have encountered determined opposition from purveyors of predecessor technologies, who have often used state and local regulation to thwart innovation. 2', 'So much for the common ground. Where consensus quickly fragments is on the question of what, if anything, to do about such regulations given that wise, beneficent, and all-knowing Platonic guardians of the state are in short supply. In the imperfect messiness that is liberal democracy, we frequently accept a host of comparatively petty inconveniences--political and economic--in order to preserve larger values. Just as we tolerate many market failures because the attempt at a regulatory fix might aggravate matters, we may have to tolerate some political failures on the same grounds.', '[*1178] Much of the difficulty has to do with the fact that while there might be a broad consensus that state and local governments enact many unjustifiable anticompetitive regulations, there is not a clear consensus on which ones they are. The experience with economic substantive due process in the late nineteenth and early twentieth centuries, epitomized in Lochner v. New York, 3 has left the American political psyche gun-shy about permitting judges to strike down protectionist economic regulations on constitutional grounds. Shortly after getting out of the Lochner business, the Supreme Court announced that it would not get into the same business under the guise of the antitrust laws. 4 Over time, the development of the Parker state action doctrine allowed the courts to play a somewhat expanded role with respect to anticompetitive state and local regulations, but the zone of judicial review remains relatively constricted. 5', 'The purpose of this Article is to compare the deployment of constitutional and antitrust tools to scrutinize potentially anticompetitive state and local regulations against the backdrop of the ubiquitous concern about "Lochnerizing" under the auspices of either constitutional or statutory authority. Here is the question in a nutshell: If one believes that courts (or perhaps federal administrative agencies) should do somewhat more than they currently do to scrutinize and potentially invalidate anticompetitive state and local regulations, which lever should they pull--constitutional doctrines, antitrust preemption, or both? Because there are some overlapping, and some separate, institutional constraints and potential pathologies between constitutional and antitrust law, it is important to compare the two tools before deploying them.', 'This Article is organized as follows: Part I diagnoses the underlying features of democratic government that produce anticompetitive regulation. Some of this story is quite familiar, but I present some new observations with respect to the role of technological incumbency as a strong factor in invoking regulation to thwart innovation.', '[*1179] Part II explores the historical, ideological, and institutional foundations of the current legal doctrines with respect to constitutional and antitrust scrutiny of anticompetitive regulations. It shows that, despite the narrowing of Parker immunity in recent decades and some recent revival of equal protection and substantive due process as constraints on anticompetitive regulation, a good deal of anticompetitive state and local regulation remains impervious to legal challenge.', 'Part III compares the potential efficacy and pitfalls of deploying constitutional or antitrust doctrines as checks on anticompetitive state and local regulations. It considers: (1) the reach and domain of constitutional and antitrust theories; (2) the ways in which each theory could accommodate genuine and sufficient justifications for the challenged regulations; (3) ways in which the antitrust and constitutional tools differ substantively and procedurally; and (4) ways in which the two theories might interact.', 'I. WHY ANTICOMPETITIVE REGULATION SUCCEEDS', 'This Article opened with the assumption that a wide universe of unjustified state and local anticompetitive regulation exists that a benevolent Platonic guardian of the state would instantly nullify. Given this conceit, the presence of such regulations necessarily represents democratic failures, as democracy should, in principle, strive for laws that confer positive, rather than negative, public benefit. What, then, accounts for the pervasive existence of these undesirable regulations? The answer comes in two parts--a generic (and largely familiar) story concerning anticompetitive regulations as a whole, and a more specific story concerning the battle between incumbent and innovative technologies.', 'A. The Generic Story', 'The generic story is largely familiar from public choice theory and the literature on the Parker state action doctrine. Democratic processes systematically fail to overcome two embedded hurdles to matching regulatory schemes to broad public preferences: (1) the asymmetrical distribution of costs and benefits of anticompetitive [*1180] regulations, and (2) the externalization of costs on populations outside the boundaries of the relevant democratic unit. 6 In tandem, these hurdles to democratic correction of cronyistic dispensations of monopoly power by governmental regulators perpetuate regulatory schemes that a broad majority of citizens would vote to overturn if they understood the issue and were sufficiently motivated to invest political energy in correcting it. 7', 'The first democratic deficit, well documented in public choice literature, arises because producers typically receive a much more concentrated benefit from anticompetitive regulations in comparison to the relatively unconcentrated cost imposed on consumers. 8 A small band of producers may lobby aggressively to enact or maintain an anticompetitive scheme that permits the producers to collect significant monopoly rents. 9 Those rents, in turn, may be spread across thousands or millions of consumers, each one paying a relatively small increase in rent. 10 Collective action constraints--the cost of mobilizing consumer sentiment and action to oppose the regulation--give the producers a systematic advantage in maintaining the regulation. 11 As John Shepard Wiley explained in bringing public choice theory literature to bear on Parker immunity questions:', '[I]f the group [of consumers] is large, individual members have little incentive to participate because participation is personally costly and contributes little to the group\'s chances for successful joint action. Small groups encounter fewer of such problems. If group members behave in this rational self-interested manner, then "there is a systematic tendency for exploitation of the great by the small"; less numerous, more intensely concerned special [*1181] interests can predictably outmatch more numerous, more mildly concerned consumer or "public" interests in legislative or regulatory fora--even though the actions of special interests impose a net loss on society. 12', "The second deficit arises when governmental units--whether state or local--externalize the costs of the anticompetitive regulation outside their jurisdiction. The classic example is Parker itself, in which 90 percent of the raisins subject to California's agricultural cartel mandate were sold outside of California. 13 Out-of-state consumers could not be counted on to mobilize democratically to oppose the California regulation, as they had no political voice in California. 14", "Many similar examples of jurisdictional cost externalization have been documented. 15 One arose in an important Supreme Court decision on state action immunity, Town of Hallie v. City of Eau Claire. 16 Hallie, Seymour, Union, and Washington were unincorporated towns adjacent to the city of Eau Claire, Wisconsin. 17 Their citizens could not vote in Eau Claire, but Eau Claire wanted to annex those territories into its boundaries, possibly through coercive means. 18 Eau Claire received federal funds to build a sewage treatment plant in its service area, which covered the four towns, then refused to supply sewage treatment services to the towns. 19 However, the city did agree to provide treatment services to certain homeowners in the towns if a majority of area voters voted by referendum to allow Eau Claire to annex their homes and to commit to use Eau Claire's sewage and transportation services. 20 The towns claimed this scheme was designed to keep the other towns from effectively competing with Eau Claire's sewage collection and transportation services. 21 The scheme also possibly allowed the [*1182] city to raise costs for nonresidents while at the same time leveraging the higher prices to bring the nonresidents (and presumably their property taxes) into the city. 22 Although the city's motivation was ultimately political rather than narrowly economic, it used an anticompetitive strategy to dump monopoly costs on nonresidents who could not vote to rescind the regulations until they joined the city, at which point the question would be moot. 23", 'Together, these two deficits--asymmetrical costs and benefits to both producers and consumers and cost externalization--explain why democratic processes often fail to weed out anticompetitive regulations. Without concerted efforts by champions of consumer interests to overcome collective action problems and mobilize support for regulatory reform, the regulatory barriers to competition can linger indefinitely. As discussed next, these failures of democratic self-correction are exacerbated by regulations that entrench incumbent technologies at the expense of innovation.', 'B. Additional Considerations Affecting Product Market Innovation', 'Many of the contemporary regulatory battles between old and new technologies (particularly those involving the sharing economy) can be understood as follows. The incumbent regulatory scheme arose many decades ago and may well have been legitimately justified (in the sense of not imposing more costs than benefits) at the time of its adoption. 24 Our hypothesized Platonic guardian might even have approved of it at the time of its adoption. 25 The passage of time and advent of new technologies has now eroded the original basis of the regulation, and our Platonic guardian would therefore want the regulation rescinded or reformed. However, incumbent firms succeed in blocking or slowing innovative competition by circling the wagons around the incumbent regulatory schemes. 26 In [*1183] these wars, the incumbents have a decisive advantage for at least three structural reasons.', 'First, if the incumbent regulatory scheme has allowed the incumbent firms to collect monopoly rents, then there may be a sharp asymmetry of incentives between old and new firms. 27 This is the same asymmetry that attends any struggle between incumbent monopolists and new competitive entrants: the monopolist is seeking to protect a large market share at a monopoly price, whereas the new entrant can only hope to gain a smaller market share at a competitive price. 28 Because the incumbent has more to gain than the new entrant has to lose, the incumbent will be willing to spend more to entrench the regulatory monopoly than the new entrant will be to challenge it. 29 This, in turn, discourages potential new entrants from investing in innovative new technologies and mounting political and market-oriented challenges to the incumbents. 30', 'Second, the incumbents have the advantage of status quo biases and fears about the consequences of technological change. 31 Costs of the existing system--to human safety, for example--may be seen as an inevitable baseline, whereas potential risks from the new technology may be seen as incremental threats. 32 Hence, risks and costs of the existing system may be undercounted or not counted at all, while risks and costs of the new system will be made to bear the full weight of their risks and costs.', "For example, in recent months there have been widely reported stories of Uber drivers sexually abusing passengers. 33 These stories rarely report the base rate of abuse by taxi drivers or public transit [*1184] workers, who might well present similar risks to passengers. 34 Similarly, the news media seem to wait with bated breath to report every accident involving a driverless vehicle 35 --even ones where the vehicle was stationary and hit by another at-fault vehicle--without reporting the base rate of nearly 40,000 deaths a year from human-driven vehicles. 36 The focus of news reporting seems to be on the incremental risks created by automated driving without regard to the baseline number of deaths that automated driving might diminish. 37 In principle, regulators should compare the likely risks of allowing new technologies to those of perpetuating the incumbent technology, but they often default to some version of the precautionary principle, insisting that new technologies prove their safety and efficacy in an absolute rather than comparative sense. 38 Given this baseline asymmetry, proponents of new technologies frequently must overcome significant regulatory hurdles not faced by incumbent technologies. Or, incumbent technologies may persuade regulators to force new technologies to play by rules that favor the incumbent technologies--a form of raising rivals' costs and creating regulatory entry barriers. 39", 'Finally, incumbents enjoy the generic benefits of incumbency in a structurally conservative constitutional and political system. The multiple "veto gates" to reform legislation--structural factors such as bicameralism, presentment, filibusters, and committee structures 40 --empower technological incumbents to ride the status quo for years or decades after our hypothetical Platonic guardian would have instituted public-minded reforms. 41', "[*1185] In combination, these three factors create additional barriers to the expected flow of democratic processes toward majoritarian equilibria--that is to say, equilibria that favor consumers' interests in competition and innovation over those of producers in capturing monopoly rents. In light of these factors and the collective action and cost externalization factors discussed earlier, 42 it is unsurprising that regulation serves as a barrier to innovation.", 'C. An Illustration from Automobile Distribution', "The ongoing story of Tesla's efforts to break into the American automobile market illustrates the stickiness of incumbent regulations. 43 For a variety of business reasons, when Tesla entered the market in 2012, it decided that it would have to sell its all-electric vehicles (EVs) directly to consumers, meaning that it would have to open its own showrooms and service centers rather than outsourcing that function to franchised dealers. 44 Among other things, Tesla believed that traditional dealerships would be reluctant and ill-positioned to sell EVs and that Tesla therefore could not expect to convince already skeptical customers to buy EVs unless it opened its own retail facilities. 45 Since the mid-twentieth century, however, most states have adopted laws intended to protect dealers from unfair exploitation by manufacturers. 46 Among the provisions in many of these state statutes is a prohibition on a manufacturer opening its own showrooms and service centers. 47 In many states, manufacturers are required to distribute through independent dealers only. 48", 'Legislatures adopted these direct distribution prohibitions at a time when American car manufacturing was dominated by the "Big Three" (Chrysler, Ford, and General Motors) and many dealers were [*1186] "mom and pop" businesses. 49 State legislatures were convinced that the dominant manufacturers were taking advantage of their franchisees by selling cars through their company-owned stores at lower prices than the dealers could afford to charge given the wholesale prices charged by the manufacturers. 50 The direct distribution prohibitions were justified as correcting a severe imbalance in bargaining power leading to contracts of adhesion and unfair exploitation in manufacturer-dealer relations. 51', 'Assuming that dealer protection rationale made sense in circa 1950, its basis has almost entirely vanished today. With the advent of competition from Europe and Asia, the Big Three are no longer dominant. 52 Dealers have many choices of automobile franchisors and hence considerably more power in negotiations over franchise terms. Further, the dealers are no longer mostly mom and pops. 53 Rather, most dealers are organized into multi-dealer groups, many with hundreds of millions or billions of dollars in annual revenue. 54 Indeed, some of the largest dealer groups have more annual revenue than Tesla. 55 Most significantly, the dealer protection rationale has nothing to do with a company such as Tesla that does not seek to distribute through dealers at all. 56 No dealers, no dealer exploitation.', "Recognizing that the dealer protection rationale that justified the original statutes no longer works, the dealers have attempted to recast the direct distribution prohibitions as consumer protection decisions. 57 They have argued that forcing consumers to buy automobiles from dealers rather than from manufacturers will lead to more price competition, and hence lower prices, and prevent [*1187] consumers from manufacturer exploitation. 58 These consumer protection arguments have been roundly rejected by economists, 59 the Federal Trade Commission (FTC), 60 and major proconsumer groups such as the Consumer Federation of America, Consumer Action, Consumers for Automobile Reliability and Safety, and the American Antitrust Institute. 61 Nonetheless, the dealers have succeeded in using the existing structure of dealer protection laws to block or slow Tesla's direct distribution program in a number of states. 62", 'The Tesla story evidences most of the factors that contribute to the persistence of anticompetitive regulations. The dealers have a concentrated interest in preserving their protected position, while the costs of that protectionism are spread out over millions of consumers. In the state with arguably the most pernicious record with respect to direct distribution reform--Michigan--there is a record of antireform advocacy by a leading incumbent--General Motors--and acquiescence by the political class to protect an in-state champion against an out-of-state challenger. 63 Even though consumers complain more about car dealers than about any other business, indicating the baseline system is not particularly attractive to them, 64 the dealers have invoked fears about the risks of direct distribution in opposition to legislative reforms. And legislative [*1188] inertia has slowed the consideration of reform bills in some states, extending the incumbent regulatory scheme long past its reasonable expiration date. 65', "The structural factors weighing against proconsumer and pro-innovation reforms will not block Tesla forever. The company has already seen significant successes in some state legislatures and courts and is progressively penetrating the market. 66 Yet it would be misguided to consider the company's eventual success a reason not to worry about the structural factors entrenching anticompetitive regulations, especially those foreclosing innovation. No monopoly is permanent--even the most persistent are eventually eroded. 67 Innovative technologies will almost always find a way out eventually, despite incumbent machinations. 68 What incumbents can buy is not monopoly in perpetuity but in extension. 69 Those years or decades of extension are costly to society. They represent significant overcharges to consumers, misallocations of social resources and, in the extreme, impairment to health and safety-- even lives lost. 70", 'Not every instance of anticompetitive state or local regulation exhibits the full set of explanatory factors discussed in this Article as cleanly as the ongoing Tesla saga does. Yet the Tesla story is more paradigmatic than idiosyncratic. Across the economy, incumbent technologies are structurally advantaged to deploy regulatory forces to stifle or slow innovation.', ' [*1189] II. CONSTITUTIONAL AND ANTITRUST PRINCIPLES AS A CHECK ON ANTICOMPETITIVE REGULATION', 'If democratic processes fail to check anticompetitive state and local regulations on a systematic basis, then what can be done about it? Among the potential tools are institutional efforts to address the quality of legislation and regulation through democratic processes, such as creating governmental competition advocacy bodies within state and local governments or using federal purse strings to incentivize state and local governments to reevaluate their regulations. These democratic options are important, but they often fall prey to the pathologies of democratic decision making identified earlier. 71 Competition advocates--whether in government or in the private sector--often face formidable structural barriers to advancing the procompetition interest: entrenched incumbent monopolies, difficulties in mobilizing consumer support given the often diffuse nature of consumer harm, and institutional biases against change. 72', 'In addition to the democratic options, there are what could be styled counterdemocratic possibilities, insofar as they involve the use of courts or agencies to strike down anticompetitive statutes and regulations as inconsistent with some overarching norm of federal law, whether statutory or constitutional. 73 These counterdemocratic possibilities often do not run into the same structural status quo biases as the democratic possibilities do. For example, advocates of a legal theory for overruling an anticompetitive state or local regulation do not have to mobilize broad political support for their position or surmount the "veto gates" 74 built into ordinary political processes. Rather, they typically only have to persuade a small set of elite decision makers that their position is legally correct. It is with these counter-democratic possibilities that this Article is primarily interested.', ' [*1190] The counterdemocratic or countermajoritarian quality of these deployments of judicial review is what places their use in some doubt, 75 even granting the assumption that they are targeting objectively undesirable regulations. 76 In the arc of American history, the courts have vacillated in their willingness to engage in such judicial review since the mid-twentieth century. Late nineteenth and early twentieth century courts were willing to engage in broad judicial review of economic regulation, 77 but the tide turned strongly against such review in the mid-twentieth century. 78 Only in recent years have glimmers of a return to some form of strong judicial review of anticompetitive regulations made a reappearance. 79', 'A. Lochner, anti-Lochner, and Parker', 'The stage for the current constellation of judicial doctrines and attitudes towards federal judicial review of anticompetitive state and local regulations was set through the progression of Lochner-era substantive due process, the anti-Lochner constitutional revolution of 1937, and the extension of anti-Lochner sentiment to federal antitrust law in the creation of Parker\'s state action immunity doctrine in 1943. 80 In 1905, the Supreme Court in Lochner struck down a New York law regulating bakeshop working hours on substantive due process grounds, 81 over Justice Oliver Wendell Holmes\'s famous objection that "[t]he Fourteenth Amendment does not enact Mr. Herbert Spencer\'s Social Statics." 82 During the Progressive and New Deal eras, Lochner and Lochnerism were broadly vilified for interfering with progressive reforms and substituting judges\' economic views for those of legislatures. 83 In the New Deal constitutional revolution associated with the year 1937 (although spanning a few years in either direction), the Supreme [*1191] Court announced it was getting out of the Lochner business--that it would not strike down economic legislation simply on the grounds that it was, in the judgment of the court, ill-considered. 84', 'Over time, it became clear that the anti-Lochner jurisprudence extended to nakedly anticompetitive regulations adopted to favor economic special interests to the detriment of the consuming public. In cases such as Williamson v. Lee Optical 85 and Ferguson v. Skrupa, 86 there was a fairly apparent record that the regulations in question had been adopted to stifle competition and benefit economic special interests, but the courts refused to create an exception to the anti-Lochner doctrine on those grounds. 87 In Williamson, the Court acknowledged that the "Oklahoma law may exact a needless, wasteful requirement in many cases," but insisted that the "day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought." 88 Rather, the Court held that "[f]or protection against abuses by legislatures the people must resort to the polls, not to the courts." 89', 'In 1943, the Supreme Court in Parker v. Brown also made clear that it would not permit the federal Sherman Act to be used as an end-run around the anti-Lochner cases. 90Parker involved both dormant commerce clause and Sherman Act challenges to California\'s Agricultural Prorate Act, which forced farmers into a marketing plan that effectively operated as an output reduction cartel run by farmers. 91 The Supreme Court rejected both challenges. 92 Finding "nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature," 93 the Court created a doctrine of state action immunity for anticompetitive state [*1192] and local laws. 94 The effect of this ruling was to restrict the Sherman Act\'s coverage solely to purely private conduct. 95 Anticompetitive schemes orchestrated by the state would be excluded from judicial review. 96 As Judge Merrick Garland has observed, Parker is best understood as a continuation of the post-1937 jurisprudence rejecting Lochner:', "Parker v. Brown was much less a case about judicial faith in economic regulation than it was a case about judicial respect for the political process. Parker was indeed a child of its times, but the most salient element of that historical context was the Court's recent rejection of the Lochner-era doctrine of substantive due process, under which federal courts struck down economic regulations they viewed as unreasonably interfering with the liberty of contract. Having only just determined not to use the Constitution in that manner, the Court was not about to resurrect Lochner in the garb of the Sherman Act. 97", 'B. The Potential for an Increased Level of Judicial Scrutiny', 'As of 1943, one would have been justified in believing that, at least from the perspective of federal judicial review, anticompetitive state and local regulations would receive a free pass unless they [*1193] committed certain egregious violations, such as disadvantaging "discrete and insular minorities" 98 or discriminating against out-of-state commerce. 99 But the judicial impulse to cast a stern glance at perniciously anticompetitive regulations could not be forever stifled, and before long cracks began to appear in the courts\' anti-Lochnerian resolve.', "Antitrust law and its state action immunity doctrine were the first to move in a significantly more interventionist direction. By the time of the Midcal decision, the state action immunity doctrine had been narrowed to permit judicial scrutiny unless the state regulation met a two-part test: (1) clear and affirmative expression of the anticompetitive policy by the sovereign state itself, and (2) active supervision of the policy's implementation by state actors. 100 Under this structure, the courts have invalidated a number of anticompetitive state regulatory schemes--most recently the practice of delegating regulatory power to occupational licensing boards staffed with potentially self-interested industry participants. 101", 'The Midcal test invokes a democracy-reinforcement theory of antitrust judicial review. 102 States may enact anticompetitive regulations so long as they take conspicuous responsibility for them. 103 If the state can be obviously identified with the scheme, then perhaps citizens will "vote out the bums" if the costs to consumers are too high. 104 Alas, many anticompetitive regulations escape Midcal\'s net because of the systemic factors identified in the previous section. 105 Even when a state conspicuously takes ownership of an anticompetitive scheme, democratic processes may fail to provide a remedy because of the asymmetry of costs and benefits [*1194] between producers and consumers, the externalization of costs outside the voting jurisdiction, and the entrenched advantage of technological incumbency. 106', "In light of the limited efficacy of Midcal's regime, one could consider additional ways to increase the level of antitrust scrutiny of anticompetitive state and local regulations. Commentators have proposed various such doctrinal approaches to invigorate antitrust preemption. For example, courts might adopt a cost-externalization test, which would invalidate regulatory schemes that externalize a disproportionate share of monopoly overcharges outside the boundaries of the political district enacting the regulation. 107 Or, as I have proposed elsewhere, they might read the Parker doctrine as entirely inapplicable to enforcement actions by the FTC--a legal question that the Supreme Court has held is still open. 108 In the event that the courts hold Parker inapplicable to the FTC, the Commission might play a significantly enhanced role in checking anticompetitive abuses by state and local governments.", 'Despite calls for a broader use of federal antitrust law to police anticompetitive state and local regulations, the Supreme Court continues to refine the Parker doctrine with an eye on Lochner. Then-Justice Rehnquist once worried that the Court should not "engage in the same wide-ranging, essentially standardless inquiry into the reasonableness of local regulation that th[e] Court … properly rejected" in terminating Lochnerism. 109 In his dissenting opinion in Community Communications Co. v. City of Boulder, Justice [*1195] Rehnquist warned about the risks of opening up antitrust review of municipal regulations in a way that would require cities to justify their regulations, and the courts, in turn, to weigh those justifications. 110 Rehnquist wrote:', 'If the Rule of Reason were "modified" to permit a municipality to defend its regulation on the basis that its benefits to the community outweigh its anticompetitive effects, the courts will be called upon to review social legislation in a manner reminiscent of the Lochner era. Once again, the federal courts will be called upon to engage in the same wide-ranging, essentially standardless inquiry into the reasonableness of local regulation that this Court has properly rejected. Instead of "liberty of contract" and "substantive due process," the procompetitive principles of the Sherman Act will be the governing standard by which the reasonableness of all local regulation will be determined. Neither the Due Process Clause nor the Sherman Act authorizes federal courts to invalidate local regulation of the economy simply upon opining that the municipality has acted unwisely. The Sherman Act should not be deemed to authorize federal courts to "substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws." The federal courts have not been appointed by the Sherman Act to sit as a "superlegislature to weigh the wisdom of legislation." 111', "Also in the shadow of Lochner, recent years have shown glimmers of a reinvigoration of constitutional doctrines checking anticompetitive abuses by state and local governments. The negative or dormant commerce clause--limited by the Parker Court on anti-Lochner grounds--has occasionally been deployed to invalidate not only anticompetitive regulatory schemes 112 that discriminated against out-of-state interests, but also, on occasion, those that impose significant burdens on interstate commerce without a sufficient justification. 113 As of this writing, Tesla is testing the limits of these [*1196] doctrines in its challenge to Michigan's direct distribution law. 114 Its complaint for injunctive relief asserts:", "[Michigan's] [p]articularly egregious protectionist legislation … blocks Tesla from pursuing legitimate business activities and subjects it to arbitrary and unreasonable regulation in violation of the Due Process Clause of the Fourteenth Amendment; subjects Tesla to arbitrary and unreasonable classifications in violation of the Equal Protection Clause of the Fourteenth Amendment; and discriminates against interstate commerce and restricts the free flow of goods between states in violation of the dormant Commerce Clause. 115", "Thus far, Tesla has survived a motion to dismiss in federal court and won a key discovery motion seeking automobile dealers' communications concerning the Michigan ban on direct distribution. 116", 'Perhaps even more significant have been a handful of court of appeals decisions applying equal protection principles to invalidate anticompetitive regulations designed solely to protect a discrete group of economic actors from competition--although there remains a circuit split over this practice. Morbidly, the most significant cases have all been related to funeral parlors and casket sales.', 'In 2004, the Tenth Circuit in Powers v. Harris rejected a constitutional challenge to an Oklahoma statute that limited casket sales to licensed funeral parlors. 117 The court accepted the premise that the statute had no genuine health and safety rationale and was "a classic piece of special interest legislation designed to extract monopoly rents from consumers\' pockets and funnel them into the coffers of a small but politically influential group of business people--namely, Oklahoma funeral directors." 118 Nonetheless, the court held its hands were tied by the anti-Lochner cases--particularly [*1197] Williamson and Ferguson, which also involved (arguably) nakedly parochial anticompetitive regulations. 119', 'On the other hand, in their own casket cases, the Fifth and Sixth Circuits invalidated the anticompetitive schemes on equal protection grounds, holding that "protecting a discrete interest group from economic competition is not a legitimate governmental purpose" and therefore fails even rational basis review. 120 This exercise of what Judge Ginsburg calls "rational basis with economic bite" could grow into a significant check on anticompetitive state and local regulation if utilized more expansively. 121 If this Article\'s premise is valid--that regulations designed solely to protect "discrete interest group[s] from economic competition" 122 are pervasive--then the federal courts have their work cut out for them if they take up the casket maxim with seriousness.', "However, it is far from certain that they will or should. Despite the movement towards enhanced scrutiny of anticompetitive economic cronyism just described, the ghosts of Lochner continue to loom large. Even judges unsympathetic to the casket regulations may be concerned about the prospect of unelected judges substituting their own economic preferences for those of democratically elected representatives. In Powers, the Tenth Circuit listed a series of classically anti-Lochner rationales (including a rejection of the role of the Platonic guardian hypothesized in this Article) for refusing to embrace the Sixth Circuit's antiparochialism principle:", 'First, in practical terms, we would paralyze state governments if we undertook a probing review of each of their actions, constantly asking them to "try again." Second, even if we assumed such an exalted role, it would be nothing more than substituting our view of the public good or the general welfare for that chosen by the states. As a creature of politics, the definition of the public good changes with the political winds. There simply is no constitutional or Platonic form against which [*1198] we can (or could) judge the wisdom of economic regulation. Third, these admonitions ring especially true when we are reviewing the regulatory actions of states, who, in our federal system, merit great respect as separate sovereigns. 123', "So here is the question for those who accept this Article's central premise regarding the prevalence of anticompetitive state and local regulation and yet worry, like the Powers court, about a return to Lochner: If one is interested in pulling additional judicial levers to scrutinize anticompetitive state and local regulations, but worried about returning to Lochnernism, how do the constitutional and antitrust levers compare? Are both equally susceptible to misuse and abuse, is one less risky than the other, and are there limits that could be placed on both to cabin their potential risks? This Article's final Part compares the constitutional and antitrust tools as potential foils to anticompetitive state and local regulation to help answer these questions.", 'III. COMPARING THE RISKS AND LIMITS OF THE CONSTITUTIONAL AND ANTITRUST TOOLS', 'A. Limiting the Scope of Judicial Review to Regulations Affecting Competition', "The fear of a return to Lochnerism is in large part a fear that judicial review of economic regulatory decisions is a Pandora's box that, once open, would quickly unleash a full-scale movement toward a substitution of judicial economic philosophies for those of the democratically responsive branches. 124 Hence, in the current constellation of Lochner-phobia, it is important to explain how any doctrine that invites increased judicial scrutiny of economic regulation would be cabined or restrained by a workable limitation principle. Both the antitrust and constitutional tools under consideration embody such a limitation principle insofar as they do not propose universal federal scrutiny of all undesirable state economic regulation. Instead, they limit the scrutiny to regulations that harm [*1199] competition for the benefit of identifiable special interests. In other words, the prima facie case in either event requires demonstration of competitive harm as opposed to merely social undesirability. 125", 'The "competitive harm" limitation principle excludes from judicial review a wide set of regulations and hence limits the range of judicial interference with state regulatory schemes. Many cronyist regulations line the pockets of politically connected special interests without necessarily impairing competition. Consider, for example, a city ordinance that required disposal of a certain kind of medical waste at a pharmacy. Assume further that the waste in question could be safely disposed of through ordinary garbage collection, and the sole purpose of the scheme in question was to provide pharmacies with an opportunity to charge a fee for collecting the waste. Our hypothesized Platonic guardian would wish to overturn that regulation but could not do so on the constitutional or antitrust grounds under consideration because the regulation in question does not limit competition in any important sense. Rather than stifling competition in a legitimate market, it creates a new market for an undesired and unnecessary service.', 'Lochner-phobes may wonder whether this limitation principle is limited enough. Although the limitation carves off a large swath of cronyist regulations from review, it still includes a relatively large universe of regulations, creating the possibility that judges will have a free hand to strike down many important state regulatory programs in the name of enhanced competition. Those less worried about Lochner and more willing to encourage judicial review of economic regulation may worry that the limitation principle is too limited and that it would allow a vast universe of cronyist regulation to escape judicial scrutiny on the same grounds that much cutthroat business behavior escapes antitrust scrutiny today--it may be unethical or undesirable, but does not fall within the purview of the antitrust laws because it does not impair general market competitiveness. 126', ' [*1200] Limiting the scope of judicial review to economic regulations impairing competition also raises a question of legal principle. As to antitrust, it is easy to justify such a principle. Notwithstanding Oliver Wendell Holmes\'s protestation that the Sherman Act "says nothing about competition," 127 a century of judicial construction has oriented the antitrust laws towards a singular focus on competition. 128 On the other hand, it is not obvious that constitutional scrutiny should rise or fall on the effects a cronyist regulation has on competition. It may be true that "protecting a discrete interest group from economic competition is not a legitimate governmental purpose," 129 but it seems equally true that dispensing economic rents to favored discrete interest groups more generally is also not a legitimate government purpose. In either case, the argument for limiting judicial review is not that the set of targeted regulations is constitutionally legitimate, but that the process of separating sheep from goats is fraught with the potential for judicial usurpation.', 'B. Considering Governmental Justifications for Restraints on Competition', "Assuming that judicial review of anticompetitive state and local regulations is to occur with some degree of bite, the fighting question may often become how to evaluate the state's proffered justifications for the restraint on competition. Both antitrust and constitutional tools would need to allow ample room for the state to demonstrate verifiable justifications for the challenged regulations. To put this point in antitrust parlance, there are no per se unlawful state restraints on competition--the state's reasons for regulating will always be up for review in judicial or administrative proceedings challenging their validity.", " [*1201] The critical question is how much interrogation into the state's proffered justifications a court or reviewing agency would, could, or should undertake. In conventional post-Lochner terms, economic regulations were subjected to no more than rational basis review--an exceedingly deferential standard of review. 130 The state did not have to advance any empirical support for its proffered justifications and, indeed, did not have to advance any justifications at all. 131 Judges were supposed to uphold the regulation if they could conceive of any justification that might plausibly support it:", 'A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. "[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." A statute is presumed constitutional, and "[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it," whether or not the basis has a foundation in the record. Finally, courts are compelled under rational-basis review to accept a legislature\'s generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it "is not made with mathematical nicety or because in practice it results in some inequality." 132', 'That sort of rational basis review is far from the sort of review conducted by the Craigmiles and St. Joseph Abbey courts in striking down the Tennessee and Louisiana casket rules. 133 Those courts required evidentiary support for states\' claimed justifications and subjected the states\' claims to rigorous cross-examination for logical consistency. 134 In the Sixth Circuit case--Craigmiles--the court rejected the state\'s arguments that the casket regulation protected casket quality and public health, made it more feasible for casket sellers to advise bereaved families about which casket was most suitable for their needs, and protected against sharp business [*1202] dealing. 135 The court found these arguments inconsistent with the state\'s own regulatory practices and unsupported by any record evidence. 136 Similarly, in the Fifth Circuit case--St. Joseph Abbey--the court repeated the familiar proposition that "rational basis review places no affirmative evidentiary burden on the government," but quickly added that "plaintiffs may nonetheless negate a seemingly plausible basis for the law by adducing evidence of irrationality." 137 The court then inquired into evidentiary support for the state\'s proferred "rational bases." 138 For example, on the ostensible consumer protection rationale for prohibiting casket sales except by licensed funeral parlors, the court observed that the FTC had largely rejected this argument as an empirical matter, noting that the FTC found "insufficient evidence that … third-party sellers of funeral goods are engaged in widespread unfair or deceptive acts or practices" and that the empirical "record [is] \'bereft of evidence indicating significant consumer injury caused by third-party sellers.\'" 139', 'This form of review resembles antitrust litigation, where once a plaintiff raises a prima facie case of anticompetitive effect (outside of per se rules, where no justifications are allowed), the defendant typically can proffer procompetitive justifications but bears the burden of offering evidentiary support. 140 Although giving lip service to the norms of rational basis review, these courts were in fact taking a hard look at the states\' proffered justifications once the regulation in question appeared prima facie to meet the description of a measure designed to protect "discrete interest group[s] from economic competition." 141', 'Inquiries into offsetting justifications for prima facie suspect conduct raise two doctrinal-analytical questions: (1) how tight must the fit between means and ends be in order for the conduct in question to survive scrutiny, and (2) once the conduct has been shown to advance legitimate ends, should its harms be balanced against its [*1203] benefits, or should it simply be deemed lawful without any balancing? 142 Both constitutional and antitrust tools for addressing anticompetitive regulation would need to address these questions.', 'As to the first question--the required tightness of means-ends fit--both constitutional and antitrust law already contain suitable doctrines. Moving up the ladder of scrutiny from rational basis review, intermediate scrutiny in constitutional law (such as that applicable to content-neutral restrictions on speech) requires that the restriction in question advance important governmental interests and not burden the protected interest (speech in the speech cases, competition in competition cases) more than necessary to further these interests. 143 The fit between means and ends need be only "reasonable," not strictly necessary or essential. 144 Unless the constitutional limitation on anticompetitive cronyism should fall into the more stringent strict scrutiny category--a very doubtful possibility--this sort of fit between regulatory means and ends would seem applicable.', 'Antitrust law shares a similar approach to the less restrictive alternative analysis under the rule of reason, and it too would presumably apply to government restraints on competition under an expanded form of judicial review. 145 As explained in the Justice Department and FTC competitor collaboration guidelines, a reasonable, but not essential, fit between means and ends is required to credit proffered justifications for prima facie anticompetitive agreements:', 'The Agencies consider only those efficiencies for which the relevant agreement is reasonably necessary. An agreement may be "reasonably necessary" without being essential. However, if the participants could have achieved or could achieve similar efficiencies by practical, significantly less restrictive means, then the Agencies conclude that the relevant agreement is not [*1204] reasonably necessary to their achievement. In making this assessment, the Agencies consider only alternatives that are practical in the business situation faced by the participants; the Agencies do not search for a theoretically less restrictive alternative that is not realistic given business realities. 146', 'A potential difference between constitutional and antitrust analysis might arise on the second important means-ends question--whether to balance harms against benefits of the regulatory restriction. For example, suppose that a regulation limiting ride-sharing services resulted in some small safety benefit to customers but an arguably much greater harm to customers in the form of diminished choice of service options and higher prices. Should a reviewing court or agency balance the safety enhancements against the harms to competition, or should it rather conclude that, having shown a legitimate reason for its existence, the regulation should stand?', 'Although intermediate scrutiny in constitutional law is often described as a "balancing test," courts do not generally engage in explicit balancing after passing the less restrictive alternatives inquiry. 147 Some degree of value judgment must be embedded in the inquiry into whether the state\'s interest is sufficiently "important," but it is rare to see a court say, in effect, that although the state\'s interest is concededly important and the regulation at stake is reasonably related to it, the harms caused by the regulation outweigh its benefits. 148 For purposes of the principle against protecting "discrete interest group[s] from economic competition," it seems apparent that there is no room for balancing at all, as a state [*1205] regulation that serves some legitimate end by definition is not "simple economic protectionism." 149', 'By contrast, antitrust law is, in principle, supposed to require open-ended balancing at this final step: "if the monopolist\'s procompetitive justification stands unrebutted, then the plaintiff must demonstrate that the anticompetitive harm of the conduct outweighs the procompetitive benefit." 150 If followed in state action doctrine cases, this sort of balancing could precipitate serious accusations of Lochnerizing, as it would put judges in the position of substituting their own preferences for market outcomes over the state\'s legitimate regulatory objectives.', 'Fortunately, although antitrust law nominally calls for balancing, courts typically do not engage in it. 151 Even in Microsoft--the case that most explicitly and authoritatively called for final-stage balancing--the D.C. Circuit engaged in very little, if any, true balancing. 152 Perhaps because of the incommensurability between anticompetitive or procompetitive effects or concern about chilling procompetitive conduct, courts tend to exonerate competitive behavior that is necessary to procompetitive effects without asking whether the harms outweigh the benefits. 153 In order to stave off Lochnerizing concerns, any expanded antitrust review of state and local regulations might need to formalize this practice doctrinally: Once a state demonstrates that the regulation in question is reasonably tailored to achieve some legitimate governmental objective, [*1206] antitrust does not require balancing of the harms to competition against the legitimate governmental objectives.', 'A final question unique to antitrust review is whether, when it comes to means-ends review, the catalogue of permissible ends is limited to those recognized by antitrust law as "procompetitive." One of the important doctrinal and policy structures of antitrust law is a division of the world into virtues that are said to be "procompetitive" and those that are not. 154 To count as a legitimate virtue in the antitrust domain, an effect must be "procompetitive," meaning that it must work to enhance or improve market competition. 155 Supposed benefits of a restraint that assume that competition is itself the problem in need of curtailment are labeled with the epithet of "ruinous competition" theories and are dismissed as inconsistent with the Sherman Act\'s procompetition policy. 156', 'While this single-minded devotion to competition may make sense as to the world of private restraints, it is less clear that it can be applied sensibly to governmental regulation. Do governments not have the right to take the view that competition of certain types causes social evils that should be curtailed? For example, many regulatory restrictions on alcohol and tobacco distribution are designed to decrease competition and hence reduce output as compared to that which would be obtained in a competitive market. 157 While it may be undesirable for private actors to limit harmful output through private means, the state\'s police power surely includes the right to do so, including by limiting competition. 158 This suggests that the range of regulatory interests [*1207] states might legitimately advance in support of challenged regulations would be broader than those deemed "procompetitive" in conventional antitrust analysis.', "Opening the door to a wider scope of justifications in cases where the restraint on competition is imposed by governmental rather than private actors would appear on first impression to favor the government. Such a widening of the rule of reason, however, raises precisely the Lochnerizing concern raised by Justice Rehnquist in his previously quoted City of Boulder dissent. 159 If courts were called upon to balance health and safety benefits against traditional competition concerns around prices and innovation, then they might well slip into a Lochnerizing mold. But perhaps such concerns could be abated by limiting the reviewing court or agency's role to determining whether the regulation in question actually supported the state's proffered goals. As long as the goals were permissible (that is, not simply protecting discrete interest groups from competition as a form of political patronage) and the regulations were reasonably related to the goals, the reviewing court or agency would not inquire more broadly into the regulation's overall desirability.", 'C. Institutional and Procedural Distinctions', 'Antitrust preemption and constitutional review are differently situated in one significant way: Constitutional equal protection, substantive due process, and dormant commerce clause principles are privately enforceable by any party that meets the Article III standing requirements--which, in this context, means at least anyone directly affected by a regulation impairing competition. 160 Antitrust has its own private right of action standing rules, 161 as well as an additional institutional feature that might significantly limit some of the abuses associated with Lochnerizing. One proposed route for increasing the preemptive scope of federal antitrust law over anticompetitive state and local regulation is to hold the [*1208] Parker doctrine inapplicable to the FTC. 162 This would give the FTC enhanced power to challenge anticompetitive state and local regulations. Not only would this limit the incidence of challenges to state regulation (the FTC Act is not privately enforceable and only the Commission can initiate an action under the Act), 163 but it would also put the Commission itself, rather than an Article III court, in the position of making an initial decision on the case. An Article III court could ultimately become involved, as adverse Commission decisions are appealable to any federal court of appeal in which the case could have been initially brought. 164 However, lodging the antitrust review function in the FTC would grant the Commission an initial regulatory review function and the power to make factual findings subject to "substantial evidence" review. 165', 'Whether lodging an enhanced review function in the FTC as opposed to private litigants would lessen concerns over Lochnerizing depends in large part on what one perceives to be the central evil of Lochner. Was Lochner problematic because judges usurped the decisions rightfully committed to more democratically representative branches of government? Or was the problem that they were ideologically committed to formalistic categories such as common law baselines, the existing distribution of wealth and entitlements, and an arbitrary distinction between government action and inaction? 166', 'The institutional concerns about judges substituting their own economic preferences for those of legislators and members of the executive branch might have less force in a context in which an administrative agency--here the FTC--reviewed state and local regulations for compatibility with federal antitrust law. Historically, the political coalitions that opposed economic substantive due process during the Progressive and New Deal eras were comfortable with delegating extensive regulatory powers to federal administrative agencies 167 and rejected Lochnerism because of the political character of judicial activism by unelected judges even while [*1209] supporting activism by theoretically more democratically accountable institutions such as the FTC. 168 Though ostensibly designed to be technocratic and politically detached, the FTC is in fact politically responsive to the will of Congress, which holds its purse strings. 169 It is thus a more evidently "democratic" institution than the courts are and has a legislative mandate from Congress to make economic policy, 170 which might lend legitimacy to its review of anticompetitive state and local regulation.', 'Entrusting review to an agency rather than a court would not entirely dissipate concerns about potential Lochnerizing; there would remain judicial review of the agency decision in the federal courts of appeal and, potentially, the Supreme Court. 171 Still, judicial review of agency decisions is more restricted than direct judicial review of state or local regulations. For example, agency factual findings are upheld so long as supported by substantial evidence, and the courts accord a degree of deference (albeit not Chevron deference) to agency decisions on complex economic matters. 172 While opportunities remain for the appellate courts to substitute their own judgment for that of state and local regulators, they could only do so by siding with the FTC, because there would be no judicial review in a case in which the Commission had decided to uphold a regulation as consistent with federal law. 173', "As to the objection that Lochner represented a formalistic classical ideology that entrenched antiredistributionist and laissez-faire baselines, simply handing off the review function to the FTC is not a complete answer to that concern. Enhancing the Commission's preemptive powers over state and local regulations would [*1210] represent a shift toward deregulation, as the power could only be wielded to strike down regulations--not to require more regulation or to institute regulations of the Commission's own making. In ideological terms, state action immunity generally codes as a progressive doctrine designed to insulate regulatory schemes from challenge and, hence, many of the sharpest critiques of the Parker immunity doctrine have been aligned with the antiregulatory Chicago School 174 and probusiness Republican administrations. 175", "At the same time, the FTC's preemptive agenda would be unlikely to focus on entrenching established economic interests and preserving the status quo in the distribution of property and income--the second vision of what is wrong with Lochner. To the contrary, as discussed earlier, the general tendency of anticompetitive state regulations is to entrench economic incumbents and incumbent technologies by denying entry to new firms and technologies. 176 In this context, enhanced antitrust preemption of state and local regulation would be a liberalizing force creating opportunities for new market entry--just the opposite of a set of doctrines protecting the status quo."]

[(10, 18)]

5b5e1b13edbe6c97350575975fd889ff208d2751d4a6e72e834d172ab148ecde

Rapid uptake of disruptive innovations hedges future existential risks

Chris Callaghan 20, School of Business Sciences, University of the Witwatersrand, “Radical Increases in Investments in the Research/University Sector May Be Needed to Prepare for the Next Post-COVID Existential Threat,” SSRN Scholarly Paper, ID 3751939, Social Science Research Network, 12/19/2020, papers.ssrn.com, doi:10.2139/ssrn.3751939

positive externalities with research that reduced the pandemic are extraordinarily large in the Black Swan phenomenon Research protect from existential threats we want responsiveness of our research system novel Innovations are disruptive the more explicit the quicker they might spread research declining could be problematic in existential threats research could prepare us for the next threat might be existential a virus that mutates evade vaccines and drugs has high mortality could pose a threat to human life itself science attain economies of scale large numbers might link efforts positive externalities are invisible until catastrophic disasters occur a coming threat can eliminate human life on the planet

Reflecting on Covid brings implications to mind. One is that the positive externalities associated with research that could have reduced the costs of the pandemic are extraordinarily large Of course, hindsight is 20-20 in our vision of the past is clear, and these externalities were largely invisible to many prior to the outbreak the Black Swan phenomenon Research protect us from coming existential threats we want to increase the responsiveness of our entire research system novel Innovations are by definition disruptive the more explicit these ideas are the quicker they might spread many studies show that research are declining over time . This could be problematic in light of the possibility of existential threats , and our need for a research system that can respond to them in real time research could go a long way to prepare us for the next threat . The next unanticipated threat might be an existential one . Keeping with the biomedical example a Covid-like virus that mutates quickly to evade vaccines and drugs and that has a very high mortality rate could pose a n existential threat to human life itself Citizen science offers a way to attain economies of scale derived from swarm intelligence large numbers of problem solvers might link research efforts silos constrain scientific research, and keeps fields from talking to each other in effective ways Urgently building a stream of research that can focus on these principles could go a long way in preparing us for the next existential threat This may be more urgent than we can imagine. the positive externalities from research investments are essentially invisible until catastrophic disasters occur there may be insufficient research capability to be able to deal with unforeseen existential threats. If a coming threat is existential in that it can eliminate most human life on the planet - then Urgency may be needed before it is too late

Covid externalities research could have reduced the costs of the pandemic extraordinarily large in Black Swan Research protect coming existential threats responsiveness entire research system by definition disruptive explicit quicker they might spread research declining over time problematic existential threats research system respond to them in real time research long way prepare next threat might be an existential one biomedical virus mutates quickly vaccines drugs mortality rate a human life itself Citizen science economies of scale swarm intelligence large numbers link efforts silos constrain stream more urgent than we can imagine. positive externalities invisible catastrophic disasters occur insufficient research capability existential eliminate most human life on the planet Urgency before it is too late

['Reflecting on the global experience of the Covid 19 pandemic of 2020 brings certain implications to mind. One such implication is that the positive externalities associated with research that could have reduced the costs of the pandemic are extraordinarily large. Of course, hindsight is 20-20, in that our vision of the past is clear, and these externalities were largely invisible to many prior to the outbreak. Taleb (2005) has warned of the asymmetrical consequences of unforeseen events, but whereas literature has explored the Black Swan phenomenon few have applied it to biomedical contexts, or to the need to ensure our Research Sectors are empowered to protect us from coming existential threats.', '2. Urgently addressing asymmetries in externalities', 'Key questions arise from debates about research funding. Who should decide? Which objectives do we prioritise? These will never be easy decisions to make. In an academic system that has made time its currency via a process of tacitification, it is not clear whether the system is responsive enough to threats like Covid. Or to other as yet unanticipated threats. If we do not know where the next threat is coming from, we might need to develop research capabilities in the following areas.', 'First, we might want to increase the responsiveness of our entire research/discovery system. This may require a real time focus- whereby problems are solved in real time. It is fundamentally at odds with the nature of the academic career system which seems to have operationalized time as its unit of career progression. What does this mean? The tacitification of the academic career process refers to a process whereby it takes longer to get into the top journals in the world. The preparation of an article is increasingly tacit- it requires tacit knowledge. The novel ideas rejected in a system/industry that unabashedly measures its quality in its rejection rates is bound to reject some life-saving ideas and innovations. Innovations are by definition disruptive- and the more explicit these ideas are the quicker they might spread. Tacit knowledge is difficult to share- one cannot simply write a manual, as you can with explicit knowledge. One can write a long list of reasons for why reviewers might reject a paper in a top journal that have nothing to do with the ideas of the paper. Many on this list require tacit skills that take a long time to develop. This tacitification seems to co-occur with a phenomenon that Jones (2009) describes as the burden of knowledge effect, whereby Nobel prizes are being awarded to older recipients, PhDs are getting longer, and teams are becoming the norm in academic publishing as it is getting more and more difficult to keep up with the frontier of knowledge. Indeed, many empirical studies show that returns to investments in research are declining over time. This could be problematic in light of the possibility of existential threats, and our need for a research system that can respond to them in real time.', 'Re-focusing research on real time outcomes could go a long way to prepare us for the next threat. The next unanticipated threat might be an existential one. Keeping with the biomedical example of Covid, a Covid-like virus that mutates quickly enough to evade vaccines and antiviral drugs and that has a very high mortality rate could pose an existential threat to human life itself (or at least to human life as we know it). Such a re-focussing could however require uncomfortable introspection.', 'Second, we could apply some novel technological ideas to reduce the cost of research (including biomedical research) while improving its quality at the same time. Citizen science applied to biomedical research offers us a way to attain economies of scale in the research process itself (Callaghan, 2016a), and theory derived from swarm intelligence (Callaghan, 2016b) might be helpful in that it shows how large numbers of problem solvers might link their problem-solving research efforts. These approaches may however require new thinking about paradigms in science (Callaghan, 2016c), and how silos constrain scientific research, and keeps fields from talking to each other in effective ways. Indeed, novel ways of thinking about theory show that over time progress can be made in research on aging (Callaghan, 2018), as its underlying fields ‘link up’ due to big data capabilities that provide comprehensive knowledge. Big data and machine learning are now starting to tackle the primary problem holding progress back in biological science- our inability to obtain economies of scale in discovery (Callaghan, 2018). This is particularly acute in proteomics, the study of the potentially infinite permutations of protein strings that underlies all protein-based life. Crowdsourced R&D now offers methodological insights into how crowdsourcing can be developed into a ‘full’ scientific methodology to obtain economies of scale in the research process itself.', 'Urgently building a stream of research that can focus on these principles could go a long way in preparing us for the next existential threat. Economics research can help us to estimate the size of the externalities associated with impending existential threats. This research may be more urgent than we can imagine.', '3. Conclusion', 'The objective of this conceptual note was to point to the fact that the positive externalities (the positive payoffs) that come from research investments are essentially invisible until catastrophic disasters occur. The key implication arising from debates about these externalities is that there may be insufficient research capability to be able to deal with unforeseen existential threats. If a coming threat is existential- in that it can eliminate most human life on the planet- then fiscal budgets would do well to increase the proportion of investments in research capability across the board. Urgency may be needed in this regard, before it is too late. ']

[(6, 18)]

cd658e69b8417f4fffeaa2b2ae33a762d686559266adf1fed1616448dff5ca48

Distributed energy resources, or DERs, are poised to surge, but suppressed by anticompetitive rates AND ambiguous antitrust laws.

Michael W. Wara 17, Associate Professor and Justin M. Roach, Jr. Faculty Scholar, Stanford Law School, “Competition at the Grid Edge: Innovation and Antitrust Law in the Electricity Sector,” 25 N.Y.U. Envtl. L.J. 176, 2017, WestLaw

utilities redesign rates for NEM customers because changes will reduce threats to their market position They may compet with DER s in ways that take market power But would rate s that disadvantage competitors pose risk under federal antitrust ? The assumption has been no in Midcal while Circuit s have been deferential to PUCs the S C has been more stringent and yet unclear about the substantive requirements examples of S C review of utility s under antitrust produced surprising results A key question left unaddressed is what supervision must consist of of mere monitoring ? of insuring policies are fulfilled? in the utility context, there is real lack of clarity relevance to DER is open to dispute DERs are cost-competitive if rate s are maintained sales likely grow substantially

utilities are motivated to focus on cost-causation issues in redesign ing rates for NEM customers both for legitimate reasons and because these changes will reduce threats to their current market position as monopolists. They may be tempted to enter direct compet ition with DER provider s in ways that take advantage of their market power a utility take advantage of its monopoly to attempt to drive providers of distributed energy out of its territory . But would changing rate structure s in ways that disadvantage new competitors or engaging in other forms of exclusion pose legal risk for utilities under the federal antitrust laws ? The assumption has generally been no . State-chartered monopolies have generally been exempted from federal antitrust laws that limit anticompetitive practices aimed at establishing or maintaining monopolies. The Supreme Court articulated, in Parker and reaching its modern form in Midcal a doctrine exempting state regulation of private industry that restrains free-market competition in ways that would violate Federal antitrust law if pursued by a non-regulated entity. Given the reach of state regulation crafting such an exemption was necessary if many practices that were required by states were not to create liability for private actors carrying them out. Electric utilities are monopolies that will not allow other firms to operate similar services in their service territories The basic rule applied by courts since Midcal for determining whether a practice conducted pursuant to state regulatory oversight is exempt from federal antitrust liability asks whether state action has authorized the practice in question and whether it is carried out subject to active supervision by appropriate state authorities active monitoring by a state regulatory body such as a Public Utility Commission can substitute for the antitrust laws so long as there is a policy, clearly articulated to displace competition Whether electric utilities whose prices, investments, and practices are subject to extensive state regulation should be exempt from federal antitrust doctrine seems in general an easy question . The answer is yes . It would make little sense to allow a state PUC to exercise extensive control over a firm’s activities only to hold the firm liable for anticompetitive practices mandated via the regulatory program . This is particularly true in contexts where the activity at issue may have characteristics that lead naturally towards monopolization the electricity industry is in the midst of a period of intense but partial competition between new entrants that seek to serve some electricity needs of consumers via DER and the traditional monopoly service providers The response from utilities over the past three years has been very active . Given the right of private parties to challenge actions by firms as violations of the antitrust laws, it would seem only a matter of time before DER providers begin to utilize these tools to call into question practices with which utilities are responding to DER competition as the threat posed by solar to electric utilities grows more acute and so responsive rate changes by regulated utilities to DER providers gain momentum , challenges to the allegedly anticompetitive impact of PUC approval of monopoly protective activity by electric utilities are likely to become commonplace . Whether or not these gain traction , and so influence the behavior of utilities and their PUCs will depend on how courts apply the State Action Immunity doctrine in these cases there is substantial uncertainty concerning the application of these defenses while Circuit Court s have generally been highly deferential to PUCs in evaluating the supervision of regulated utilities anticompetitive conduct, the S upreme C ourt , when it has reached the issue has been both more stringent in its evaluation and yet at the same time unclear about the substantive requirements of “active supervision.” The few examples we have of S upreme C ourt review of regulated utility practice s under antitrust law have produced surprising results . Either because the utility was interfering with businesses outside of its monopoly or because the activities in question were regulated under the Federal Power Act and so antitrust statutes were not subject to the State Action Immunity shield utilities have been subject to antitrust liability despite supervision A key question in evaluating actual supervision left largely unaddressed is exactly what supervision must consist of Should the supervision consist of mere monitoring ? If so, then utilities have essentially no risk Should the supervision consist of insuring state policies are being fulfilled? This might make sense given the requirement that anticompetitive conduct be generally but not specifically authorized by the state In the electricity context this might be a requirement that PUCs perform their core function On the other hand, if one views the state as in some way taking responsibility for balancing antitrust with other state policies , a court might look to see whether supervision of the anticompetitive aspects of private conduct has occurred in evaluating “active supervision.” In that case, reviewing courts might assess whether or not a public utility commission supervising electric utility conduct with potentially anticompetitive impacts on rival firms has evaluated the impacts of that conduct Unfortunately, especially in the utility context, there is a real lack of clarity beyond the cases from the late 1990s and early 2000s concerning PURPA The relevance of these cases to the DER situation is open to dispute DERs are or will shortly be cost-competitive with grid-supplied energy if traditional rate structure s are maintained . The number of states where DERs can compete for at least a fraction of utility sales is likely to grow substantially Thus the decision to allow anticompetitive conduct with respect to DER providers via rate structure changes is quite different than that of PURPA facilities

motivated redesign rates legitimate reduce threats to their current market position compet with DER s advantage of their market power advantage monopoly drive providers of distributed energy out of its territory rate s disadvantage new competitors legal risk federal antitrust ? assumption generally been no exempted Parker Midcal exempting monopolies not allow other firms Midcal authorized the practice in question subject to active supervision active monitoring substitute policy, clearly articulated displace competition in general easy question yes little sense state PUC extensive control over a firm’s activities hold the firm liable for anticompetitive practices mandated via the regulatory program naturally intense partial competition new entrants DER traditional monopoly service providers utilities very active only a matter of time DER providers utilize these tools to call into question practices utilities are responding to DER competition solar more acute momentum challenges likely to become commonplace gain traction behavior of utilities PUCs how courts apply the State Action Immunity doctrine substantial uncertainty Circuit s deferential S C both more stringent unclear substantive requirements of “active supervision.” few examples S C utility s antitrust surprising results outside of its monopoly Federal Power Act have despite supervision key question evaluating actual supervision unaddressed what supervision must consist of mere monitoring ? no risk state policies being fulfilled? generally specifically electricity context responsibility balancing antitrust other state policies supervision anticompetitive aspects that evaluated the impacts of that conduct utility real lack of clarity DER open to dispute cost-competitive with grid-supplied energy rate s grow substantially quite different PURPA

['C. Anticompetitive practices ', 'It seems likely that utilities are motivated to focus on cost-causation issues in redesigning rates for NEM customers both for legitimate reasons and because these changes will reduce threats to their current market position as monopolists. They may also be tempted to enter into direct competition with DER providers in ways that take advantage of their market power. It is at least possible, if not likely, that a utility might take advantage of its monopoly to attempt to drive providers of distributed energy equipment out of its territory. But would either changing rate structures in ways that disadvantage potential new competitors or engaging in other, perhaps more subtle forms of exclusion pose legal risk for utilities under the federal antitrust laws? ', 'The assumption has generally been no. State-chartered monopolies, since the expansion of federal regulatory powers under the Commerce Clause in the 1930’s, have generally been exempted from federal antitrust laws that limit anticompetitive practices aimed at establishing or maintaining monopolies. The Supreme Court articulated, in a series of cases beginning with Parker v Brown84, and reaching its modern form in California Retail Liquor Dealers Association v. Midcal Aluminum,85 a doctrine exempting state regulation of private industry that restrains free-market competition in ways that would violate Federal antitrust law if pursued by a non-regulated entity. ', 'Given the reach of state regulation of industries and professions regulating entry, price, and quality that predated the federal antitrust framework, crafting such an exemption was necessary if many practices that were required by states were not to create liability for private actors carrying them out. Electric and gas utilities are monopolies that, for example, will not allow other firms to operate similar services in their service territories.86 ', 'The basic rule applied by courts since Midcal for determining whether a practice conducted pursuant to state regulatory oversight is exempt from federal antitrust liability asks whether state action has authorized the practice in question and whether it is carried out subject to active supervision by appropriate state authorities. Put differently, active monitoring by a state regulatory body such as a Public Utility Commission can substitute for the antitrust laws so long as there is a policy, clearly articulated by the state, to displace competition. ', 'The next section examines the application of this doctrine to the context of the electric utility-distributed solar conflict. I then detail an additional but related shield to potential antitrust claims – the filed rate doctrine, which requires that a tariff, once approved by a state regulator, be enforced by a utility. Filed Rate Doctrine generally serves to insure that once a rate is filed with a Public Utility Commission, a utility is shielded from judicial challenges by customers objecting to the new rate. ', 'A third potential shield to antitrust claims for regulated utilities, the Noerr- Pennington doctrine, protects regulated from challenges associated with their efforts to influence executive or legislative branches of government even if such lobbying is animated by anticompetitive concerns.87 The Supreme Court has consistently held that attempts to influence the government are not a violation of the antitrust laws even if they result in legislative or regulatory decisions that have anticompetitive effects. Because Noerr-Pennington doctrine concerns lobbying and speech rather than the actual anticompetitive practices undertaken by firms possessing market power, it is beyond the scope of this article.88 ', 'III. Exemptions for Regulated Utilities from Antitrust Claims: State Action Immunity and Filed Rate Doctrines ', 'Whether electric utilities whose prices, investments, and practices are subject to extensive state regulation should be exempt from federal antitrust doctrine seems in general an easy question. The answer is yes. It would make little sense to allow a state PUC to exercise extensive control over a firm’s activities only to hold the firm liable for anticompetitive practices mandated via the state regulatory program. This is particularly true in contexts where the activity at issue, or at least substantial parts of it, may have characteristics that lead naturally towards monopolization. In contexts of “natural monopoly,” where state governments have stepped in to allow economies of scale facilitated by monopolization in network industries but, via price and conduct regulation, limit the abuse of monopoly, it would seem odd in the extreme to then create risk of antitrust liability that arises out of the state’s regulatory strategy. ', 'But natural monopolies do not last forever. At one point in time, the U.S. telephone system was a natural monopoly owned and operated by one firm – AT&T. That is, until new technologies emerged which allowed for competition with AT&T, at least for parts of its business.89 Similarly, interstate trucking emerged as an important competitor to an earlier network industry – railroad freight – that had been operated as a regulated cost-of-service monopoly.90 A key issue for regulated monopoly industries that become exposed to competition is the new role that public utility commissions, either state or federal, most adopt in managing their anticompetitive tendencies as opposed to allowing for enforcement of the antitrust statutes which serve to control the abuse of market power in most of the U.S. economy. ', 'As shown in Part 1, the electricity industry is in the midst of a period of intense but still partial competition between new entrants that seek to serve some electricity needs of consumers via DER and the traditional monopoly service providers of grid- based energy services the logic of which has been compromised but not fully undermined. The response from utilities over the past three years has been very active. Given the right of private parties to challenge actions by firms as violations of the antitrust laws, it would seem only a matter of time before major DER providers begin to utilize these tools to call into question the new rate structures or other practices with which utilities are responding to DER competition. ', 'One recent case illustrates the possible use of defensive anticompetitive rate setting to preserve a monopoly. SolarCity, the largest distributed solar provider in the country, has brought an antitrust challenge to monopoly defensive rate changes made by Salt River Project, an Arizona utility provider of water and electricity. As discussed in Part 1, the new rates imposed large fixed charges and demand charges on customers installing solar (See table 1) thereby reducing the attractiveness to retail customers of installing distributed solar power. After the rate change applications for distributed solar systems allegedly fell by 96% in the Salt River Project’s service territory.91 ', 'This case will not resolve the interplay between antitrust law and state regulation of energy utilities. Because Salt River Project is a special district rather than an investor owned utility, it is not subject to Arizona Corporation Commission jurisdiction in its ratemaking.92 As a result, the case is unlikely to reveal how courts may view the application of antitrust laws to regulated utility rate changes approved by Public Utility Commissions that harm DER providers. Nevertheless, it is an early signal of the potential for utilities to make monopoly protective rate changes that are approved by their Public Utility Commission. ', 'It is crucial to recognize in cases like the SRP-SolarCity dispute, that the issues will turn not on whether some change in rates was justified in order better to allocate the costs of service between different rate classes, but whether the particular changes made discriminate unfairly against DER and consequently, the DER providers. Some increase in SRPs fixed charge or demand charge for DER customers might have been justified under the circumstances. An antitrust violation would only occur if the utility went so far as to unfairly distort the allocation of gird costs to further an anticompetitive purpose. ', 'Looking forward, as the threat posed by solar energy to electric utilities grows more acute and so responsive rate changes by regulated utilities to DER providers gain momentum, challenges to the allegedly anticompetitive impact of PUC approval of monopoly protective activity by electric utilities are likely to become commonplace. Whether or not these challenges gain traction, and so influence the behavior of utilities and their PUCs will depend on how courts apply the State Action Immunity doctrine in these cases and upon whether utilities can rely on the Filed Rate doctrine to shield them from challenges to PUC approved changes to rate structures. In what follows, I argue that there is substantial uncertainty concerning the application of these defenses. I then identify strategies that are available to both regulated utilities and Public Utility Commissions that can minimize the risks associated with antitrust liability in this period of industrial transition between a natural monopoly and dramatically reduced barriers to entry in at least one segment of the energy market. More specifically, the utilities and the PUCs have to explicitly address the impacts of these changes in the competitive landscape for electricity services brought on by technological development. ', 'A. State Action Immunity Exemptions from Antitrust Liability. ', 'The Sherman Antitrust Act was enacted at a time when the reach of the federal government into regulation of commerce was much narrower than today. In particular, there was no perceived conflict between regulation of interstate commerce via federal antitrust law and state regulation of intrastate network industries as monopolies. Challenges to the Roosevelt Administration’s expansion of economic regulation later altered court’s understanding of interstate commerce93 to such a degree that the Supreme Court carved an exception to antitrust liability in order to take account of the traditional state role in regulating behavior in particular industries. One year after the landmark decision in Wickard, which expanded the reach of federal regulation to activities of a local character but substantially affecting interstate commerce, the Court began the process of crafting a new exception to antitrust liability for firms subject to state regulation. In Parker v. ', 'Brown, the Court found that an agricultural marketing program for raisins was not an illegal restrain on competition because it was a state rather than private actors that authorized it.94 ', 'For the next forty years, uncertainty remained concerning when state regulation would create antitrust immunity and when it would not. Two Supreme Court cases concerning the electric power sector highlight that uncertainty. In both, the Supreme Court found that regulated utilities had violated the Sherman Act. Several decades after Parker was decided, the Court held in Cantor that a Michigan utility’s light bulb distribution program impermissibly interfered with drug store sale of bulbs even though the program was part of tariffs filed with the Public Utility Commission.95 The court held that Michigan’s involvement in Detroit Edison’s light bulb program was insufficient to create antitrust immunity even though Detroit Edison could not have ceased its program without filing a new tariff with the PUC.96 ', 'A few years later, in a case concerning price regulation of alcoholic beverages, the Court articulated a two-part test for application of state action immunity that has remained in place up to the present.97 In Midcal Aluminum, the Court divided the analysis of whether state regulation could confer protection from antitrust liability into two prongs. First, the anticompetitive activity must be clearly authorized as state policy. Second, the anticompetitive activity in question needs to be “actively supervised” by the state itself. The Midcal decision significantly clarified the breadth of the antitrust exemption for state regulated private activities. However, it still left open several questions: how specifically must an activity be authorized in order to qualify for the exemption and what sort of state supervision is sufficiently active to protect anticompetitive activity by regulated firms? ', 'After Midcal, numerous cases addressed the first of these questions: when was state authorization sufficiently clear that the action was protected against antitrust challenge? It became clear that only certain types of state government would count as “the state” for purposes of state action immunity doctrine.98 In particular, state legislatures and state Supreme Courts could authorize anticompetitive activity. It also became clear that so long as authorization of the regulated business activity’s anticompetitive practices by either of these agents was clear, the Court would not examine whether specific anticompetitive practices had been authorized by “the state.”99 ', 'Particularly for electric utilities and their PUC regulators, the authorization prong of state action immunity has not generally been difficult to satisfy. The PUCs’ authority to regulate generation, transmission, distribution, and sale of electricity by electric utilities is generally authorized by state statute100 or in some cases in state constitutions.101 Thus public utility commissions have generally been held by courts to be authorized by the state to enforce a policy that allows anticompetitive conduct by electric utilities that are monopolies in their service territories.102 It is therefore likely that reviewing courts will conclude that the rate setting strategies proposed by electric utilities and approved by PUCs that serve to restrict competition from distributed solar meet the “authorization” element for State Action Immunity103. ', 'The second element of the State Action Immunity shield from antitrust liability as articulated in Midcal – that a firm’s anticompetitive conduct be “actively supervised” by the state has been left far more open to interpretation by reviewing courts. The cases concerning electric utilities decided by appellate courts during the implementation of the Public Utilities Regulatory Policy Act104 generally indicated a significant degree of deference to claims by utilities that their actions were shielded by State Action Immunity doctrine.105 ', 'The Supreme Court, by contrast, in reviewing the supervision by state authorities of anticompetitive conduct, has indicated both that mere passive approval is inadequate106 and that where market participants have control over the implementation of or supervision of conduct, state action immunity may not exist.107 Most recently, the Court, in deciding whether the “active supervision” requirement for State Action Immunity had been met in a case involving professional licensing, noted that “in general however, the adequacy of supervision otherwise will depend on all the circumstances of a case.”108 ', 'Thus, while Circuit Courts have generally been highly deferential to PUCs in evaluating the supervision of regulated utilities anticompetitive conduct, the Supreme Court, when it has reached the issue has been both more stringent in its evaluation and yet at the same time unclear about the substantive requirements of “active supervision.”109 ', 'The few examples we have of Supreme Court review of regulated utility practices under antitrust law have produced surprising results. Either because the utility was interfering with businesses outside of its monopoly such as light bulb sales 110 or because the activities in question – interstate wholesale transactions of electricity - were regulated under the Federal Power Act and so antitrust statutes were not subject to the State Action Immunity shield,111 utilities have been subject to antitrust liability despite supervision by state or federal utility commissions. ', 'A key question in evaluating actual supervision by regulatory authorities, left largely unaddressed by the jurisprudence, is exactly what such supervision must consist of. ', 'Should the supervision consist of mere monitoring of potentially anticompetitive activity with the possibility of restricting it if it fails to meet (unspecified) standards? If so, then utilities have essentially no risk that the antitrust laws will be enforced against them. ', 'Should the supervision consist of insuring that state policies, authorized by statute, are being fulfilled? This might make sense given the requirement that anticompetitive conduct be generally but not specifically authorized by the state before it receives immunity from antitrust enforcement. In the electricity context this might be a requirement that PUCs perform their core function – insure that regulated utilities provide service to customers at just and reasonable rates.112 ', 'On the other hand, if one views the state as in some way taking responsibility for balancing antitrust concerns with other state policies, a court might look to see whether supervision of the anticompetitive aspects of private conduct has occurred in evaluating “active supervision.” In that case, reviewing courts might assess whether or not a public utility commission supervising electric utility conduct with potentially anticompetitive impacts on rival firms has evaluated the impacts of that conduct on those rivals, perhaps acting to minimize it or at least consider it in a broader evaluation of rate impacts and other policy goals. Note that this type of an evaluation would not dictate an outcome, for example on abuse of market power, but it would require consideration of antitrust concerns. ', 'Unfortunately, especially in the utility context, there is a real lack of clarity beyond the cases from the late 1990s and early 2000s concerning PURPA and wholesale competition.113 The relevance of these cases to the DER situation is open to dispute however. The much smaller PURPA generators could likely not have competed with utility-owned generation absent state decisions to allow compensation at remunerative rates. By contrast, at least in some states, DERs are or will shortly be cost-competitive with grid-supplied energy, particularly if traditional rate structures are maintained. The number of states where DERs can compete for at least a fraction of utility sales is likely to grow substantially over the next decade.114 Thus the decision to allow anticompetitive conduct with respect to DER providers via rate structure changes is quite different than that of PURPA qualifying facilities. ']

[(11, 15), (16, 18)]

7b94e50335bdaddcb17f3fc04617a32403489885c244a1fe331d9151005cc9e4

Litigation uncertainty will undermine decentralized innovation in green energy models. Uniformity fails.

William Boyd & Ann E. Carlson 16, Boyd is Professor and John H. Schultz Energy Law Fellow, University of Colorado Law School, and Fellow, Renewable and Sustainable Energy Institute; Carlson is Shirley Shapiro Professor of Environmental Law, UCLA School of Law, and Faculty Co- Director, Emmett Institute on Climate Change and the Environment, “Accidents of Federalism: Ratemaking and Policy Innovation in Public Utility Law,” UCLA Law Review, vol. 63, no. 4, 2016, pp. 810–893

electricity is far and away the most important of GHG targets will require overhauling the regulatory system a strong state role is crucial to innovation zero-carbon will require substantial investments which require new rate designs to accommodate cost recovery reward different resources and encourage behavior PUCs will be at the center numerous are inhibiting rather than facilitating decarbonization as a whole this mix is different than innovation from a uniform system the f g used policy nudges to push states statutory changes helped encourage ratemaking to promote low-carbon helping drive investments that might not occur under a more uniform system federal policy could be more systematic to encourage experiments Ratemaking de-risk, and socialize costs

Any serious effort to reduce ( GHG ) emission s will require a dramatic transformation of the electric power system . The electricity sector currently accounts for nearly a third of emissions, the largest single source A decarbonized electric power system is also critical to reducing emissions from transportation given the need to replace the existing fleet with electric vehicles decarbonizing the electric power sector is far and away the most important component of any effort to meet U.S. GHG reduction targets Transitioning to low-carbon electricity will require overhauling the most complex machine ever built We will need to see changes across the machine, from the sources of energy to means of transmitting and distributing to the way in which end users interact Not only is the machine complex, but the regulatory system that governs it is messy, complicated, and technical the push to create competitive electricity markets never took complete hold across the country-a reflection of the commitment in t he FPA to a strong state role in electricity regulation-states have enjoyed considerable leeway deciding whether they will participate in wholesale and retail electricity markets, continue with the traditional model of utility regulation, or pursue a mix Although the goal of electricity restructuring was to fully deregulate the result has been messier , with three models emerging across the country Notwithstanding the introduction of wholesale and retail competition in a number of states, PUCs retain important power in designing and setting electricity rates under these regulatory models. It is this ratemaking power across a diverse group of states and the role it can and is playing in developing a greener, nimbler, more distributed grid-that is the focus of this Article the need for innovative ratemaking is crucial to promoting tech innovation and deployment in the power sector As the traditional distribution system shifts from a one-way network that provides power to end users to a multi-directional grid where some users generate their own electricity and feed excess power back to the gri d, individual actors and tech- nologies are interacting with the system in new and dynamic ways. more change is occurring in response to the need for zero-carbon generation, with policies aimed at producing more solar, wind, and nuclear power, and even new coal generation from plants equipped with the ability to capture and store carbon emissions. Making this greener grid a reality will require substantial new investments We will need innovation and investment which will in turn require new rate designs to accommodate cost recovery reward the proliferation of different energy resources and services , and encourage consumer behavior to take advantage of technology that creates a more dynamic and more efficient grid. Given their jurisdiction over decisions about generation, the use of local distribution systems, and the design of retail rates, PUCs will be at the center of these changes the U S is , in fact, seeing examples of policy innovation and the use of ratemaking powers in each of the three models of electricity regulation To be sure numerous states are innovating in ways that are inhibiting rather than facilitating decarbonization But diversity of experimentation is the result of accidents of federalism states and PUCs are deploy ing new innovative approaches to ratemaking Taken as a whole , this mix of innovative ratemaking, and the range of tech innovations it enables, is different than the innovation that might emerge from a more uniform system traditional states that still regulate the generation side through cost-of-service regulation have different powers and are innovating in different ways than states in fully restructured markets that have largely residual power over the distribution side. an important result of the failure to establish a uniform national system of electricity regulation is the production of a diverse set of regulatory experiments that would not have arisen otherwise through a variety of mechanisms , the f ederal g overnment has used policy nudges to push states to innovate . These include statutory changes which helped encourage states to use their ratemaking powers to promote low-carbon technologies by reducing the risk of these experiments. This more directed federal policy is helping drive low-carbon investments across the whole sector in a manner that might not occur under a more uniform system that federal policy could be used in a more systematic way to encourage policy experiments Governments use various tools to encourage innovation all the time, from traditional regulation to taxation to direct subsidy to the protection of i p All of these tools are important Each raises questions about efficiency , distributional consequences, and efficacy . Ratemaking presents another tool to encourage, de-risk, and socialize the costs of large-scale innovations in electricity infrastructure . We tend not to think of ratemaking in this way, yet it raises the same questions in promoting innovation

GHG s dramatic transformation electric power system third largest single source transportation electric far and away most important component overhauling complex machine ever built across sources transmitting distributing end users interact machine regulatory system governs it messy, complicated, and technical competitive never took complete hold FPA strong state role considerable leeway restructuring fully messier three models electricity rates this ratemaking power diverse group of states innovative ratemaking crucial tech innovation deployment more zero-carbon reality substantial new investments innovation investment new rate designs cost recovery different energy resources services consumer behavior PUCs center of these changes U S is examples of policy innovation numerous inhibiting rather than facilitating decarbonization diversity accidents of federalism deploy new innovative approaches whole mix tech innovations different uniform traditional different powers different ways regulatory experiments not have arisen otherwise variety of mechanisms f g policy nudges push statutory changes encourage promote low-carbon technologies risk directed federal policy drive not occur uniform systematic way encourage various tools regulation taxation direct subsidy i p are important efficiency distributional efficacy Ratemaking another tool to encourage, de-risk, and socialize the costs of large-scale innovations in electricity infrastructure same questions promoting innovation

["Any serious effort to reduce greenhouse gas (GHG) emissions in the United States will require a dramatic transformation of the nation's electric power system. The electricity sector currently accounts for nearly a third of U.S. GHG emissions, the largest single source in the economy.' A decarbonized electric power system is also critical to reducing emissions from transportation, the nation's second largest source of GHG emissions, given the need to replace much of the existing fleet with electric vehicles.2 Put simply, decarbonizing the electric power sector is far and away the most important component of any effort to meet ambitious U.S. GHG reduction targets by 2050 and beyond.'", "Transitioning to low-carbon electricity will require overhauling what has been called the most complex machine ever built.' We will need to see changes across the machine, from the sources of energy used to generate electricity, to the means of transmitting and distributing that electricity, to the way in which end users interact with the grid. Not only is the machine complex, but the regulatory system that governs it is multilayered, messy, complicated, and technical. Understanding and grappling with both the complexity of the machine and its regulatory overlay will not be easy.", "Policymakers and legal academics have appropriately focused much of their attention to date on how the government can best reduce GHG emissions. Debates about whether to adopt a cap-and-trade system or a taxs or whether the U.S. EPA has legal authority to use various sections of the Clean Air Act6-including Section 111(d), the basis for the Clean Power Plan regulations for existing power plants7- are important and difficult ones. So are questions about the role of various policy instruments to promote re- newable energy, such as Renewable Portfolio Standards (RPSs) and tax cred- its.' But not enough attention has been given to the structure and practice of electricity regulation in the United States and the tools available under public utility law to promote decarbonization.'", 'Despite significant changes in the electricity sector over the past twenty years as the federal government has opened up wholesale electricity markets to competition and as some states have embraced retail competition, Public Utility Commissions (PUCs) and state public utility law more generally continue to play fundamental roles in determining basic features of our electricity system. In part, this is by design, but in part it is also by accident. Because the push to create competitive electricity markets never took complete hold across the country-a reflection of the commitment in the Federal Power Act" (FPA) to a strong state role in electricity regulation-states have enjoyed considerable leeway in deciding whether they will participate in wholesale and retail electricity markets, continue with the traditional model of utility regulation, or pursue a mix of the two. 2 Although the goal of electricity restructuring was to fully deregulate the sector, the result has been messier, with three basic models of electricity regulation emerging across the country: a filly restructured model that combines competition at wholesale and retail levels; a traditional model that con- tinues to employ the basic cost-of-service approach to regulating vertically inte- grated Investor Owned Utilities (IOUs); and a hybrid model that combines competitive wholesale markets with regulated retail service.13 Notwithstanding the introduction of wholesale and retail competition in a number of states, PUCs retain important power in designing and setting electricity rates under each of these regulatory models. It is this ratemaking power across a diverse group of states-and the role it can and is playing in developing a greener, nimbler, more distributed grid-that is the focus of this Article.', 'Our focus on electricity ratemaking and its role in decarbonizing the grid has several aims. First, we argue that the need for innovative ratemaking is crucial to promoting technological innovation and deployment in the power sector. 4 As the traditional distribution system shifts from a one-way network that provides power to end users to a multi-directional grid where some users generate their own electricity and feed excess power back to the grid, individual actors and tech- nologies are interacting with the system in new and dynamic ways. Still more change is occurring in response to the need for low- and zero-carbon generation, with policies aimed at producing more solar, wind, and nuclear power, and even new coal generation from plants equipped with the ability to capture and store carbon emissions. Making this greener grid a reality will require substantial new investments across all aspects of the machine. We will need innovation and investment in everything from generation to transmission to local distribution to end use, which will in turn require new rate designs to accommodate cost recovery, promote and reward the proliferation of different energy resources and services, and encourage consumer behavior to take advantage of technology that creates a more dynamic and more efficient grid. Given their jurisdiction over decisions about generation, the use of local distribution systems, and the design of retail rates, PUCs will be at the center of these changes.', 'Second, we demonstrate that the United States is, in fact, seeing interesting examples of policy innovation and the use of ratemaking powers in each of the three models of electricity regulation (traditional, restructured, and hybrid) that have emerged out of electricity restructuring. To be sure, there are numerous states that are not innovating, and some that are innovating in ways that are inhibiting rather than facilitating decarbonization. But our focus here is on states that are pushing forward with potentially important experiments for the broader effort to decarbonize the grid. To that end, we describe and analyze four areas of ratemaking that are driving investments and changing behavior in ways that could be crucial to decarbonizing the grid: 1) promoting low- or zero-carbon baseload generation; 2) modernizing the grid; 3) promoting distributed energy resources; and 4) using time-variant pricing to encourage more efficient customer behavior. In examining each of these, we find that the nature of the policy exper- iments and the use of ratemaking appear to differ, at least in part, depending on the particular model of electricity regulation. In states operating under the tradi- tional model, which still retain the most regulatory authority over the develop- ment and funding of large-scale generation sources, we see PUCs using their ratemaking powers to promote the development of coal-fired power plants with carbon capture and sequestration and nuclear power plants. In states operating under a restructured or hybrid model, by contrast, we see utility commissions fo- cusing more heavily on the distribution side of the grid, which is the portion of the grid that delivers electricity directly to customers. Some states are experi- menting with performance-based rates to encourage utilities to make large-scale investments in distribution system infrastructure while others are allowing distri- bution utilities to recover the costs of these investments in advance through ex ante prudency determinations and accelerated cost recovery. These investments are crucial to integrating distributed generation into the grid, optimizing perfor- mance, and using rate design to promote more efficient consumer behavior. These states are also using their ratemaking powers to encourage distributed gen- eration by imposing storage mandates, developing infrastructure to incorporate large numbers of electric vehicles into the system, and compensating customers for providing excess generation from rooftop solar and other local generation sources, while simultaneously devising policies to eliminate cross-subsidies from traditional customers who continue to receive electricity from utilities. And in hybrid and restructured states we see PUCs developing more robust time- variant pricing policies, including opt-out rather than opt-in designs for residential programs, to align customer pricing with the actual cost of elec- tricity generation and to encourage more efficient energy use.', 'Third, we suggest that this diversity of experimentation is in part the result of what we call "accidents of federalism."5 The three models of U.S. electricity regulation can hardly be considered the rational result of intentionally designed federal policy. To the contrary, they might even be viewed as the result of policy failure as the Federal Energy Regulatory Commission (FERC)\'s vision of fully restructured wholesale energy markets (endorsed in broad terms by the U.S. Congress) never took complete hold and as the move to introduce competition into retail electricity faltered after the California energy crisis. Numerous com- mentators decry the current system for its lack of national coherence, and more than a few have called for a larger federal role in electricity regulation.16 Never- theless, despite the messy and complex federal system, or maybe because of it, some states and PUCs are deploying new and innovative approaches to ratemaking as a means of promoting investment in low-carbon technologies and practices across the sector. Taken as a whole, we argue that this mix of innovative ratemaking, and the range of technological innovations that it enables, is different than the innovation that might emerge from a more uniform system. As we demonstrate, traditional states that still regulate the generation side of the grid through cost-of-service regulation have different powers and are innovating in different ways than states in fully restructured markets that have largely residual power over the distribution side. Thus an important result of the failure to establish a uniform national system of electricity regulation is the production of a diverse set of regulatory experiments that would likely not have arisen otherwise. We should be dear that our claim is not that the current sys- tem is superior to an alternative system with a more centralized approach to elec- tricty regulation (or decentralized through markets). Instead, our argument is that innovative use of ratemaking powers is occurring in the current system, that such innovation is different from what would have occurred had the push for wholesale and retail competition taken hold across the whole country, and that legal scholars have largely ignored these developments.', 'The innovations in ratemaking we identify are not, however, only the unin- tentional byproduct of a lack of a uniform national policy. Instead, we also show that through a variety of mechanisms, the federal government has used more intentional policy nudges and subsidies to push states to innovate. These include statutory changes, FERC rulemakings, and federal spending, each of which has helped encourage states to use their ratemaking powers to promote low-carbon technologies and practices by reducing some of the risk of these experiments. This more directed federal policy, combined with the three-model system, is helping to drive low-carbon investments across the whole sector in a manner that might not occur under a more uniform system. We also suggest, however, that federal policy could be used in a more systematic way to encourage and learn from the kinds of policy experiments that are underway in the three different regulato- ry models.', 'One additional aim of this Article, then, is to demonstrate the ways in which our account of ratemaking speaks to ongoing debates about federalism. Two debates seem especially pertinent. One asks whether federalism promotes or produces too little policy innovation. Although standard claims about the vir- tues of federalism focus to a large extent on states as innovators-and PUCs can rightly daim to be the original Brandeisian laboratories of democracy17 an op- posing theory suggests that federalism produces too little innovation." The basic argument is that states will free ride on the innovative efforts of other states be- cause any individual state bears all the policy risk for innovations that fail and gains only some of the benefits from policy successes since other states can wait and adopt only those policies that succeed. If states, in fact, reason in this way, too little policy innovation may be occurring. Without resolving this theoretical debate, our account of innovation and electricity ratemaking suggests that the federal government-acting largely through policy nudges and subsidies-may be reducing the risk of state policy innovation failure and hence helping to spur more experimentation in electricity ratemaking across the three models than would otherwise occur.', 'Our account also allies us with an emerging school of federalism that sug- gests that structures of federalism, including the devolution to states of poli- cymaking authority, can be deployed not only to support traditional values like local control and policy diversity but also to promote national values and policies. 9 We think the system of electricity regulation that has emerged in the wake of restructuring-one that combines considerable state autonomy to choose whether and how to participate in wholesale and retail electricity markets with federal policies and subsidies to promote low- and zero-carbon electricity produc- tion across the grid-effectively illustrates this "federalism as nationalism." Through a largely federal structure that has led to regulatory diversity, states op- erating in quite different political and economic circumstances are using their ratemaking powers to construct a lower-carbon, greener grid in alignment with national goals to develop cleaner generation, promote diversity of supply, transi- tion to a nimbler and more efficient grid, and even, at least at the executive branch level, to reduce GHG emissions20 all with a push from the federal gov- emnment to guide them.', 'Our final purpose in focusing on innovative PUC ratemaking is simply to highlight an under-examined policy tool that states across the country are using to encourage and, importantly, to pay for some of the large-scale innovations that will be necessary to decarbonize the electricity sector. Governments use various tools to encourage innovation all the time, from traditional regulation to taxation to direct subsidy to the protection of intellectual property. All of these tools will be (and to some degree already are) important in the effort to decarbonize. Each of these tools raises questions about efficiency, distributional consequences, and efficacy. Ratemaking presents another tool to encourage, de-risk, and socialize the costs of large-scale innovations in electricity infrastructure. We tend not to think of ratemaking in this way, yet it raises the same questions about efficacy, distributional effects, and efficiency. Our aim is to bring more attention to ratemaking and its role in promoting innovation.']

[(8, 14), (22, 32)]

f1f199b1742a0de4aa6dab584110b04f1f023c8fa824adf35b80d2873138c49a

Only antitrust guardrails prevent anticompetitive rate-setting from disrupting DER competition---that risks ongoing harm from pollution AND catastrophic warming.

Howard M. Crystal & Anchun Jean Su 18, Center for Biological Diversity, “Brief of Center for Biological Diversity, Food & Water Watch, Friends of the Earth, Greenpeace, Inc., Institute for Local Self-Reliance, and NC Warn, Inc. as Amici Curiae in Support of Respondent,” Salt River Project Agricultural Improvement and Power District, Petitioner, v. Tesla Energy Operations, Inc., fka Solarcity Corporation, Respondent, 2018 WL 993878, WestLaw

the state-action defense “allows states to favor public objectives over competition However Stilling solar through rates harms the public and environment The defense should not be available Distributed solar is de-centralized owned by consumers otherwise captive to the utility monopoly thus dispels economies of scale ruptures the vertical monopoly utilit ies responded with rate s that reduce solar cost advantage In the last years cases amount to hundreds in the majority of states rates stave off health benefits toxic pollution from fossil plants result in hundreds of thousands of deaths per year exacerbates systemic health disparities rates hinder clean energy to combat climate change discriminatory ratemaking emission reductions to avoid the worst impacts harms are immense extinction ocean acidification loss of sea ice declining food and water security heat waves and extreme weather with monopoly to obstruct distributed solar the state-action defense should be disfavored

THE FOUNDATIONAL PREMISE S OF RIGHT TO AN UNBOUNDED MONOPOLY DO NOT HOLD IN THE AGE OF DISTRIBUTED SOLAR COMPETITION SRP asserts the state-action defense protects “the need to ensure that government policymakers exercise their discretion with the objective of advancing the public interest rather than of avoiding litigation Similarly, APPA claims the state-action defense “allows states to favor public objectives over free-market competition However , SRP companies are not advancing public objectives when they improperly target distributed solar Stilling solar competition through discriminatory rates - a widespread action perpetuated by numerous power companies harms the public interest by obstructing the tremendous benefits that distributed solar generation brings to both consumers and the environment . Such discriminatory behavior contravenes the underlying purpose of the regulated monopoly, which was to protect consumers The state-action defense should not be available as a legal bulwark for power companies to exercise unbounded monopoly power against public interest Originally a natural monopoly, the electricity sector faced extreme barriers to entry, whereby construction of power plants and grid infrastructure required massive capital investments The foundational premise for granting vertically integrated utilities monopoly power was to ultimately serve the public interest However, the century-old premise that vertically integrated monopolies necessarily serve the public interest has been undermined by public policy electricity regulators have actively encouraged competition in electricity generation in order to serve the public interest. FERC often forgoes the cost-based rate-setting traditionally used to prevent monopolistic pricing […] [and] instead undertakes to ensure ‘just and reasonable’ wholesale rates by enhancing competition - attempting … ‘to break down regulatory and economic barriers that hinder a free market in wholesale electricity’ ” Indeed, Congress passed a series of modern laws intended to promote competition in electricity and unbundle the traditional vertically integrated monopoly as a means to advance public interest Distributed solar further subverts the economic and public interest assumptions justifying the traditional vertically integrated electricity monopoly. Distributed solar with a relatively low barrier of entry , is de-centralized and can be owned or leased by consumers otherwise captive to the local utility monopoly Distributed solar thus dispels the assumption that electricity service necessarily requires large economies of scale . As such, distributed solar also fundamentally ruptures the business model of the vertical ly integrated monopoly , obviating the need for power companies to continuously construct infrastructure as their engine of profit generation Taken together , these changes undermine the assumption that electricity companies require deference to their monopoly power in order to serve the public interest utilit y compan ies have responded to competition from distributed solar with a range of discriminatory tactics , chief among them being the imposition of retail rate structure s that serve to reduce solar power's cost advantage over grid-supplied energy In the last few years alone, these types of rate cases seeking to penalize rooftop solar customers have amount ed to hundreds and have occurred in the majority of U.S. states over 100 policy actions negatively targeting distributed generation customers in over 35 states in 2017 alone utilities have implemented either new or increased fixed monthly bill charges that are discriminatorily high for customers with distributed solar generation, known as a “fixed charge.” utility companies have imposed electricity charges on solar customers that vary as a function of the consumer's peak demand SRP's new rate structure exemplifies both of these discriminatory rate practices Wide-scale discriminatory rates targeting solar power deployment undermine the very public objectives that utility monopolies were created to serve because they harm consumers and the environment discriminatory rates inhibiting distributed solar stave off the public health benefits associated with phasing out fossil power plants . Nearly 40% of Americans are exposed to toxic air pollution from fossil fuel power plants that often reaches dangerous levels, result ing in the increased incidence of asthma and chronic bronchitis and leading to hundreds of thousands of premature deaths per year these public health impacts are disproportionately borne by communities of color and low-income obstructing distributed solar generation directly exacerbates the country's systemic public health disparities by perpetuating reliance on fossil fuel power these discriminatory rates hinder the country's urgently needed transition to clean energy in order to combat climate change . More than 60% of America's electricity still derives from fossil fuels discriminatory ratemaking against the deployment of distributed solar energy undermines the inherent public interest in “ aggressive sustained g h g emission reductions ” in order to avoid the worst impacts of climate change the public harms caused by climate change are immense extinction of species ocean acidification rapid loss of Arctic sea ice the collapse of Antarctic ice declining food and water security heightened frequency of heat waves and extreme weather including contribution to the three unprecedented hurricanes that ravaged the Gulf Coast, Florida, and Puerto Rico in 2017 power companies are not immune from competition and antitrust In Otter Tail the Court decisively held the Federal Power Act does not “immunize” power companies from “antitrust These findings are grounded in the recognition that “[t]he public interest is far broader than the economic interest of a particular supplier Accordingly with respect to monopoly practices serving to obstruct distributed solar the state-action defense should be disfavored

FOUNDATIONAL PREMISE UNBOUNDED MONOPOLY NOT HOLD DISTRIBUTED SOLAR COMPETITION government policymakers their discretion public interest APPA states public objectives free-market competition SRP not advancing public objectives when they improperly target distributed solar solar competition discriminatory rates widespread action numerous power companies harms public consumers environment discriminatory behavior contravenes protect consumers defense not be available legal bulwark unbounded monopoly power against public interest natural massive capital investments foundational premise public interest century-old premise undermined public policy actively encouraged forgoes traditionally instead ‘just and reasonable’ competition Congress promote competition in electricity unbundle advance public interest further economic public interest assumptions justifying low barrier of entry de-centralized owned leased otherwise captive local utility monopoly dispels necessarily also vertical monopoly obviating together undermine require deference to their monopoly power utilit ies responded range of discriminatory tactics rate s reduce solar cost advantage last years amount hundreds majority of states 100 policy actions 35 states 2017 alone discriminatorily high vary peak demand exemplifies both very public objectives utility monopolies created to serve harm consumers and the environment public health benefits phasing out fossil power plants 40% toxic pollution result asthma chronic bronchitis hundreds of thousands of deaths per year disproportionately communities of color low-income exacerbates systemic health disparities perpetuating reliance on fossil fuel power hinder urgently needed transition to clean energy combat climate change 60% electricity discriminatory ratemaking undermines inherent public interest aggressive sustained g h g emission reductions avoid the worst impacts of climate change climate change immense extinction species ocean acidification loss of Arctic sea ice Antarctic ice food water security heat waves extreme weather three unprecedented hurricanes companies not immune from competition and antitrust decisively held not “immunize” power companies public interest far broader economic particular supplier monopoly practices obstruct distributed solar state-action defense should be disfavored

["II. THE FOUNDATIONAL PREMISES OF SRP'S ASSERTED RIGHT TO AN UNBOUNDED MONOPOLY DO NOT HOLD IN THE AGE OF DISTRIBUTED SOLAR COMPETITION", "SRP asserts that the state-action defense protects “the need to ensure that government policymakers exercise their discretion efficiently and freely, i.e., with the objective of advancing the public interest rather than of avoiding litigation.” Pet. Br. at 35 (emphasis added). Similarly, APPA claims that the state-action defense “protects public power utilities' ability to meet their public goals” and thereby “allows states to favor public objectives over free-market competition.” APPA Br. at 2, 4 (emphasis added). However, SRP and other public power companies are not advancing public *17 objectives or the public interest when they improperly target distributed solar generation.", 'Stilling solar energy competition through discriminatory rates - a widespread action perpetuated by SRP and numerous other power companies - harms the public interest by obstructing the tremendous benefits that distributed solar generation brings to both consumers and the environment. Such discriminatory behavior therefore contravenes the underlying purpose of the regulated monopoly, which was to protect consumers and the public interest. The state-action defense, and interlocutory appeal of adverse state-action defense rulings, should not be available as a legal bulwark for power companies like SRP to exercise unbounded monopoly power that works against the public interest in this anti-competitive manner.', 'A. The Premise That Electricity Monopolies Necessarily Serve The Public Interest Has Been Undermined By Public Policy And Technology', "“Until relatively recently, most state energy markets were vertically integrated monopolies - i.e., one entity … controlled electricity generation, transmission, and sale to retail consumers.” Hughes v. Talen Energy Mktg, LLC, 136 S. Ct. 1288, 1292 (2016). In the electricity industry's infancy of the early 1900s, the vertically integrated regulated monopoly made sense in light of the available technology and existent business structures of the time. Originally a natural *18 monopoly, the electricity sector faced extreme barriers to entry, whereby construction of power plants and grid infrastructure required massive capital investments, as well as substantial economies of scale, whereby the average cost of delivered power became cheaper with new expansion in demand. Paul Garfield & Wallace Lovejoy, Public Utility Economics 15-19 (1964).", 'The foundational premise for granting vertically integrated utilities monopoly power was to ultimately serve the public interest.6 The electricity monopoly model sought to achieve widespread access to electricity as a public good while, at the same time, subjecting utilities to electricity rate regulation in order to prevent price gouging for ultimate consumer benefit. W.M. Warwick, U.S. Department of Energy, A Primer on Electric Utilities, Deregulation, and Restructuring of U.S. Electricity Markets 2.0 (2002), available *19 at https://www.pnnl.gov/main/publications/external/technical_reports/PNNL-13906.pdf; see also Smyth v. Ames, 169 U.S. 466, 544-45 (1898) (public utility monopolies were “created for [] public purposes [and] perform[] a function of the state,” and the government is obligated to “protect the people against unreasonable charges for services rendered by” the public utility).', "However, the century-old premise that vertically integrated monopolies necessarily serve the public interest has been undermined by public policy and technology. In terms of policy, electricity regulators have actively encouraged competition in electricity generation in order to serve the public interest. For example, as the Court noted in FERC v. Electric Power Supply Ass'n, 136 S. Ct. 760 (2016), the Federal Energy Regulatory Commission (“FERC”) “often forgoes the cost-based rate-setting traditionally used to prevent monopolistic pricing […] [and] instead undertakes to ensure ‘just and reasonable’ wholesale rates by enhancing competition - attempting … ‘to break down regulatory and economic barriers that hinder a free market in wholesale electricity’ ” Id. at 768 (emphasis added) (quoting Morgan Stanley Capital Group Inc. v. Public Util. Dist. No. 1 of Snohomish Cty., 554 U.S. 527 (2008)).", 'Indeed, Congress passed a series of modern laws intended to promote competition in the electricity sector and unbundle the services of the traditional vertically integrated monopoly, all as a means to advance the public interest. Thus, due to “[t]echnological advances [that] made it possible to generate electricity *20 efficiently in different ways and in smaller plants” and through grids that were “unlike the local power networks of the past,” New York v. FERC, 535 U.S. 1, 7 (2002), Congress passed both (i) the 1978 Public Utility Regulatory Policies Act, Pub. L. No. 95-617, 92 Stat. 3117, which directed FERC to promulgate rules requiring monopoly utilities to purchase electricity from independent power production facilities, and (ii) the Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776, authorizing FERC to order individual monopoly utilities to provide transmission services to unaffiliated wholesale generators. See New York, 535 U.S. at 9. In short, the assumption that the vertically integrated utility monopoly automatically serves the public interest has been undermined by public policy promoting competition in electricity services.', 'Distributed solar technology further subverts the economic and public interest assumptions justifying the traditional vertically integrated electricity monopoly. Distributed solar technology, with a relatively low barrier of entry, is de-centralized and can be owned or leased by consumers who are otherwise captive to the local utility monopoly. Ari Peskoe, Unjust, Unreasonable, and Unduly Discriminatory: Electric Utility Rates and the Campaign Against Rooftop Solar, 11 Tex. J. Oil Gas & Energy L. 211, 215 (2016). Distributed solar generation thus dispels the assumption that electricity service necessarily requires large economies of scale. John Farrell, Inst, for Local Self-Reliance, Is Bigger Best in Renewable Energy? 2-4 (2016), available at *21 https://ilsr.org/wp-content/uploads/2016/12/Is-BiggerBest-in-Renewable-Energy-Report-Final.pdf. As such, distributed solar generation also fundamentally ruptures the business model of the vertically integrated monopoly, obviating the need for power companies like SRP to continuously construct infrastructure as their engine of profit generation. Peskoe, 11 Tex. J. Oil Gas & Energy L. at 228-32.', 'Taken together, these changes in public policy and technology, particularly distributed solar generation, undermine the assumption that electricity companies require deference to their monopoly power in order to serve the public interest.', 'B. Monopoly Power Companies Opposing Distributed Solar Generation Are Acting Against The Public Interest', '1. Discriminatory rates against rooftop solar are widespread', "Across the United States, both public and private electric utility companies have responded to competition from distributed solar generation with a range of discriminatory tactics, chief among them being the imposition of retail rate structures that serve to reduce solar power's cost advantage over grid-supplied energy. See Michael Wara, Competition at the Grid Edge: Innovation and Antitrust Law in the Electricity Sector, 25 N.Y.U. Envtl. L.J. 176, 189 (2017). In the last few years alone, these types of rate cases seeking to penalize rooftop solar customers have amounted to hundreds *22 and have occurred in the majority of U.S. states. Id. at 194-99; see also N.C. Clean Energy Tech. Ctr., The 50 States of Solar Report: Q4 2017 and 2017 Annual Report (2018), available at https://nccleantech.ncsu.edu/wp-content/uploads/Q4-17_SolarExecSummary_Final.pdf (documenting over 100 policy actions negatively targeting distributed generation customers in over 35 states in 2017 alone).7", "Power utilities have imposed discriminatory retail rate structures on distributed solar customers in several forms. First, utilities have implemented either new or increased fixed monthly bill charges that are discriminatorily high for customers with distributed solar generation, known as a “fixed charge.” For example, Santee Cooper, a state-owned public power utility *23 in South Carolina, imposed a fixed charge of $4.40/kW as well as further stand-by charges on distributed solar customers, regardless of the amount of energy used by the customer. See Santee Cooper, Distributed Generation Rider DG-17 (2015), available at https://www.santeecooper.com/pdfs/rates/ratesadjustment/dg-17-rider.pdf; see also, e.g., Bd. of Dir. of Sacramento Mun. Util. Dis., Resolution No. 15-07-06 (Sacramento Mun. Util. Dist. July 16, 2015) (imposing higher fixed charges and time-of-use rates on solar customers); Kan. City Power & Light, Docket No. 15-WSEE-115-RTS (Mo. Corp. Comm'n Sep. 24, 2015) (Order Approving Stipulation and Agreement) (approving a 21% increase of fixed charges on distributed energy customers); Conn. Light & Power, Docket No. 14-05-06 (Conn. Pub. Util. Regulatory Authority Dec. 17, 2014) (Order Amending Rate Schedules) (also imposing a 20% increase of fixed charges on distributed energy customers).", "Second, utility companies have imposed electricity charges on solar customers that vary as a function of the consumer's peak demand for energy, known as a “demand charge.” See, e.g., NSTAR Elec. Co., D.P.U. 17-05-B (Mass. Dept. of Pub. Util. Jan. 5, 2018) (Order Establishing Eversource's Rate Structure) (approving mandatory demand charges specifically on residential distributed solar customers).", "SRP's new rate structure exemplifies both of these discriminatory rate practices, as SRP imposed both a fixed distribution charge of up to $37.88 per month and increased demand charges ranging from $30 to $125 *24 per month for all residential distributed solar customers. J.A. 33 (¶ 108). These rate changes resulted in an increase of approximately 65% in energy fees (or $600 per year) for a typical solar customer, as opposed to a 3.9% increase in energy fees for a non-solar customer. See J.A. 8-9 (¶ 5); see also, e.g., Wis. Electric Power Co., Docket No. 5-UR-107 (Wis. Public Service Comm'n Dec. 23, 2014) (Final Decision) (approving application to impose high demand charges, fixed charges, and time-of-use rates on distributed solar customers).", '2. Discriminatory rates against rooftop solar harm consumers and the environment', 'Wide-scale discriminatory rates targeting solar power deployment undermine the very public objectives that power utility monopolies were created to serve because they harm both consumers and the environment.', 'First, rates that stifle the deployment of rooftop solar harm consumers by diminishing the economic and social value they receive through generating their own power. Due to technological advances, the cost of residential solar has dropped precipitously and is cost-comparable, if not lower, than the average price of power purchased from the utility grid. See, e.g., Gideon Weissman & Brett Fanshaw, Shining Rewards: The Value of Rooftop Solar Power for Consumers and Society (2016), available at https://environmentamerica.org/sites/environment/files/reports/AME%20ShiningRewards%C20Rpt%C20Oct16%201.1.pdf; Mark Muro & Devashree *25 Saha, Rooftop Solar: Net Metering is a Net Benefit, Brookings Institution (May 23, 2016), available at https://www.brookings.edu/research/rooftop-solar-net-metering-is-a-net-benefit/. Further, distributed solar generation can serve to democratize power ownership by increasing local control over power decisions, returning economic benefits directly to the served community and promoting a more equitable distribution of economic and social benefits across racial and economic lines. See generally Local Clean Energy All. & Center for Social Inclusion, Democratizing Our Energy Future (2015), available at http://www.localcleanenergy.org/files/Climate%20Justice%C20Energy%20Platform.pdf.', "Second, discriminatory rates inhibiting distributed solar generation stave off the public health benefits associated with phasing out fossil fuel combustion from power plants. Nearly 40% of Americans are exposed to toxic air pollution from fossil fuel power plants that often reaches dangerous levels, resulting in the increased incidence of asthma and chronic bronchitis and leading to hundreds of thousands of premature deaths per year. See Am. Lung Ass'n, State of the Air 9 (2017), available at http://www.lung.org/assets/documents/healthy-air/state-of-the-air/state-of-the-air-2017.pdf. Critically, these public health impacts are disproportionately borne by communities of color and low-income, who more often live in closer proximity to fossil fuel power plants. Id. at 41; see also National Ass'n for the Advancement of Colored People & Clean Air Task Force, Fumes Across the Fence-Line: The Health Impacts of Air Pollution from Oil and Gas Facilities *26 (2017), available at http://www.naacp.org/wp-content/uploads/2017/11/Fumes-Across-the-Fence-Line_NAACP_CATF.pdf. Accordingly, obstructing distributed solar generation directly exacerbates the country's systemic public health disparities by perpetuating reliance on fossil fuel power.", "Finally, these discriminatory rates hinder the country's urgently needed transition to clean energy in order to combat climate change. More than 60% of America's electricity still derives from fossil fuels. U.S. Energy Info. Admin., Electricity Explained (May 10, 2017), available at https://www.eia.gov/energyexplained/index.cfm?page=electricity_in_the_united_states. As a result, the electricity sector is the single largest source of GHG emissions in the country, accounting for nearly one-third of total U.S. GHG emissions in 2015. U.S. Envtl. Protection Agency, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2015 ES-24 (2017), available at https://www.epa.gov/sites/production/files/2017-02/documents/2017_executive_summary.pdf.", 'Accordingly, discriminatory ratemaking against the deployment of distributed solar energy, like that implemented by SRP, undermines the inherent public interest in “aggressive and sustained greenhouse gas emission reductions” in order to avoid some of the worst impacts of climate change. Jerry Melillo et al., U.S. Global Change Research Program, Climate Change Impacts in the United States: The Third National Climate Assessment 13 (2014), available at http://s3.amazonaws.com/nca2014/low/NCA3_Climate_Change_Impacts_in_the_United%20States_LowRes.pdf?download *27 =1 (“2014 Climate Assessment”). Indeed, the public harms caused by climate change are immense: the increased extinction of species and ocean acidification; the rapid loss of Arctic sea ice and the collapse of Antarctic ice shelves; declining global food and water security; and the heightened frequency of heat waves and other extreme weather events, including contribution to the three unprecedented hurricanes that ravaged the Gulf Coast, Florida, and Puerto Rico in 2017. See generally 2014 Climate Assessment; see also Michael Mann et al., What We Know About the Climate Change-Hurricane Connection, Scientific American (Sept. 8, 2017), available at https://blogs.scientificamerican.com/observations/what-we-know-about-the-climate-change-hurricane-connection/.', 'For all these reasons, it could not be clearer that by obstructing the realization of these consumer and environmental benefits, utility rates which improperly discourage the transition to renewable energy sources like rooftop solar are contrary to the public interest.', 'C. Allowing Public Power Companies To Obtain Interlocutory Appeal Of State-Action Immunity Rulings Will Only Encourage More Discriminatory Rates Contrary To The Public Interest', "The central premise of SRP's asserted right to interlocutory appeal is that it is necessary to allow public power entities to focus their attention on “advancing the public interest” without potential exposure to *28 antitrust liability. Pet. Br. at 35. However, because SRP and other utilities' decisions targeting distributed solar generation are arguably contrary to the public interest, SRP raises no “particular value of a high order” warranting immediate appeal under the collateral-order doctrine. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 605 (2009).", 'Instead, allowing interlocutory appeal in these circumstances will serve to further encourage power companies to unfairly obstruct distributed solar development in a manner contrary to antitrust laws, with the expectation that they can avoid liability by invoking the state-action defense and, at minimum, significantly delay antitrust litigation by immediately appealing adverse rulings. By requiring SRP to defend its rates - including its purported entitlement to the state-action defense - like any other litigant, the Court will level the playing field in an area where it has become increasingly apparent that competition, rather than the perpetuation of insulated monopoly power, will best serve the public interest.', "Such a result would also be consistent with this Court's precedents recognizing that power companies are not immune from competition and antitrust laws. In Otter Tail Power Co. v. United States, 410 U.S. 366 (1973), the Court decisively held that the Federal Power Act does not “immunize” power companies from “antitrust regulation.” Id. at 374-75 (permitting the federal government to seek antitrust remedies against a power utility which, among other things, refused to sell power to municipalities and transfer competitors' *29 power over its lines). As the Court has explained, a power company's “franchise to exist as a corporation and to function as a public utility … creates no right to be free of competition.” Tenn. Electric Power Co. v. Tenn. Valley Auth., 306 U.S. 118, 139 (1939) (overruled in part on other grounds); see also Alabama Power Co. v. Ickes, 302 U.S. 464, 480 (1938) (holding that power utilities do not “possess” any inherent legal “right to be immune from lawful … competition”). These findings are grounded in the recognition that “[t]he public interest is far broader than the economic interest of a particular power supplier.” Otter Tail Power Co., 410 U.S. at 380 n.10. Accordingly, Amici urge the Court to recognize that, at least with respect to monopoly practices serving to obstruct distributed solar generation, the state-action defense and interlocutory appeal of adverse immunity rulings should be disfavored."]

[(10, 19), (32, 37)]

534745c434da5023d7357ffff3557b873bf3db3b2043af08080e93ed0b01214b

Runaway warming causes extinction

Nathan Alexander Sears 21, PhD Candidate in Political Science at The University of Toronto, Former Professor of International Relations at the Universidad de Las Américas, Trudeau Fellow in Peace, Conflict and Justice at the Munk School of Global Affairs, “Great Powers, Polarity, and Existential Threats to Humanity: An Analysis of the Distribution of the Forces of Total Destruction in International Security”, Conference Paper: International Studies Association, 2021 Annual Conference, March/April 2021, https://tinyurl.com/bfbfspzx

Climate could be existential if the planet reaches a “Hothouse Earth” While societies possesses some adaptation 12° would leave the planet too hot for habitation indirect effects include disasters pressures on water and food viruses ; and migration collapse of societies link to climate positive loops lead to irreversible “runaway” change a threshold exist at 2° If met nations would keep climate below an existential threat

Humanity has become one of the driving forces behind Earth’s climate system The major anthropogenic drivers of climate change are the burning of fossil fuels combined with the degradation of Earth’s natural systems for absorbing carbon dioxide, such as deforestation for agriculture and resource extraction and the warming of the oceans the dramatic increase in greenhouse gas emissions is responsible for contemporary climate change Climate change could be come an existential threat to humanity if the planet ’s climate reaches a “Hothouse Earth” state There are two mechanisms of climate change that threaten humankind. The direct threat is extreme heat . While human societies possesses some capacity for adaptation and resilience e physiological response of humans to heat stress imposes physical limits 11– 12° C would leave much of the planet too hot for human habitation The indirect effects of climate change could include rising sea levels extreme weather and natural disasters environmental pressures on water and food scarcity inception of new bacteria and viruses ; and large-scale human migration there are historic precedents for the collapse of human societies under environmental pressures Earth’s “big five” mass extinction events have been link ed to dramatic shifts in Earth’s climate and a Hothouse Earth climate would represent terra incognita for humanity a Hothouse Earth climate could pose an existential threat to the habitability of the planet for humanity much of the concern is over the danger of crossing “tipping points,” whereby positive feedback loops could lead to irreversible and self-reinforcing “runaway” climate change the melting of Arctic “permafrost” could produce additional warming a “planetary threshold ” could exist at temperature of 2° C the lower-boundary of existential threat with higher temperatures increasing the risk of runaway climate change leading to a Hothouse Earth Paris set the goal of limiting the increase to “well below” 2°C If Paris goals are met nations would keep climate change below the threshold of an existential threat to humanity

be existential threat planet “Hothouse Earth” extreme heat some adaptation resilience physical limits 12° too hot for human habitation indirect sea levels weather natural disasters water food scarcity bacteria viruses migration collapse of human societies “big five” mass extinction events link climate terra incognita for humanity existential threat “tipping points,” positive feedback loops irreversible self-reinforcing “runaway” Arctic “permafrost” threshold 2° lower-boundary higher temperatures runaway below the threshold existential threat

['Climate Change', 'Humanity faces existential risks from the large-scale destruction of Earth’s natural environment making the planet less hospitable for humankind (Wallace-Wells 2019). The decline of some of Earth’s natural systems may already exceed the “planetary boundaries” that represent a “safe operating space for humanity” (Rockstrom et al. 2009). Humanity has become one of the driving forces behind Earth’s climate system (Crutzen 2002). The major anthropogenic drivers of climate change are the burning of fossil fuels (e.g., coal, oil, and gas), combined with the degradation of Earth’s natural systems for absorbing carbon dioxide, such as deforestation for agriculture (e.g., livestock and monocultures) and resource extraction (e.g., mining and oil), and the warming of the oceans (Kump et al. 2003). While humanity has influenced Earth’s climate since at least the Industrial Revolution, the dramatic increase in greenhouse gas emissions since the mid-twentieth century—the “Great Acceleration” (Steffen et al. 2007; 2015; McNeill & Engelke 2016)— is responsible for contemporary climate change, which has reached approximately 1°C above preindustrial levels (IPCC 2018).', 'Climate change could become an existential threat to humanity if the planet’s climate reaches a “Hothouse Earth” state (Ripple et al. 2020). What are the dangers? There are two mechanisms of climate change that threaten humankind. The direct threat is extreme heat. While human societies possesses some capacity for adaptation and resilience to climate change, the physiological response of humans to heat stress imposes physical limits—with a hard limit at roughly 35°C wet-bulb temperature (Sherwood et al. 2010). A rise in global average temperatures by 3–4°C would increase the risk of heat stress, while 7°C could render some regions uninhabitable, and 11–12°C would leave much of the planet too hot for human habitation (Sherwood et al. 2010). The indirect effects of climate change could include, inter alia, rising sea levels affecting coastal regions (e.g., Miami and Shanghai), or even swallowing entire countries (e.g., Bangladesh and the Maldives); extreme and unpredictable weather and natural disasters (e.g., hurricanes and forest fires); environmental pressures on water and food scarcity (e.g., droughts from less-dispersed rainfall, and lower wheat-yields at higher temperatures); the possible inception of new bacteria and viruses; and, of course, large-scale human migration (World Bank 2012; Wallace-Well 2019; Richards, Lupton & Allywood 2001). While it is difficult to determine the existential implications of extreme environmental conditions, there are historic precedents for the collapse of human societies under environmental pressures (Diamond 2005). Earth’s “big five” mass extinction events have been linked to dramatic shifts in Earth’s climate (Ward 2008; Payne & Clapham 2012; Kolbert 2014; Brannen 2017), and a Hothouse Earth climate would represent terra incognita for humanity.', 'Thus, the assumption here is that a Hothouse Earth climate could pose an existential threat to the habitability of the planet for humanity (Steffen et al. 2018., 5). At what point could climate change cross the threshold of an existential threat to humankind? The complexity of Earth’s natural systems makes it extremely difficult to give a precise figure (Rockstrom et al. 2009; ). However, much of the concern about climate change is over the danger of crossing “tipping points,” whereby positive feedback loops in Earth’s climate system could lead to potentially irreversible and self-reinforcing “runaway” climate change. For example, the melting of Arctic “permafrost” could produce additional warming, as glacial retreat reduces the refractory effect of the ice and releases huge quantities of methane currently trapped beneath it. A recent study suggests that a “planetary threshold” could exist at global average temperature of 2°C above preindustrial levels (Steffen et al. 2018; also IPCC 2018). Therefore, the analysis here takes the 2°C rise in global average temperatures as representing the lower-boundary of an existential threat to humanity, with higher temperatures increasing the risk of runaway climate change leading to a Hothouse Earth.', 'The Paris Agreement on Climate Change set the goal of limiting the increase in global average temperatures to “well below” 2°C and to pursue efforts to limit the increase to 1.5°C. If the Paris Agreement goals are met, then nations would likely keep climate change below the threshold of an existential threat to humanity. According to Climate Action Tracker (2020), however, current policies of states are expected to produce global average temperatures of 2.9°C above preindustrial levels by 2100 (range between +2.1 and +3.9°C), while if states succeed in meeting their pledges and targets, global average temperatures are still projected to increase by 2.6°C (range between +2.1 and +3.3°C). Thus, while the Paris Agreements sets a goal 6 that would reduce the existential risk of climate change, the actual policies of states could easily cross the threshold that would constitute an existential threat to humanity (CAT 2020).']

[(17, 25)]

5374ddde78efa17a93a08ab3347f5d14a7b6fdf493c9358b11f376b12311e28f

Rate discrimination locks in centralized renewables models that limit resources through energy sprawl. Decentralization solves.

Moroni et al. 16, Stefano Moroni is with the Polytechnic University of Milano; Valentina Antoniucci Department of Civil, Environmental and Architectural Engineering, University of Padova; Adriano Bisello is with EURAC Research, Institute for Renawable Energy, “Energy Sprawl, Land Taking and Distributed Generation: Towards a Multi-Layered Density,” Energy Policy, vol. 98, 11/01/2016, pp. 266–273

Despite benefits of d g the biggest barrier is unclear law observers are concerned for “energy sprawl”, Territorially distributed small plants exploiting renewable resources fit the built environment more easily , with less impact do away with extracting sites , large plants , and transmission distributed are an antidote to sprawl wouldn't appropriate a single acre Unlike industrial do not pose a threat to wildlife distributed systems foster experimentation and competition to introduce changes remov protectionism that defend centralized production liberalization remains incomplete

Despite benefits of d g renewable policies tend to promote development of large renewable energy generation systems located far from urban centers of power consumption By far the biggest barrier to micro-grids is contradictory, unclear , or hostile law The transition from power systems burning fossil fuels to renewable energy can produce less pollution more energy security broader access to energy, up to the establishment of a new economic paradigm This transition is political As the U.S. D o E put it, we can reduce CO2 by 99% While they see benefits observers are concerned that diffusion of renewable resources may be responsible for “energy sprawl”, an increasing use of available land to build renewables in a distributed systems scenario, on-site power would cover lighting, heating, and cooling , but also clean mobility solutions Energy production and distribution become closely linked with new forms of private self-governance , i.e. independent ly organized collectives . Among the main motives for becoming part of such energy communities there is also a strong desire to be self-sufficient But, “closely linked to community identity is the idea of community sustainability the notion that a community can survive on its own and enjoy freedom to determine its future groups they studied “garnered support for renewable initiatives by calling upon a tradition of self-reliance , and the promise that renewables could bring communities resilience Energy communities may be established merely to deal with energy the “transition to a sustainable energy system may also lead to social transformation Energy communities will thus represent a new form of organizationally dense nodes in a polycentric non-hierarchical network of community nodes with a bottom-up structure The scenario has advantages in terms of containing land occupation Territorially distributed small power plants exploiting renewable resources fit into the built environment far more easily , with far less impact on the natural environment Distributed energy systems help to do away with the need for fossil fuel extracting and mining sites , large power plants , and long transmission lines that spoil the landscape and are typical of the traditional centralized energy system distributed systems are an antidote to energy sprawl Distributed projects … are small and do not require large amounts of land for the construction of power plants. Many sources can even be developed on existing infrastructure , which further decreases the chances of additional negative environmental impact. they require few or no transmission lines We wouldn't have to appropriate a single acre of new land to make PV our primary energy source This result is in line with similar international studies that identified 2 kW per capita as the reference photovoltaic capacity in urban environments Even adopting a conservative value of 1000 kW h/m2 , there would theoretically be an over-abundant yearly production to cover the average domestic power consumption without invading a single square meter of farm land Distributed wind energy development has distinctive characteristics that make it an attractive source of alternative energy. Unlike industrial -scale wind small wind turbine installations do not require construction of costly access roads and transmission lines across vast stretches of rural land and thus pose less of a threat to wildlife the end-users' energy demand is generally very small distributed energy systems based on renewable sources reduce emissions and air pollutants distributed energy systems based on renewable sources foster experimentation , innovation and competition . They promote the creation of non-hierarchical, competitive networks that are more flexible They limit monopolies and encourage new market growth The traditional model of centralized energy production and distribution is so deeply embedded in this system of rules that any attempt to introduce changes is usually strongly resisted due not only to vested interests , but also to inertia The first measure involves remov ing protectionism that persist in defend ing centralized energy production methods initial steps towards a greater liberalization of the energy sector were taken in several developed countries but the process remains incomplete and should become more radical

d g large far from urban centers biggest barrier unclear law renewable pollution energy security access new economic paradigm political D o E 99% benefits “energy sprawl”, land renewables distributed on-site lighting, heating, and cooling clean mobility private self-governance independent collectives self-sufficient community sustainability survive on its own freedom determine its future self-reliance resilience merely energy also social transformation organizationally dense nodes polycentric non-hierarchical network community nodes bottom-up structure advantages containing land occupation distributed small renewable resources built environment easily far less impact natural environment fossil fuel extracting mining sites power plants transmission lines distributed antidote energy sprawl small existing infrastructure few no transmission lines single acre of new land conservative value 1000 kW h/m2 over-abundant yearly production single square meter of farm land attractive source industrial -scale small not require access roads wildlife generally small emissions air pollutants experimentation innovation competition more flexible limit monopolies new market growth centralized system of rules changes strongly resisted vested interests inertia first measure remov protectionism defend centralized energy production methods incomplete more radical

['“Despite the benefits of distributed generation, renewable energy policies tend to promote development of large renewable energy generation systems located far from urban centers of power consumption” (Powers, 2013).', '“By far the biggest barrier to the creation of micro-grids is contradictory, unclear, or hostile law” (Bronin, 2010).', '1. Introduction', 'The transition from power systems burning fossil fuels to renewable energy sources can produce much-needed benefits, ranging from less air pollution to more energy security, or broader access to energy, up to the establishment of a new economic paradigm, the so-called “low-carbon economy”. This energy transition is at the top of many political agendas nowadays. In Europe, short-and medium-term targets are defined in the 20-20-20 Package and the Framework 2030 (da Graça Carvalho, 2012). But the most ambitious vision is outlined in the EU Roadmap 2050, which suggests a development path designed to cut European emissions to 80% lower than they were in 1990 (by 2050). For this challenge to be feasible and affordable, all sectors need to be involved in developing cost-effective solutions. In particular, the growth of renewables in the electricity sector plays a crucial part in the decarbonization and diversification process. As clearly stated in the EU Roadmap 2050, despite the expectation that electricity consumption will continue to increase, the corresponding greenhouse gas emissions would be reduced by between 93% and 99%. Such an impressive goal demands a massive penetration of renewables in the power sector in order to benefit from their near-zero emissions factor. Judging from the results obtained by Turconi, Boldrin and Astrup (2013: 560) using the life cycle assessment method, only 13–190 kg CO2-eq are produced for every 1 MW h generated by photovoltaic systems, and 3–41 kg CO2-eq using wind power, as opposed to 660–1050 kg CO2-eq if we burn hard coal, or 380–1000 kg CO2-eq using natural gas. As the U.S. Department of Energy (2008: 127) put it, we can reduce CO2 emissions by up to 99% by using wind instead of coal, while using wind instead of gas means a CO2 saving close to 98%.', 'The global share of renewable power generation was 22% in 2013, and is expected to rise to more than 26% by 2020 (OECD/IEA, 2015). The contribution of renewables for electricity generation to the achievement of the global targets specified in international agreements is noticeable and feasible, bearing in mind that “all countries in the world have at least one abundant renewable resource and many countries have a portfolio of resources” (IEA, 2016).', 'While they see the benefits, many observers are concerned that the diffusion of renewable resources may be responsible for a so-called “energy sprawl”, i.e. an increasing use of available land to build new energy facilities (based on renewables) (Muller, 2012).1 The present article discusses whether this is a real threat. Land occupation is an important metric to consider when assessing different energy production systems, though it may not necessarily be the primary, overriding concern (Moroni, 2013, Moroni, 2016). While we are not “in a world of mounting land scarcity” (Hernandez et al., 2015: 13581),2 we should nonetheless seriously consider land taking too (Howard et al., 2009).', "The debate on distributed energy production – and electricity generation in particular – is prevalently focused today on technological issues, with some economic reflections thrown in, at most. But it seems fundamental to cast the net wider and include other issues, and primarily the institutional and organizational aspects involved (which have been largely ignored so far3). Energy-related transitions are always inherently socio-material transitions because they inevitably also involve institutions and users' organizations and behavior, not only natural resources and physical infrastructure (Calvert, 2015: 11). In this regard, adopting a new idea of (multilayered) density may enable the debate to be developed from a fresh overall perspective because it brings together the three main elements of the problem discussed here: technology, organization and spatial development.", 'The article is organized as follows: Section 2 considers a desirable (polycentric) energy generation scenario; in Section 3 we discuss the advantages of this scenario (in terms of reducing land taking and other benefits); Section 4 concerns the policies that could facilitate the transition process; and Section 5 is devoted to the conclusions.', '2. A polycentric scenario: two main elements', 'A desirable distributed and polycentric scenario is based on building-related renewable energy production (Section 2.1), and new forms of local contractual community (Section 2.2).', '2.1. Building-related renewable energy production (and micro-grids)', 'Those who are concerned about energy sprawl generally assume that the transition underway is from the traditional fossil-fuel burning systems with their large power plants and long transmission lines4 towards a system that exploits renewable resources but is likewise based on large power stations (e.g. large-scale multiple photovoltaic plants or large wind farms) and extensive energy grids.5 Hernandez et al. (2015: 13579) write that, “If up to 500 GQ of USE [utility-scale solar energy] may be required to meet the United States-wide reduction of 80% of 1990 greenhouse gas emissions by 2050, 71,428 km2 of land may be required (roughly the land area of the state of South Carolina) assuming a capacity factor of 0.20”.', 'On the other hand, a different organizational approach that involves distributed energy systems based on building-related renewable energy production (Bronin, 2012) and micro-grids can effectively reduce the risk of energy sprawl and excessive land occupation. Unlike the existing transmission and distribution networks (designed to deliver unidirectional power flows to consumers), smart micro-grids involve users interactively within local grids. Current advances in energy storage technology (Chen et al., 2009, Toledo et al., 2010) are also crucial to the full enablement of “prosumers” (producers cum consumers) in such micro-grids.', 'It is important to emphasize that, in a distributed energy systems scenario, on-site power production would cover not only lighting, heating, and cooling, but could also be used to sustain clean mobility solutions. Though challenging, the integration of electrically-powered vehicles in smart distributed energy systems has great potential, also because batteries and chargers for electric vehicles (i.e. bicycles, cars, segways and the like) may be suitable for storing energy and covering mismatches between production and load peaks (Barkenbus, 2009, Waraich et al., 2010, Delucchi and Jacobson, 2011, Zakariazadeh et al., 2014). The distributed energy framework thus brings together two of the main sources of energy consumption, traditionally approached and considered separately, i.e. buildings and transportation. In the urban setting at least, we should start thinking in terms of an integrated, renewables-based, smart energy system for our living and mobility needs.', 'In short, we are seeing a shift in spatial and technological density: from large centralized plants feeding a hierarchical distribution grid to physically and technologically dense nodes forming part of a polycentric system based on multiple smart micro-grids.', '2.2. New forms of contractual community', 'When we discuss distributed energy systems, the term “distribution” refers not only to the scale and location of the micro power units involved, but also to their ownership, the related decision-making, and the responsibility for their use (Alanne and Saari, 2006, Adil and Ko, 2016). In other words, distributed energy means much more than just smaller energy units installed closer to consumers. Establishing new, local energy systems also demands an innovative organizational framework that has not been adequately considered to date.', 'The multiple nodes of this new polycentric electricity production system (Goldthau, 2014) will include not only individual homes, stores, or industries – as is often assumed, even by the relevant regulatory bodies6 – but also new, intentionally-adopted forms of community (i.e. communities of choice, not communities of chance or fate), based on relationships between members defined by explicit agreements. Energy production and distribution become closely linked with new forms of (private) self-governance, i.e. independently organized prosumer collectives. Among the main motives for becoming part of such energy communities, e.g. to reduce costs, do “the right thing”, consolidate a local identity, etc. (Bomberg and McEwen, 2012, Doci and Vasileiadou, 2015), there is also a strong desire to be self-sufficient. In an empirical analysis of energy communities, Bomberg and McEwen (2012: 441) found that community identity was often mentioned as one of the reasons for the scheme. But, “closely linked to community identity is the idea of community sustainability and autonomy – the notion that a community can survive on its own, relatively free from dependence on ‘outsiders’ (including government authorities), and enjoy the freedom to make its own decisions, and determine its own future”. Bomberg and McEwen concluded that the groups that they studied “garnered support for renewable initiatives by calling upon a tradition of self-reliance, and the promise that renewables could bring to communities seeking to maximize their autonomy and resilience” (ibid.: 412).', "Energy communities may be established merely to deal with energy issues, or they may coincide with place-based contractual communities (Foldvary, 1994, Nelson, 2005, Moroni, 2014), such as home-owners' associations, residential cooperatives, cohousing complexes, or multi-tenant properties (on this specific issue, see Wiseman and Bronin, 2013). This last case might be the most promising. If place-based communities are conceived and designed as integrated energy management systems, they will be able to approach multiple energy-consuming services holistically, in an integrated manner (Mendes et al., 2011, Antoniucci et al., 2015a, Antoniucci et al., 2015b). Lowi and MacCallum, (2014) made the point that integrated energy management systems could deal simultaneously with services such as electric power, lighting, heating, air conditioning, water supply or sewerage systems, waste management, and communications.", 'Clearly, these units could easily form coalitions to create wider frameworks, such as private associations of private communities. Their desirability and feasibility would be decided case by case, from a bottom-up perspective.', 'In short, the “transition to a sustainable energy system may also lead to the social transformation of communities and neighborhoods” (van der Schoor and Scholtens, 2015: 667).', 'Energy communities will thus represent a new form of organizationally dense nodes in a polycentric non-hierarchical network of multiple (community) nodes with a bottom-up structure. The development of a differently distributed technological and spatial scenario (Section 2.1) therefore also gives rise to a new form of distributed organizational density.', '3. Main advantages', 'The above-outlined scenario has several advantages, primarily in terms of containing land occupation and consumption (Section 3.1), but other collective and individual benefits can be expected too (Section 3.2).', '3.1. Reducing land taking', 'Territorially distributed small power plants exploiting renewable resources (such as photovoltaic panels installed on buildings, micro wind turbines, geothermal heat pumps, etc.) fit into the built environment far more easily, with far less impact on the natural environment and landscape (Dunn, 2002). As Outka (2011: 302) writes, “Onsite energy generation minimizes the footprint with rooftop solar panels, small-scale wind, and combined heat and power systems built into existing structures”. Distributed energy systems help to do away with the need for fossil fuel extracting and mining sites, large power plants, and long transmission lines that spoil the landscape and are typical of the traditional centralized energy system (Akorede et al., 2010, Bronin, 2010, Warren, 2014). So distributed energy systems are more of an antidote to energy sprawl than a cause.', 'This becomes very evident if we focus on building-related renewable energy and micro-grids rather than on renewable sources per se. As Warren (2014: 365) writes, “Distributed generation projects … are small and do not require large amounts of land for the construction of power plants. Many sources can even be developed on existing infrastructure, which further decreases the chances of additional negative environmental impact. Finally, they require few or no transmission lines to distribute the electricity to the end users. As a result, less land is disturbed”.', "According to the U.S. Department of Energy (2004), cities and housing units cover 140 million acres in the United States. The country's electricity requirements could be satisfied by applying photovoltaic panels to 7% of this surface area: on building rooftops and walls, parking lots, along highway barriers, and so on. In short, “We wouldn't have to appropriate a single acre of new land to make PV our primary energy source” (ibid.: 1). A recent Italian study on the real potential of photovoltaic rooftops in a few mountain villages concluded that 2.5 kW per capita of installed capacity are still achievable, even after excluding historical buildings and inappropriate or underperforming locations (Moser et al., 2014). This result is in line with similar international studies that identified 2 kW per capita as the reference photovoltaic capacity in urban environments (Moser et al., 2015). Even adopting a conservative insolation value of 1000 kW h/m2, there would theoretically be an over-abundant yearly production to cover the average domestic power consumption (1000–1300 kW h per capita), without invading a single square meter of farm land or forest.", 'Large wind farms might be questionable from the land use perspective because of the space needed for large turbines and the related infrastructure (access roads, electric cables and sub-station, control buildings, etc.). But if we concentrate on distributed generation and local grids, then our main interest lies in small wind turbines. “Distributed wind energy development has distinctive characteristics that make it an attractive source of alternative energy. Unlike industrial-scale wind energy projects, small wind turbine installations do not require the construction of costly access roads and transmission lines across vast stretches of rural land and thus pose less of a threat to wildlife and conservation areas” (Rule, 2010: 1237).7 Small wind turbines are generally no more than 7 m in diameter and have a power output of 1–10 kW (Rolland and Auzane, 2012), although “the discrepancy of the upper capacity limit of small wind ranges between 15 kW and 100 kW for the five largest small wind countries” (Pitteloud and Gsänger, 2016: 11). They are intended to generate small amounts of power, and they can work at lower wind speeds than the turbines designed to provide utility-scale power (U.S. Department of Energy, 2007).8', "It is important to stress here that the end-users' energy demand is generally very small: for instance, three in four commercial and residential consumers in the United States use electricity at very low average rates, no more than 12 and 1.5 kW, respectively (Bronin, 2010).", '3.2. Five ancillary advantages', 'In addition to limiting land occupation, a polycentric system comprising multiple local community-based energy systems has at least another five advantages.', "First, distributed energy production (from renewable sources) strongly reduces the power losses during transmission and distribution typically associated with traditional centralized systems9 because the site where the power is generated is physically closer to the load (U.S. Environmental Protection Agency, 2011). As an example, energy demand in Italy in 2013 was 318,000 GW h, and grid losses exceeded 21,000 GW h (Terna, 2013). At a current consumer price of 0.2 Euro/kW h, if it were possible to avoid these losses completely, the country's energy bill would be 4.2 million Euro lower.10 Distributed energy systems based on renewable sources also reduces the risks and consequences of power outages, which pose increasingly severe problems for traditional centralized systems.11 In short, some changes to the physical architecture of the system are needed to prevent or manage peaks in demand, and to diversify the power supply systems and sources to improve the energy system's overall resilience (Evans and Fox-Penner, 2014).", 'Second, distributed energy systems based on renewable sources reduce greenhouse gas emissions (mainly CO2) and other air pollutants, such as ozone, carbon monoxide, nitrogen oxides, sulfur oxides, particulate matter, and lead. While it may take time to induce benefits in terms of limiting climate change, the positive effects on air quality and public health, and the beneficial fallout on local ecosystems will become apparent more quickly (Bell et al., 2008). The levels of electromagnetic radiation, generated by traditional long high-voltage power lines, will decrease too. Both market and non-market techniques are available for quantifying the health benefits in terms of morbidity and/or mortality rates. Bell et al. (2008) conducted a review on several variables and related issues considered in this field, including cost of illness, human capital, willingness to pay, and quality-adjusted life-years. According to a study cited by the U.S. Environmental Protection Agency (2011), lowering nitrogen oxides concentrations carries morbidity and mortality-related benefits in the range of $7.5 to $13.2 dollars per ton of CO2 avoided. In addition to their impact on ecosystems, pollutants are also threatening our cultural heritage and causing material damage to buildings (Aunan et al., 2004, Bollen et al., 2009, Tidblad et al., 2012, Ürge-Vorsatz et al., 2014).', 'Third, distributed energy systems based on renewable sources foster experimentation, innovation and competition. They promote the creation of non-hierarchical, competitive networks that are more flexible in responding to changing market situations and customer needs. They also limit monopolies and have the potential to encourage new market growth.', 'Fourth, distributed energy systems based on renewable sources give individuals more freedom. They enable consumers to become self-sufficient, reduce their dependence on centralized services, and broaden their choices. Distributed energy also supports a wider range of solutions better tailored to the wishes and needs of individuals and small groups (Antoniucci et al., 2015a, Antoniucci et al., 2015b).', 'Fifth, distributed energy systems based on renewable sources add to the value of residential buildings, being a technical feature that is appreciated by the market. Dastrup et al. (2012: 972) used two different methods to analyze a sample of residential units in San Diego County (CA), and demonstrated that “solar panels are capitalized at roughly a 3–4% premium”. In addition, almost all office property transactions nowadays concern buildings with a high energy performance (Eichholtz et al., 2010).12', '4. Five enabling policy measures', 'The current institutional and regulatory framework has favored large-scale, centralized energy production systems by establishing and defending a body of rules that has fostered the emergence of giant energy providers. The traditional model of centralized energy production and distribution is so deeply embedded in this system of rules that any attempt to introduce significant changes is usually strongly resisted (Goldthau, 2014), due not only to vested interests, but also to a widespread inertia (Kiesling, 2010).', 'In this section we focus on how to facilitate the development and diffusion of contractual communities organized to produce electricity and other facilities. As mentioned earlier, we consider such communities as one of the key ingredients in a broad and diversified polycentric system. To foster local energy enterprises, and unlock the opportunities afforded by distributed energy, at least five types of action are needed: (i) any protectionist strategies must be abandoned; (ii) new enabling rules must be implemented; (iii) there has to be more room for different types of contractual community; (iv) compliance issues need to be simplified; and (v) incentives and tax cuts are warranted.', 'The first measure involves removing all forms of protectionism that often persist in defending traditional centralized energy production methods (Newcomb et al., 2013). Some initial steps towards a greater liberalization of the energy sector were taken in several developed countries during the 1980s and 1990s (Boyd, 2014), but the process remains incomplete in many cases (Bridge et al., 2013), and it should become more profound and radical.']

[(0, 16)]

5e66b2ab4b19530883cb6ce0c4c056aa6fee74e4c968601d84261861f1582c1e

Extinction---compact siting is key.

Kiesecker et al. 19, Joseph Kiesecker, Sharon Baruch-Mordo, Christina M. Kennedy, and James R. Oakleaf are with Global Lands, the Nature Conservancy; Alessandro Baccini is with the Woods Hole Research Center; Bronson W. Griscom is with Conservation Interational, “Hitting the Target but Missing the Mark: Unintended Environmental Consequences of the Paris Climate Agreement,” Frontiers in Environmental Science, vol. 7, 2019, p. 151

Humanity is facing existential challenges demand for natural resources for a human population that exceed 9 billion requires to think about unintended consequences Renewable energy requires significant land several fold greater than conventional Historically occurred in areas with high resource potential land use conflict is high

Humanity is facing major existential challenges increasing demand for natural resources for a human population that may exceed 9 billion by 2050 In response to these countries signed the Paris Agreement to keep warming to <2°C below pre-industrial levels Implementing goals presents a complex challenge that requires policymakers to think systematically about potential unintended consequences Renewable energy requires significant land areas several fold greater than conventional energy Historically , renewable energy development has occurred in areas with the high est resource potential and impacted natural lands Clearing natural land for energy development removes and fragments habitat resulting in species declines , and removes aboveground carbon storage resulting in increased emissions If renewable energy proceeds in this manner it could counteract its benefits . The potential for land use conflict s is high , given that a 9-fold increase in renewable energy generation is needed

major existential challenges demand for natural resources human population may exceed 9 billion 2050 Paris warming complex challenge unintended consequences significant land areas several fold greater conventional Historically high resource potential natural lands habitat species declines carbon storage increased emissions counteract its benefits land use conflict high

['Introduction', 'Humanity is facing two major existential challenges (Ripple et al., 2017): increasing demand for natural resources for a human population that may exceed 9 billion by 2050 (Crist et al., 2017), and global warming that increases the frequency of environmental disasters and causes economic damages (Burke et al., 2018). In response to these challenges, countries signed the Paris Climate Agreement (PCA) to keep global warming to <2°C below pre-industrial levels, through their “Nationally Determined Contributions” (NDCs) that specify greenhouse gas (GHG) emission reduction targets (United Nations, 2015a). Concurrently, countries committed to a new agenda for Sustainable Development (United Nations, 2015b) that aims to implement 17 Sustainable Development Goals (SDGs) by 2030, including efforts to advance affordable and clean energy access and to protect natural lands and biodiversity (Fuso-Nerini et al., 2017). Implementing PCA and SDG goals presents a complex challenge that requires policymakers to think systematically about the potential unintended negative environmental consequences (Fuso-Nerini et al., 2017; Smith et al., 2019).', 'Renewable energy requires significant land areas, in some cases several fold greater than conventional energy sources (Kiesecker and Naugle, 2017). Historically, renewable energy development has occurred in areas with the highest resource potential (Kiesecker et al., 2011; Oakleaf et al., 2019) and has impacted natural lands (e.g., wind development in the U.S. Great Plains, Fargione et al., 2012). Clearing natural land for energy development removes and fragments habitat resulting in species declines, and removes aboveground carbon storage resulting in increased emissions (e.g., Diffendorfer and Compton, 2014; Allred et al., 2015; Moreira, 2019). If renewable energy proceeds in this manner it could counteract its expected benefits. The potential for land use conflicts is high, given that a 9-fold increase in renewable energy generation (9,017 TWh) is needed to meet PCA goals (Figure 1C, Baruch-Mordo et al., 2019). Others have assessed impacts associated with renewable energy development for individual countries (McDonald et al., 2009; Arent et al., 2014) or globally for biodiversity impacts (Santangeli et al., 2016). Yet to date, no global assessments have evaluated how the projected increase in renewable energy under PCA goals will affect both biodiversity and terrestrial carbon storage, or grounded such analyses in country level policy commitments. To address this gap, we present a spatially explicit forecast of wind and solar energy expansion under the PCA, and explore the biodiversity and carbon storage consequences of maximizing exploitation of solar and wind energy resources to meet PCA goals. We used estimates of energy production needed to meet PCA emission reduction targets for 109 countries (representing 83% of global terrestrial lands, and 92% of global GHG emissions) whose NDC emissions goals could be attributed to electricity and heat generation from fossil fuels (World Bank, 2017; Baruch-Mordo et al., 2019). We calculated the area needed to meet NDC energy targets within each country and estimated the natural land that would be cleared if development focuses solely on maximizing resource potential. We then spatially assessed impacts of land clearing on biodiversity (km2 loss of Key Biodiversity Areas and number of threatened and endangered species potentially impacted) and carbon storage (tons of stored carbon expressed also as emission loss). Because emissions from land clearing can create a carbon deficit in meeting PCA goals, and because it is essential to meet peak carbon emissions in the next 2–3 years (Figueres et al., 2017), we calculated the number of years required to repay such losses if renewables are sited without considering land-based carbon values.']

[(0, 19)]

513658c9e72ceecf36dc8f7a19951a5c1931ad7abb0960143a281cf395d0a60c

Existential threats to the grid are escalating---DERs are key.

Ryan Thomas Trahan 17, Trahan is an Affiliated Fellow of the Kay Bailey Hutchinson Center for Energy, Law & Business at the University of Texas at Austin, principal of Trahan Law APC, a private law firm based in Los Angeles, “Regulating Toward (In)security in the U.S. Electricity System,” 12 Tex. J. Oil Gas & Energy L. 221, WestLaw

grids being remotely or fried by e m p are high risks Efforts to “harden” are ineffectual Despite vulnerabilities , the industry fails to evaluate vulnerabilities in calculating costs Our defense water comm health and transport are built on electricity necessary for civilization centralized delivery is costly and less secure risks of broad hacks and attacks are greatly increased It is troubling to extrapolate a broader scale outage from a coordinated event that lasted weeks centralized systems face negative networked effects vis-à-vis security decentralized do not

the U.S. national electricity infrastructure stands without protection Nearly everywhere hop a fence and access is wide open threats are not solely physical , as the twin specters of the grids infrastructure being hacked remotely or fried by e m p are recognized as being among the high est-level security risks each such threat is intertwined with the vulnerability of the physical architecture of the grids, an uneasy amalgam of a hundred year effort to manage disparate local and regional systems Efforts to “harden” select physical components of the grids are largely ineffectual . Such efforts are engulfed by an immense infrastructure akin to a series of endless supply convoys -- long, thin, interdependent, and difficult to protect Despite obvious vulnerabilities , the electricity industry fails to evaluate systemic security vulnerabilities in calculating the costs and benefits of alternate electrical grids design years later, d istributed g eneration has achieved broad cost parity with centralized delivery; meanwhile, the costs of decentralized energy are falling rapidly and the costs of centralized electricity delivery are continuing to rise The need for reevaluation is bolstered by recent domestic attacks on the U.S. grids by both sophisticated and unsophisticated actors and successful cyber-attacks by sta te-sponsored actors against electricity grids elsewhere Our nation's defense water , sewer , comm unication, shelter , health , manufacturing , and transport ation infrastructures are all built on a premise of immediately available access to electricity While universal access to electricity is necessary for modern civilization to function, our grids remain balkanized The core modern cause for this is that centralized grids do not generate positive networked effects at scale Additional users of electricity via a network do not make electricity itself more valuable . Instead, incremental users impact the relative cost of obtaining electricity through a network positive networked effects are inapplicable for the grids The bug of centralized delivery whatever the source fuel is that it is costly and generates meaningful negative security effects additional users of the same infrastructure have the effect of making the system less secure for other users . The risks of broad scale hacks and physical attacks are greatly increased in centralized networks PV modules do not rely on turbine technology and are therefore more sensitive to efficiency gains This results in PV modules displaying consistent costs across installation types which means that little to no energy or economic efficiency is lost for PV modules deployed in distributed arrays For most the structure and systems of electricity delivery are not front-of-mind. Until the moment when a reliability event disrupts the modern patterns of life the underlying infrastructure and design of the architecture is ignored Afterward, affected communities operate as best as they can , and the rest of the country, which continues to have access to immediately available electricity, mobilizes to help. Such reliability events have tended to be traumatic for those impacted . It is troubling to extrapolate what could occur if the U.S. experienced a broader scale system outage from a coordinated security event that lasted weeks in the future, centralized systems face material negative networked effects vis-à-vis security risks decentralized systems do not the march of technology has continued and distributed generation sources have now achieved cost parity with centralized delivery, with significant cost reductions expected to continue in the near-term including for decentralized systems as a whole Centralized electricity, by contrast, is becoming more expensive as transmission and distribution spending continues to outpace the investment needed to generate electricity in the first instance, and as investments in its security upkeep necessarily compound

without protection everywhere hop a fence wide open threats solely physical hacked remotely fried e m p high risks physical disparate local and regional systems ineffectual immense infrastructure endless supply convoys long, thin, interdependent, and difficult to protect obvious vulnerabilities fails d g parity falling rapidly rise cyber-attacks sta te-sponsored elsewhere defense water comm shelter health manufacturing transport on premise immediately available access electricity necessary civilization grids balkanized modern cause do not generate positive networked effects at scale more valuable relative cost inapplicable centralized costly negative security effects less secure other users broad scale hacks physical attacks greatly increased turbine more sensitive efficiency consistent costs installation types distributed reliability event underlying infrastructure design ignored best as they can impacted troubling to extrapolate broader scale system outage coordinated security event weeks centralized material negative networked effects security risks decentralized do not security necessarily compound

['INTRODUCTION', 'By design, the U.S. national electricity infrastructure stands without protection.1 Nearly everywhere in the country, hop a fence (or not), walk a bit, and access is wide open. The leading threats to the grids2 are not solely physical, as the twin specters of the grids infrastructure being hacked remotely or fried by an electromagnetic pulse event are recognized as being among the highest-level national security risks, well-documented by military and security analysts.3 Nonetheless, each such *223 threat is fundamentally intertwined with the vulnerability of the physical architecture of the grids, an uneasy amalgam of a hundred year effort to manage disparate local and regional systems.4 Efforts to “harden” select physical components of the grids in response to terrorism and other modern security threats are largely ineffectual. Such efforts are engulfed by an immense transmission5 and distribution6 infrastructure that is akin to a series of endless army supply convoys--long, thin, interdependent, and exceedingly difficult to protect.7', 'Despite obvious vulnerabilities, the electricity industry mainly fails8 to evaluate9 systemic security vulnerabilities in calculating the costs and benefits of alternate electrical grids design. As recently as, say 2010, such an omission may be forgivable,10 as there were no economic alternatives *224 available to the standard centralized electricity delivery structure (i.e., power plant Ö substation Ö transmission lines Ö substation Ö distribution lines Ö end consumer).11 Seven surprising years later, distributed generation12 has achieved broad cost parity with centralized electricity delivery; meanwhile, the costs of decentralized energy systems are falling rapidly and the costs of centralized electricity delivery are continuing to rise.13 The need for reevaluation is bolstered by recent domestic attacks on the U.S. grids by both sophisticated and unsophisticated actors14 and successful cyber-attacks by state-sponsored actors against electricity grids elsewhere in the world.15', 'This paper proceeds from an acknowledgment that an industry-wide commitment (often including distributed generation companies) to a fundamentally centralized electricity delivery system is, itself, a primary source of security risk. From a historical perspective, that commitment is understandable, as a solely centralized delivery model has been the only available economic approach to safely and reliably deliver a fundamental social good. Today, that commitment is outmoded and jeopardizes the fundamental security of the U.S. in that it distracts attention and diverts resources from the essential work of reconfiguring the architecture of the grids to be more inherently secure.', 'Part I of this paper provides historical background and describes conceptual aspects of the electricity grids architecture in order to provide grounding for the subsequent analysis. Part II sketches out the reasons why economic alternatives to a solely centralized grids architecture are now available. Part III describes the paradox wherein misplaced regulatory efforts reinforce the solely centralized model of electricity delivery, and thereby also increase root insecurity. The concluding *225 subparts provide guideposts and describe opportunities for reorienting regulatory focus toward the security of U.S. electricity delivery.', 'I. THE U.S. ELECTRICITY SYSTEM: SELECT HISTORY AND ESSENTIAL FEATURES', 'Like food and most other forms of centralized industrial production, the U.S. electricity grids evolved as a set of systems responding to the engineering, human health circumstances, and economic incentives of distinct time periods. The resulting modern grids system is a hodgepodge,16 best viewed in the context of its history and essential features.', 'A. Select History of the U.S. Centralized Electricity System', "In 1880, the population of the U.S. was only about fifty million,17 and very few folks--mostly established shop owners and very wealthy individuals-- had access to electricity from direct current coal-powered generators, located on-site and producing small amounts of energy.18 Direct current centralized systems were ascendant in the nascent market for electricity after Thomas Edison introduced the coal-fired Pearl Street Station in 1882, providing electricity via buried copper lines to more than 500 nearby customers, including J.P. Morgan (the man) and the New York Times (the paper).19 On November 15, 1896, a switch was flipped on George Westinghouse and Nikola Tesla's alternating current20 *226 generation plant at Niagara Falls, and true centralized hydroelectrical power was delivered twenty-six miles away in Buffalo, New York.21", 'Industry professionals thereafter set about a march to produce electricity at massive, centralized steam turbine22 power plants positioned far from population centers,23 and electrification expanded in near lockstep with availability.24 Prior to the building of such massive plants, there was little functional difference between distribution and transmission of electricity.25 Thereafter, the simple geography of centralized generation systems provided industry professionals access to two additional lines of business, shipping (transmission) and delivery (distribution).26', 'Regulation of electricity delivery systems was initially weak, as municipalities were generally not imbued with a legal authority to regulate electric operators.27 Electric operators did, however, need *227 municipal approval to dig up city streets to lay copper wire or build poles to string wire across city streets, and cities used that practical bargaining power to negotiate private contracts with electric operators.28 Those contracts were used to regulate operators and accomplish various ends, including broad and systemic corruption in favor of municipal officials.29', "Beginning in 1900, states began to grant municipalities the legal authority to regulate utilities, and utilities undertook lobbying efforts to procure local monopolies as cutthroat competition and the requirements of large upfront capital expenditures made electric delivery a business of uncertain profits.30 In 1907, states began to assume the regulatory mantle from municipalities through newly established statewide professional utility regulatory commissions.31 By 1920, less than twenty-five years after Niagara Falls power was shipped to Buffalo, many states had established such commissions.32 1920 also marked the year that the federal government put a toe in the regulatory waters by providing oversight of federal hydroelectric projects through the newly created Federal Power Commission (“FPC”).33 The federal government further waded into the regulatory pool in 1935 by expanding the FPC's scope of power to include regulation of the interstate shipment of electricity.34", "Apart from certain system refinements, present-day generation, transmission, distribution, and regulation trace a straight-line of development from the beginnings to today's electricity grids. The dominance of centralized generation is shown in 450,000 miles of high voltage35 transmission lines and a distribution infrastructure that is ubiquitous in and around population centers. The original local electricity line systems have been amalgamated into three interconnections (essentially discrete grids), and ten regional markets, all reliant on centralized generation of 4.08 trillion kilowatt hours (thus, the *228 percentage changes from 2010 to 2016, shown on the charts below, represent enormous shifts in source energy generation),36 connected here and there, or not at all.37", 'TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE', "States have kept the regulatory pace--even the state of Wyoming taxes land owners for the wind blowing through their ranches38--and *229 serve as the regulators of retail electricity, performing a tri-part function of protecting consumer access, industry profits, and governmental tax revenues.39 The FPC's successor, the Federal Energy Regulatory Commission (“FERC”) today too has a far greater regulatory ambit.40 And, in a historical bookend, the utility industry in 2005 gained federal powers for its own explicitly captive regulator, the National Electric Reliability Corporation (“NERC”), a private 501(c)(6) corporation formed by utilities, which received the explicit power to set mandatory standards and fine non-complying entities into compliance.41", 'B. Essential Features of U.S. Electricity', 'The consistent trend line of regulation and development of electricity, from the 1880s to present, is grounded in very few core concepts. These concepts help to define what electricity in the U.S. is, and what it is not.', '*230 i. Electricity is an Essential Good', "Electricity is found everywhere in the U.S. expressly because it is accepted, in regulation and practice, as an essential good.42 It is not difficult to see why: electricity industry professionals in the 20th century, relying on wide public support, built what is arguably the most robust and democratic technological achievement in human history. Near universal social support (through subsidies, price regulation, and otherwise) for electricity is explicit today and throughout the history and development of the grids, from the regulatory justification for gifting monopolies to private and public utility companies, to the enactment of the Rural Electrification Act of 1936, which brought electricity to rural areas where it was uneconomical to do so,43 to FERC's modern mission statement to “assist consumers in obtaining reliable, efficient and sustainable energy services at a reasonable cost through appropriate regulatory and market means.”44 Our nation's defense,45 water, sewer, communication, shelter, health, manufacturing, and transportation infrastructures are all built on a premise of immediately available access to economical electricity, for everyone.46", '*231 ii. Electricity Grids do not Generate Meaningful Positive Networked Effects', 'While (nearly) universal access to electricity is necessary for modern civilization to function, our electricity grids remain balkanized.47 The core modern cause for this balkanization is that the centralized grids architecture does not generate meaningful positive networked effects at scale,48 the grids would otherwise be expected to be seamlessly interconnected.49 Networked effects are, generally, the impact a single user of a good or service has on the value of that product to other people, such that the value (not the cost) of the network is related to the number of users.50', 'Additional users of electricity via a network do not make electricity itself more valuable. Instead, incremental users impact the relative cost of obtaining electricity through a network (either increasing or decreasing per capita costs depending on, for example, system design, available technology, location, external circumstances, and capacity). Compare electricity against the standard formalization of networked effects in communications networks where a single telephone has no value alone but great value if it can be used to connect to many other users via a network, as illustrated below:51', 'TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE', 'Such positive networked effects are inapplicable for the electricity grids. A modern family or business that obtains electricity from *232 generation sources hundreds of miles away does not enjoy a fundamentally different good than that of their predecessors from the 1880s with a reliable coal-fired generator in a downstairs basement sufficient to meet their electricity needs.52 The electricity generated, delivered, and consumed in each case is identical as electricity is ultimately only useful to deliver energy for work.53 This is not to say that electricity delivery systems do not have externalities, just that such externalities do not constitute meaningful positive networked effects.54', 'Consider the seemingly difficult question of centralized wind energy, which is oftentimes located in geographies far removed from population centers because that is where it is windy.55 Since centralized wind energy must be shipped to population centers to be widely consumed, it might be incorrectly concluded that the intervening network of transmission lines generates meaningful positive networked effects, e.g., some groups may assign value to consumer access to renewable wind energy and argue that such a value is not accurately reflected in its price (therefore constituting an externality). A similar argumentative approach can be applied to any fuel source. Take coal for example: coal plants are not welcome near population centers due to the resulting adverse human health impacts and, thus, coal-fired power must be shipped via a network of transmission lines to population centers to be widely consumed. Some groups may assign value to the use of coal in that it tends to create jobs in areas that are currently economically depressed, or some other social value not accurately reflected in its price (therefore constituting an externality).', 'The error in each case is conflating desirable externalities associated with an energy generation type with externalities that constitute networked effects. A social determination might be made that the *233 externalities resulting from wind energy are preferable to the externalities resulting from coal energy, or vice versa. In either case, it does not follow that dependency on a vast transmission infrastructure for delivering energy is a feature rather than a bug.', 'The bug of centralized electricity delivery (whatever the source fuel) is that it is costly and generates meaningful negative security networked effects. Negative security networked effects occur when additional users of the same electricity infrastructure have the effect of making the system less secure (less valuable) for other users. The risks of broad scale cyber-hacks and physical attacks are greatly increased in centralized electricity networks.56', 'A similar problem exists for the communications industry, which recognizes negative networked effects as a leading problem and top spending priority for its technology professionals.57 Security spending costs are forecasted to grow rapidly for electricity providers as well.58 Unlike communication networks, however, the level of spending by the electricity industry is ultimately elective: there are no meaningful positive networked effects produced by the electricity grids that require investment in a centralized infrastructure. The upshot is that electricity is useful for its ability to transfer energy for work. Whether it is relatively more valuable to deliver electricity via a network, while incurring the negative security networked effects of connected networks59 is an economic (see discussion Part II) and social question (explored in Part III) that, to date, has been ignored.', 'iii. The Grids are (and have always been) Reliant on Broad Social Investment', 'Utility companies were provided the de facto power to tax consumers of electricity in their government-granted monopoly area because the industry could not achieve universal access and acceptable reliability *234 through solely private action, for one reason or another.60 Vast social investment has been necessary to provide near-universal access as the grids do not generate meaningful positive networked effects.61 Such monopoly grants and social investment followed a public determination that electricity is an essential good62 and that centralized grids were the only feasible technical and economic approach to supplying that good, again with private industry lobbying hard to arrive at that conclusion in a manner that would deliver steady profits.', 'A reasonable requirement then for social investment in any alternative electricity generation and delivery system would consist of the satisfaction of one of the following:', '• independently (and economically) meet requirements of universal access and security in a manner that is equal to or better than the existing system; or,', '• demonstrate an ability to improve the fulfillment of such requirements when coupled with the existing centralized electricity architecture.63', 'II. WHY ARE ECONOMIC ALTERNATIVES AVAILABLE NOW?', 'Even accounting for externalities, centralized generation and therefore the centralized grids, has been the only economic approach to electricity delivery throughout the history of the U.S.64 The primary reason--rather than human health effects, environmental impacts, or fuel availability--is that steam turbines are more efficient operating at a larger scale, and *235 coal, nuclear, and combined cycle gas plants rely on steam turbines.65 As recently as 2010, technologies not dependent on steam turbines were not anticipated to become cost-competitive for many years.66 Much has changed in the interim, foremost that cost parity for distributed generation has been achieved in many markets over the last 18-24 months.67 The debate over decentralized energy has therefore shifted from a question of whether decentralized energy systems should be *236 implemented to a debate over which consumers should be permitted to deploy decentralized energy systems and what impact that transition might have on the existing grids system.68 These battles represent a paradigm shift and raise the question of what changed in the blip of seven years.', 'A. Centralized Electricity Delivery Will Continue to Become Significantly More Expensive', 'From 1882 to the early 1980s, the average retail cost of electricity fell precipitously, with sequential declines occurring most every year, excepting for an extended spike in the 1920s, as technological improvements in power plant design and construction and declining source fuel expense resulted in significant cost efficiencies.69 This mitigated pressure on the retail price of electricity. Since then, the utility industry itself has found that the opposite has been true:', '[TABLE OMITTED]', 'Price increases for electricity must continue to accelerate as the utility industry seeks to replace and upgrade (and build out) the existing centralized grids architecture: $1.5 to $2.0 trillion in additional new investment has been estimated by the utility industry to be necessary *237 during the period from 2010 to 2030.72 Of that total amount, $880 billion is allocated for new transmission and distribution assets, while generation is estimated to require only $700 billion in new investment.73 Again, transmission and distribution assets are estimated to require ~$180 billion more investment dollars than assets that generate electricity in the first instance. While the cost of centralized generation may decrease with technological advances,74 the total cost of centralized electricity delivery will increase as transmission and distribution costs continue to comprise a larger percentage of total spending.', "Regrettably, the utility industry's investment study did not account for the cost of a security event occurring during the twenty years for which the estimates run.75 If the actual social cost of a material security event is tens or hundreds of billions of dollars,76 then the industry's staggering investment estimates could be too low by an order of magnitude.77 The industry's cost estimates are immense nonetheless, and it is worthwhile to take a slight technical detour to understand what more than a trillion dollars of social investment purchases. Here, large power transformers (“Large Power Transformers”), an essential and aptly named component of the centralized infrastructure, provide a useful microcosm.", '*238 Large Power Transformers78', '• Big, 100 to 400 ton machines used in the bulk power systems to change/transform voltages', '• Only around 2,100 such units are used in the U.S. grids, opposed to tens of thousands of smaller transformers', '• Custom-built by special order (~85% are now built outside the U.S.)', '• Average time to procurement from ordering = 5 to 16 months', '• Each unit costs between $1.0 to $7.5 million, dependent on market factors and type', '• Transportation and installation expenses typically add an additional 25% to 30% to the final price', 'The theoretical cost of replacing all the existing Large Power Transformers in the U.S. electrical grids (~$50 billion or so by simple math) is a line item compared against the overall investment in the transmission and distribution infrastructure. Except, as with all components of the interdependent centralized grids, the associated cost of an unexpected failure is orders of magnitude higher if it impacts reliability. If a single unit is damaged, the rest of the system is required to compensate, potentially damaging other assets (including other transformers), and coordinated security risks are generally not single-point-of-attack problems.79 Of equal importance, Large Power Transformers cannot be purchased in quantity even if many were to fail at the same time.80', 'Certain utilities recently received regulatory approval to stockpile mostly foreign-made equipment at ratepayer expense.81 Although a *239 stockpiling approach is understandable, it is expensive and trades one problem for another. Large Power Transformers are custom-built by specialized work forces operating through complex supply chain and procurement processes. This is the only way such machines are built and delivered. Pre-ordering units through a supply chain merely changes short-term demand characteristics and does not increase the potential throughput of the supply chain. In fact, a stockpiling approach may diminish production capacity as manufacturers boom and then bust, thereby reducing the ability of the supply chain to ramp up production in response to a security event. It also raises a more fundamental question: how many backups, and at what cost, are necessary or efficient when a single bullet can destroy an entire Large Power Transformer?82', 'Large Power Transformers are useful for understanding that the complexity inherent in the centralized electrical grids is primarily a function of the interdependency of its components, coupled with an absolute requirement of reliability. Overlaid on those competing characteristics is the hurdle of managing vital supply chains, often for foreign-made, specialized components that need to be immediately available and must work seamlessly in the hodgepodge that is the U.S. grids architecture.', 'Even if specific technical problems with Large Power Transformers and other similar centralized grids assets are mitigated, the utility industry forecasts that more than half of all interim-term future electricity investment dollars must be earmarked for transmission and distribution assets.83 Such assets, whether intentionally redundant or not, are fundamentally extraneous to the primary job of generating electricity. Thus, there is no clear path for reducing the long-term price of centrally delivered electricity even if the costs of centralized generation continue to decline.84', '*240 B. The Cost of Distributed Generation Continues to Decrease', 'NATIONAL RENEWABLE ENERGY LABORATORY, U.S. SOLAR COST BENCHMARK, Q1 2016', 'TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE', 'Distributed generation is ultimately required for any alternate grids architecture that does not rely solely on centralized power plants and long transmission lines. Cost parity can be achieved either as distributed generation becomes less expensive, or as centralized electricity generation, transmission, or distribution become more expensive (as described above). Most common fuel forms can be used to generate electricity in a distributed manner; in practice, the most typical applications are solar fuel utilized by photovoltaic (“PV”) modules or wind turbines, and fossil fuels used in gas turbines or diesel engines. Over the past several years, certain efficiency gains have been made in small engine technologies, and component fuels costs have declined in certain instances, e.g., natural gas.85 While important to providing heterogeneous sources of distributed generation, such incremental improvements are not comparable with the jarring 60 percent decrease in the installed cost of PV modules over the last seven years (see graph above).86', '*241 The reasons for the massive price decreases are several but fundamentally it is that PV modules do not rely on turbine technology87 and are therefore more sensitive to efficiency gains from factors other than increased scale.88 This characteristic results in PV modules displaying consistent costs across installation types, from Residential/Commercial (i.e., distributed generation) to Utility-Scale (i.e., centralized generation),89 which means that little to no energy or economic efficiency is lost for PV modules deployed in distributed arrays. Instead, the cost differences between distributed generation and centralized generation shown in the inset chart largely originate from two sources: (i) primarily, utility-scale cost figures do not account for any allocated expense of the transmission and distribution infrastructure necessary to make such generation useful; as discussed in subpart A, above, such components constitute the majority of costs for centralized electricity delivery and cost studies simply assume such assets into existence;90 and, (ii) secondarily, soft costs (i.e., land acquisition, sales, tax, overhead, net profit), associated with residential and commercial PV installations are materially higher than Utility-Scale PV.91', 'C. Decentralized Systems and Future Analysis', 'In this Part II, relative cost parity between centralized electricity delivery systems and distributed generation has been described. Further, *242 a sketch of the factors that will require centralized approaches to become significantly more expensive over time has been set forth. Such cost increases are independent of the awing expense resulting from a broad security event. Distributed generation, meanwhile, is set to become even less expensive in the short and medium-term as generation technology continues to improve and costs are reduced by economies of scale. As suggested in Part I.B.iii., above, a test for determining whether decentralized systems--as opposed to distributed generation--are deserving of broad social investment is whether such systems can independently (and economically) meet requirements of universal access and security in a manner that is equal to or better than the existing centralized system or demonstrate an ability to improve the fulfillment of such requirements when coupled with the existing centralized electricity architecture.', 'The remaining questions are then (a) what energy storage and/or load sharing capabilities are required for the operation of a decentralized system; and (b) should such technologies be integrated with the existing grids and, if so, how? The latter question is discussed in Part III. The former query is necessary because the source fuels for distributed generation are either (x) intermittent in availability (i.e., the sun and, therefore, wind); or, (y) dependent on centralized fossil fuels delivery, in which case the security risks of distributed generation would be, in part, recursive.92 Here, batteries for energy storage, community-level generation sharing, and microgrids for islanding,93 are diverse solutions for the independent operation or integration of decentralized electricity delivery.', "A challenge in briefly summarizing such assistive technologies is that they are inherently flexible in deployment and application, and diverse applications here lead to significant cost variability. For example, such technologies could produce independent generation and consumption points. Or, in one particular combination, microgrids and community-level generation could work in a manner analogous to Edison's Pearl Street Station briefly described in Part I, essentially providing small-scale centralized generation and centralized distribution of electricity, but not transmission. This latter system fronts the same conceptual technical problem of centralized electricity delivery (i.e., negative networked effects) except those negative impacts are mitigated by the ability of such systems to be self-contained (islanded), thus reducing the risk and *243 impacts of national and regional security events on local operations.94 Batteries used to store and deploy energy on demand are similarly flexible in deployment and application and are likewise difficult to characterize as centralized or decentralized technologies. Battery storage costs have also fallen at a remarkable pace over the past several years, nearly half since 2014, and are conservatively expected to drop by an additional 40 percent over the next five years.95 Regardless of the trend line of future costs, battery deployments in centralized and decentralized battery projects are already booming at present prices.96", 'III. THE ELECTRICAL GRIDS SECURITY REGULATORY PARADOX & OPPORTUNITIES FOR REDESIGN', 'For most folks, the structure and systems of electricity delivery are not front-of-mind. Until the moment when a reliability event (e.g., after Hurricanes Katrina or Sandy) disrupts the modern patterns of life for families, companies, and governmental entities, the underlying infrastructure and design of the electricity architecture is rationally ignored.97 Afterward, affected communities operate as best as they can, and the rest of the country, which continues to have access to immediately available electricity, mobilizes to help. Such reliability events have tended to be traumatic for those impacted. It is troubling to extrapolate what could occur if the U.S. experienced a broader scale system outage from a coordinated security event, one that lasted even a few weeks.', '*244 A. The Security Regulatory Paradox', 'Although much of the following exposition may be familiar or well-anticipated, it is worthwhile to take a brief detour to review a specific, well-known physical security event as a reminder that physical risks, not just cyber-attacks like the Ukrainian Grid Hack,98 are real, as opposed to theoretical.', "In 2013, Pacific Gas & Electric's (PG&E) Metcalf Substation in South San Jose was physically vandalized by a gunman(men) who fired over 100 rounds from an assault rifle at a substation.99 The shots materially damaged seventeen transformers100 causing approximately $15 million in damage, and it took PG&E nearly four weeks to return the substation to full operation.101 The attack was not coordinated with attacks on other electricity infrastructure, and it did not result in a blackout of Silicon Valley as PG&E was ultimately able102 to reroute electricity from other power stations, such that the only impacts were considerable expense, pressure on the local grid assets for a few weeks, and, perhaps, limited electricity rationing to the Valley for a period of the repair time.103 The Federal Bureau of Investigation was officially unimpressed with the attack. “We don't think this was a sophisticated attack,” said John Lightfoot, at the time the regional manager of FBI counterterrorism based in the Bay Area. “It doesn't take a very high degree of training or access to technology to carry out this attack.”104 Certain security and industry analysts strongly disagree with the FBI's conclusions and have argued that only a professionally executed and sophisticated attack could have resulted in the substation not exploding.105 Following that line of reasoning, certain commentators have opined that the attack looked *245 much like system probing as a dress rehearsal for a future attack.106 To date, the assailant(s) have not been arrested and the investigation remains open.107 Mr. Lightfoot left the FBI in 2016 after twenty years to join PG&E in a compliance and ethics management role; he recently noted that despite speculation by others the FBI was (and remains) the federal lead agency on the investigation and, as such, is the only entity with the totality of information regarding the attack.108", 'The manner of the attack, and its relative success, led to subsequent calls from the utility industry, especially including certain regulators, for significant increases in public investment for grid hardening measures. It might reasonably have led to a rethink of the structure of the centralized grids architecture itself.109 To wit, greater expertise, coordination, or tactical objectives on the part of the assailant(s) could have led to a weeks-long blackout of Silicon Valley; separately, the costs of implementing the proposed hardening measures to defend against similar attacks were and are large enough to alter the value proposition of centralized electricity delivery.110 Why then was the primary response to the Metcalf incident an acceleration of lobbying for public funding for centralized grid hardening measures that, while making similar111 future *246 attacks relatively more difficult to carry out, have the effect of reinforcing existing systemic security risks?112', 'One reason might be that distributed energy sources were not economical in 2013.113 Another piecemeal reason is that NERC,114 investor-owned utilities, and most115 state regulatory regimes are, by mandate, history, and/or an institutional will to survive, largely captive to existing technology and industry interests.116 The true security regulatory paradox, however, is far more fundamental: the electricity industry nearly as a whole117 is built on a historical dedication to a grids system that is owned, controlled, and operated from afar. That dedication constitutes the fundamental source of modern insecurity for electricity delivery.118', 'B. Immediate Policy Opportunities for Grids Security Redesign', 'The U.S. national interest in electricity may be expressed as universal and secure access to electricity for military and governmental facilities, companies, individuals, and all others, delivered at something near a socially desirable price. The national interest must predominate because electricity is a good that is essential to the functioning of an industrialized nation-state.119 From the beginning of the grids, utilities have sought to profitably deliver electricity in a manner required by the public interest, all in the framework of tradeoffs with public regulatory authorities that are characteristic of government-granted monopolies.120 Those efforts and that framework were supported by a centralized electricity architecture that required enormous social investment to economically meet the requirements of near universal access.121 The resulting grids architecture is a technological marvel constructed by coordinated utility monopolies whose price and competitive contours are rigidly regulated. This grids architecture has performed exceptionally well for over a hundred years, although its defining technical characteristics now present existential risk to modern life in the U.S.122', '*247 Today, and more so in the future, centralized systems face material negative networked effects vis-à-vis security risks. As further discussed below, properly configured decentralized systems do not.123 At the same time, the march of technology has continued and distributed generation sources have now achieved cost parity with centralized delivery, with significant cost reductions expected to continue in the near-term including for decentralized systems as a whole.124 Centralized electricity, by contrast, is becoming more expensive as transmission and distribution spending continues to outpace the investment needed to generate electricity in the first instance, and as investments in its security upkeep necessarily compound.125']

[(12, 21)]

edd3622b42cd524a6e0657a1f401a5e54e29c258f2473f0766c2bd6d9cf6ab9b

Vulnerabilities are diffuse and centralized countermeasures fail---enduring disruption ends civilization.

Matthew Weiss & Martin Weiss 19, Matthew is at American Jewish University; Martin is at UCLA-Olive View Medical Center, “An Assessment of Threats to the American Power Grid,” Energy, Sustainability and Society, vol. 9, no. 1, 05/29/2019, p. 18

prolonged collapse through starvation , disease , and societal collapse result in the death of the population vulnerable to solar activity EMP cyber and kinetic attack HV transformers loss of just 9 lead to cascading “coast-to coast blackout” If irreparably damaged replaced take 3 years a Carrington storm is inevitable There has been no hardening EMP blanket the continent Commission test SCADA every system failed detonation would collapse the entire grid megawatts would be dumped onto other transformers , causing them to overheat in cascading fashion many will die for the lack of basic elements to sustain life all tech require electricity Outbreaks result Lack of water cause death in days Food production would stop we would starve

a prolonged collapse of this nation’s electrical grid — through starvation , disease , and societal collapse —could result in the death of 90% of the population The power grid is vulnerable to geomagnetic storms solar activity EMP cyber attack, and kinetic attack HV transformers are the weak link and FERC has identified 30 as being The simultaneous loss of just 9 could lead to a cascading failure , resulting in a “coast-to coast blackout” If the transformers are irreparably damaged it is problematic whether they can be replaced . The great majority are custom built . The lead time between order and delivery is 24 months under benign, low demand conditions Ordered today , delivery of a unit from overseas would take 3 years The factory price for an HV transformer can be in excess of $10 million—too expensive to maintain an inventory solely as spares for emergency a Carrington -level extreme geomagnetic storm is inevitable in the future models and simulations puts the US population at risk at 40 million , with the outages lasting years the likelihood has been placed at 12% per decade There has been no hardening NERC’s position is that the threat is exaggerated the final draft was “written in secret by a small group of employees and utility insiders relied on meetings of industry employees in lieu of data collection or event investigation NERC standards against GMD do not include Carrington storm class levels A single nuclear blast will generate an EMP encompassing half the continental USA Two explosions would blanket the entire continent the EMP Commission funded test s, exposing SCADA components to both radiated electric fields and injected voltages on cables connected to the components every system tested failed when exposed to the simulated EMP environment a nuclear detonation 170 km over the USA would collapse the entire US power grid The vulnerability from a cyberattack is exponentially magnified by dependence on SCADAs Rid states viruses and malware cannot collapse the grid. “(The world has) never seen a cyber- attack kill a single human being The utility industry offers a similar perspective Others however express concern the cyber threat to critical US infrastructure is outpacing efforts to reduce vulnerabilities the U S lives in a glass house destroy nine interconnector substations and a transformer manufacturer and the entire U S grid would be down for 18 months megawatts of voltage would be dumped onto other transformers , causing them to overheat and in cascading fashion cause the entire system overload and fail Information on how to sabotage transformers has been available online Should significant parts of the electrical power infrastructure be lost for any substantial period of time, the consequences are likely to be catastrophic , and many people will die for the lack of basic elements to sustain life loss would render synthesis and distribution of oil and gas inoperative Telecom would collapse , as would banking . Virtually all tech infrastructure , and services require electricity . will collapse water infrastructure—the delivery and purification of water and the removal and treatment of wastewater and sewage Outbreaks would result Lack of water will cause death in days Food production would collapse food production of the country would simply stop we would miss the harvest , and starve the following winter” Even if all recommendations were implemented , there is no guarantee that the grid will not sustain prolonged collapse there will be no electricity for a very long time

electrical grid starvation disease societal collapse death 90% of the population geomagnetic storms solar EMP cyber kinetic HV weak link 30 being just 9 cascading failure “coast-to coast blackout” irreparably damaged problematic replaced great majority custom built order and delivery 24 months benign, low demand conditions today overseas 3 years inventory spares emergency geomagnetic storm inevitable models simulations 40 million years 12% per decade no hardening NERC’s exaggerated secret small group employees utility insiders industry employees not include nuclear blast EMP half the continental USA Two entire continent test SCADA every system tested failed collapse entire US power grid cyberattack exponentially magnified SCADAs Rid concern cyber threat outpacing efforts U S glass house nine interconnector substations transformer manufacturer entire U S grid 18 months megawatts dumped other transformers overheat cascading fashion entire system overload and fail sabotage available online consequences catastrophic many people will die basic elements oil and gas Telecom collapse banking all tech infrastructure services water Outbreaks Lack water death days Food simply stop harvest starve all recommendations were implemented no guarantee not sustain prolonged collapse very long time

['In testimony before a Congressional Committee, it has been asserted that a prolonged collapse of this nation’s electrical grid—through starvation, disease, and societal collapse—could result in the death of up to 90% of the American population [1].', 'There is no published model disclosing how these numbers were arrived at, nor are we able to validate a primary source for this claim. Testimony given by the Chairman of the Congressional EMP Commission, while expressing similar concerns, gave no estimate of the deaths that would accrue from a prolonged nationwide grid collapse [2].', 'The power grid is posited to be vulnerable to geomagnetic storms generated by solar activity, electromagnetic pulses (EMP, also referred to as HEMP) produced by high altitude nuclear detonations, cyberattack, and kinetic (physical) attack. Evidence for and against the validity of each of these threats follows below. Much of the knowledge on these matters is classified. The studies for and against EMP, other than for limited testing of a few components of the infrastructure by the EMP commission, are based not on physical demonstrations but mathematical models and simulations. Moreover, the underlying physics and technology involved—the electrical engineering and materials science—is likely beyond the understanding of the reader, and certainly beyond that of these writers. With these limitations in mind, we proceed.', 'The electrical grid', 'HV (high voltage) transformers—transmitting voltages of greater than 100\u2009kV—are what make it possible to send electricity over great distances to thousands of substations, where smaller transformers reduce the voltage.', 'HV transformers are the weak link in the system, and the Federal Energy Regulatory Commission (FERC) has identified 30 of these as being critical. The simultaneous loss of just 9, in various combinations, could cripple the network and lead to a cascading failure, resulting in a “coast-to coast blackout” [3].', 'If the HV transformers are irreparably damaged it is problematic whether they can be replaced. The great majority of these units are custom built. The lead time between order and delivery for a domestically manufactured HV transformer is between 12 and 24\u2009months [4], and this is under benign, low demand conditions.', 'The first practical application of the transformer was invented in the USA by William Stanley, but largely as a consequence of American trade policy (“It doesn’t make any difference whether a country makes potato chips or computer chips”- attributed to Michael Boskin, Chairman of President George H W Bush’s Council of Economic Advisors) [5] there is little manufacturing capability remaining in the USA. Worldwide production is less than 100 per year and serves the rapidly growing markets of China and India. Only Germany and South Korea produce for export.', 'Ordered today, delivery of a unit from overseas (responsible for 85% of current American purchasing) would take nearly 3\u2009years [6]. The factory price for an HV transformer can be in excess of $10 million—too expensive to maintain an inventory solely as spares for emergency replacement.', 'Potential mechanisms of collapse', 'Geomagnetic storms', 'Geomagnetic storms are due to coronal mass ejections (CMEs)—massive eruptions of plasma expelled from the sun’s corona. Plasma is the fourth fundamental state of matter, consisting of free electrons and positively charged ions. The sun, like all stars, is plasma.', 'Coronal mass ejections often occur with solar flares, but each can also take place in the absence of the other. The latter emits radiation in all bands of the electromagnetic spectrum (e.g., white light, ultraviolet light, X-rays, and gamma rays) and unlike CMEs, affect little more than radio communications.', 'CME’s take several days to reach the Earth. The radiation generated by solar flares on the other hand arrives in 8\u2009min.', 'Coronal mass ejections carry an intense magnetic field. If a storm enters the earth’s magnetosphere, it causes rapid changes in the configuration of the earth’s magnetic field. Electric current is generated in the magnetosphere and ionosphere, generating electromagnetic fields at ground level. The movement of magnetic fields around a conductor, i.e., a wire or pipe, induces an electric current. The longer the wire, the greater the amplification. The current induced is akin to DC (direct current), which the electrical system poorly tolerates. Our grid is based on AC. The excess current can cause voltage collapse, or worse, cause permanent damage to large transformers.', 'The current flowing through HV transformers during a geomagnetic disturbance can be estimated using storm simulation and transmission grid data [7]. From these results, transformer vulnerability to internal heating can be assessed.', 'The largest recorded geomagnetic storm occurred Sept 1–2, 1859—the Carrington event, named after the English amateur astronomer, Richard Carrington. Auroras were seen as far south as the Caribbean. Campers in the Rocky Mountains were awakened shortly after midnight by “an auroral light so bright that one could easily read common print. Some of the party insisted it was daylight and began preparation for breakfast” [8]. Telegraph wires transmitted electric shocks to operators and ignited fires.', 'In May 1921, there was another great geomagnetic disturbance (GMD), the railroad storm. The National Academy of Sciences estimates that if that storm occurred today, it could cause 1–2 trillion dollars damage and full recovery could take 4–10\u2009years [9].', 'The basis for this assertion is a presentation made by J Kappenman of Metatech, the Goleta California engineering consulting firm, given as part of the NAS Space weather workshop titled “Future Solutions, Vulnerabilities and Risks”, on May 23, 2008. The simulation asserts that a 1921 intensity storm could damage or destroy over 300 transformers in the US, and leave 130 million people without power [10]. Elsewhere, Kappenman states that in a worst case situation, geomagnetic disturbances could instantly create loss of over 70% of the nation’s electrical service [11].', 'In March 1989, a geomagnetic storm caused collapse of the power grid in Quebec, leaving 6 million without power for 9\u2009h. NERC (the North American Electric Reliability Council), a self-regulated trade organization formed by the electric utility industry, asserts that the blackout was not due to overheating of transformers from geomagnetically induced current, but to the near-simultaneous tripping of seven relays, and this is correct [12]. The rapid voltage collapse (within 93\u2009s) likely prevented transformer thermal damage. The same storm, however, destroyed a major transformer at the Salem nuclear plant in New Jersey [13]. The 1989 Hydro-Quebec storm was 1/10th the intensity of the 1921 Railroad Storm [14].', 'A report for Lloyd’s in 2013 states a Carrington-level extreme geomagnetic storm is almost inevitable in the future. Using its own models and simulations, it puts the US population at risk at between 20 and 40 million, with the outages lasting up to 1–2\u2009years [15].', 'Because of geography and ground conductivity, the risk of a transformer sustaining damage is 1000 times greater in some US counties than in others. The highest risk is to the counties along the corridor between Washington DC and New York [16].', 'The first written account of a solar storm is possibly in the book of Joshua. Written reports of aural sightings by Greeks and Romans begin in 371\u2009BC.', 'A Carrington-level storm narrowly missed the earth in 2012 [17]. NASA has produced a video on the CME [18]. Formerly considered a 1 in 100-year event, the likelihood of a Carrington intensity storm striking the earth has most recently been placed at 12% per decade [19].', 'Mitigation', 'The EMP Commission, in its 2008 report, found that it is not practical to try to protect the entire electrical power system or even all high-value components. It called however for a plan designed to reduce recovery and restoration times and minimize the net impact of an event [20]. This would be accomplished by “hardening” the grid, i.e., actions to protect the nation’s electrical system from disruption and collapse, either natural or man-made [21]. The shielding is accomplished through surge arrestors and similar devices [22]. The cost to harden the grid, from our tabulation of Congressional EMP figures, is $3.8 billion.', 'There has been no hardening of the grid', 'The commission and organization that are responsible for public policy on grid protection are FERC and NERC. FERC (The Federal Energy Regulatory Commission) is an independent agency within the Department of Energy. NERC, the self-regulatory agency formed by the electric utility industry, was renamed the North American Electric Reliability Corporation in 2006.', 'In June of 2007, FERC granted NERC the legal authority to enforce reliability standards for the bulk power system in the USA. FERC cannot mandate any standards. FERC only has the authority to ask NERC to propose standards for protecting the grid.', 'NERC’s position on GMD is that the threat is exaggerated.', 'A report by NERC in 2012 asserts that geomagnetic storms will not cause widespread destruction of transformers, but only a short-term (temporary) grid instability [23]. The NERC report did not use a model that was validated against past storms, and their work was not peer-reviewed.', 'The NERC report has been criticized by members of the Congressional EMP commission. Dr. Peter Pry asserts that the final draft was “written in secret by a small group of NERC employees and electric utility insiders….. The report relied on meetings of industry employees in lieu of data collection or event investigation” [22].', 'NERC, in turn, criticizes Kappenman’s work. NERC states that the Metatech work cannot be independently confirmed [24]. NERC reliability manager Mark Lauby criticized the report for being based on proprietary code [24]. Kappenman’s report, however, received no negative comments in peer review [24].', 'The NERC standards', 'The reliability standards and operational procedures established by NERC, and approved by FERC, are disputed [25]. Among the points are these:', '1. The standards against GMD do not include Carrington storm class levels. The NERC standards were arrived at studying only the storms of the immediate prior 30\u2009years, the largest of which was the Quebec storm. The GMD “benchmark event”, i.e., the strongest storm which the system is expected to withstand, is set by NERC as 8\u2009V/km [26]. NERC asserts this figure defines the upper limit intensity of a 1 in 100-year storm [26]. The Los Alamos National Laboratory, however, puts the intensity of a Carrington-type event at a median of 13.6\u2009V/km, ranging up to 16.6\u2009V/km [27]. Another analysis finds the intensity of a 100-year storm could be higher than 21\u2009V/km [28].', '2. The 15–45 min warning time of a geomagnetic storm provided by space satellites (ACE and DSCOVR) will be insufficient for operators to confer, coordinate, and execute actions to prevent grid damage and collapse.', 'Testimony of Edison Electric Institute official Scott Aaronson under questioning by Senator Ron Johnson in a hearing before the Senate Homeland Security and Governmental Affairs Committee in 2016 encapsulates some of the issues. Video of the exchange is available on the web [29]. The Edison Electric Institute (EEI) is the trade association that represents all US investor-owned electric companies.', 'Johnson: Mr. Aaronson, I just have to ask you – the protocol of warning 15–30\u2009min – who is going to make that call? I mean, who is going to make that for a massive geomagnetic disturbance, that nobody knows how many of these transformers are going to be affected. Who is going to make that call to shut them off line – to take them off line – so those effects do not go through those wires and destroy those large transformers that cannot be replaced?', 'Aaronson: So, the grid operators are tightly aligned. We talked about the fact that there are 1900 entities that make up the bulk electric system. There are transmission operators and so on…', 'Johnson (interrupting): Who makes the call? Who makes the call – we are going to shut them all down in 30\u2009min, in 15\u2009min?', 'Aaronson: It’s not as simple as cutting the power. That’s not how this is going to work but there is again, there is this shared responsibility among the sector.', 'Johnson: Who makes the call?', 'Aaronson: I do not know the answer to that question [29].', 'Mr. Aaronson’s is Managing Director for Cyber and Infrastructure Security at EEI.', 'Congressman Trent Franks, R Az introduced HR 2417, the SHEILD Act, on 6/18/2013. The bill would give FERC the authority to require owners and operators of the bulk power system to take measures to protect the grid from GMD or EMP attack. The costs would be recovered by raising regulated rates.', 'Franks states he had been led to believe that his bill would be brought to the House floor for a vote. But he states House Energy and Commerce Committee Chairman Fred Upton R, Mich., let it die in committee. He has been unable to get an explanation from Upton [30].', 'Between 2011 and 2016, Mr. Upton has received $1,180,000 in campaign contributions from the electric utility industry [31].', 'The electric utility industry is heavily involved in campaign donations. During the 2014 federal election cycle, the electric utility industry made $21.6 million in campaign contributions [32]. The electrical utility industry is particularly involved in state politics. For instance, in Florida, between 2004 and 2012 electric utility companies donated $18 million into legislative and state political campaigns. In that state, the electric utilities employ one lobbyist for every two legislators [33].', 'Electric utility revenue in 2015 was 391 billion dollars [34].', 'Electromagnetic pulse', 'Of the scenarios that might lead to electrical network collapse, EMP has received the widest public attention. It has been the subject of television series, films, and novels. HEMP (for high altitude) is the more accurate acronym, but as media and the public use EMP, we will use both interchangeably.', 'The issue has become highly politicized. The most prominent article in the media against EMP as a threat is by Patrick Disney, “The Campaign to Terrify You about EMP” published in the Atlantic in 2011. “From Newt Gingrich to a Congressional ‘EMP Caucus’, some conservatives warn the electronic frying blast could pose gravely underestimated dangers on the U.S…..Ballistic missile defense seems to be the panacea for this groups concern, though a generous dose of preemption and war on terror are often prescribed as well” [35].', 'As of 2009, Mr. Disney was acting Policy Director for the National Iranian American Council (NIAC). NIAC has been accused of acting as a lobby for the Islamic Republic of Iran [36].', 'Mr. Disney is quoted as stating his strategy, in advancing an Iranian interest, is to “create a media controversy” [36].', 'The campaign to discredit EMP has been largely successful. To a very large part of the body politic EMP is identified as a cause limited to the far right.', 'A high-altitude electromagnetic pulse (EMP) is produced when a nuclear device is detonated above the atmosphere. No radiation, blast, or shock wave is felt on the ground, nor are there any adverse health effects, but electromagnetic fields reach the surface.', 'An EMP has three components, E1 through E3, defined by speed of the pulse. Each has specific characteristics, and specific potential effects on the grid. E1, the first and fastest component, affects primarily microelectronics. E3, the later and slower component, affects devices attached to long conductive wires and cables, especially high-voltage transformers.', 'A single nuclear blast will generate an EMP encompassing half the continental USA [37]. Two or three explosions, over different areas, would blanket the entire continental USA.', 'The potential impact of an EMP is determined by the altitude of the nuclear detonation, the gamma yield of the device, the distance from the detonation point, the strength and direction of the earth’s magnetic field at locations within the blast zone and the vulnerability of the infrastructures exposed. The E1 gamma signal is greatest for bursts between 50 and 100\u2009km altitude. E3 signals are optimized at busts between 130 and 500\u2009km altitude, much greater heights than for E1 [38]. Higher altitude widens the area covered, but at the expense of field levels. The 1963 atmospheric test ban has prevented further testing.', 'E1 and its effects', 'The E1 pulse (“fast pulse”) is due to gamma radiation (photons), generated by a nuclear detonation at high altitude, colliding with atoms in the upper atmosphere. The collisions cause electrons to be stripped from the atoms, with the resultant flow of electrons traveling downward to earth at near the speed of light. The interaction of the electrons with the earth’s magnetic field turns the flow into a transverse current that radiates forward as an intense electromagnetic wave. The field generates extremely high voltages and current in electrical conductors that can exceed the voltage tolerance of many electronic devices. All this occurs within a few tens of nanoseconds.', 'The Congressional EMP Commission postulated that E1 would have its primary impact on microelectronics, especially SCADAs (Supervisory Control and Data Acquisition), DCSs (digital control systems), and PLCs (programmable logic controllers). These are the small computers, numbering now in the millions, that allow for the unmanned operation of our infrastructure.', 'To assess the vulnerability of SCADAs to EMP, and therefore the vulnerability of our infrastructure, the EMP Commission funded a series of tests, exposing SCADA components to both radiated electric fields and injected voltages on cables connected to the components. The intent was to observe the response of the equipment, when in an operational mode, to electromagnetic energy simulating an EMP. “The bottom line observation at the end of the testing was that every system tested failed when exposed to the simulated EMP environment” [6].', 'E1 can generate voltages of 50,000\u2009V. Normal operating voltages of today’s miniaturized electronics tend to be only a few (3-4) volts. States the EMP Commission: “The large number and widespread reliance on such systems by all the nation’s critical infrastructures represent a systemic threat to their continued operation following an EMP event” [39]. A scenario seen in films is all automobiles and trucks being rendered inoperable. This would not be the case. Modern automobiles have as many as 100 microprocessors that control virtually all functions, but the vulnerability has been reduced by the increased application of electromagnetic compatibility standards. The EMP Commission found that only minor damage occurred at an E1 field level of 50\u2009kV/m, but there were minor disruptions of normal operations at lower peak levels as well [40].', 'There is a self-published post (J. Steinberger, Nobel laureate physics, 1988) disputing the potential effects of E1 [41]. This is an isolated opinion.', 'Shielding against E1 could theoretically be accomplished through the construction of a Faraday cage around specific components or an entire facility. The cage is composed of conductive materials and an insulation barrier that absorbs pulse energy and channels it directly into the ground. The cage shields out the EM signals by “shorting out” the electric field and reflecting it.', 'To be an effective Faraday cage, the conductive case must totally enclose the system. Any aperture, even microscopic seams between metal plates, can compromise the protection. To be useful, however, a device must have some connection with the outside world and not be completely isolated. Surge protective devices can be used on metallic cables to prevent large currents from entering a device, or the metallic cables can be replaced by fiber optic cables without any accompanying metal. The US Military has taken extensive measures to protect (“harden”) its equipment against E1. “On the civilian side, the problem has not really been addressed” [42].', 'E3 and its effects', 'E3 is caused by the motion of ionized bomb debris and atmosphere relative to the geomagnetic field, resulting in a perturbation of that field. This induces currents of thousands of amperes in long conductors such as transmission lines that are several kilometers or greater in length. Direct currents of hundreds to thousands of amperes will flow into transformers. As the length of the conductor increases, the amperage amplifies.', 'The physics of E3 are similar to that of a GMD, but not identical. GMD comes from charged particles showering down from space creating current flow in the ionosphere. These currents create magnetic fields on the ground. A nuclear burst on the other hand generates particles which create a magnetic bubble that pushes on the earth’s magnetic field producing a changing magnetic field at the Earth’s surface. A geomagnetic storm will have substorms that can move over the Earth for more than 1\u2009day, while the E3 HEMP occurs only immediately following a nuclear burst.', 'There are three studies on the potential effects of a HEMP E3 on the power grid.', 'The first study, published in 1991, found there would be little damage [43]. Although supporting the utility industry’s position, it has not been subsequently cited by either NERC or the industry. The study is criticized for expressing a smaller threat intensity [44]. The second, published in 2010 by Metatech, calculated that a nuclear detonation 170\u2009km over the USA would collapse the entire US power grid [45]. The third study, by EPRI (an organization funded by the electric utility industry) published in February 2017, asserts that a single high-altitude burst over the continental USA would damage only a few, widely scattered transformers [46]. The study is disputed for underestimating threat levels and using erroneous models [44].', 'These results are incompatible. One’s interpretation of the studies on E3 (and GMD) is based largely on the credibility one gives to the underlying Commission or Institute, and not the published calculations.', 'FERC has decided not to proceed with a GMD standard that includes EMP [47]. It will be recalled the GMD standard is 8\u2009V/km. The EMP Commission, utilizing unclassified measured data from the Soviet era nuclear tests, found an expected peak level for E3 HEMP for a detonation over the continental USA would be 85\u2009V/km [48].', 'The position of the electric utility industry is that E3 from a nuclear detonation is not a critical threat [49]. Others have come to a different conclusion. Israel has hardened her grid [50]. She perceives herself to face an existential threat, and it is not the Sun.', 'The electric utility industry states the cost of hardening the grid against EMP is the government’s responsibility, not the industry’s [51].', 'Cyberattack', 'The vulnerability from a cyberattack is exponentially magnified by our dependence on SCADAs.', 'In 2010, a computer worm attacking SCADA systems was detected. Although widely spread, it was designed to only attack SCADA systems manufactured by Siemens for P-1 centrifuges of the Iranian nuclear enrichment program. The attack destroyed between 10 and 20% of Iranian centrifuges. Iran’s program was likely only briefly disrupted [52]. In December 2015, a cyberattack was directed against the Ukrainian power grid. It caused little damage as the grid was not fully automated.', 'There is an argument that the cyber threat is exaggerated. Thomas Rid states that viruses and malware cannot at present collapse the electric grid. “(The world has) never seen a cyber- attack kill a single human being or destroy a building” [53]. The electric utility industry offers a similar perspective. In testimony on cybersecurity before the Senate Homeland Security and Governmental Affairs Committee, its representative states that “There are a lot of threats to the grid…..from squirrels to nation states, and frankly, there have been more blackouts as a result of squirrels (gnawing wire insulation) then there are from nation states” [54].', 'Others however express concern [55]. Moreover, in a report by the Department of Defense in 2017, it is noted that “the cyber threat to critical US infrastructure is outpacing efforts to reduce pervasive vulnerabilities.” [56] That report notes that “due to our extreme dependence on vulnerable information systems, the United States today lives in a virtual glass house” [57].', 'On March 15, 2018, the Department of Homeland Security issued an alert that the Russian government had engineered a series of cyberattacks targeting American and European nuclear power plants and water and electric systems [58]. It is reported these attacks could allow Russia to sabotage or shut down power plants at will [59].', 'The ability to operate a system in the absence of computer-driven actions is fast disappearing. The electric power industry spends over $1.4 billion dollars annually to replace electromechanical systems and devices that involve manual operation with new SCADA equipment [60]. With modest increases in efficiency come exponential increases in vulnerability. The extent to which reduced labor costs (and perhaps reduced energy costs) are passed on to the public is uncertain.', 'Kinetic attack', 'An internal FERC memo obtained by the press in March 2012 states that “destroy nine interconnector substations and a transformer manufacturer and the entire United States grid would be down for 18\u2009months, possibly longer” [61]. The mechanism is through the megawatts of voltage that would be dumped onto other transformers, causing them to overheat and in cascading fashion cause the entire system overload and fail.', 'At Metcalf California (outside of San Jose) on April 16, 2013, a HV Transformer owned by PG&E sustained what NERC and PG&E claimed was merely an act of vandalism [1]. Footprints suggested as many as 6 men executed the attack. They left no fingerprints, not even on the expended shell casings [1]. US FERC Chairman Wellinghoff concluded that the attack was a dry run for future operations [62].', 'Information on how to sabotage transformers has been available online [63].', 'There is a disincentive for management to invest in security. As stated in a report by the Electric Research Power Institute: “Security measures, in themselves, are cost items, with no direct monetary return. The benefits are in the avoided costs of potential attacks whose probability is generally not known. This makes cost-justification very difficult” [64].', 'CEO pay at large American companies is based on the Harvard Business School theory that the best measure of managerial performance is a company’s stock price. This does not necessarily align the interests of CEOs with shareholders, let alone the public. It “encourages short-term boosts to profits rather than investing for long term growth” [65].', 'In 2014, the CEO of PG&E, Anthony Early Jr., had a compensation of $11.6 million dollars. Over 90% was from bonuses based on stock performance. The President of PG&E, Christopher Johns, had a compensation of $6 million dollars [66]. There is no evidence, however, that any of this is in play in the positions of the electric utility industry vis-à-vis securing the grid. States PG&E spokesman Jonathan Marshall, “The majority of compensation for senior executives is shareholder funded and dependent on achieving targets related to safety, reliability and other results” [66].', 'Consequences of a sustained power outage', 'The EMP Commission states “Should significant parts of the electrical power infrastructure be lost for any substantial period of time, the Commission believes that the consequences are likely to be catastrophic, and many people will die for the lack of the basic elements necessary to sustain life in dense urban and suburban communities.” [67].', 'Space constraints preclude discussion on how the loss of the grid would render synthesis and distribution of oil and gas inoperative. Telecommunications would collapse, as would finance and banking. Virtually all technology, infrastructure, and services require electricity.', 'An EMP attack that collapses the electric power grid will collapse the water infrastructure—the delivery and purification of water and the removal and treatment of wastewater and sewage. Outbreaks that would result from the failure of these systems include cholera. It is problematic if fuel will be available to boil water. Lack of water will cause death in 3 to 4\u2009days [68].', 'Food production would also collapse. Crops and livestock require water delivered by electronically powered pumps. Tractors, harvesters, and other farm equipment run on petroleum products supplied by an infrastructure (pumps, pipelines) that require electricity. The plants that make fertilizer, insecticides, and feed also require electricity. Gas pumps that fuel the trucks that distribute food require electricity. Food processing requires electricity.', 'In 1900, nearly 40% of the population lived on farms. That percentage is now less than 2% [69]. It is through technology that 2% of the population can feed the other 98% [68]. The acreage under cultivation today is only 6% more than in 1900, yet productivity has increased 50 fold [69].', 'As stated by Dr. Lowell L Wood in Congressional testimony:', '“If we were no longer able to fuel our agricultural machine in the country, the food production of the country would simply stop, because we do not have the horses and mules that used to tow agricultural gear around in the 1880s and 1890s”.', '“So the situation would be exceedingly adverse if both electricity and the fuel that electricity moves around the country……… stayed away for a substantial period of time, we would miss the harvest, and we would starve the following winter” [70].', 'People can live for 1–2\u2009months without food, but after 5\u2009days, they have difficulty thinking and at 2\u2009weeks they are incapacitated [68]. There is typically a 30-day perishable food supply at regional warehouses but most would be destroyed with the loss of refrigeration [69]. The EMP Commission has suggested food be stockpiled for a possible EMP event.', 'A prescription for failure', 'Even if all the recommendations of the Congressional EMP Commission were implemented, there is no guarantee that the grid will not sustain a prolonged collapse. There should therefore be contingency plans for such a failure.', 'There is also another consideration. The foundational pillars of prior American nuclear defense policy, in today’s climate, are of uncertain validity. Mutual assured destruction is the Maginot line of the 21st century. Nonproliferation will prove difficult to resurrect.', 'The consequences of a widespread nuclear attack have been positioned to the public as massive deaths from blast effects, and then further lingering deaths from the effects of radiation. We suspect there will be no electricity, and there will be no electricity for a very long time.']

[(8, 15), (23, 31)]

59e7fb46781e89b02754d10d14ae5f66a4bf4cd2b326dbff8707054ccc11d1b3

Renewables are inevitable---the US example’s key to ensure it’s decentralized.

Shen et al. 21, Energy Analysis and Environmental Impacts Division, Lawrence Berkeley National Laboratory, “Facilitating Power Grid Decarbonization with Distributed Energy Resources: Lessons from the United States,” Annual Review of Environment and Resources, vol. 46, no. 1, 10/18/2021, pp. 349–375

renewable is already significant world capacity more than doubled The U S is fastest-growing in renewable generation Despite targets obstacles must be overcome the greatest challenge lies in uncertainty DERs are a solution provide value are critical for a stable flexible system increasingly critical in improving resilience to deal with disruptions US regulatory policy and implementation experience in DERs offer insights for energy policies and DERs in other countries lessons learned may inform solutions elsewhere

renewable energy is already playing a significant and growing role in electricity The world 's renewable power generation capacity more than doubled 2010 to 2019 Wind and solar account for most of the recent growth in renewable generation. The installed capacity of wind energy increased from 181 GW in 2010 to 622 GW in 2019 while the installed solar photovoltaic capacity increased significantly from 40 GW in 2010 to 579 GW in 2019 The U S is among the world's fastest-growing countries in terms of renewable installed capacity and power generation doubled from 2008 to 2018 Approximately half of the growth can be attributed to state-level renewable energy targets Despite ambitious targets , major obstacles must be overcome “[o]ne of the greatest challenge s to integrating VRE lies in managing its effects (variability, uncertainty , location specificity, nonsynchronous generation, and low capacity factor) on grid operations and planning With the large-scale deployment of wind and solar generation on both the grid side and customer side, transmission system operators and distribution utilities face operational challenges DERs are emerging as a potential solution DERs offer numerous services and provide value to regional operators, utilities and customers these services are critical for operating a stable and flexible electricity system powered by VRE play an increasingly critical role in improving power system resilience to deal with significant disruptions resulting from severe weather, deadly wildfires, and other extreme events US regulatory policy and implementation experience in deploying DERs offer insights for the design of energy policies and the potential role of DERs in decarbonization in other countries lessons learned may inform solutions elsewhere with insights for other countries

significant growing role world more than doubled most recent growth installed capacity 181 GW 622 GW 2019 U S fastest-growing countries renewable installed capacity power generation doubled 2008 to 2018 half state-level renewable energy targets ambitious targets major obstacles greatest challenge effects uncertainty operational challenges DERs potential solution numerous services value regional utilities customers critical stable flexible electricity system critical resilience regulatory policy and implementation experience insights design of energy policies role of DERs decarbonization other countries lessons learned inform solutions elsewhere insights other countries

["Globally, renewable energy is already playing a significant and growing role in electricity systems. The world's renewable energy power generation capacity more than doubled from 1,223 GW in 2010 to 2,532 GW in 2019 (9). Wind and solar account for most of the recent growth in renewable generation. The installed capacity of wind energy increased from 181 GW in 2010 to 622 GW in 2019 while the installed solar photovoltaic capacity increased significantly from 40 GW in 2010 to 579 GW in 2019 (9).", "The United States is among the world's fastest-growing countries in terms of both renewable installed capacity and power generation (10). Renewable electricity generation in the United States doubled from 2008 to 2018, with wind and solar generation accounting for the majority of growth (11). As a result of rapid growth, the share of nonhydro renewable generation rose from 3% of US electricity generation in 2008 to 10% in 2018 (11, 12). The share of renewable generation is expected to continue to grow in order to meet state-level renewable energy targets and state and federal climate goals.", 'Approximately half of the growth in renewable energy deployment in the United States can be attributed to state-level renewable energy targets (13). As of 2019, 13 states as well as Washington, DC, and Puerto Rico had either enacted legislation or issued executive orders with a commitment to achieving either 100% renewable energy or 100% clean energy goals (14).1 Figure 1 shows state-level renewable energy targets adopted across the United States by the end of 2019.', '[FIGURE 1 OMITTED]', 'Despite ambitious renewable energy targets, major obstacles must be overcome to enable future energy systems to economically and reliably operate with high penetration of variable renewable energy (VRE). As the US Department of Energy points out, “[o]ne of the greatest challenges to integrating VRE lies in managing its effects (variability, uncertainty, location specificity, nonsynchronous generation, and low capacity factor) on grid operations and planning” (15, p. 61). With the large-scale deployment of wind and solar generation on both the grid side and customer side, transmission system operators and distribution utilities face new operational challenges. Distributed energy resources (DERs) are emerging as a potential solution alongside traditional generation, transmission, and distribution infrastructure for addressing these challenges.', 'As the US Federal Energy Regulatory Commission (FERC) points out, there is no uniform definition of DERs, and the definition keeps changing (16). The US National Association of Regulatory Utility Commissioners (17, p. 45) broadly defines DERs to reflect their diversity:', 'A DER is a resource sited close to customers that can provide all or some of their immediate electric and power needs and can also be used by the system to either reduce demand (such as energy efficiency) or provide supply to satisfy the energy, capacity, or ancillary service needs of the distribution grid. The resources, if providing electricity or thermal energy, are small in scale, connected to the distribution system, and close to load. Examples of different types of DER include solar photovoltaic (PV), wind, combined heat and power (CHP), energy storage, demand response (DR), electric vehicles (EVs), microgrids, and energy efficiency (EE).', 'DERs have seen rapid growth in the United States. Distributed PV installations grew from 0.4 GW in 2010 to 10.5 GW in 2017 (18). According to data from the US Energy Information Administration (19, 20), the total existing small-scale storage power capacity connected to the US distribution network increased from 66 MW in 2016 to 234 MW in 2018. Among the capacity in 2018, 97% were behind-the-meter installations, and the share in the commercial, residential, and industrial sectors were slightly higher than 50%, 31%, and 15%, respectively. Demand response (DR), which is a program aimed at adjusting electricity demand “in response to price, monetary incentives, or utility directives so as to maintain reliable electric service or avoid high electricity prices (21, p. i),” has been active in the United States over the past five years. Between 2015 and 2019, the number of customers enrolled in DR programs increased from 9 million in 2015 to almost 11 million in 2019. At the same time, the actual peak demand savings averaged 12.2 GW per year, and the average annual power savings was 1357.4 GWh (22). Advanced metering infrastructure (AMI) is the foundation for the expansion of distributed energy systems. AMI is “an integrated system of smart meters, communications networks, and data management systems that enables two-way communication between utilities and customers” (23, p. 4). The number of advanced meters increased from 58.5 million in 2014 to 86.8 million in 2018. Its penetration rate (the proportion of advanced meters in the total number of meters deployed in the United States) jumped from 38.8% to 56.4% in the same period (24).', 'The role of DERs as an electricity system resource has evolved over time. Historically, most DERs in the United States were demand-side management programs funded and administrated by utilities with the goals of cost-effectively reducing demand and enhancing utilities’ interactions with their customers. These traditional programs focused primarily on energy efficiency and interruptible load management programs oriented around peak reliability needs.', 'Advanced DER applications go beyond traditional power system reliability needs to serve customers’ growing interests in new, customer-sited applications such as distributed generation (DG), energy storage, load response, and managing electric vehicles while helping address emerging power system challenges. These challenges include the need to balance a large amount of solar and wind energy output that is neither constant nor fully predictable and the need to more actively operate distribution systems that have growing penetrations of customer-sited resources. Through bidirectional power flow, advanced system control, and real-time information flow, DERs are well suited to provide flexible resources to enable dynamic load adjustments to real-time operational conditions, thus improving the stability of the grid and enhancing grid flexibility for integrating VRE (25).', 'DERs offer numerous services and provide value to three different power system perspectives—regional system operators, utilities, and customers (see Table 1). Many of these services are critical for operating a stable and flexible electricity system powered by VRE (26). In addition to the benefit of grid flexibility, DERs could also play an increasingly critical role in improving power system resilience to deal with significant disruptions resulting from severe weather, deadly wildfires, and other extreme events (27).', '[TABLE 1 OMITTED]', 'This article examines US regulatory policy and implementation experience in deploying DERs to offer insights for the design of energy and climate policies and the potential role and challenges of DERs in decarbonization and improved power system resilience, in both the United States and other countries. The remainder of the article is organized as follows. Section 2 presents the framework through which this article reviews the US experience and lessons learned in adopting enabling policies and creating effective markets and business models for DER. Section 3 focuses on the role of specific federal and state policy measures in the United States in driving DER deployment. Section 4 discusses various market strategies and business models adopted in the United States in facilitating DER expansion. Section 5 describes major challenges and lessons learned thus far that may inform possible solutions in both the United States and elsewhere. Section 6 concludes the article with insights for other countries.']

[(0, 14)]

6f5d72b87ddae16d05858942504a3da2eedababfaa1d0a8fb29a402215cd7000

Space exchanges are becoming concentrated due to infrastructural collusion

Maria Lucas-Rhimbassen et al. 21, Lucas-Rhimbassen serves as a Research Associate at the Chaire SIRIUS and is also a PhD Candidate in space law since 2016, is also a guest lecturer at ISAE-Supaero, served in the International Institute for Space Law (IISL) in the trilateral IISL-IAA-IAF working group on Space Traffic Management (STM), co-chaired the Responsible Lunar Governance Sub-Committee of the Global Experts Group on the Sustainable Lunar Activities (GEGSLA) at the Moon Village Association (MVA), research fellow at the Open Lunar Foundation; Lucien Rapp is tenured Professor at the Law School of University Toulouse1-Capitole and currently lectures at HEC Paris, as an Affiliate Professor; Lucas Mallowan is with Chaire SIRIUS (University of Toulouse I Capitole), “Uncommon Commons, Commodities and Tokens in Outer Space: A Critical Viewpoint on New Competition Issues,” Astropolitics, vol. 19, no. 1–2, Routledge, 05/04/2021, pp. 116–127

polycentricity become concentrated extrapolated to space resulting consolidation cause escalating enclosure irrespective of corpus juris spatialis sustainability could be jeopardized . It is essential to define the framework

consortium blockchain termed as monopolycentricity or cryptoligopolies bring attention to the fact that polycentricity can become concentrated if extrapolated to space sector the resulting consolidation and conglomeration could cause escalating enclosure of space infrastructure irrespective of higher principles as enshrined within the corpus juris spatialis based on creeping monopolistic endeavors, equitable benefit sharing and intergenerational sustainability could be jeopardized . It is for this reason essential to define the proper framework engulfing space resources and their applicable rights to determine the best practices with regard to their transactability and applicable law

consortium monopolycentricity cryptoligopolies concentrated extrapolated sector consolidation conglomeration escalating enclosure space infrastructure irrespective intergenerational sustainability jeopardized framework

['On the one hand, DLTs are resourceful. However, on the other hand, while DLT advocates champion decentralization, the same experts observed the double-edge sword effect under the form of the emerging trend of concentration (e.g., “consortium blockchain”), which can be termed as “monopolycentricity” or “cryptoligopolies” to bring attention to the fact that polycentricity can become concentrated16 and that cryptocurrencies are already aggregating into the hands of fewer big players (mining pools).17 This trend is not new in itself, but it can be if extrapolated to the space sector, for example, in the commerce of space resources and commodities either raw or processed materials, or services and financial assets. As a reminder, the internet advocated for decentralization as well in its early days, yet it is now controlled by a handful of very powerful actors, mostly private. The same could happen with DLTs, and the resulting consolidation and conglomeration of consortia, based on commercial interests, could cause an escalating enclosure18 of the space market’s infrastructure components irrespective, once again, of the higher principles as enshrined within the corpus juris spatialis. Indeed, based on creeping monopolistic endeavors, equitable benefit sharing and intergenerational sustainability could be jeopardized. It is for this reason essential to define the proper framework engulfing space resources and their applicable rights in order to determine the best practices with regard to their transactability and the applicable soft and hard law in the future.']

[(6, 32)]

90d063b719494932f87b28a76ec272c6b61d4a621ff01b2717e14508e757d971

Unequal access to funding instruments is causing monopoly

Charlotte Hurst 21, Lead Journalist at the Backseat Economist, “The space industry may result in a monopoly in the future,” The Backseat Economist, 10/13/2021, https://www.thebackseateconomist.com/post/the-space-industry-may-result-in-a-monopoly-in-the-future

Musk's rocket dominate US space will be the only game in town squeezing out other s that haven’t achieved scale Space is susceptible to monopolies because of barriers to entry firms must have financial power there is limited experts a operator could limit other firms who want their facilities lead to monopolisation

Musk's developments in his rocket created fear for rivals and competitors that it will dominate US deep space exploration With the industry growing rapidly other businesses are hoping to increase market share monopolies if you’re not careful will be the only game in town SpaceX risks squeezing out other firm s that haven’t achieved its scale yet, and so don’t enjoy its funding advantages The Commercial Space industry is particularly susceptible to monopolies , which is when one firm owns the majority of the market share. the market is more at risk than others because of high barriers to entry space travel is expensive firms must have financial power to borrow money from banks and gain investors . there is a limited number of experts in the field of space trav a monopoly in space causes prices ridiculously high exacerbating inequality a space operator owned by a private firm could limit other firms who want to use their facilities This would mean one company would have a massive advantage, and could potentially lead to monopolisation

dominate US deep space exploration growing rapidly businesses increase market share monopolies careful only game in town SpaceX squeezing out other firm s scale funding particularly high barriers to entry expensive financial investors experts prices ridiculously high exacerbating inequality limit other firms monopolisation

["Elon Musk's developments in his rocket “the starship” has created fear for rivals and competitors that it will dominate US deep space exploration.", '“The Stateship” is planned to help take humans to Mars, potentially playing a key role in one day establishing a human colony on Mars. At nearly 400ft, the new SpaceX rocket will eventually be taller than the Saturn V that took Nasa’s Apollo missions to the moon. Furthermore, its 33 engines will deliver twice the thrust than Saturn V.', 'With the commercial space industry growing rapidly in recent years, other private businesses are hoping to increase their market share (percentage of total sales in an industry generated from a particular company). ', 'Faith Ozmen, the co-founder of Sierra Nevada Corp who is a private US company that has been contracted by Nasa to fly cargo to the International Space Station, has raised her concerns. She raised the issue of monopolies within the market when she said “if you’re not careful, SpaceX will be the only game in town”.', 'Other rivals have also complained that SpaceX risks squeezing out other firms that haven’t achieved its scale yet, and so don’t enjoy its funding advantages.', 'The Commercial Space industry is particularly susceptible to monopolies, which is when one firm owns the majority of the market share. ', 'The reason why the market is more at risk than others is because of the many high barriers to entry.', 'For starters, space travel is expensive, meaning firms need an extremely large level of savings to fund projects. Furthermore, they must have the financial power to borrow money from banks and gain investors.', 'Another point to make is that there is a limited number of experts in the field of space travel. Therefore, with supply low, salaries must be high to attract employees. This may be difficult if you are a business entering the field, competing against big names like NASA and SpaceX to attract experts.', 'There are a variety of issues that a monopoly in the space industry causes. ', 'For starters, regarding space tourism, prices may be ridiculously high, further exacerbating issues with inequality. Whilst the rich pay hundreds of thousand to go into space for a matter of minutes, millions on earth may be struggling to feed themselves.', 'Furthermore, a space operator owned by a private firm could, for example, limit other firms who want to use their facilities. For example, fibre optics produced in space where there is zero gravity are much better than those on earth, as they are cleaner and more valuable. Therefore, a space firm could prevent some firms from using their facilities, whilst granting access to others. This would mean one company would have a massive advantage, and could potentially lead to the monopolisation of other markets.']

[(10, 18)]

10e7996ee274b6c9d0335a1166dcbb0e7fe6db9e532e2823a917874643f1a69f

Space antitrust solves price flux from stochastic space resource deliveries

Gershon Hasin 20, J.S.D. Candidate, Yale Law School, awarded the 2019 Yale Law School, William T. Ketcham, Jr. Prize, “Developing A Global Order for Space Resources: A Regime Evolution Approach,” 52 Geo. J. Int'l L. 77, Fall 2020, WestLaw

space depend on active participants coop could be created due to potential market flooding of resources likely delivered with long intervals This have adverse effect on markets , with sudden supply driving down prices, precipitating fluctuation To confront this Control release to the market coordination to control prices is the raison d'être behind anti-trust while coop may be incentivized this type is post extraction and does not require coordinating access to the resources themselves

Like any international resource regime, the development of the regime of space will depend up on the active participants An incentive for coop eration could be created due to potential market flooding of resources space resources are likely to be delivered to Earth in large quantities with long intervals between deliveries This will have an adverse effect on Earth's economic markets , with a sudden increase in supply of certain resources driving down their prices, thus precipitating large price fluctuation To confront this an authority buy and distribute the resources This is, however, swinging a sledgehammer to kill a fly . Control ling the release of resources to the market to affect prices has been widely used for fossil fuels through simple means of coordination at OPEC In addition, the existence of coordination as a means to control market prices is the raison d'être behind anti-trust Thus, while coop eration may be incentivized to control prices on the market, this type of coordination, is post extraction and does not require coordinating the access to the resources themselves

space active participants coop eration market flooding of resources large quantities long intervals adverse effect Earth's economic markets increase in supply of certain resources down large price fluctuation confront this buy distribute This is, however, swinging a sledgehammer to kill a fly release fossil fuels coordination OPEC anti-trust incentivized this type post extraction not require coordinating the access to the resources themselves

['Like any international resource-related regime, the development of the regime of space will depend upon the number of active participants, the quantity of available resources, and the type of resources exploited.354 While it is impossible to foresee precisely which rules and balances would be agreed upon by the participants in the development of the regime, it is possible to sketch a general course of development, based on likely interactions between participants. This Article proposes to adopt a novel regime evolution approach to the regulation of space resources, according to which the regime of access to space resources will, as Law of the Sea did, develop gradually in stages which are consistent with the leverages, interests, and capabilities of the participants at each stage of development. Based on anticipated interaction, four distinct, expected stages are identified below: (1) pioneers; (2) coordination; (3) allocation; and (4) regulation.', 'A. The Stage of Pioneers', 'Regulation of commercial extraction of space resources is moving from academic debates into the global arena. The stage of pioneers will likely resemble the age of freedom of the seas under the Law of the Sea. There would be a limited number of active participants, presumably the major space-capable states and their citizens, including the United States, Russia, member states of the EU, the United Kingdom, Japan, India, and China. Regulation of access to space resources is likely to remain within the realm of the state, with limited, if any, international regulation.', "As mentioned above, even before the first commercial missions have been launched, the first claim by a major participant, the United States, was made in order to protect the investments of its nationals through the adoption of the U.S. Space Resource Act of 2015. In this claim, the United States unilaterally, under the pretext of interpretation, recognized the property rights of its citizens to extracted space resources. The United States' claim resembles in many ways the claim it made *149 regarding unilateral continental shelf rights in 1945 and its claim to regulate deep-sea resources outside the UNCLOS framework.355 The former claim became international law and while the legality of the latter is disputed,356 the United States has issued and recently renewed licenses for deep-seabed mining.357 The United States' claim may be followed by other space-capable states once they and their corporations attain the capabilities to extract space resources and lead to the development of international law. As a point of reference, as mentioned above, this claim seems to have been internationalized through the Artemis Accords between the United States and other space-capable states.358", "The United States' claim has been opposed by Russia, Brazil, and Belgium, but supported by other participants, including Luxembourg, an EU member, which made a similar claim.359 Except for Russia, none of the other space-capable states have voiced any opposition to the United States' claim, and the Russian opposition has been attributed more to overall political tension between the countries than to a genuine belief that space resources should be the common heritage of mankind.360 The silence of China with respect to the United States' claim is telling, as China itself is working towards a moon program, which may include resources.361 Australia, another space-capable state, while currently a member of the Moon Treaty and subject to its provisions concerning space resources, is reported to have allegedly considered a withdrawal from that Treaty.362 Since the Moon Treaty has no substantial provisions except the limitation on space resources, Australia's contemplation of withdrawal can only plausibly be attributed to an intention to follow the United States' claim.", "Other participants, while inactive, include the space-incapable states. While only a few space-incapable states have made claims, the claims are diverse with no unified front. Brazil, a significant developing country, has voiced opposition to the United States' Space Resource Act, *150 urging for an international rather than national regulation.363 This was supported by Belgium.364 Opposition may also be inferred from states joining the Moon Treaty, but they are few in numbers. On the other hand, the UAE has shown interests in commercial space resource extraction and Luxembourg has adopted a law similar to that of the United States.365 The absence of a unified front, combined with the lack of leverages and conflicting interests, leads to the conclusion that the first stage of the regime will likely develop through national legislation by individual space-capable states.366", 'The interactions between the participants are likely to continue, with some space-incapable states choosing to oppose space extractions, while others, such as the UAE and Luxembourg, will attempt to participate either through investments or by attracting investments through legislation recognizing property rights. A possible adverse effect stimulating cooperation between states rests in the potential disruptive effect caused by space resources to developing economies based upon resource exploitation.367 These interactions will, however, be confined to the Earth, since access to space is limited to those with the requisite technology. Because the space-capable states possess the largest militaries and economies, it is highly unlikely that military or economic pressure will dissuade them from proceeding with space resource extractions.', "Any endeavor to affect the policy choices of space-capable states through market pressure or boycotts is likely to fail. First, in international trade and globalization, economic inequality due to technological abilities has never been a source of public outcry, as long as a fair playing field was preserved.368 Analogically, as long as free access to space is not deprived from space-incapable states, economic inequality is unlikely to generate meaningful public pressure. Second, it would be difficult to distinguish between Earth and space origin resources.369 Finally, with the world's largest economies participating in commercial *151 space resource extractions, any boycott would have limited, if any, effect on the commercial viability of space resources exploitations.", 'At this stage of space development, international organizations and NGOs are likely to play a limited role as concerns legality of access to wealth, equity, or spurring innovation. Nevertheless, these entities of global governance are likely to participate in monitoring and promoting other values, including safety and health of personnel, and environmental protection. There is no reason to assume that these values, gaining support on Earth, would not be extended to extraterrestrial operations.', "With a limited number of participants and assuming a vast amount of exploitable resources, there is no incentive for joint action by the participants. Since extractions of space resources are long-term projects with slow operations, the participants can easily steer clear of each other and avoid any conflicts which could threaten their security. In this sense, the stage of space pioneers will likely be modeled after the United States' claim and include national recognition of property rights, while precluding claims to national sovereignty. With national sovereignty unenforceable, participants are unlikely to make theoretical claims which will precipitate conflict and jeopardize their security for little gain. With the development of international commerce in space resources, these nationally recognized property rights are likely to be internationalized and recognized as lawful under international law;370 the Artemis Accords constitute evidence of this process. This regime will be similar to that of the early Law of the Sea, where participants were able to exercise the freedoms of the sea, with limited conflicts.", 'National regulation by major participants will be required to mitigate the adverse effects of any regulatory race to the bottom, gold rush effects, and the tragedy of the commons. While it is unclear whether national regulation can successfully alleviate these concerns, these potential risks do not, as of now, create the necessary incentives for joint action. In addition, due to the vast resources available and the incentive to exploit them, space-capable states will likely adopt policies which would negate any adverse effects on the profitability of their space resource industry. For example, restriction of the flow of capital or technology may limit any regulatory race to the bottom and force corporations from space-capable states to distribute any resources gained from their space projects domestically. In addition to securing their jurisdiction, space-capable states may adopt strong safety and *152 environmental regulations, which may confine the adverse effects of the gold rush, and thus limit any public pressure on the space resource industry. However, as long as the amount of resources is vast, the risks associated with the “tragedy of the commons” would only concern those not participating in the extraction, i.e., space-incapable states, with limited cooperation incentives for the space-capable states. It may, nonetheless, exacerbate the regulatory race to the bottom by incentivizing states to participate by attracting foreign investors.', "While space-incapable states have limited leverage at this pioneering stage of development, a claim for equal access to the resources on the market might be acceptable to the space-capable states due to the current veil of ignorance. To recall, the structure of the United States' Space Resources Act indicated that the United States aspired to preserve the Outer Space Treaty, for the time being, as the framework for space regulation. Furthermore, as mentioned above, a plausible interpretation of the “benefit for all” obligation in Article I of the Outer Space Treaty provides for equal access to the resources on the market.371 A claim by space-incapable states for equal access on the market to the resources may be acceptable to the space-capable states, primarily the United States in light of its free market approach and its compatibility with the international regulation of trade. Free access to resources may be beneficial to space-capable states as well, since each state or corporation may extract different resources. While the “benefit” component is limited, this claim would promote a bit of equity, with limited, if any, adverse effect on wealth and innovation.", 'The period for this stage of the regime could be measured in years or decades. While the number of participants is low enough and the quantity of available resources is high enough that participants may extract the resources absent conflicts which threaten their security, participants would have no incentive to form a cooperative regime. However, as soon as the number of participants increases, and/or the availability of resources decreases to the point where conflicts jeopardize wealth and security, an incentive will be created for cooperation.', "An incentive for cooperation could also be created independently due to potential market flooding of resources. As Lee explains, space resources are likely to be delivered to Earth in large quantities with long intervals between deliveries.372 This will have an adverse effect on *153 the Earth's economic markets, with a sudden increase in supply of certain resources driving down their prices, thus precipitating large price fluctuation.373 To confront this problem, Lee proposed to form an authority to buy and distribute the resources.374 This is, however, analogous to swinging a sledgehammer to kill a fly. Controlling the release of resources to the market to affect prices has been widely used for fossil fuels through simple means of coordination at OPEC.375 In addition, the existence of coordination as a means to control market prices is the raison d'être behind anti-trust regulation. Thus, while cooperation may be incentivized to control prices on the market, this type of coordination, is post extraction and does not require coordinating the access to the resources themselves, with which this Article is concerned."]

[(8, 16)]

f401a9bce0a5fda6de5926a63cc5cee89840a918072c8dbd09253991b9557ca4

Space commodity speculation derails space weather response

Maria Lucas-Rhimbassen & Lucien Rapp 21, Lucas-Rhimbassen serves as a Research Associate at the Chaire SIRIUS and is also a PhD Candidate in space law since 2016, is also a guest lecturer at ISAE-Supaero, served in the International Institute for Space Law (IISL) in the trilateral IISL-IAA-IAF working group on Space Traffic Management (STM), co-chaired the Responsible Lunar Governance Sub-Committee of the Global Experts Group on the Sustainable Lunar Activities (GEGSLA) at the Moon Village Association (MVA), research fellow at the Open Lunar Foundation; Lucien Rapp is tenured Professor at the Law School of University Toulouse1-Capitole and currently lectures at HEC Paris, as an Affiliate Professor, “New Space Property Age: At the Crossroads of Space Commons, Commodities and Competition,” Journal of Property, Planning and Environmental Law, vol. 13, no. 2, 08/17/2021, pp. 88–106

antitrust as a solution keeping higher principles at the core counter cartelization inside exchanges Speculation extrapolated to space has radical potential in space weather events , knowing climate is already impacting commodities on Earth To address these competition law antitrust adapted to space could prevent space law erosion essential to avoid unregulated speculation detrimental in such an extreme environment Imagine what space weather-based speculation in space could obliterate entire economies

In light of accelerated privatization and commercialization of space space law, too , has been required to contend with shifting market dynamics , trigger ed by commodification As arguments, both pro and contra a strict interpretation of the principle of non-appropriation continue to be brought to the fore, a new debate has been gaining in critical mass proponents aim to bring about the commodification of space and the establishment of a space commodities exchange yet, international space law is currently unequipped to deal with commodification requirements unless it comes to terms with the lingering confusion around commons This paper raises antitrust as a solution to maintaining growing synergies and interdependencies within the future space economy, in keeping the higher ethical principles at the core of the corpus juris spatialis Future monopolies might bar new entrants by limiting access to resources or services through anti-competitive practices Therefore, there is a need to regulate accordingly to ensure the development of the outer space economy and benefit sharing principles that are enacted within the OST In this context polycentric space antitrust mechanisms might offer a pragmatic solution to address issues before they become fait accompli : namely, the fragmentation of space law and the commoditization of the space market issues as pertaining to monopolistic control can easily be extrapolated to any scarce resource in space raising the crucial issue of competition law Commodification transforms physical goods and services into standardized contracts and turns capital today into contractual rights for delivery in the future They form an infrastructure standardization could represent a catalyst for growth by encouraging economies of scale Pros include risk management, mitigation of ad hoc market volatility standardization liquidity etc. On the other hand, counter arguments include risk of cartelization /collusion inside or between exchanges which lead us to be reminded of antitrust Speculation extrapolated to space has a radical potential such as in the situation of space weather events , knowing that climate change is already highly impacting speculation based on the deregulated natural resources and commodities here on Earth Exchanges can behave in an anti-competitive manner over-dependence on market forces led to the appearance of large cracks threatening the stability of the world To address these caveats, we turn to competition law New technologies helped competition make its way derivatives to compensate for decreasing oversight Concentration appears to be increasing restrictions on antitrust in regulated markets are especially concerning antitrust has potential for further regulatory impact and reach in commodities and could be extrapolated to space space law no longer suffices to cope with all the new actors, and therefore alternates are recommended. This paper recommends antitrust adapted to space , based on the corpus juris spatialis ethics . This could help prevent ing the risk of space law erosion while privatization and commercialization of space are trending and potentially leading to the commodification of the space market and ecosystem , while space lawyers are still debating internationally competing forces should be seen as the dark matter in a space ecosystem , enabling sustainable synergies and interactions This would be essential to avoid unregulated speculation based on space commodities , which could prove detrimental in such an extreme environment as space speculation benefits from climate change impact on crops on Earth Imagine what space weather-based speculation could do in space It could obliterate entire economies at once space antitrust monitors space commoditization closely

privatization commercialization space space law, too shifting market dynamics trigger commodification non-appropriation critical mass proponents commodification space commodities exchange space law unequipped confusion commons antitrust solution higher ethical principles core juris spatialis monopolies bar new entrants anti-competitive practices regulate accordingly enacted within the OST polycentric space antitrust mechanisms pragmatic solution address before fait accompli fragmentation of space law commoditization of the space market any scarce resource in space crucial issue competition law Commodification physical contracts capital today contractual rights delivery in the future infrastructure standardization catalyst for growth economies of scale Pros risk ad hoc market volatility standardization liquidity counter cartelization /collusion inside exchanges antitrust Speculation space radical potential space weather events climate already deregulated natural resources and commodities here on Earth Exchanges anti-competitive manner market forces large cracks stability of the world address competition law New technologies competition derivatives oversight Concentration increasing restrictions antitrust especially concerning antitrust further regulatory impact reach commodities could be extrapolated to space space law longer suffices alternates antitrust adapted corpus juris spatialis ethics prevent space law erosion commodification of the space market and ecosystem competing dark matter in a space ecosystem sustainable synergies and interactions essential unregulated speculation based on space commodities detrimental extreme environment as space climate change impact on crops Earth space weather-based speculation could do in space obliterate entire economies at once space antitrust space commoditization closely

['1. Introduction', 'In light of the accelerated privatization and commercialization of the space sector, such as borne out by the most recent developments within the New Space industry, space law, too, has been required to contend with shifting market dynamics, triggered by the commodification of space resources, which has continued to fuel the ongoing debate among legal scholars around which interpretations to adhere to when tackling the issue of ambiguity within the corpus juris spatialis. As old (and sometimes new) arguments, both pro and contra a strict interpretation of the principle of non-appropriation, as enshrined within Article II of the outer space treaty (OST) of 1967 [1], continue to be brought to the fore, a new debate has been gaining in critical mass and momentum in both academic and private industry fora – a debate impelled by a series of nascent initiatives sharing the scope of establishing a space finance regime in outer space. The proponents of these initiatives aim to bring about the commodification of space resources and the establishment of a space commodities exchange. While being more or less isolated, such endeavors are already underway in the private sector; yet, international space law is currently unequipped to deal with commodification requirements unless it comes to terms with the lingering confusion around space property rights within a “commons” regime. This paper raises and synthesizes these questions (commons, property rights, resources, commodities, etc.) and applies polycentric governance principles to an increasingly fragmented but expanding space ecosystem, while exploring space antitrust as a solution to maintaining growing synergies and interdependencies within the future space economy, in keeping the higher ethical principles at the core of the corpus juris spatialis.', '2. Context', 'The thriving space economy is fast outpacing the increasingly fragmented corpus juris spatialis, which results in the further expansion of the existing legal void and the gap with customary practice. The lex mercatoria emboldens private entities into their own lawmaking endeavors, notwithstanding the existing lex lata and opinio juris (e.g. selfdetermination principles [2], etc.). Entrepreneurial and corporate ambitions are dictating most future trends in terms of space-based services and market shares. Future monopolies might bar new entrants by limiting access to resources or services through discriminatory or anti-competitive practices. Therefore, there is a need to regulate accordingly to ensure the legal, ethical and sustainable development of the outer space economy and benefit sharing principles that are enacted within the OST. In this context, it is our hypothesis that polycentric space antitrust mechanisms and effective governance strategies might offer a pragmatic solution to address self-determination issues before they become a fait accompli: namely, the fragmentation of space law owing to the ever expanding number of stakeholders involved, both public and private [3] and, more pressingly, the future commoditization of the space market.', '3. Problem', 'At present, the lex mercatoria – whose transnational nature can at best be described as elusive – is raising significant challenges to international space law and to existing ethical frameworks; the latter of which has to bear the brunt of regulating commercial interests in space through Art. VI of the OST [4], which remits to (and thus, defers to) national legislation. The foreseeable outcome of these yet small-scale – and to a degree stealthy – through cascading onslaughts against established law, is that the commoditization of the space market will collide openly with the “commons” regime of outer space activities. It is worth asking: what does the concept of “commons” exactly entail in the context of space? Common goods in economic terms differ from the res communis property rights in law (Tepper, 2019). Up to the present point, there seems to be a general unanimity on what space objects, space resources and celestial bodies are, as well as there being a concomitant lack of consensus on property rights pertaining to either category, which is problematic from the standpoint of would-be regulators. In the long run, failure to address this widening legal void raises several potentially highly complex outcomes. To quote one probable example, under an unregulated space resources market, it is easy to envision a hypothetical monopoly-holding corporation that produces breathable air on a celestial body, threatening to restrict or to cut access to a basic commodity such as the life-saving air supply, if its price floor cannot be met or if it is unable to recoup its investments. Under a different example, a private entity specializing in terraforming could, under an unregulated antitrust framework or an unenforced planetary protection regime, unilaterally decide to alter the celestial body’s holistic balance, irreversibly. Such issues as pertaining to monopolistic control can easily be extrapolated to any scarce (abiotic) resource in space, thereby raising the crucial issue of multilateral regulation and enforcement, especially in terms of competition law.', '4. Rationale', 'While the legal debate around the Art. II of the OST principle of non-appropriation is still ongoing, there is a significant movement in the space community toward the commoditization of the space economy, which involves the commodification of (space) goods. The topic of space goods, per se, is a contentious issue, as certain space resources might be considered as being part of the res communis, even though, according to Art. I of the OST, only space activities themselves are considered as “commons.” To mitigate the potential volatility of the future space economy, the space market could benefit from increased commoditization, if properly regulated. Such regulation would have the benefit of reigning in market speculation, inherent of financial derivatives (significantly deregulated in the USA in 2000 [5]), which, in our case, would apply to a space commodities category, and thus, potentially lead to speculation in the space sector. However, making allowance for any type of commodification in this context is likely to run into several legal challenges as construed on the basis of existing space law and established property rights in space. Therefore, there is a need to clearly determine the property regime in space and to properly define the extent of rights to and nature of resources. In this light, it would be relevant to distinguish between economic and legal commons (Tepper, 2019) to identify the adequate property rights, which would pertain to the corresponding space resources and, possibly, to space commodities. If not, there is a risk of a reverse situation, where customary practice on the market dictates future regulation. A commoditized space market is bound to involve a “space commodities exchange,” which would, in turn, raise antitrust questions in the future [6]. Historically, these markets were heavily regulated but benefited from a relative immunity vis-à-vis an antitrust claim because of the agency overseeing. However, after deregulation, the decrease of the agency overseeing is slowly being compensated by antitrust law (e.g. preventing collusion or concerted practice), especially owing to globalization, technological development and to an increase in the size and importance of competing exchanges. A consequence of the Clinton Administration, the deregulation of commodities in the USA [7] has normalized a certain amount of speculation and volatility, which can usually be attributed to the self-regulated exchanges, and to which must be compounded possible risks of collusive or other anti-competitive behavior. For this reason, this paper adheres to the viewpoint of several scholars who pledge for further antitrust reach into the commodities market (Falvey and Kleit, 2006; Scopino, 2016). Moreover, within the space sector, antitrust would have several higher ethical principles to protect, which are not the case in “normal” antitrust, such as benefit sharing, non-discrimination, equality of access and fair competition. “Space antitrust” would indeed reach into the ethical sphere, as opposed to the strict market dynamics it usually seeks to ensure. Finally, while the debate in space law urges on with regard to the question of whether to create a global space governance institution or authority to regulate space matters more extensively and exhaustively, this paper explores briefly the decentralized potential of polycentric space antitrust to maintain synergies and interdependencies of the growing space ecosystem.', '5. Commons', 'According to various scholars (Tepper, 2019), the “commons” can be divided into two parts, namely, economic resources, such as “common pool resources” or CPR (Ostrom, 2010) and legal rights, more precisely the res communis doctrine to which rights such as “free access” and “use” apply but which exclude ownership. The work of Nobel Prize laureate, Elinor Ostrom, divides economic goods into four main categories (Table 1) where CPR are both non-excludable and non-rivalrous. CPR are thus, an economic resource and the rights attached to such common-pool resources are multiple, such as in the case of the high seas and even more so when resources are to be further divided up into further categories, and, namely, resources systems and resource units (Tepper, 2019). Resource systems refer to the different uses of the same resource, such as illustrated by the Colorado River example whereby seven States signed the Colorado River Basin compact [8] in 1922 to increase sustainable management of the river resources. Resource units, on the other hand, refer to a more quantifiable function. In the case of the high seas, the atmosphere, Antarctica and outer space, the commons regime is oftentimes referred to as the “global commons.” However, it is argued that, at the end of the day, “global commons” in the space sector does not stand as a legal argument on its own with regard to respective legal rights, as the areas they cover entail multiple property rights (e.g. in the example of the high seas, fish is considered as “commons,” as opposed to seabed resources, which are subject to the “common heritage of mankind” (CHM), regime [9]).', 'The legal community is divided with respect to the term “global commons” and it remains unclear, without a formal definition and no presence in any international treaty (Tepper, 2019, p. 190). Furthermore, and, perhaps, adding to the confusion (or perhaps, locating its partial source, depending on one’s viewpoint), it has been argued that Hardin mistakenly attributed his “tragedy of the commons” (Hardin, 1968) to CPR (commons being owned by all) instead of “open access,” which pertains to a res nullius regime (not yet owned by anyone) (Tepper, 2019, p. 122). It would be difficult to accept space as a res nullius, as the regime would, in that instance, not preclude sovereignty claims. However, the OST explicitly forbids sovereignty claims in outer space or on celestial bodies. The outer space and celestial bodies have no property regime yet, as there are no clear classifications yet as to what they are (what is a planet? Is Pluto a planet? Is an asteroid a celestial body or a space resource?). It is, therefore, difficult to attribute respective property rights and to establish what space objects, resources or celestial bodies are. According to Pop and others, a celestial body would qualify as a public good (equivalent to the Roman concept of seashores) also based its non-excludable and non-rivalrous nature (Pop, 2009, p. 139). However, in terms of legal property rights (Art. I of the OST), only the activities conducted on the celestial body would be considered commons. Another argument to be made against proclaiming outer space and celestial bodies as global commons would be the instance of Earth, where the term [TABLE 1 OMITTED] is strictly reserved to the high seas, to the atmosphere and to Antarctica and does not extend to the whole planet Earth (Tepper, 2019). We determined that, after all, “global” is superfluous. This preceding argument might even possibly be construed as an indirect attempt at short cutting the absence of a proper property regime in space, while actually attempting to instill one: a regime of commons (just as in the case of CHM), when in proper fact, commons refer merely to the (human) activities in space, and not to physical reality. CHM refers to resources and property, whereas the Province of all Mankind, (despite the possibly obfuscating geographic flavor of the term “province”) refers strictly to exploration and use-related activities, such as exploitation and extraction (Maiorsky, 1986, p. 60); therefore, both terms “CHM” and “province for all mankind” cannot be “equated” (Goswami, 2017, p. 77).', 'The concept of “global” commons is equally debated; however, as discussed below, the argument for either categorization is subordinated to underlying considerations. It can be subsumed to the trend of space resources commodification and dismissed or on the contrary, depending on the future categorization of economic goods as shown in Table 1, it can be reasserted, in which case polycentric governance is necessary to manage the different regimes pertaining to each sub-category and systems.', 'The human activities in outer space – which fall under the aegis of commons – are referred to in Art. I of the OST and are defined in terms of the freedom of exploration and use by all States:', 'The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.', 'If “use,” as an activity performed in space, is deemed to take place “in the province of all mankind,” then “use” should indeed be considered as being comprised within the commons regime, but the rights would differ according to the classification of the goods/services in use and remain valid even if commodification takes place.', 'Furthermore, some space jurists (Berrisch, 1990, p. 190) are of the opinion that “global” commons are aimed at the “use” of outer space, and thus, aimed at exploiting and extracting resources, therefore individualistic in essence despite the term “global.” To infer real “concepts of solidarity” would require reverting back to the CHM or rather of humankind (CHH). However, despite being, perhaps, more prone to benefit sharing than the commons, CHM/CHH is still contemplating the same uses, and therefore, “guilty” of anthropogenic interests and unsustainable uses of resources (Goswami, 2017, p. 77):', 'The underlying problem with the concept of global commons or the CHM is that their very categorization of being such is based upon a resource-exploitation-centric anthropogenic methodology rather than nature-preservation approach based on ecocentrism[...] (Goswami, 2017, p. 68).', 'Therefore, either “global” commons or CHM/CHH can partly be understood in terms to the relationship (and arguably the proximity) to mercantile functions, which can be argued to converge toward commoditization.', 'CHM/CHH was initially proposed for equitable access to seabed resources: “[...] use and exploitation for peaceful purposes and exclusive benefit of mankind as a whole” (Pardo, 1975, p. 38). This would indeed continue in the line of redistribution over conservation and maximize exploitation (Goswami, 2017, p. 70):', '[...] these global commons are labeled as such not in the hopes of maintaining pristine treasures, but for extracting the most profit over the longest period (Clancy, 1998, p. 601).', '6. Property', 'As mentioned previously, there is a property vacuum in outer space according to international space law. This vacuum is being filled by national legislation (e.g. the US 2015 Space Act [10], the Luxembourg Act of 2017 [11] and the more recent UAE national space legislation [12]) whereby the fruits of space activities can be rightfully appropriated. “Fruits” takes us back to Roman property law: Usus, Fructus, Abusus, which evolved into the “bundle of rights” recognized in the common law. This refers to the right to use, to enjoy the fruits and to abuse (dispose of) one’s own goods as insofar as the law allows. Property is, therefore, “a stream of benefits from a given set of resources” (Meyer, 2000). However, property per se is not a material concept, rather a variable and metaphysical concept; a mere conception of the mind (Bentham, 1802). The argument can be further pushed (Pop, 2009):', 'With private property, as with many illusions, we are[...] seduced into believing that we have found an objective reality which embodies our intuitions and needs. But then, just as the desired object comes finally within reach, just as the notion of property seems reassuringly threedimensional, the phantom figure dances away through our fingers and dissolves into a formless void (Gray, 1991).', 'We can draw the parallel that space property is a vacuum, yet to be filled with legal rights. In space, the legal rights pertaining to the property are still to be determined on a multilateral basis. Essentially, as Art. II of the OST provides for the principle of nonappropriation and, as no State can claim sovereignty over celestial bodies, the question immediately rises as to how it might even be possible to establish property rights in the absence of sovereignty. Alternate interpretations are particularly useful in answering this question as they invite us to consider the nuance between ownership “de jure” and ownership “de facto” (Fasan, 1966, p. 160). The latter type of ownership equates with the appropriation of the resources by the occupation of the land, while not legally owning the land itself nor claiming ownership of it. In this latter case, occupation may remain permissible insofar as it is not ad infinitum – which would amount to ownership by occupation, itself expressly forbidden by Art. II of the OST:', 'Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.', 'This begs the question of how redundant or even of how necessary the term “temporary” might be when applied to the newly (bilaterally) agreed upon “safety zones” in the National aeronautics and space administration (NASA) 2020 Artemis Accords. Indeed, when NASA presented the concept of safety zones, it generated significant controversy, as many States considered this to be an attempt to establish keep-out zones and eventually try to establish ownership de facto. As a consequence, NASA added “temporary” to the safety zones to clarify the lack of intent toward land ownership claims. However, as already mentioned, occupation cannot be ad infinitum. The same rationale could be applied to the US 2020 Executive Order [13] denying the global commons regime in space: it would not be able to carry any legal impact.', 'Nonetheless, these safety zones are obviously a means of occupation. For uses implied within Art. I of the OST, occupation would suffice and there would be no need of ownership de jure over the surface in question to appropriate the extracted resources according to the “enterprise rights,” which are frequent within the extraction industry (Sterns and Tennen, 2002, p. 2). In other words, and following this same argument, entities extracting resources off the surface of a celestial object would not require a fee simple, as simple occupation would suffice. One of the potential outcomes of this approach is to open the floodgates to a race toward a deregulated space rush for territorial occupation on the sheer basis of the “first-come, first-served” principle. Safety zones and Cultural Heritage Sites on the Moon (Smith, 2021) are recent examples initiated by the USA, but other creative or far-reaching initiatives from non-traditional space actors can see the light in the future.', 'It has been argued in the past that the first in time, first in right principle is already enshrined within Art. IX of the OST itself:', 'In the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the moon and other celestial bodies, may request consultation concerning the activity or experiment.', 'From this, Pop (2009) infers a duty of non-interference from the part of latecomers and thereby a “first-come, first-served” regime benefiting first-comers, potentially incentivizing a race for grabs:', 'Article XI requires States Parties to publicize, “to the greatest extent feasible and practicable” the nature, conduct and locations of their space activities [...]. If an activity by a State Party or one of its nationals is likely to cause “potentially harmful interference” with the space activities of other States Parties, the first State Party is required by the same tenet to “undertake appropriate international consultations” prior to carrying out such activity. In the same time, should a State Party to the OST rightfully fear that a space activity of another State Party could harmfully affect its own activities, the first State is entitled to request appropriate consultations on this subject. While the Treaty makes no mention of it, it is nonetheless understood that a “first-come, firstserved” regime exists. (Pop, 2009, p. 76).', 'Furthermore, Pop (2009, p. 77) extends his reasoning and applies his criterion to questions asked by previous scholars with regard to the race for grabs and to scarce resources in general:', 'If on Mars a very valuable pool of water is found and one state sets up a base, which depends completely on this water resource, has then another state or party got the right to extract this water (or a part of it) for purposes of its own and thus to coerce the other state to liquidate its base at once, or, far worse, causes the death of all inhabitants of the station in question? (Fasan, 1962, p. 11).', 'To which the answer would be:', '[...] under the light of Article IX, is certainly in negative, and such a situation would violate even the Lockean proviso, i.e., that one has the right of acquisition only if one leaves “enough and as good” for others (Locke, 1690, Section 26) (Pop, p. 77).', 'One proposal to regulate this in a sustainable manner is a new “Riparian Rights Rule” whereby all stakeholders should comply with sustainability standards and equality of access to resources and ensure a model of “appropriation that better protects the benefits of Mars for all humankind” by:', ' A licensing regime for resource production on Mars would be granted by a coalition of sovereign governments under an international treaty.', ' Price regulation for the sale of resources by the first producer that has established a natural monopoly-like advantage on Mars, which would, to a certain degree, resemble the rate-making process for vertically integrated electricity providers in the USA.', ' The Martian Riparian Rights Rule, under which existing producers of Martian resources would not have the right to extract more than necessary for their own use or for sale to current or foreseeable future consumers (Conte, 2019).', 'Others are of the view that when a scarce resource is appropriated, the parties could resort to adjudication:', 'In the spirit of Article IX OST, Brooks (1968, p. 347) [14] considered that, were a space resource so scarce that its use would endanger future uses or the needs of other States, “this situation may be an appropriation” and consultations would have to be held: “In such case the resource may be shared, or conflicting needs may be subject to settlement by agreement or adjudication (Pop, 2009, p. 77).', 'Clearly, intergenerational rights and equity is an issue:', 'The requirement to take into consideration the interests of all States also includes future generations. The principle of equal right to access assures that all members of the international community should be in a position to reap the benefits that are derived from outer space, irrespective of the disparities in the growth and development that exist between new and old space players. As such, differing levels of economic and technological development should not be considered an insurmountable obstacle to any State expecting to benefit from outer space. The first States and entities active in space, therefore, must explore and use outer space with the consideration of the latecomers. This includes not only avoiding taking exclusive use of limited natural resources, such as radio frequencies and geostationary Earth orbit (GEO) slots, but also avoiding the creation of space debris or creating other threats to the peaceful uses of outer space. In short, there is an obligation that States should not act in a way that creates barriers that will compromise the capacity of others to use outer space going forward. Outer space benefits should be understood as a broad concept, including benefits derived from the exploration, use, and exploitation of space (Jakhu and Pelton, 2017, p. 553).', 'An ideal way to ensure such intergenerational benefit sharing would be through a centralized organization, such as the Trusteeship Council proposal by former Secretary General of the UN, Kofi Annan, in 1997, where the trustee would hold the legal title, but the beneficiary would hold the equitable title. However, the Council suspended its activities [15], which gives strength to our argument in favor of adhering to a much more resilient polycentric structure. One of the suggested approaches of our proposed solution would entail a decentralized cluster of trusteeships relying on the same general principle or principles such as the proposed UN Model. The benefit of such a model would be to instill a long-term vision culture, spread out through multiple generations. However, there is no formal mechanism in place to ensure that. Therefore, it is argued that we can expect a race for grabs in terms of space occupation and resources if the market is left to its own devices.', '7. Resources', 'As discussed supra, to determine precisely, which property rights might be developed in space, it is important, as a preliminary, to determine and to define in exact scientific and legal terms what outer space is (at least given what we now know about it at the present time), while leaving the door open to adapting those definitions as we gain more knowledge about the universe and as the technology matures (adaptive governance). For now, basic questions such as “what is a planet?” can be asked. If scientists go back and forth about Pluto, what could be expected of space lawyers? There is no clear definition of space objects, space resources or celestial bodies, etc. A space object might include facilities for space mining, habitats, shelters, etc., (Jakhu and Pelton, 2017, p. 396) and this begs the question of whether they could be defined as a spatial extension of the land (and therefore, fall under lex situs) or as a material extension (lex domicilii) (Pop, 2009, p. 50). Celestial bodies have no definition now. Therefore, the issue of determining whether they are extra or intra commercium remains a puzzle (Manoli, 2015, p. 31). Furthermore, a significant difficulty remains in determining in legal terms what constitutes movable resources and what constitutes immovable goods. For instance, which would be applicable the case of asteroids? – as in the universe, everything moves (Pop, 2009).', 'Moreover, on Earth, we see increasingly innovative property rights mechanisms emerging with regard to natural resources. Examples of conferred legal personhood rights have been in constant flux. For instance, the Whanganui River in New Zealand has recently been granted legal rights, which led scholars into extrapolating this to space resources or celestial bodies (Tepper and Whitehead, 2018). This begs the question of what could be expected of water itself in the future, either on Earth or in space or even both? In fact, an ancillary question is how will water’s legal regime evolve, especially, as outlier scientists recognize surprising attributes of water such as molecular memory (Emoto, 2005)? From both public and private good to legal person? To commons? However, until the legal debate about the status of water will be settled, water has become a commodity, in December 2020, with its own index (Tappe, 2020).', 'Maude Barlow, the former Chairperson of the Canadian Council, stated in 2017 that a water futures market would be very likely:', 'Economist Richard Sandor, the “father” of carbon trading, predicts the near-term launch of a global water futures market. He says water will replace oil as the number one commodity of the 21st century and that it will be bought, sold, and traded on the open market.', 'Sandor is not alone. In business schools across the world, students are taught that the solution to the global water crisis is to commodify water and let the market settle who gets water and how [16].', 'Scholars with a background in finance and private entities are already looking into case studies about water as a commodity in space, as discussed infra.', '8. Commodities', 'On Earth, water has been identified indeed as the next major commodity to overtake oil the future economy, according to Barlow and others (see above). In space, according to the newly created Space Commodities Exchange company [17], water is equally expected to be the top commodity and this issue raises the larger question of how new commodities are to be framed legally in the future. About the Space Commodities Exchange Company, its very infrastructure and business model is suggestive of a larger pattern that might be easily replicated. The organization is split into two parts:', '(1) Space commodities.', '(2) The Exchange (SCX). In its case study on water, the company advertises on its website that water will be the:', '[...] first commodity to be extensively traded in space: In space, water is a vital resource and provides air and spacecraft propellant. Delivering water as a commodity to on-orbit facilities will be an important driver for sustainable human and commercial presence in space. A centralized commodity market for space resources; water, propellant, volatiles, and other valuable metals and minerals, will be a key component of a growing space economy and will expand the range of commercial opportunities in space [18].', 'Commodities are financial futures, interchangeable/unspecialized goods/services. They imply standards (form, phase, composition and location):', 'Commodification transforms physical goods and services into standardized contracts and turns capital today into contractual rights for delivery of goods in the future (Ahadi et al., 2020).', 'They can form an infrastructure, which can be divided into five main “buckets” such as raw materials, processed materials, space-based services, financial derivatives and indexes (Cahan, 2017). Their standardization could represent a catalyst for economic growth by encouraging natural economies of scale (which is reminiscent of the idea behind “natural” monopolies). Pros include price discovery, transparency, resilience, economies of scale, risk management, mitigation of ad hoc market volatility, standardization, interoperability, liquidity, etc. On the other hand, counterarguments might include participation costs, risk of cartelization/collusion inside or between exchanges (which, again, lead us to be reminded of antitrust issues), deregulation, speculation, further volatility, etc. Speculation extrapolated to the space sector has a radical potential such as in the situation of space weather events, knowing that climate change is already highly impacting speculation based on the deregulated natural resources and commodities here on Earth.', 'Commodities can further be divided into units called “Units of Space Convenience” (USC), which are a tradable value, leading to standardization and market resilience (Cahan, 2017). The sum of these arguments leads up to a nexus pointing to the resource units referred to in the commons section (Tepper, 2019, p. 234) and the USC. Polycentric governance, in this context, comes into play as a valuable commoditization governing tool.', 'In terms of space commodities, Ahadi et al. (2020) identifies them according to Cahan’s five buckets: (Table 2).', 'A further stage of our intended research project entails juxtaposing these commodities with Ostrom’s types of goods, to infer resulting legal rights.', 'In Cahan’s words, the commodification of the space economy is essential to ensure certain market stability and resilience through its infrastructure. According to his argument, in terms of managing space resources, this is necessary. Otherwise, Cahan warns that the outcome would be much like the epic battles over the “spice mélange” in Frank Herbert’s “Dune.” His rationale is that monopolies are dangerous. While we agree that action is required against the monopolization of resources, it is important to be aware of the fact that exchanges, which used to be in the past protected from antitrust, can actually form natural monopolies in regulated markets (Falvey and Kleit, 2006). Even today, as this immunity becomes increasingly more diluted due to growing deregulation and competition, Exchanges can behave in an anti-competitive manner. As the last example, the regulation of crude oil as a commodity does not preclude concerted practice nor market volatility due to external factors ranging from monopolies to international conflict, which contradicts Cahan’s postulate. Indeed, commodities deregulation has led to great instability:', 'By mid-2007, the over-dependence on market forces and mechanisms, without proper and workable regulatory mechanisms and systems in place to govern the globalization process, had led to the appearance of large cracks threatening the stability of the world economy on two fronts: the sharp hike of primary commodity prices and the global financial crisis. After two decades of [TABLE 2 OMITTED] low, and at times dwindling, prices in the 1980s and 1990s, many primary commodities had registered a steep price increase since 2002, reaching an all-time high in the spring and summer of 2008 with extremely high volatility. The soaring key commodity prices hit the world economy at a time when most western economies were struggling with efforts to eschew a sharp economic downturn and recession, triggered by the sub-prime mortgage crisis in the USA in the background of global macroeconomic imbalances, and the subsequent credit crunch spreading to major industrial economies through poorly regulated global financial transactions and systems. (Nissanke, 2010).', 'To address these caveats, we turn to competition law.', '9. Competition law', 'New technologies, globalization and deregulation helped competition law to make its way into the derivatives industry, to compensate for decreasing agency oversight because of a long tradition of jurisprudence in that sense (Weinstein, 2019). The US Commodities Futures Modernization Act (CMFA) of 2000 both deregulated to a certain extent the derivate market while opening the door to antitrust measures (Falvey, 2006) as shown here:', 'ANTITRUST CONSIDERATIONS. – Unless necessary or appropriate to achieve the purposes of this Act:', '[a] board of trade shall endeavor to avoid –', '(A) adopting any rules or taking any actions that result in any unreasonable restraints of trade; or', '(B) imposing any material anticompetitive burden in trading on the contract market.', 'Indeed, increasing competitive market dynamics and commodity exchanges call for antitrust enforcement; however, it remains unclear as to how this will happen and to what degree. Nonetheless, the Commodities Futures Trade Commission (CFTC), created in 1974, provided for some antitrust authority vs anti-competitive conduct via its “antitrust considerations” within the 2010 Dodd-Frank Act [19] as is explained below, to help break collusive behavior and cartelization of the oligopolistic derivatives market in the highly increasing concentrated financial sector [20]:', 'One of Dodd-Frank’s central goals was to ensure that most derivatives transactions are centrally cleared (thereby reducing systemic risk) and traded on exchanges (reducing pricing opacity and promoting competition). The increased significance of derivatives clearinghouses and exchanges in the Dodd-Frank regulatory scheme raises the danger that firms controlling these entities could exclude derivatives-trading rivals who need access to complete their swaps. Such conduct could lead to reduced competition and higher prices in derivatives trading. Big-bank control of clearinghouses and exchanges also may give those firms the opportunity to manipulate the types of derivatives contracts that are exchange traded and centrally cleared, pushing certain contracts into the over-the-counter markets where the banks can charge higher prices. To the extent central clearing of derivatives trades reduces systemic risk (the key premise of Dodd-Frank’s derivatives reforms), this outcome may threaten systemic soundness. Despite these risks, antitrust immunity may shield such conduct from attack, leaving sector regulators as the only bulwark against anticompetitive activity in these markets (Weinstein, 2019, p. 6).', 'This measure proved inefficient, as it did not cover a major loophole (swap dealers [21]) and its reach was rather limited. Therefore, it is argued that the scope of the antitrust considerations should be broadened by Congress by amending the 1936 Commodities Exchange Act (CEA) – amended several times since [22] – to “prohibit any person who causes (or attempts to cause) unreasonable restraints of trade or material anticompetitive burdens in the markets for derivatives.” This amendment should also prohibit both in-house and inter-Exchanges anti-competitive and anti-ethical behavior such as unfair competition and derivatives price-fixing conspiracies (Scopino, 2016).', 'Weinstein concludes in that sense:', 'Concentration appears to be increasing in the financial sector and the broader economy. In this context, the Supreme Court’s restrictions on antitrust enforcement in regulated markets are especially concerning. This concern is heightened by evidence that sector regulators generally are poorly suited to protecting competition and reluctant to take on that job. This Article has proposed a regulatory-design solution to the challenge of protecting competition in regulated markets. Structural regulation of potential competitive bottlenecks can adequately preserve competition while allowing sector regulators to focus on their core missions. When executed properly, this approach may be superior to active sector-regulator competition enforcement and even to traditional antitrust enforcement (Weinstein, 2019, p. 59).', 'For this reason, antitrust has the potential for further regulatory impact and reach in the commodities sector and we posit that this could be extrapolated to space in a more complex fashion, as space is a peculiarly vast and complex domain, as has been shown throughout this paper.', '10. Space antitrust', 'In the light of the previous section, this paper argues that space antitrust could provide for both a pragmatic and efficient manner to contain the volatile forces of a space commodities market, as explained supra. Centralized global space governance is a vast, multigenerational project, presumably in the works and a manifestation of its shapes has yet to appear. In the meantime, however, alternate methods must be investigated. Decentralized models are surfacing from a bottom-up approach and polycentricity is emerging organically. How these polycentric forces will interact, compete, cooperate and evolve can be facilitated by a “space” antitrust framework based on the OST principles, which cover interactions relevant to an ethical “space antitrust” and sustainable space ecosystem. These principles, which all have an incidence on competition, are benefit sharing, equality of access, non discrimination, non-harmful interference, due regard, cooperation and fair competition. Future analysis as to their incidence is necessary to determine their interaction with an antitrust framework and how these interactions are to be governed. Polycentricity is timely given the complexities of systems of systems in space. It could successfully work for hand in hand with space antitrust to ensure that the transnational lex mercatoria and the commoditization of the space market do not collide with the higher ethical principles, which international space law relied on for half a century.', '11. Discussion', 'Traditionally, international space law, as opposed to national space law, is not equipped to deal directly with the private sector. However, antitrust has the tools to do so. The broader range of space antitrust might help delve further down into the elusive and transnational commercial law, which is likely to accelerate in the near future and multiply interest around the commodification of the space market. As suggested throughout this paper, space concentration, leading to monopolies, is a likely outcome of the further development of space commerce. To mitigate the risks of monopolization, collusive and of other anti-competitive behavior, especially when considering the particular nature of space resources, to be exchanged on the emerging space-based market – including the complex and specialized services attendant thereto – special ethical and legal safeguards must be put in place to incentivize competition while containing the risks of fragmentation mentioned previously. This is important to enable a healthy expansion of the ecosystem. Our emphasis on the market forces at play is rooted in the assumption that through the observation of the current trends of commercialization and of the growing number of non-traditional actors (either public or private) stemming from old and from new space-faring nations, it is easier to anticipate risk and to provide supporting regulatory proposals.', 'Our suggested approach toward an adaptive and polycentric governance model attempts to resolve some of these challenges, by allowing for a bottom-up framework that fosters commercialization, to surface organically, from the players, with minimal outside intervention. Our goal is to prevent the risk of privatization and commercialization that might gradually erode the ethical principles of international space law. To use the analogy of the carrot and the stick in striking a balance between regulatory intervention and free initiative, we prefer the carrot approach. Incentivizing the private sector to compete around ethically balanced markets has the potential to unlock new and unforeseen forces of antitrust in space to channel the fragmentation of forces in a sustainable manner while ensuring the respect of the conventional set of ethical principles to which many corporations already subscribe to in the context of their corporate compliance programs. Here we would an additional layer of space law higher ethical principles (such as enumerated supra) and investigate into further incentivizing soft law implementations. These higher principles are rooted in system interconnectivity and complexity, and have direct consequences on life, planetary protection, environmental aspects, intergenerational equity, etc. In approaching these issues through the angle of antitrust, we argue that antitrust is bound to evolve and to adapt, both in Space and on Earth. Furthermore, a broad space antitrust scope might also benefit from polycentric governance when concrete self-determination claims would manifest, such as Elon Musk’s self-governing principles on Mars. Any future space colonies (or settlements) would either rely on their own resources or would depend on the import and the export of resources, and therefore, on resource commodification. It then follows that having an ethical space antitrust regime well in place appears as a foreseeable necessity. An ethical space antitrust should also consider non-market factors such as the potential new rights granted to specific resources and regulate accordingly (e.g. the equivalent in space of legal rights to natural resources, etc.). Without such an ethical regime framework harnessing uncoordinated competitive forces, one possible outcome would be the dystopia described by Andy Weir’ Artemis economy on the Moon based on “soft landing grams” credits directly applied to one’s consumption of oxygen. A bleak perspective. Finally, antitrust is an adequate response to space property and resources, as property law is, at its basis, domestic law and so is competition law. They can evolve in parallel in the space sector and merge into an international framework, adapted to the international space law forum. There is no internationally harmonized antitrust framework as of this writing, except non-binding UN guidelines. Perhaps, a “space antitrust” would help bridge that gap and contribute to reducing growing issues such as “forum shopping,” fragmentation and “conflict of laws.”', '12. Limitations and further research', 'While this paper is at the exploratory level, further research is necessary in determining the scope of antitrust in space, property and commodities and how ethics can play a role specifically, at the implementation level. Case studies should be conducted with a clear methodology. Moreover, the research must include other financial aspects such as spacebased assets and securities, notably the Space Assets Protocol of the UNIDROIT Cape Town Convention. Finally, more work must be done in terms of international/transnational recommendations for antitrust, as there is no internationally harmonized antitrust governance or regime and it remains heavily politicized – or not enough, depending on the school of thought (Teachout, 2020, p. 212).', '13. Conclusion', 'This paper explored a roadmap into managing fragmentation triggered by the accelerated development of the outer space ecosystem and the rise in non-traditional space actors, be they public or private. International space law no longer suffices to cope with all the new actors, and therefore, transnational alternates are recommended. This paper recommends a transformed antitrust regime, adapted to space, based on the corpus juris spatialis ethics. This could help preventing the risk of space law erosion while privatization and commercialization of space are trending and potentially leading to the commodification of the space market and ecosystem, while space lawyers are still debating internationally as per the principle of non-appropriation and as per what a “space object” should consist of and what property rights could be applicable in space. An interdisciplinary approach could prove very helpful to address this problem. For instance, E. Ostrom’s work on classifying the goods into four categories from an economic standpoint might help space lawyers into classifying space goods once and for all and this could serve as a catalyst for polycentric space governance, governed inter alia, by competing forces. However, these competing forces should rather be seen as the dark matter in a space ecosystem, enabling sustainable synergies and interactions, with intergenerational equity in mind. This would be essential to avoid unregulated speculation based on space commodities, which could prove to be more detrimental in such an extreme environment as space. For instance, speculation benefits from climate change impact on crops and other commodities on Earth. We are all too familiar with the consequences. Imagine what space weather-based speculation could do in space. It could obliterate entire economies at once. One could argue that either space antitrust monitors the space commoditization closely, either space derivatives should be significantly regulated.']

[(6, 24), (32, 39)]

b31a308abfdc001c45a0768b6592a2547130db1158234b58c0a43d5982759e82

Exclusionary financing locks down on-orbit manufacturing---key to ZBLAN, solves organ shortages, AND replaces terrestrial production

Peter Ward 19, business and technology journalist whose work has appeared in GQ, Bloomberg, The Economist, and Newsweek, Columbia University Graduate School of Journalism, “9. Floating Factories,” The Consequential Frontier: Challenging the Privatization of Space, Melville House, 2019, pp. 123–137

The race to be first The winner will become powerful ZBLAN is prone to impurities doesn’t matter in zero-g sufficient for years of tech from alloys to organs are thin can be fabricated without gravity forcing collapse A private station create unfair competition entrepreneurs would be at the mercy of the only game in town considering complexity and costs it’s hard to imagine a robust market A single station becomes a platform if you have 10 and only space for three the platform can choose and set deals That’s a policy challenge to competition authorities even space lawyers aren’t thinking about monopolies despite several companies building stations in the next decade

the ISS will be decommissioned leave scientists without a base to conduct vital studies The commercial sector is ready to fill that gap at least three have serious plans to launch space stations These floating factories will offer research and manufacturing But a fierce race is underway to be first The winner will become a powerful part of the new economy orbiting Earth CREATING PRODUCTS IN SPACE in some cases makes sense on a purely economic level . The perfect example is optical fiber Incredibly brittle ZBLAN that is intertwined to make delicate fibers is prone to impurities brittleness doesn’t matter if you’re working in zero-g as the lessened force has a smaller chance of damaging the product a California-based 3D-printing company has already begun testing ZBLAN production at the ISS sufficient for years of developing the tech nology Everything from metal alloys to human organs could benefit from being manufactured in space. The key is microgravity allows metals to mix evenly human organs intricate structures are made of extremely thin materials can be fabricated without gravity forcing the structure to collapse before it’s had a chance to set and solidify But the ISS succeeded on the strength of countries coming together This new gen eration on the other hand, will be in competition that could cause issues . A private space station could create unfair competition among the companies using it. If one corporation built its own station and became the only one in existence , any entrepreneurs relying on manufacturing space inside such a facility would be at the mercy of the only game in town . considering the huge complexity and costs associated with putting a space station in orbit, it’s hard to imagine enough being active at the same time to create a robust market place A single space station when it gets to the mature level where you get real capacity to manufacture something becomes a platform And if you have 10 companies and they only have space for three you’ve got a situation in which the masters of the platform can pick and choose and set deals that give them real control That’s where you have a real competition policy challenge that has fallen away from NASA away from DOD , to terrestrial competition authorities the international nature of a space station layers even more complexity into the situation even space lawyers aren’t thinking about these potential monopolies in space antitrust experts on Earth tell you it isn’t an area of expertise The problem seems so outlandish nobody is even considering it , despite the fact several well-funded companies are haring toward building their own stations in the next decade

decommissioned base vital studies commercial three launch space stations factories research manufacturing race first winner become powerful economy SPACE sense economic level optical fiber brittle ZBLAN impurities brittleness doesn’t matter zero-g damaging testing ZBLAN production ISS years tech metal alloys human organs microgravity metals mix evenly organs intricate structures thin materials fabricated without gravity collapse solidify ISS countries together new gen competition issues private station unfair competition only one in existence manufacturing space mercy only game in town complexity costs hard to imagine robust market single space station platform 10 companies three masters of the platform choose set deals real control policy challenge away from NASA away from DOD terrestrial competition authorities international nature more space lawyers aren’t thinking monopolies antitrust Earth isn’t an area of expertise seems outlandish even considering it several well-funded companies next decade

['THE INTERNATIONAL SPACE STATION (ISS) IS, ACCORDING TO some estimates, the most expensive single object ever built. The $100 billion spacecraft orbiting around 240 miles from the Earth’s surface is a representation of what the world can achieve when it works together for the sake of science and the advancement of the species. But all good things come to an end, and at some point in the next decade or so, the ISS will be decommissioned or handed over to new owners. That could leave scientists around the world without a base from which to conduct vital studies on space, our universe, and our planet. The commercial space sector is ready to jump in and fill that gap, and at least three companies have serious plans to launch space stations into orbit in the coming years. These floating factories will offer research tools, tourism destinations, and manufacturing capabilities. But a fierce race is underway to be the first one up in space, or to take over the ISS. The winner will become a powerful part of the new economy orbiting the Earth, and will likely change the way we view space stations, from government-run science hubs taking on experiments of national interest to profit-driven factories floating around the planet.', 'In 2005, the ISS was opened up to the commercial sector through a declaration by the U.S. Congress. The new designation of “National Laboratory” meant space research from commercial and academic users could be carried out alongside government work.1 This was the first, small step toward a commercial space station. The ISS National Laboratory was formed to handle all non-NASA research, and in 2011, the Center for the Advancement of Science in Space (CASIS) was selected to manage the research facility. CASIS is a nongovernment, nonprofit organization tasked with promoting a wide range of research on the ISS. But that may not be so for too much longer. The Trump administration has put forward a proposal that the United States should stop paying for the ISS in 2025 and use some of the money it saves to help deploy a commercial space station as a replacement.2 One proposal would see the ISS partially or completely privatized, with some of the $900 million a year in savings earmarked for the transition to a new commercial space station. The science and equipment in the ISS could be transferred to its new home, most likely a space station that is attached to the ISS for some time, via modules built by private companies that would eventually detach and operate on their own.', 'There are four major companies in the running to either take control of the space station or launch their own. All of them have different backgrounds and have taken unique approaches to fundraising. Not all of them will succeed.', 'AXIOM SPACE IS LED BY CEO MICHAEL SUFFREDINI, A FORMER NASA employee who ran the organization’s ISS program for a decade before he retired from government life in 2015. Suffredini was largely responsible for shifting the ISS away from government-led science toward becoming a haven for private research. But even with that kind of experience at the helm, there’s still the question of how you fund as massive an undertaking as the launching of a space station and operating it at a profit. That task fell to Amir Blachman, who was introduced to Suffredini at an ISS Research and Development Conference in 2015.', 'Blachman, who speaks as knowledgeably as he does straightforwardly, has a history of investing in space startups and spoke to Suffredini for more than a year before joining the company. He studied Axiom in the same way he would an investment. “I was looking for companies that do something large scale, something that’s life improving on Earth, something that moves the needle in terms of international cooperation, a company that is led by people who are really top notch in their fields and not people who are newbies to the subject,” said Blachman by phone.3 He adds that he wants to work for people who are “very well-connected in the business area that they operated because it’s just one of the most important ingredients to getting a large-scale business off the ground. And lastly, an ingredient that I thought was very important when I was seeking out which types of companies I want to invest in and work with is the issue of timing, and making sure that the company is creating something that the world is thirsty for now and not 10 years ago or 10 years in the future.” ', 'Blachman found that Axiom Space ticked all of those boxes, and he established an investment strategy for a company that would need huge amounts of cash. “The company has two overarching phases to his business. The first is what’s going on right now, which is sending our customers to the International Space Station. Simultaneously, we’re starting construction of the new station,” explained Blachman. “And the second phase of the business will be sending people to our modules while they’re connected to the International Space Station during assembly and ultimately to the station when it’s separated from the ISS on ISS end of life. And at that point, we’ll be operating a standalone commercial station.” ', 'The first phase of the plan involves offering countries without established space programs the training and know-how to get a crew up to the ISS. Axiom will offer a wide range of services, from astronaut selection and training to advice on how to ensure that a space program would benefit a country’s science and technology education systems. This revenue will provide the bulk of the funding for the space station. “We see those milestone payments well in advance and…the business is customer funded in that sense,” said Blachman. “So we don’t need to raise any more capital for the business of the missions to ISS. Really, the only capital we’re raising is to partially fund the construction of the station, which to a great degree is funded by customer proceeds as well.” He also says the funding to build the space station will be 25 percent from the sale of equity in the company, about 5 percent from debt facilities, and 70 percent will come from customer proceeds. Asked if there will be any government funding for the station, Blachman is adamant there won’t be anything directly from NASA, but does say the majority of its customers will be governments, so a large amount of cash will come indirectly from the public sector.', 'Axiom boasts plenty of experience and expertise, but it is led by ex- government employees and intends to rely on a construction method —building the station on the ground and assembling it in space—that may soon seem dated and overly expensive. Meanwhile, a smaller competitor has taken what is arguably a more innovative approach, although its priorities may take it to the Moon rather than just the space station.', 'Bigelow Aerospace was set up by the hotel magnate Robert Bigelow, an eccentric yet low-key billionaire who made his fortune in real estate and owns the Budget Suites extended stay apartment chain. Bigelow has been fascinated with space for a long time, and aside from wanting to take his business to the cosmos, has spent significant amounts of money trying to prove the existence of aliens. It was reported by Forbes that Bigelow had given an estimated $10 million to fund a now-defunct UFO-hunting group called the National Institute for Discovery Science.4 He is also believed to have bought a 480-acre cattle ranch in Utah in 1996, a site that some believe holds an inter-dimensional doorway used by alien shape- shifters. So far, so weird.', 'But Bigelow has proved he shouldn’t be written off because of his eccentricities. He is a self-made billionaire, and in 2000 he made the shrewd decision to license a technology that NASA had developed and discarded. The TransHab, short for Transit Habitat, project aimed to build an inflatable craft that would be cheaper than the ISS and could be used on a journey to Mars. When U.S. Congress cut funding in 2000, the project was shelved out of fear that another type of module would distract from the over-budget and behind schedule ISS.5 Bigelow swooped in.', 'By 2006, Bigelow was ready to launch a version of the technology, an inflatable craft called Genesis. Launch prices in the United States at the time were too high, so the company chose a Russian rocket to send its first test craft into orbit. Genesis I inflated to 14 feet long by 8 feet in diameter and successfully orbited 350 miles above the Earth. Just under a year later, Bigelow was ready for his next test launch and sent Genesis II up into space from Kosmotras Space and Missile Complex near the town of Yasny in Russia. This was also a success, and provided Bigelow with the chance to experiment with a few money-making ideas. Through the company’s website, space enthusiasts were offered the chance to put objects into the spacecraft for $299 an item. A wide range of objects were taken to space, including the ashes of loved ones, business cards, and photos. Bigelow also attempted to launch a bingo cage into space (the draw would have been beamed back to Earth via a video link), but the automated arm that would select the bingo balls jammed on the first attempt. All this was leading up to BEAM, the Bigelow Expandable Activity Module, which would theoretically be a habitable spacecraft that could be attached to the ISS. In 2016, Bigelow gathered journalists, industry members, and space insiders at his factory in Nevada to show off BEAM, which by that point was ready to be sent to the ISS.', 'He stepped up to a podium and began to publicly scold those who doubted him. “You laughed at me,” he said to the crowd. “When we said we would build an expandable system and place it on the International Space Station in two and a half years, you laughed,” he says. “It’s been two years and a quarter. And here we are.”6 In April that year, BEAM was launched to the ISS aboard a SpaceX flight, and was unpacked and installed by the British astronaut Tim Peake. After some early teething problems, the module was inflated a year later, and remains a part of the ISS today.7 ', 'An inflatable space station is obviously lighter and less expensive to launch into space, but the early designs at NASA ensured it would be completely secure. The inflatable shell of the original TransHab was made up of almost two dozen layers and included superstrong materials like Kevlar to protect it from space debris. When BEAM was sent into orbit, the packed up and deflated module took up 1,400 kilograms of the 2,000 kilograms of space on the SpaceX flight. Although that was a large portion of that payload, it was nothing in comparison to a regular space station module. For example, Tranquility, another ISS module, weighs about 19,000 kilograms. The BEAM module reaches 16 cubic meters in size when it’s completely inflated, the size of a small bedroom, or a New York City apartment.8 ', 'The Bigelow module has been so successful that NASA has decided to keep it attached to the ISS for at least three more years, time that will allow the company to make tweaks and figure out how it will work on a grander scale when it sends a standalone space station into orbit. NASA is currently playing host to the technology and allowing it to develop, but once Bigelow strikes out on his own, the agency will once again become a customer, essentially leasing the BEAM for research. The company’s next space station modules are called B330s, named because they have 330 cubic meters of space, and Bigelow aims to launch two of them in 2021.9 These are standalone modules that are capable of housing six people, and they will go up to the ISS, be inflated as a module there, then detach and become their own self-sustaining space station. In 2018, Bigelow Aerospace announced the formation of a new company, Bigelow Space Operations, to handle selling research room on the modules and even selling the modules themselves.10 ', 'Blachman at Axiom Space believes Bigelow’s inflatable space station modules have an important part to play in the lower Earth orbit economy, despite them being something of a competitor. “We actually hope that they’ll succeed because, you know, that’s something that we would have use for going forward. So our success is also Bigelow’s success in that sense. It’s just going to take a longer time to have this available because there’s so much yet to be developed around the expandable concepts.” ', 'So far, commercial space stations have been closely linked to governments around the world. The ISS sits at the heart of the process, and the business plans of both Axiom Space and Bigelow Aerospace rely heavily on government contracts, whether that’s selling their services or, in the case of Bigelow, licensing them to then develop and sell. Other companies have built businesses gradually out of public projects, but now firms are entering this part of the space economy with no previous experience and business plans that are far more uncertain.', 'Frank Bunger is the CEO of the Silicon Valley startup Orion Span. He tells a familiar tale of how he got the idea to take his entrepreneurial skills off-world—he was disappointed by the government’s lack of progress in space and felt the need to make a move himself.11 That move is the Aurora Station, which Orion Span describes as a luxury hotel 200 miles above the Earth. “I think what got me excited in the last 15 years is that we saw the advent of organizations like SpaceX and Blue Origin,” Bunger told me. “When they started, people thought they were crazy. What they have proven is that it is possible to be a privately owned and operated rocket launch company. So what we see with that trend of privatization of space is that it started with the logistics part, but what’s coming next, what I felt the time is right for is the privatization of the destination. Aurora Station is a destination for tourists, professional astronauts, and researchers.” ', 'Bunger has set an ambitious timeline for this plan. The company wants to send its first customers up to the fully functional space station in 2022. Pricing for the 12-day trip will begin at $9.5 million per person and can be secured with an $80,000 deposit. That price includes a three-month astronaut training program. Bunger has no prior experience in the space industry, and his most recent full-time position was with a software automation company, but he’s confident he can get the space station into orbit without the extreme cost associated with government projects like the ISS. “Unlike government we have a profit motive here,” he said.', 'Orion Span plans to send the space station module up into orbit fully constructed, so no work will need to be done on it once it’s up there. The plan is to launch it in 2021, and according to Bunger, that version won’t be the finished product, but will be operational and will enable the company to start monetization. One of the ways the company hopes to keep costs down is through a modular design, meaning the space station can be expanded whenever there’s more demand. “We start with one single launch that goes up and starts generating revenue. When it reaches capacity, we launch another of exactly the same type of space station and attach it perpendicularly to the existing one. So the goal is to grow precisely with market demand and not more,” Bunger explained.', 'But here’s the problem—the space station doesn’t exist yet. Bunger is taking vast amounts of money from people for what some inside the industry believe is a business plan that doesn’t add up. “They’re not going to be around for long because they are selling something that just doesn’t exist,” said Blachman. “It costs tens of millions of dollars to buy a seat on a station, and they’re purporting to send people out for $9.5 million for 12 days. The math doesn’t work. And the technologies that will support a launch cost that is that low, they’re still a decade or two away from happening. It’s a nice concept. It’s fun to see the interest there, but it’s not a serious business.” ', 'Orion Span has deployed other methods to raise funds besides selling tickets to space. One of them, rather alarmingly, is crowdfunding. The wording of the press release hinted at a company running out of options and turning to space-hungry enthusiasts to make up the difference: “When we introduced Aurora Station earlier this year, we had an incredible, almost overwhelming response. It wasn’t a surprise, as there is so much excitement around the prospect of space travel right now. We’re thrilled to be opening up this project to the broader public, giving everyone a chance to chip in on the ultimate mission to colonize space and share in this historic moment.”12 The company’s crowdfunding will be hosted at SeedInvest, a platform that promises regular people the kind of investment opportunities usually reserved for the venture capital giants and wealthy angel investors. The platform says it vets all of the companies offered as an investment opportunity through industry experts, but they cannot be any better than the VCs themselves, who have a poor enough hit rate to begin with. Worse yet, these would-be investors can put their money into Orion Span, but it won’t get them anywhere nearer to space.', 'Crowdfunding can be a great way to democratize the investment process and allow companies that normally wouldn’t attract big money to go straight to the public and ask for the help to get started. But when a company is already relying on the huge deposits of paying customers to get started, a crowdfunding campaign seems like a way to plug the gaps. The premise of crowdfunding is that a mass of people can make something happen that will ultimately benefit them or the world. The average space enthusiast able to afford supporting Orion Span with a couple of hundred dollars is not likely to buy the multimillion-dollar ticket when the program is ready.', 'The barriers to enter the commercial space station game are still prohibitively high, and although Orion Span may yet prove people wrong, some parts of the off-world economy are available only to the extremely wealthy or the well-connected. Blachman even believes that lesser equipped companies like Orion Span could do more damage than good. “This is an industry where you still have to have a great deal of expertise and the technology needs to be ready and the relationship with the customer base needs to be there. But most importantly people can’t come in…without experience and just ignore the numbers,” he said. “They’re doing something that’s actually injurious in that they’re asking people to put down deposits for something that isn’t going to exist. And raising capital now through a crowdfunding campaign, it’s a little bit circumspect and that’s not the type of thing that we want to see. We want to see bona fide projects going on that really benefit the reputation of the industry and attract investors to it.” ', 'The other entrant in this race is Jeffrey Manber, the man who was there when the Russians first tried to commercialize space back in the 1990s and who ran MirCorp before the space station was grounded. He’s now CEO of NanoRacks. Armed with his experience from Russia, he returned to the space station industry in 2009. He’d heard that there was unused space on the ISS that he could utilize and put together a proposal for NASA. “I said, ‘I don’t want your money,’ which got their attention. I want the ability to put research hardware on the station. We’ll pay for it, and you’ll let us market to whom we wish.”13 NASA agreed, and NanoRacks started with a tiny lab. This arrangement was so revolutionary at the time, Manber didn’t know what to charge his customers. First he asked for $90,000 for using the lab on the space station for three weeks, and nobody was interested. He lowered the price to $70,000, and there was still no interest. Eventually he offered the same deal for $35,000 and started to get customers. From there, the company expanded, and has now deployed over 200 satellites from the station on behalf of its customers and has an external platform outside the station. Manber’s customers include governments, academics, and others who are unable to secure their research projects on the official ISS payloads. The service the company offers allows more people to get onto the space station and brings the costs down significantly by having all the infrastructure in place and ready to go. ', '“We are the largest investor in the space station,” said Manber. “I have over $40 million committed to ISS and so step by step have shown ourselves, NASA, the industry, how you can have a relationship between the governmental space agency and an entrepreneurial company. Why do I have customers? Because the private sector can sometimes offer services more efficiently and at a lower price than the government.” ', 'The next step is for NanoRacks to build its own station, and Manber thinks he can do it cheaper and more efficiently than anyone else. NanoRacks wants to take the spent upper stages of rockets, which are floating around in the lower Earth orbit causing nothing but problems, put them together, and build a space station. The company was able to prove to NASA this was possible in 2018, and is now making its case as the forerunner in the space station sector. “At NanoRacks, we like to say we’re the world’s first commercial space station company with customers,” said Manber. “Because no knocks to my friends at Bigelow and Axiom and other places, but we’re in the space station business today. I’ve got customers, I’ve got assets, and we’re growing the relationship. At the same time we’re also investing heavily in how to have commercial platforms that are as economically efficient as we can have, and we’re looking at repurposing space hardware.” ', 'The diversity of each company’s plans shows just how novel this area of space is. Nobody really knows how to make a commercial space station because it’s never been done before. The most serious contenders appear to be Axiom Space and NanoRacks, and both companies are well aware of the difficulties they face. Not only do companies like these fear viable competitors, they fear competitors with a business plan that makes no sense. Too many highly publicized failures and the idea of a factory floating in space quickly move from an exciting opportunity to an unnecessary and expensive pipe dream. It’s highly unlikely there will be demand for several space stations (at least initially), so no mistakes can be made, or the replacement to one of the most expensive public projects in history could quickly become a giant reminder of the difficulties of building an economy in space.', 'CREATING PRODUCTS IN SPACE IS A COMPLEX AND BURDENSOME undertaking, but in some cases it makes sense on a purely economic level. The perfect example is optical fiber, one of the most sought-after materials in the modern world as a component of telephone and internet lines. Historically copper wire was used to transmit information like phone calls, but optical fiber, which is as thin as a human hair, has almost completely supplanted that technology, allowing messages to travel greater distances with better signal quality. Incredibly brittle, the glass (called ZBLAN) that is intertwined to make these delicate fibers is prone to impurities, which lessen the overall quality. The brittleness of the glass doesn’t matter if you’re working with it in a zero-gravity environment, as the lessened force has a smaller chance of damaging the product as it’s being made.14 ', 'Made In Space, a California-based 3D-printing company with the goal of printing items in space, has already begun testing its ZBLAN fiber optics production at the ISS. Made In Space has had a 3D printer at the ISS since 2014, which has enabled crews to print out spare parts and tools as they are needed. The idea is that rather than having to send individual parts up to the ISS at great expense, the plans for the parts can be sent electronically and the 3D printer can produce them on demand. Emboldened by that success, Made in Space sent a device to produce ZBLAN to the ISS, as well, and is leading the pack of companies attempting to begin manufacturing operations in space.15 The company’s major competitor is FOMS, which stands for Fiber Optics Manufacturing in Space.', 'FOMS has also secured a deal to send their own fiber-optic- making device to the ISS, and has the manufacturing payload ready to go, with the flight set for the first part of 2019. The company is confident it will turn a profit fast. “Manufacturing in orbit becomes profitable only for volume production of optical fiber. Fiber is priced per meter and shipped to orbit by kilogram,” said Dr. Dmitry Starodubov, chief scientist of FOMS.16 “The simple accounting estimates indicate that the price of the fiber exceeds the orbital delivery costs by at least an order of magnitude. It is essential to ensure the efficiency of fiber fabrication technology and optimally adapt the process for ISS implementation. FOMS has developed and patented a unique fabrication approach that optimally addresses these requirements. Even the first experimental payload has the opportunity to exceed 40 percent profit margin in the initial flights.” ', 'Starodubov says that the company aims to manufacture on the ISS for as long as possible, and he believes the station will be sufficient for the next five years of developing the technology. At the end of that time, FOMS would then consider trying to secure a dedicated manufacturing space at the ISS or a separate, stand-alone platform. Starodubov claims that a FOMS payload weighing 50 pounds could produce 50 kilometers of fiber, and that the full utilization of current payload capabilities will lead to a profitable operation, but when this manufacturing process will afford a dedicated mission, in which the company doesn’t share payloads with others, or a dedicated facility in the ISS is “a separate discussion.” ', 'Everything from metal alloys to human organs could potentially benefit from being manufactured in space. The key is the microgravity environment. In the case of metal alloys, this lack of gravity allows metals to mix together evenly, allowing metals that cannot be formed on Earth to be created in space. A wind turbine created from a metal alloy made in space will be much stronger and lighter, for example, as it will be made from a combination of metals not possible on Earth. The science behind human organs being printed in space is that, in microgravity, intricate structures that are made of extremely thin materials, like the human heart for example, can be fabricated without gravity forcing the structure to collapse in on itself before it’s had a chance to set and solidify.', 'Blachman says Axiom has already begun discussions and signing formal agreements to work with manufacturing companies looking to produce objects in space. But he believes that manufacturing won’t become a significant revenue generator for the company until around 2025. “I think ultimately what you’ll see happening on the manufacturing side is that we’ll have dedicated areas of our space station and entire modules that are dedicated toward larger-phase manufacturing,” he said, adding that once the potential in this area is properly explored, there will be a need for “serious infrastructure” in orbit.', 'Whether generated by tourism, manufacturing, or government research, there are enough dollars floating around the lower Earth orbit to be sure that there will be several new space stations orbiting the planet in the future. But the ISS succeeded on the strength of some of the largest countries in the world coming together to build something mutually beneficial. This new generation of stations, on the other hand, will be in competition with each other, and that could cause issues.', 'One person who has concerns is Dr. James Vedda, a senior policy analyst in the Center for Space Policy and Strategy at the Aerospace Corporation, which operates the federally funded research and development center for the space industry in the United States. “Is there going to be some authority that specifies what the habitation conditions should be? Whether that’s temperature range or composition of the atmosphere onboard,” Vedda asked during an interview.17 “Is there going to be some specification for what the docking collars should be, how they should be designed so that there are multiple options for rescue? If they get into trouble up there, you can’t have half a dozen different private stations up there and then each one has its own proprietary docking collar and they can’t help each other if there’s an incident.” ', 'A private space station could also create unfair competition among the companies using it. If one corporation took over the ISS or built its own station when the ISS is retired and became the only one in existence, any entrepreneurs relying on manufacturing space inside such a facility would be at the mercy of the only game in town. And considering the huge complexity and costs associated with putting a space station in orbit, it’s hard to imagine enough of them being active at the same time to create a robust marketplace. ', '“A single built-out space station, when it gets to the mature level where you get real capacity to manufacture something in it, at that point it becomes a platform,” said Barry Lynn, of the Open Markets Institute.18 “And if you have 10 companies and they want to test manufacturing in space on this platform and they only have space for like three of them at any one point, then you’ve got a situation in which the masters of the platform can pick and choose and set deals that give them real control. That’s the point where you have a real competition policy challenge. So then at that point you have a challenge that really has now fallen away from NASA, away from DOD, to terrestrial competition authorities.” And the international nature of a space station layers even more complexity into the situation. Taking the example of the two competing fiber optic manufacturers, if both were looking for the means to manufacture in space, and a private space station, from Axiom Space, for example, was the only such station, Axiom would hold a great deal of power over the two companies and the global fiber optic industry by extension.', 'Unfortunately, even the space lawyers aren’t thinking about these potential monopolies in space, and ask most antitrust experts here on Earth, and they’ll tell you it isn’t an area of expertise. The problem, like many potential challenges for private space companies, seems so outlandish nobody is even considering it, despite the fact several well-funded companies are haring toward building their own stations in the next decade. We can compare this to the field of DNA editing here on Earth. The whole concept sounded so much like science fiction that when the first significant steps were actually made, the world freaked out collectively. In the coming years, there’s every chance these two pursuits of working in space and editing human genes will be deployed together, as each stands to benefit the other.']

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1957664e63ec13311ade3217e9e7cff83d4b24543186fa7788a40c1a6354e904

ZBLAN solves all risks AND prevents impending data crunch

Dr. Steve Welch et al. 21, Dr. Dave Welch, Founder and Chief Innovation Officer, Infinera; Dr. Claudio Mazzali, Senior Vice President, Technology, Corning Optical Communications; Andre Fuetsch, Executive Vice President & Chief Technology Officer, AT&T Services, Inc. and Lynn E. Nelson, Lead Member of Technical Staff, Optical Platform Development, AT&T Labs; Dr. Steve Grubb, Global Optical Architecture, Meta, “The future of fiber optic innovation,” Light Reading, Parts I-IV, 2021,

Fiber optic s transform societies more than any other tech m l medicine automation no alt can replace the capacity society's greatest challenges eliminating poverty conversion of energy and transport financial systems governments bandwidth growth enables low-latency analysis enable understanding environmental issues revolutionize how society solves problems Today is limited by ability to power the repeater chain we need innovation in cable design we have too much data by a thousand fibers such as ZBLAN manufactured in zero g give time to create next gen sub cable innovation

Fiber optic communication s result ed in the greatest transformations in the history of mankind . The ability to communicate seamlessly , pervasively and economically transform ed societies more so than any other tech advancement m achine l earning, remote medicine , and automation All depend on fiber optic communication there is no alt ernative that can replace the staggering data capacity that optical fiber delivers To think about where communications will take us think about society's greatest challenges society will go through a transformation of the work place, a reinvention of the classroom , and the redefinition of cities . A focus will be placed on eliminating poverty , the conversion of energy and transport and the uniform optimization of human endeavors communication tech have started to reinvent our financial systems , our governments the definition of national borders bandwidth growth and reduction in cost enables continuing low-latency applications or centralized for high-power computing and efficient caching use of m l and a i will augment analysis of medical data, enable understanding global environmental issues enable cost-effective bandwidth on a truly massive scale there is a predictable trend for ever-increasing bandwidth, with an associated increase in the utility of that bandwidth to society's needs. Overlaid on this predictability we see a series of unpredictable technological and architectural breakthroughs that inevitably depend on the availability of cheap, plentiful bandwidth. The technologies of the past have already enabled an unbelievable degree of change in the world in the next years data revolutionize how society solves problems society depend on fast and reliable communication As a i become widespread this dependence on optical fabric can only increase Today the MAREA transatlantic cable has a potential capacity of 224 Tb/s – a 200,000 times increase in 30 years. Like Moore's Law, this Neptune's Law of capacity scaling has required a monumental investment the capacity of submarine cable systems is directly limited by our ability to power the repeater chain that boost the optical signal along the entire length of the cable to ensure that Neptune's Law has a future we need to drive innovation in future cable design s we have too much data today, and in the future, we will have too much data by a factor of a thousand . The increase in demand for capacity in all parts of the network seems to be unbounded What we need to keep scaling is more useable bandwidth in the fiber In the past, submarine cables were designed to support the maximum capacity per fiber pair Upgrading transponders allows us to increase capacity modern cables like MAREA work at peak performance. Running repeaters in that mode requires a lot of electrical power To drive that power over thousands of kilometers of cable, modern power feeds operate at extremely high voltages we need to dust off our crystal balls as we consider the use of fibers such as ZBLAN – an exotic fluoride glass mixture that has to be manufactured in zero g ravity. Clearly that would suggest a high price tag but bandwidth does command a premium that will give engineers of the future time to create the next gen eration of sub marine cable innovation

Fiber optic s result greatest transformations in the history of mankind communicate seamlessly pervasively economically transform societies any other tech advancement m l medicine automation depend fiber optic communication no alt replace staggering data capacity will greatest challenges work classroom cities poverty energy transport uniform optimization of human endeavors communication tech financial governments national borders growth cost low-latency high-power computing caching m l a i analysis medical understanding environmental massive scale utility depend past already unbelievable next data revolutionize society solves problems depend reliable a i widespread optical fabric increase Today MAREA 224 Tb/s monumental investment limited power the repeater chain boost the optical signal along the entire length of the cable future drive innovation in future cable design data factor of a thousand all parts of the network unbounded useable bandwidth fiber fiber pair transponders capacity modern MAREA peak repeaters electrical power extremely high voltages need to dust off our crystal balls fibers ZBLAN exotic fluoride glass mixture zero g high price tag bandwidth premium that future time next gen sub cable innovation

['[PART I---WELCH]', 'Fiber optic communications systems have resulted in one of the greatest transformations in the history of mankind. The ability to communicate across the globe seamlessly, pervasively and economically has transformed our societies more so than any other technological advancement. Over the past decades, we have moved from phone calls to video, machine learning, remote medicine, and automation and control systems. All these depend on fiber optic communication systems coupled with data center environments. To be clear – there is no technology alternative that we know of today that can replace the staggering data capacity and global reach that optical fiber delivers.', "To think about where communications will take us, we need to think about society's greatest challenges. In the coming decades, society will go through a transformation of the workplace, a reinvention of the classroom, and the redefinition of our cities. A focus will be placed on eliminating multi-generational poverty, the conversion of our energy and transportation systems, and the uniform availability of data for the optimization of human endeavors. In response to many of these challenges, communication technologies have started to reinvent our financial systems, our governments, and the definition of our national borders, while access to information will continue to become even more ubiquitous. In the coming decades, fiber optic technologies will follow this path as high-performance communications become even more vital in our lives. ", 'The scale of bandwidth growth and the ongoing reduction in its cost enables a continuing drive toward data centers that are either optimized for low-latency applications or centralized for high-power computing and efficient caching of information. Although information will continue to be valued and shared, we will enter into a new era where it is the analysis and management of that data that changes our lives. The use of machine learning and artificial intelligence control systems will augment human analysis of medical data, enable the understanding of local and global environmental issues, and automate tasks that support a greater understanding of our endeavors.', 'Optical communication technologies will continue to be based on the intrinsic synergy between fiber and semiconductors because together these elements enable cost-effective bandwidth on a truly massive scale.', 'As a way to deal with that scale at the edge of the network, we will see a growing trend toward optical aggregation rather than electrical aggregation, because only optical aggregation can deliver ongoing reductions in cost and power consumption per bit.', 'The existing trend toward the virtualization of switching and routing will continue and enable a simplification of network architectures, driven by the move toward appliance-based building blocks. Interface standards between elements that are functionally optimized will continue to evolve and enable more open optical technology. Those technologies will become deployed in a bandwidth-on-demand and software-reconfigurable architecture such that edge elements will rarely need to be upgraded. Provisioning will move from centralized to locally enabled in a highly responsive set of protocols that facilitate rapid re-provisioning of bandwidth and a byte-based economic consumption model. Bandwidth will become a utility, just as electricity is today.', 'Technological innovation will focus on devices and architectures that enable an overall power reduction of the network and a simplification of the connectivity from the user to the latency-sensitive and latency-tolerant data/compute centers in the network. Provisioning will require ever-greater security of information and validation of its integrity. Time will tell whether this will be achieved by the integration of optics into the electronics or if we will move to a radical simplification of the electronics and rely on optical processing for the simplification and power reduction of networks. ', "The past decades have shown that there is a predictable underlying trend for ever-increasing bandwidth, with an associated increase in the utility of that bandwidth to society's needs. Overlaid on this predictability we see a series of unpredictable technological and architectural breakthroughs that inevitably depend on the availability of cheap, plentiful bandwidth. The technologies of the past have already enabled an unbelievable degree of change in the world, and I expect nothing less in the next 50 years as data networks continue to revolutionize how society understands and solves its problems.", '[PART II---MAZZALI]', 'In an industry where forecasting even five years into the future is a challenge, predicting the next 50 years can seem an insurmountable task. At the same time, however, it can be a fun exercise worth considering.', "To avoid speculating around unconnected thoughts, let's start by looking at two complementary technologies: electrical (or copper-based) communications and wireless communications. Having already celebrated their 100th anniversary, we can examine what was happening at the 50th anniversary of the technologies. Perhaps even more simply, we can look at how the second 50 years was different from the first 50, when the technology was still being established.", 'When copper-based communication was 50 years old, it was already clear that another way to transmit information would be required, which triggered a race for alternatives in both microwave and optical waveguides. That situation consequently changed the focus during the second half-century of the technology to be around optimization and efficiency gains that could extend the life of the technology for as long as possible, or until another more cost-effective alternative could be fully viable. It was clear that alternatives would certainly exist.', 'In radio wireless communications, the situation was somewhat different. Although it was never viewed as the ultimate system for information transmission, radio wireless communications was never threatened by an alternative because being "wireless" was already its most relevant characteristic. That protection from other alternatives drove the evolution during its second 50 years in a very different direction, with the main emphasis on capturing other application spaces. ', "Looking through the same lens, the uniqueness of optical communications becomes intriguing. We have passed its 50th anniversary and don't see behavior like we experienced with either electrical or wireless transmission. One of the many rules of thumb in the industry today shows that when product data-rate times distance reaches about 100 Gbm/s, the techno-economics drive applications to move from electrical to optical. As data rates keep increasing in most applications, more and more spaces are turning optical, but without any expectation to turn into something else.", 'In addition, and from a totally different perspective, society has become much more dependent on fast and reliable communication. The way we work, entertain and connect with each other has made us fully dependent on a somewhat invisible optical fabric that is silently expanding. As artificial intelligence and machine learning become more widespread in our daily lives during the next decades, this dependence on the optical fabric can only increase. And we see already the beginning of this unavoidable expansion as the optical signal – once limited to long distances – has been moving deeper into all networks, in a trajectory that connects directly with wireless and shrinks the space for electrical transmission. ', 'The next 50 years of optical communications will most likely be dedicated to addressing key fundamental challenges to make the optical expansion more efficient and practical, and to make these predictions even riskier (and more fun).', 'The five top areas will, I believe, be related to:', 'Energy: Reducing the energy per bit to significantly under pico Joules per bit is feasible and will probably be the most significant driver to convert some of the last application spaces from electrical to optical. This will require a better and more efficient …', 'Integration between electronics and photonics elements, where key advancements are triggered by early initiatives in on-board and co-packaged optics with integrated photonics being the key player. Further gains will then be obtained by …', 'Miniaturization of optical components leveraging nanostructures and metasurfaces, where structures engineered at sub-wavelength dimensions will dramatically reduce the size and increase the efficiency of most optical components used today for light generation, management and detection. Once superior levels of efficiency are possible, we should see another step in …', 'Optical spatial density and robustness, where essentially more optical bits will be flowing per unit of area. This will happen practically with more fibers in cables, higher-density optical connectors, more optical ports in optical switches, etc. This increase in density will keep pushing the boundaries of robustness as optical communications covers more communication spaces, including harsh and consumer environments, which will bring us back to necessary advancements in … ', 'Photon management at its more fundamental level. Improved guiding through other mechanisms and materials (including air) and coupling in and out of fibers and other waveguides becomes essential as the amount of energy lost in coupling and decoupling becomes a barrier for big efficiency gains. This will be followed by the need to manage single photons, likely triggered by advancements in quantum computers that will naturally create a threat for classical encryption systems, driving the need for practical quantum communication systems.', '[PART III---FUETSCH & NELSON] ', 'The telecommunications industry is marking the 50th anniversary of the invention of low-loss optical fiber, marveling at the amazing progress in optical transport technologies and their revolutionary impact on people\'s lives. However, much of the rest of the world takes "bandwidth" for granted, as they do the air we breathe and water we drink, and continue to consume the bandwidth provided by optical transport at an exponential rate, assuming that more bandwidth will always be available.', "As we all witnessed, the global COVID-19 pandemic over the last 18 months has only accelerated the demand for bandwidth, as people worked, were educated, and even socialized, online at home. Figure 1 shows the daily IP traffic in AT&T's network in 2020, illustrating the equivalent of three years of growth in bandwidth utilization within only one week last March. Although the pandemic and lock-downs hopefully will end in 2021, people's online habits and consumption of bandwidth likely have been altered for the foreseeable future. Significant fractions of the workforce are anticipated to continue to do their jobs remotely, at least several days per week.", 'In addition to bandwidth demand driven by our active use in the home, the Internet of Things (IOT) continues to drive consumer broadband demand. Every second, 127 new IoT devices connect to the Internet (Source: McKinsey Global Institute), and consumer electronics account for approximately 63% of all installed IoT devices (Source: Statista). By 2025, the IoT data volume is projected to be 79.4 zettabytes (Source: Statista). And, despite the recent focus on doing work and school from home, people are anxious to return to living in a mobile and global world, where they expect the quality of their mobile connectivity, while "on the move," to be equivalent to what they experience at home on Wi-Fi. The adoption of 5G and, in the future, 6G will require further densification and more fiber to connect the small cells for fronthaul, while 5G and 6G are anticipated to also generate significant increases in backhaul traffic over optical fiber.', "It's clear that bandwidth demand will continue to increase exponentially. Optical transport capacity must scale to meet this demand, while at the same time the cost-per- bit must decrease, and optical transport equipment must become more space- and power-efficient. New, innovative technologies will likely be needed to increase optical transport capacity, along with further integration to lower optical transport costs.", 'Increasing optical transport capacity', 'In the 25+ years since the first optical amplifiers were deployed, enabling wavelength-division-multiplexing and elimination of frequent optical-electrical-optical regeneration, the pace of innovation in optical transport has been very rapid, allowing available capacity to stay ahead of demand. Today, optical systems can operate within a dB of the Shannon limit, and experts agree that moving even fractions of a dB closer to that limit will require very significant effort. Existing technologies could be further developed to achieve incremental improvements in optical transport capacity. For example, higher symbol rates (e.g. greater than 200GBaud), higher order modulation (e.g. 256 QAM), expanding the transmission band (e.g. to include S-band), utilizing hybrid-Raman amplification ubiquitously, enhanced nonlinear compensation, along with smaller CMOS node size (e.g. from current 7nm to 5nm to 3nm and smaller) are possibilities well-known in the industry.', 'However, the aforementioned technologies have limited prospects to continue to scale to meet the projected optical transport demand of 20+ years from now. A technology disrupter will likely be needed. As an example, the adoption of coherent detection with digital signal processing for long-haul optical transport was that disrupter in 2008, when direct-detection systems operating at 40Gb/s per wavelength were facing severe limitations. Digital coherent detection has also been adopted for metro applications, and as bit-rates climb, it is being considered for future shorter-reach applications, including "coherent-lite" within the data-center, assuming that the cost of coherent can be scaled appropriately.', 'Based on recent research in fiber-optics communications, we can speculate that a possible disruptor could involve one or more new technologies. Hollow-core or micro-structured fibers, where light is guided through a hollow region of air rather than through the silica glass core in conventional fibers, have been explored in research for over 20 years. Their attributes include low latency and low nonlinearity (i.e. high power can be launched into the fiber to increase the signal-to-noise ratio) Within the last two years, the loss of hollow-core fibers has been reduced significantly, and hollow-core fibers have been cabled, paving the way to potential broader applications beyond high-frequency trading. New optical materials are continually being explored, as alternatives to conventional Indium Phosphide and the more newly adopted Silicon Photonics. The search is also on for new material systems that can be integrated into Silicon Photonics. In addition, a break-through in optical amplification could enable scaling the optical transport capacity. Practical all-Raman amplification or the development of compact, inexpensive optical amplifiers that could be placed at short distance intervals could enable a nearly "transparent" optical fiber from a loss perspective.', 'On the other hand, full utilization of the information retrieved by the coherent receiver and possibly the use of machine learning could allow continuous monitoring of optical channels and the adjustment of their bit rate to maximize their capacity at all times, without the need to maintain a static margin of 2 or 3dB. Finally, the research community has been exploring space-division-multiplexing for more than 10 years. Much progress has been made, although multi-core and multi-mode fibers face significant challenges before wide-scale deployment could be considered. Utilizing multiple parallel optical fibers in a "multi-rail" system offers many advantages and linear scaling of the optical transport capacity. However, in order to lower the cost-per-bit, significant development efforts are needed to enable amplifier arrays, sharing pumps across multiple fibers, and packaging efficiencies.', 'Finally, when considering which technology could prove to be the disruptor, it is important to note that many optical innovations do not progress from research to commercialization, due to initial technology limitations, and are set aside. Several of these innovations have been later "rediscovered," when an enabling technology has advanced, and then commercialized and deployed, leading to large increases in optical transport capacity. Coherent detection with digital signal processing is a prime example. Therefore, we must use quotes in our conclusion that "new" technologies will likely be needed to increase optical transport capacity, along with further integration to lower optical transport costs.', '[PART IV---GRUBB]', 'In 1992, TAT-10 became the first transatlantic fiber optic cable whose capacity was measured in bits per second, as opposed to telephone call capacity. That number was 1,130 Mb/s for the entire cable.', "Today the MAREA transatlantic cable has a potential capacity of 224 Tb/s – a 200,000 times increase in 30 years. Like Moore's Law, this Neptune's Law of capacity scaling has required a monumental investment in multiple communications technologies. It is a techno-economic law driven by powerful market forces and insatiable demand. Specifically, the capacity of submarine cable systems is directly limited by our ability to power the repeater chain that boost the optical signal along the entire length of the cable. So to ensure that Neptune's Law has a future as well as a past, we need to drive innovation in future cable designs. Let's start with the history.", "The history of Neptune's Law ", 'I have examined the capacity increases and corresponding decrease in cost per bit for Submarine systems over the past 30 years on behalf of the Suboptic Innovation Working Group. I have dubbed the corresponding remarkable exponential trends (five to six orders of magnitude!) in capacity and cost per bit "Neptune\'s Law" (after the Roman god of the sea). Like Moore\'s Law, this is a techno-economic law, with the emphasis on economic. Market forces in capacity demand and tremendous decreases in cost per bit are necessary to drive the huge investments to keep this curve going. ', 'Figure 1 shows the increases in capacity (in blue) and decrease in cost per bit (in orange) over time. Note that this is Trans-Atlantic submarine data as this is much easier to obtain and compare. ', 'The discontinuity in the early 2000s has two root causes. First, a technology challenge of maintaining the pace of technological innovation brought by the EDFA and DWDM in submarine cables. Second is an economic challenge – the submarine "nuclear winter" caused by the Dotcom bubble burst of 2001. This triggered the demise of many bubble-inspired submarine systems, and a reduced R&D in Submarine systems.', 'Figure 2 shows the capacity increases and corresponding innovations that drove them. It is also amusing to note the 180 degree turns in conventional wisdom noted in pale blue. Coherent transmission was in favor in the early 90s as a low noise amplification technology for single wavelength transmission. It was later driven out of favor with the invention of the EDFA and DWDM. Today, and for the past ten years, it has been very much in favor as a mechanism to enable advanced digital signal processing that helps unlock huge capacity gains.', 'Similarly, before coherent technology was introduced, chromatic dispersion was seen as a bad thing that we had to manage within the cable design. After coherent technology was introduced it becomes a good thing that lowers nonlinear penalties and is welcomed with open arms in the new generations of cables. ', "The future of Neptune's Law", "It's been said that we have too much data today, and in the future, we will have too much data by a factor of a thousand. The increase in demand for capacity in all parts of the network seems to be unbounded.", 'The latest 5th generation transponders are pushing fiber capacity ever closer to the limit first proposed by my nemesis, Claude Shannon, one of the original architects of Information Theory in the 1940s when he worked with wireless and copper transmission media. When we apply his equations to submarine cables we need to add in the constraint that optical fiber is a nonlinear medium, so if we use too much optical power we actually degrade achievable capacity. What we need to keep scaling is more useable bandwidth in the fiber – or to enable a way to deploy more fibers in a cable.', "In the past, submarine cables were designed to support the maximum capacity per fiber pair. Upgrading transponders during the life of the cable allows us to increase capacity, and modern cables like MAREA are designed with very high performance repeater chains that can allow those transponders to work at their peak performance. Running repeaters in that mode requires a lot of electrical power and there's only one place that this power can enter the cable and that's at the ends – although perhaps that's two places! To drive that power over thousands of kilometers of cable, modern power feeds operate at extremely high voltages – up to plus 15,000 volts at one end and minus 15,000 volts at the other. In the case of the MAREA cable this allows us to power eight fiber pairs with very close repeater spacing of 56 km.", 'An alternative approach is to increase capacity over the cable as a whole, as in the Dunant transatlantic cable. This is the first example of a Space Division Multiplexing (SDM) cable, in which repeater power is dialed back a little, and some clever engineering allows repeater pumps to be shared between multiple fiber pairs to reduce power consumption while retaining resilience. Future designs may switch from copper conducting layers to aluminum, which would make it more cost effective to use a thicker conductor that could deliver more total power to the repeaters.', "In fact there is an outline technology roadmap that could deliver a petabit scale transatlantic cable within the next few years – which would be a factor of four increase over today's highest performing cables.", 'Beyond this we may need to dust off our crystal balls as we consider the use of multicore fibers, or even a fiber such as ZBLAN – an exotic fluoride glass mixture that has to be manufactured in zero gravity. Clearly that would suggest a high price tag for ZBLAN fiber, but submarine bandwidth does command a premium so perhaps it could be an option.', "It would seem that we can continue the graph for Neptune's Law for the moment, and that will give our engineers of the present and future time to create the next generation of submarine cable innovation."]

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845a2f3fcedb251ea80321f2df008fa48996e2f0b444a23e788dc2e74e35bb30

Crunch causes extinction

Timothy King 17, Solutions Review's Senior Editor, recognized thought leader and influencer in enterprise BI and data analytics, "Big Data Could Cause Global War, Expert Warns," Best Data Management Software, Vendors and Data Science Platforms, 3/9/2017, https://solutionsreview.com/data-management/big-data-could-cause-global-war-expert-warns/

The next big conflict may be over big data states who has data will provide huge benefits silent data wars are already waged between great powers next is World War III

The next big conflict may be fought over something other than land or raw materials big data is so powerful that nation states will fight over data He who has the data can do the analytics and the algorithms at the scale that we talked about will provide huge nation state benefits , in terms of global companies and for citizens no one is in the dark as to just how vital of a resource data can be. In fact, silent data wars are already being waged beneath the surface between great powers . Data holds incredible value, obviously, and its use is expanding companies have been fighting these wars for decades If politics is truly downstream from culture , Big Data’s next battleground is seemingly going to take place in the geopolitical arena This is serious business , and it’s anyone’s best guess as to whether data’s next hurrah is the outcome of a election or something more sinister Einstein was quoted as saying: “I know not with what weapons World War III will be fought , but World War IV will be fought with sticks and stones

next big conflict other big data so powerful nation states will fight over data data huge nation state benefits global companies citizens no one is in the dark silent data wars already beneath the surface great powers expanding decades politics truly downstream from culture next geopolitical arena serious business anyone’s best guess next hurrah election more sinister Einstein what weapons World War III will be fought World War IV will be fought with sticks and stones

['The next big conflict may be fought over something other than land or raw materials, according to Eric Schmidt, Chairman of Google parent company Alphabet. In a speech\xa0yesterday at the Google Cloud Next Conference, he said: “I think big data is so powerful that nation states will fight over how much data matters.” He added: “He who has the data can do the analytics and the algorithms at the scale that we talked about will provide huge nation state benefits, in terms of global companies and benefits for their citizens, and so on.”', 'By now, no one is in the dark as to just how vital\xa0of a resource data can be.\xa0In fact, silent data wars are already being waged beneath the surface between some of the world’s great powers.', 'Data holds incredible value, obviously, and its use is expanding in all ways and means, especially in the public sector. This is evident not only by Schmidt’s comments, but by the proliferation of available technology offerings that target organizations outside the business sector. Enterprise companies have been fighting these wars for decades, clawing their way to any competitive edge that data could provide. If politics is truly downstream from culture, Big Data’s next battleground is seemingly going to take place in the geopolitical arena.', 'This is serious business, and it’s anyone’s best guess as to whether data’s next hurrah\xa0is predicting the outcome of a hotly contested democratic election or something even more sinister. In a 1949 interview with Alfred Werner, Albert Einstein was quoted as saying: “I know not with what weapons World War III will be fought, but World War IV will be fought with sticks and stones.” Perhaps the weapon Einstein failed to articulate was Big Data.']

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f710a841a67676152ab7e0d80545d8e02b0f616558ab033dbc5529f5bf64f13e

Terrestrial manufacturing causes existential overshoot---orbital solves

Davide Sivolella 19, aerospace engineer, specialist in the design of structural repairs for civil airliners, bachelor’s and master’s degrees in Aerospace Engineering from the Polytechnic of Turin, author of three books on space exploration, “For the Benefit of Humankind,” Space Mining and Manufacturing: Off-World Resources and Revolutionary Engineering Techniques, Springer Nature, 12/05/2019, pp. 189–201

civilizations collapse after failing to manage resources even advanced societies are not immune pollution defo and erosion decrease farmland water overfishing new species population growth climate change toxic chemicals energy shortages space-based manufacturing is the solution environmentally harmless alleviating political pressures from scarcity scarcity precipitate conflicts on a grand scale a threat to society ag is the greatest source of damage runoff creates dead zones’ pollution means food is not viable farming in space will alleviate pressure

civilizations collapse after failing to manage limited resources and neglecting to repair damage to the environment complex integrated society collapsed in an epidemic of civil war Easter Island is a compelling analogue of modern society islanders were isolated In the same Earth exists in the infinite ocean of space If mere thousands with stone tools and their own muscle power sufficed to destroy their environment and destroyed their society, how can billions with metal tools and machine power now fail to do worse?” we might be tempted to persuade ourselves our society is too large to fail the fall of the Maya even well-developed advanced societies are not immune to collapse pollution outstripping resources defo restation and erosion caused a decrease in usable farmland exacerbated by drought soil depletion water management overhunting overfishing introducing new species human population growth climate change accumulation of toxic chemicals energy shortages ; full utilization of photosynthetic capacity the entire species is under threat by a menace far worse than ideological skirmishes space-based manufacturing is have the potential to be a part of the solution . Off-world mining is environmentally harmless alleviating political pressures from resource scarcity scarcity captures the mind causes us “to focus single-mindedly on managing scarcity by way of sanctions wars establishment of outposts ; and agreements for exclusive exploitation disregarding possibility of armed conflicts such arrangements are laden with corruption Eventually the effects of resource scarcity precipitate conflicts on a much grand er scale as nations seek to protect interests we escalate pollution and environmental degradation The total energy used by mining and metal-producing might be close to 10 per cent of the total world energy production [and] this can only increase as we access lower-grade resources This includes solar, tidal, and wind Unless we can generate more energy to account for the increased demand imposed by lower-grade ores, resource scarcity will continue to pose a threat to society A circular economy has merits but is not immune from shortcomings Most materials are not endlessly recyclable Recycling processes also require energy, water, and often the input of additional resources Substitution is another approach but it, too has its limitations for consumer applications, substitution might quickly accelerate resource depletion and provoke soaring energy requirements that have the opposite effect to that being sought. Space could overcome these barriers and thus enter into the mix of solutions that address our society’s future resource and energy needs whilst caring for the planet’s environment Sunlight will be inexhaustible the possibilities are endless factories in space offer potential of constructing and assembling large infrastructures ag is now the single greatest source s of human damage to the global environment in the form of erosion and salinization of soil ; defo restation fertilizer runoff which creates enormous ‘ dead zones’ loss of biod water scarcity and agro-chemical pollution of water and soil This means that more food production is not viable if we are to preserve the environment the Sun will keep shining for billions of years Considering that the surface is finite and that only a limited portion of it is suitable as arable land there is a limited capacity of growing food In the same manner that resource scarcity and environ- mental concerns can drive the exploitation of extraterrestrial resources farming in space will alleviate pressure imposed on the environment by the need to feed an ever-growing population Space farming would also be immune from the vagaries of natural phenomena driven by climate as space-based manufacturing evolves modules could be fabricated space farms could be designed to grow staple non-perishable food Eventually house livestock such applications help find better solutions for taking care of Earth’s natural environment.

collapse manage limited resources repair damage environment collapsed epidemic of civil war Easter Island compelling analogue modern society isolated Earth infinite ocean of space thousands billions fail worse?” persuade large Maya well-developed advanced not immune pollution resources defo erosion usable farmland drought soil water overhunting overfishing new species population climate change chemicals energy photosynthetic capacity entire species far worse ideological skirmishes space-based manufacturing solution mining harmless political captures the mind causes single-mindedly managing sanctions wars outposts exclusive exploitation armed conflicts corruption scarcity conflicts grand scale nations protect interests pollution environmental degradation increase threat to society circular merits shortcomings not also Substitution it, too accelerate soaring energy requirements Space overcome Sunlight inexhaustible endless large ag greatest source damage erosion salinization soil defo fertilizer runoff ‘ dead zones’ biod water agro-chemical pollution water soil food not viable billions of years surface finite limited growing food resource farming in space alleviate pressure also vagaries of natural phenomena climate manufacturing modules fabricated staple non-perishable food livestock better solutions

['THE BENEFITS OF\xa0SPACE RESOURCES MINING', 'The true motivation for space exploration is to take better care of our fragile planet. Archaeology shows how entire civilizations can collapse after failing to manage their limited resources and neglecting to repair the damage inflicted to the environment.', 'Look no further than Easter Island. In his book Collapse: How Societies Choose to Fail or Survive, American historian Jared Mason Diamond describes “the most extreme example of forest destruction in the Pacific, and among the most extreme in the world: the whole forest gone, and all of its tree species extinct. Immediate consequences of the islanders were losses of raw materials, losses of wild-caught foods, and decreased crop yield.” For the islanders this was catastrophic. With their natural resources depleted they could no longer manufacture seagoing canoes with which to fish offshore; no longer protect themselves from the cold, windy winters by burning wood or building shelters; no longer continue to erect the statues that are characteristic of the island. Deforestation enabled the wind and rain to erode the soil and further deprive the islanders of local sources of food. This severely limited their farming. As Diamond continues, “They had the misfortune of living in one of the most fragile environments at the highest risk of deforestation of any Pacific people. … [The] formerly complex integrated society collapsed in an epidemic of civil war.” Fights over control of the remaining resources, primarily plants and wood, led to one of the most repugnant of human acts: cannibalism.', 'Easter Island might be far in space and time from our reality but it is a compelling analogue of our modern society. The islanders were isolated, separated from the rest of the world’s civilizations by the Pacific Ocean and hence unable to ask for help. In much the same way planet Earth exists in the infinite ocean of space, isolated from any other habitable world (if indeed one exists). They could not escape from their tiny territory, which they had made worthless. Similarly if cli- mate change, pollution, and plundering of resources go unchecked and pose a severe threat to our existence we will be trapped. In concluding his analysis of Easter Island’s demise, Diamond asks: “If mere thousands of Easter Islanders with just stone tools and their own muscle power sufficed to destroy their environment and thereby destroyed their society, how can billions of people with metal tools and machine power now fail to do worse?” ', 'Another good example is the Chaco Anasazi, a society that dwelled in the Chaco Canyon of northwestern New Mexico for hundreds of years, beginning in 600 AD.\xa0As Diamond has written: “It was a complexly organized, geographically extensive, regionally integrated society that erected the largest buildings in pre- Columbian North America.” They managed to tame a fragile desert environment characterized by low and unpredictable rainfall, quickly exhausted soils, and very low rate of forest growth. Then they collapsed. “Over the course of six centuries the human population of Chaco Canyon grew, its demands on the environment grew, its environmental resources declined, and people came to be living increas- ingly close to the margin of what the environment could support.” In the wake of this collapse they were unable to rebuild their society in the way that the first farm- ers of that area had because “the initial conditions of abundant nearby trees, high groundwater levels, and a smooth floodplain without arroyos [rivers] had disap- peared”. If our modern industrialized globalized society were to collapse, would it rise again and regain its splendor?', 'Easter Island and the Chaco Anasazi were small civilizations, tiny compared to our interconnected world, and we might be tempted to sit on our laurels and persuade ourselves that our society is too large to fail. It might be so, but the fall of the Maya is a striking reminder that even well-developed, culturally advanced societies are not immune to collapse. Diamond identifies several reasons for their break down. For instance, “pollution outstripping available resources … too many farmers grew too many crops on too much of the landscape” causing pollution to outstrip any available resource until there was no land left unblemished. A second motive was “the effects of deforestation and hillside erosion, which caused a decrease in the amount of usable farmland at a time when more rather than less farmland was needed, and possibly exacerbated by an anthropogenic drought resulting from deforestation, by soil nutrient depletion and other soil problems.” As the local climate changed, people were forced to move into new areas until, finally, “there was no useful unoccupied land in the vicinity on which to begin anew, and the whole population could not be accommodated in the few areas that continued to have reliable water supplies.” I am sure that, by now, you will have recognized how alarmingly analogous the Maya are to our society!', 'Diamond’s analysis of how civilizations collapse cites environmental damage as the chief culprit, no matter how sophisticated such societies were. He has arranged environmental damage into twelve categories: deforestation and habitat destruction; soil problems (erosion, salinization, and the loss of soil fertility); water management problems; overhunting; overfishing; introducing new species to native ones; human population growth; increased per-capita impact of people; climate change caused by humans; accumulation of toxic chemicals in the environment; energy shortages; full human utilization of Earth’s photosynthetic capacity.', 'Some of these categories, particularly the accumulation of toxic chemicals in the environment and destruction of natural habitats, are heavily influenced by resource extraction and manufacturing industries. We saw in Chapter 1 how we are generally degrading the environment and overwhelming it with pollution. We are in danger of destroying the biosphere that is the life support system for our species.', 'We went to the Moon in response to a perceived political and ideological threat whose magnitude triggered a whole nation into Cold War battle mode and delivered an impossible dream: walking on the Moon. Now, the entire human species is under threat by a menace far worse than those ideological skirmishes. An appreciation of just how similar our modern society is to civilizations that collapsed catastrophically ought to make us regard space not only as a place of discovery but also as a valuable resource that can safeguard the long-term prospects of our species by turning it into a spacefaring civilization. This will, in return, relieve the stresses that we are placing on our planet.', 'Let us highlight again that a space-based manufacturing industry is not a panacea, a cure for all of humankind’s misconduct, but it does have the potential to be a part of the solution. Off-world mining will initially parallel its terrestrial coun- terpart, then become our main supplier of resources. Remember in the lifeless vacuum of space, resource mining is environmentally harmless.', 'By accessing the immense resources of the Solar System, extraterrestrial mining might also play a role in alleviating the political pressures that result from resource scarcity, an issue that it is receiving ever more consideration. In their book Scarcity: The True Cost of Not Having Enough, Sendhil Mullainathan and Eldar Shafir explain how “scarcity captures the mind … it changes how we think. It imposes itself on our minds … having less is unpleasant … scarcity leads to dissatisfaction and struggle.” And “because we are preoccupied by scarcity, because our mind constantly returns to it, we have less mind to give to the rest of life … it makes us less insightful, less forward-thinking, less controlled … focus- ing on one thing means neglecting others.” In effect, scarcity causes us “to focus single-mindedly on managing the scarcity at hand.”', 'Indeed, we are resorting ever more often to this single-minded management by way of declarations of economic sanctions; trade wars; establishment of outposts in territories whose jurisdiction is widely contested because they can offer a strategic advantage in controlling key resource supplies or commercial routes; and agreements between governments and corporations for the exclusive exploitation of land and its resources, often disregarding the local population and the possibility of armed local conflicts. As it is often the case, such arrangements involve countries that are laden with corruption and have essentially no interest in the welfare of their citizens or the preservation of the environment. Eventually, as the effects of resource scarcity are felt by our society this could all too readily precipitate conflicts on a much grander scale as individual nations seek to protect their interests by assuring access to crucial resources regardless of the consequences. Remember the Maya? Another cause for their disintegration was, as Diamond says, the “increased fighting, as more and more people fought over fewer resources. Maya warfare, already endemic, peaked just before the collapse. … Warfare would have decreased further the amount of land available for agriculture, by creating no-man’s lands between principalities where it was now unsafe to farm.” We would do well to pay attention to how resource scarcity might one day steer us to the same fate.', 'We could intensify our efforts to exploit lower-grade ores, presuming that we are willing to accept a few nasty consequences. For instance, resource mining is mostly a matter of energy rather than quantity. This is why we first exploited the high-grade ores. Because they are easily accessible they are not particularly demanding in terms of the energy required to extract and process them. By con- trast, low-grade ores are being surveyed and exploited only now because they do necessitate more energy for their extraction. This requires increasingly sophisti- cated equipment to be transported and then assembled in punishing places\xa0– remember the Shell Prelude? It must be designed to work in a more hostile environment\xa0– remember the Berkut oil rig? In general, if an ore has a concentra- tion ten times lower than a richer one it will demand ten times more energy to extract the same quantity of resource. What about waste? The poorer the concen- tration of ore, the greater is the quantity of rock and soil to be displaced and pro- cessed, as well as the chemicals needed for beneficiation. Thus we escalate pollution and environmental degradation. Besides, as Ugo Bardi, a professor of Physical Chemistry at the University of Florence, Italy, reminds us in his book Extracted: How the Quest for Mineral Wealth is Plundering the Planet, “The total energy used by the mining and metal-producing industry might be close to 10 per cent of the total world energy production [and] this can only increase as we access lower-grade resources.” So we see that resource scarcity and energy production are interlinked. Indeed, as Bardi points out, “The problem of dwindling ore grades also occurs with the fossil fuels; energy is becoming more and more energy- expensive to produce.” This includes energy produced by solar, tidal, and wind resources. Unless we can generate more energy to account for the increased demand imposed by the exploitation of lower-grade ores, resource scarcity will continue to pose a threat to society. At the same time, boosting the demand for energy can only cause additional environmental damage, as the already dwindling resources required for the energy-producing apparatus, such as solar panels, wind- mills, batteries, and power lines, are being extracted from low-grade ores.', 'A circular economy that makes the most of available resources while minimizing waste has undoubted merits but it is not immune from shortcomings. Bardi reminds us, “In most places around the world there has never been an effort to manage waste in such a way to make it easy to recover useful materials from it … as a consequence many minerals that have entered the world’s economy during the past few centuries are today accumulated inside landfills or dispersed in the eco- system … Reclaiming the minerals from waste that we have recklessly dispersed around or even dumped into the ocean is a monumental task, and it is unlikely we could reasonably recover much of them … The average concentration of rare met- als in a landfill is low. An even more difficult problem is that metals are mixed together. So exploiting a landfill as if it were a mine would require sophisticated and expensive separation techniques and much energy, and would also create a lot of pollution.” Mining landfills is not without risks, as it brings its own drawbacks in terms of workers’ safety and enduring organic waste that produces foul odors and bacterial contaminations. Also, landfills contain all manner of sharp-edged objects, poisons, explosives, noxious gases, and many more potential hazards. Bardi also warns of “downcycling,” a term that “refers to the fact the recycled material is normally of lower quality than the same material manufactured from pristine mineral sources”. For example, consider the aluminum in cans for foods and beverages. Often it is alloyed with magnesium. Separating the metals for reuse involves a great effort. Another representative case is that of steel. As the application drives the formulation of each type of steel, it follows that melting together components made of different types of steel would result in steel of lower quality due to the presence of uncontrolled quantities of alloying elements, mak- ing the recycled steel an average of the input steels and thus not suitable for demanding structural applications. The bottom line, Bardi says, is that, “Most materials are not endlessly recyclable.” In addition, “Recycling processes also require energy, water, and often the input of additional resources. Recycling also creates burdens through collection, reclamation, and transportation.” Consequently, “Something that is truly unavoidable in our future is the disappearance of high- grade ore and the dispersal of the elements they contained all over the planet in forms that cannot be recovered.” ', 'Substitution is another approach but it, too, has its limitations. For instance, some elements have properties so peculiar that identifying a substitute might be impossible for given applications unless we invent a new metallurgy or new mate- rials physics. Besides, the resources problem is one of confronting general scar- city not of merely coping with the exhaustion of one or two particular minerals. To illustrate, if we wish to replace copper with aluminum in electronic applications, the demand on resources would simply shift to aluminum, which will then be depleted even more rapidly than projected. And if a substitute is less efficient this will require a change in the design of a given application, possibly causing it to draw more energy to perform the same function. It is easy to appreciate how, for consumer applications, substitution might quickly accelerate resource depletion and provoke soaring energy requirements that have the opposite effect to that being sought.', 'The exploitation of low-grade ore, recycling, reuse, and substitution, are all valid policies for stalling resource scarcity and are worth exploring whenever fea- sible, but it must be kept in mind that they are not exempt from drawbacks or limi- tations due to physics and chemistry. Space resource mining could overcome these barriers, or at least assist in compensating for them, and thus enter into the mix of solutions that address our society’s future resource and energy needs whilst caring for the planet’s environment. Space mining will be conducted in an environment where energy from the Sun is abundant, continuous, and free. The exploitation of low-grade ores will be worthwhile on celestial bodies. Space mining will be able to supply the resources for which substitution and downcycling fall short.', 'THE BENEFITS OF\xa0MANUFACTURING IN\xa0SPACE', 'Because orbital factories will be in the vacuum of space they will supplement their terrestrial counterparts without endangering a life-filled environment. Their heat and waste cannot cause harm, because they will not interact with any biosphere.', 'Sunlight will be an inexhaustible source of energy to run power-hungry facilities. What goods will be produced? Ideally, anything! More practically, the first task of space-based manufacturing will be to demonstrate several high-tech appli- cations of the type discussed in the previous chapter. Then, it can concentrate on producing a limited number of goods for terrestrial consumption that are in demand at that time; e.g., batteries for electric vehicles, computers and electronic devices. As is often said, “The sky is the limit.” As the possibilities are endless, we should not limit ourselves in speculating what might or might not be manufactured.', 'In fact, factories in space offer the potential of constructing and assembling large infrastructures, such as satellite solar-power systems. This concept was pat- ented by Peter E.\xa0Glaser in December 1973. US patent #3,781,647 says, “The radiation energy derived from the Sun is converted to microwave energy in equipment maintained in outer space, then it is transmitted as microwave energy to suitable collectors on Earth. Hence, the problems of absorption of the solar radia- tion by the atmosphere and of sudden interruptions are eliminated because micro- waves can pass through the atmosphere with minimum absorption and scattering. By receiving the solar energy and converting it into the form of microwave energy, the microwave energy can be collected in widely dispersed locations on Earth without regard to availability of solar radiation. … Hence the major drawbacks associated with the direct terrestrial collection of solar energy are minimized.” Ever since it was proposed, the concept has been studied in detail both by NASA and industry. Configurations and variations on the theme abound in the specialized literature. But the sheer size of the orbiting solar collector (several square kilome- ters) has always obliged the concept to remain on paper. Simply put, assembling such a large-scale infrastructure with components made on Earth would require so much material and so many launches as to make it unrealistic. The drawbacks would greatly outweigh the advantages. Yet, the concept will become viable if extraterrestrial resources and space manufacturing are adopted. Estimates vary, but some number of satellite solar-power systems could comfortably provide the energy to power our society and help elevate developing countries to the level of prosperity enjoyed by their developed counterparts.', '[FOOTNOTE 8.1 OMITTED]', 'Gerard K.\xa0O’Neill and many of his followers (including this author) look forward to colonies in space capable of housing millions of people. It will take some time to get there, but in the interim a practical application that is on a par with satellite solar-power systems is that of space farms.', 'As American journalist and educator Richard Heinberg wrote in his book Peak Everything: Waking Up to the Century of Decline, agriculture “is now the single greatest sources of human damage to the global environment. This damage is in the form of erosion and salinization of soil; deforestation (a strategy for bringing more land into cultivation); fertilizer runoff (which creates enormous ‘dead zones’ around the mouths of rivers); loss of biodiversity; fresh water scarcity; and agro-chemical pollution of water and soil.” This means that more food production to feed an ever-growing population is not a viable solution if we are to preserve the environment.', 'As Eric Zencey pointed out in his book The Other Road to Serfdom and the Path to Sustainable Democracy, a positive feedback exists in which “food scarcity leads to expanded agriculture, which diminishes natural ecosystems and their eco- system services, which eventually leads to agricultural losses, which leads to food scarcity. … We could try to bring even more land into cultivation\xa0– but only at the cost of increasing the rate at which we lose something else, [namely] the ecosys- tem services on which our civilization, including our capacity to feed ourselves, depends.” ', 'Besides, the amount of food we can grow is limited by three factors: soil fertil- ity, water, and sunlight. As Zencey continues, “In our cheap-energy petroleum economy we’ve pushed against the limits set by the first two constraints, using the energy of oil to fix nitrogen into artificial fertilizers and to pump fresh water into dry lands that are, in nature’s design, inhospitable to farming. … When the oil runs out, so too will end its enormous subsidy to agriculture.” ', 'As far as sunlight is concerned, the Sun will keep shining for billions of years to come, so we will not have to bother with absence of sunlight any time soon. Still, we do need to consider that sunlight is the driver of photosynthesis, which is a complex sequence of chemical reactions that enable plants to grow food. Considering that the Earth’s surface is finite and that only a limited portion of it is suitable as arable land there is a limited capacity of growing food, for humans and all other living species. In the same manner that resource scarcity and environ- mental concerns can drive the exploitation of extraterrestrial resources, farming in space will alleviate the pressure imposed on the environment by the need to feed an ever-growing population. Space farming would also be immune from the vagaries of natural phenomena, often driven by the climate change that we are our- selves causing, such as flooding and droughts. When large areas assigned to agriculture are hit by such events, the resulting loss in food production can have repercussions on the well-being of a whole nation, perhaps even wider, depending on the kind of crops that are lost. Often the recovery is slow, and can be further delayed if another natural disaster strikes in the meantime.', 'As of today, only a small number of puny investigations have been carried out in the field of space farming. The focus is on achieving a better understanding of plant behavior in zero-g, and giving a therapeutic past-time to astronauts on long- duration missions. Interest is growing, spurred by the ever-present willingness to establish a small scientific outpost on the Moon or on Mars. Clearly, space farm- ing will require serious attention, as well as the establishment of a development program not unlike that for orbital factories. A good starting point would be to research the best ways to grow food in space on an industrial scale, to assess whether it is feasible in zero-g or requires a level of artificial gravity. Terrestrial approaches such as hydroponics and vertical farming would surely be among the favorite candidates for trial in space. At first the greenhouse modules could be manufactured on Earth and launched to create a space farm of several modules. This would help to grasp the working principles of an infrastructure dedicated to growing food, instead of the manufacture of products. In time, as space-based manufacturing evolves, such modules could be fabricated in-situ, perhaps using minerals supplied by off-world mines. The first space farms could be designed to grow staple and non-perishable food. Eventually, they would house livestock. Once again, the sky is the limit. And considering that space farming will require us to artificially recreate and maintain a terrestrial habitat, such applications might help us to find better solutions for taking care of Earth’s natural environment.']

[(7, 19)]

f0a24d169e5ba0481605186735563df3f43c4a0f92a30f6d0038260f675d5737

The AFF solves, creates certainty, and is modeled

Pranoy Goswami 20, National Law University and Judicial Academy, currently engaged as a Research Assistant with the Center for the Study of Law and Culture, Columbia Law School, “The offshoots of privatization of the space race: Need for an International Antitrust Regime,” The Law Blog, a Peer-Reviewed Blog on Law and Society, 11/2/20,

space require a well-designed legal environment to prevent tussle between business antitrust prove a boon the OST and Moon Treaty is not mandatory now perpetuating uncertainty antitrust preserves integrity of competition the most impressive emanate from the U S has previously been applied in space with the U L A antitrust is crucial to invigorate private players to harness resources in a fair manner cost for space is immense antitrust help smooth the process a model nation for other S legislation for antitrust relating to space grant confidence to companies

Bezos talked about the expansive realms of humanity in oute r space The basic require ment however, was a well-designed legal environment to prevent any tussle between business interests and humanity’s thrust for resources in space. The need for space law to evolve has become the need of the hour . To that effect, the importance of antitrust laws could prove a boon for space conservation vis-a-vis the promotion and upliftment of the global entrepreneurial and State interests The quintessential law in place to govern space exploration is the the OST Another is the and the Moon Treaty Like a host of other instruments is not mandatory now it finds itself perpetuating uncertainty The raison d etre behind antitrust stems from the fact that it preserves the integrity of private competition . If antitrust laws were to perform in full flow, start-ups would be encouraged and such a free flowing market would in turn hand the advantage of economies of scale to the known market players as well. Governments need to bolster an antitrust law framework to cut down on predatory practices, black marketing and restrictive trade practices in a globalised, open-ended economy. the most impressive antitrust emanate from the U S the Sherman F T C A and Clayton Act Antitrust law in the U S has previously been applied in the field of private space explorations as well , with the F T C review of the U L A deal In the case of SpaceX v. Boeing, the Supreme Court held that “a firm must take overt action to exercise competition and dismissed SpaceX’s appeal of undue influence on the part of Boeing to prevent entry The general apathy requires a systematic overhaul . On account of holistic globalization provisos relating to antitrust differing from country to country can be a cause of concern International law, in its current state, has often posed challenge s to space explorations when private parties are involved. This is exacerbated by the lack of incentives The need for an antitrust framework is crucial to invigorate private players to continue harness ing resources in a fair manner The cost for space exploration is immense antitrust shall only help smooth the process of such private operations any country which would develop a comprehensive antitrust measure for private space explorations might end up being a model nation for the other S tates In this discussion, the U S has been most flexible in its antirust policies In a highly technical and financially draining field like space the prime boost for companies and organizations to operate is one of specific incentives an effective piece of legislation for antitrust relating to space shall grant confidence to companies as well

Bezos space require well-designed legal environment tussle business space law evolve need of the hour antitrust laws boon space conservation OST Another Moon Treaty not mandatory now perpetuating uncertainty antitrust integrity private competition start-ups bolster an antitrust law framework most impressive U S Sherman F T C A Clayton Act U S previously private space explorations well F T C review U L A overt action to exercise competition dismissed apathy systematic overhaul globalization differing concern challenge space private parties exacerbated lack of incentives antitrust framework crucial invigorate private players harness resources fair manner cost immense antitrust smooth the process develop comprehensive antitrust measure model nation for the other S tates this U S most flexible technical financially draining field space prime boost specific incentives effective antitrust space grant confidence companies

['In June 2019, Jeff Bezos, the founder of Amazon, talked about the expansive realms of humanity in outer space. Having recently developed Blue Origin, a privately held rocket-launch firm, he talked of the endless business opportunities that outer space has to offer in the next decade. The basic requirement, in his view, however, was a well-designed legal environment to prevent any tussle between business interests and humanity’s thrust for resources in space.', 'The need for international space law to evolve, in consonance with the dynamic space race, has become the need of the hour. To that effect, the importance of antitrust laws, and the requisite antitrust laws( with special reference to the United States of America, Russia and India) which could prove to be a boon for outer space conservation vis-a-vis the promotion and upliftment of the global entrepreneurial and State interests have been discussed here.', 'Historical Background of the Space Race', 'A cursive glance through the pages of the post World War II period would reveal the push for ascendancy by Russia and the United States of America, towards their goal of being a superpower. In 1957, Russia (the erstwhile USSR) launched Sputnik into space. In early 1958, the USA followed closely with a launch of its first satellite, along with setting up the National Aeronautics and Space Administration (NASA). In April, 1961, Russia launched the first human into space, and the USA followed suit exactly a month after that. However, the USA takes the bragging rights for arguably the most publicised moment of mankind in its exploration of space- on July 20, 1969, Neil Armstrong, along with his team, landed on the Moon. The ‘50s and the ‘60s have given us such watershed moments galore.', 'The International Law Perspective', 'The quintessential law in place to govern space exploration is the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space (generally referred to as the “Outer Space Treaty” or “OST”). The Outer Space Treaty seeks to orchestrate the role of international law in the balance of resource management in space.', 'Another important piece of legislation in this regard is the Agreement Governing the Activity of States on the Moon and Other Celestial Bodies (the “Moon Treaty”). Even though signature for the Moon Treaty had been opened in 1979, there are only eleven signatories to this date. No country which is presently harnessing the benefits of manned space explorations and partaking in a competitive space race has ratified the agreement. One of the key objectives behind the introduction of the Moon Treaty was to fine tune a glaring chink in the Outer Space Treaty, by incorporating the idea of “banning any ownership of any extraterrestrial property by any organization or [private] person, unless that organization is international and governmental.” Like a host of other international law instruments, the Moon Treaty is not mandatory for countries to adhere to. If it’s motives were ideally realized, the aspect of privatization in the field of space race could have had chilling effects. As of now, it finds itself perpetuating in uncertainty.', 'Antitrust Laws in the United States, Russia and India', 'The raison d etre behind the popularity of antitrust laws stems from the fact that it preserves the integrity and institutionalisation of private competition. If antitrust laws were to perform in full flow, start-ups would be encouraged and such a free flowing market would in turn hand the advantage of economies of scale to the known market players as well. Governments need to bolster an antitrust law framework to cut down on predatory practices, black marketing and restrictive trade practices in a globalised, open-ended economy.', 'Some of the most impressive antitrust laws emanate from the United States, ranging from the Sherman Act, the Federal Trade Commission Act, and the Clayton Act. Antitrust law in the United States has previously been applied in the field of private space explorations as well, with the Federal Trade Commission’s review and approval of the October, 2006 United Launch Alliance deal between Boeing and Lockheed Martin being a major highlight of the regime. In the case of SpaceX v. Boeing, the Supreme Court held that “a firm must take overt action to exercise competition, before it is considered to be a violation of the law” and dismissed SpaceX’s appeal of undue influence on the part of Boeing to prevent their entry into the market.', 'Russia, on the other hand, uses the Federal Antimonopoly Service to deal with antitrust issues in their country. The 135-FZ Federal Law “On Protection of Competition”, uses the extraterritoriality principle in applying competition laws to transactions and agreements extending beyond, and affecting the territory of Russia. The latest upgrade to the Federal Law saw a reduction of administrative barriers to certain types of transactions. It ought to be read in consonance with Decree No. 5663-1 of the Russian House of Soviets, which deals with “space activity”, to determine antitrust matters in the area of space explorations and private missions from Russia.', 'India enacted the Competition Act in 2002 to provide for the establishment of the Competition Commission of India (CCI) to curb anti-competitive practices, and to bridge the individual consumers’ interests with that of trade interests and corporate sustainability. The antitrust regime in India, arguably, is still in its nascent stage. In matters of space exploration, the Indian Space Research Organization (ISRO) has been performing commendably, delivering space missions at lower expenditures in comparison to its American and Russian counterparts. Also, unlike the aforementioned countries, India lacks teeth in matters of an extensive piece of legislation for its native space missions.', 'The general apathy requires a systematic overhaul. On account of holistic globalization, “…cooperation is fundamentally important to competition in today’s competitive and shrinking world.” Varying provisos relating to antitrust, differing from country to country can be a cause of concern. In F. Hoffman La-Roche Ltd. v. Empagran S.A., the respondents, appearing before the U.S. Supreme Court, had mulled over the viability of an international competition law, to bridge the differences in matters of extraterrestrial jurisdiction.', 'International law, in its current state, has often posed challenges to space explorations, more so when private parties are involved. This problem is exacerbated by the lack of incentives and resource mobilisation. The need for an international antitrust framework is crucial to invigorate the private players to continue harnessing the spatial resources in a fair manner.', 'Privatization and the Need for Antitrust Laws', 'The cost for space exploration activities, whether manned or unmanned, is immense. Restricting the operations merely in the hands of the governmental organizations is detrimental to the spirit of expansion and innovation. The market for space tourism is avant garde and lucrative, at the same time. An international antitrust law body shall only help smoothen the process of incentivization of such private operations.', 'Besides, any country which would develop a comprehensive antitrust measure for private space explorations might effectively end up being a model nation for the other States. In the context of this discussion, the United States of America has been most flexible in matters of its antirust policies. Countries like Russia and India and other major players must take the mantle of building a sturdy, regular approach of antitrust correspondence with their space activities.', 'If private players end up becoming an important component of the space exploration sector, the presence of an international antitrust framework shall not only ensure innovation, but also help prevent patent right violations and patent trolls in space activities. The system needs to be adroit with the constant changes and upgrade itself accordingly.', 'Conclusion', 'In a highly technical and financially draining field like space exploration, the prime boost for companies and organizations to operate is one of specific incentives. Albeit, the international law framework has not been welcoming to private persons. It is time for countries to discuss the possibility of an antitrust regime, which is inclusive of space explorations too. Even though governments represent the “will of the people” and invest heavily in space research and varying degrees of space operations, an effective piece of legislation for antitrust matters relating to space shall grant due confidence to companies as well.']

[(7, 17)]

0a6f6216689a5580d04552f789c485cc344a11c0406f9d8c746529cde2f8d66d

Norms diffuse through commodity exchange rules, but starting multilaterally fails

Maria Rhimbassen 21, serves as a Research Associate at the Chaire SIRIUS and is also a PhD Candidate in space law since 2016, is also a guest lecturer at ISAE-Supaero, served in the International Institute for Space Law (IISL) in the trilateral IISL-IAA-IAF working group on Space Traffic Management (STM), co-chaired the Responsible Lunar Governance Sub-Committee of the Global Experts Group on the Sustainable Lunar Activities (GEGSLA) at the Moon Village Association (MVA), research fellow at the Open Lunar Foundation, “An Introduction to Space Antitrust,” Open Lunar Foundation, 6/6/21,

Antitrust differs across jurisdictions in Europe remains limited due to divergent interpretations and wording perceived controversial On the other hand the US Sherman Clayton and FTC oppose artificial anti-competitive behavior authorities favor consumer welfare antitrust ensure market sustainability , while reducing unfair competition in resources either hard or soft law The former very time-consuming if reaching consensus at all . The latter prove timelier , which is needed when space commerce beckons antitrust incentivize a space financial market essential as resource s can be monopolized by a few restricting significant capacity exacerbated by tech such as blockchain national legislation , fills the gap left by opaque private legal mutations behind closed doors

Antitrust per se , differs across jurisdictions in Europe , it merged into a transnational framework Success remains limited due to divergent national interpretations and interests , and due to wording perceived as controversial On the other hand in the US , the Sherman Clayton and FTC mostly oppose artificial monopolies anti-competitive behavior under the condition that there is an anti-competitive action leading to an outcome scholars refer to US antitrust as “anti-monopoly” law . At the very beginning, it was used to break trusts but lost momentum Artificial monopolies are detrimental to the economy as they distort and restrict trade , and they are to be therefore prohibited antitrust authorities favor consumer welfare It would be convenient to establish a predictable harmonious legal certainty and consider antitrust as a creative tool not an end in itself . The rationale is to rely on competition law to ensure market sustainability , while reducing the risk of fierce and unfair competition in the case of scarce resources there is a need for measures against reckless monopolization based on a “first come, first served” logic sources of space antitrust could either originate in hard law or soft law and self-regulation The former surpasses the latter in terms of legitimacy but might be very time-consuming if reaching consensus at all . The latter might prove more efficient and timelier , which is needed when space commerce beckons antitrust could incentivize the growth of a space financial market even become a source of space commodities in the case of a n eventual space commodities exchange Such opportunity for decentralized governance can be managed best through polycentricity essential as entire resource system s can be monopolized by a few private entities , which could end up restricting significant ly the capacity and diversity of space commerce in the future. Since this kind of assets would fall under commodities and derivatives , it would be trickier to determine the applicable law this is exacerbated by decentralized tech such as blockchain soft law , building on the trend of privatization of the law, could seize this opportunity to play an active role through different instruments These sources stem from a business model involving platforms that manage financial assets These platforms could make sure no coded resource systems take over and monopolize the market and enforce their own rules and smart contracts over others Such purpose focused on fair competition might address antitrust on the level of the “ what ” and the “ how ” by enforcing principles such as open access and transparency. growing commercialization opens the gate to another form of regulation besides sectoral International commercial law hand in hand with national legislation , fills the gap left by with opaque transnational and private legal mutations negotiated behind closed doors it is difficult to fully anticipate the “soft” lex ferenda, especially when customary norms are being set in motion This note asserts the need to anticipate the evolution of competition in the space ecosystem, through the legal lens and act on it to ensure fair competition and mitigate the risk of monopolization

Antitrust per se differs jurisdictions Europe merged transnational limited divergent national interpretations interests wording controversial other US Sherman Clayton FTC artificial monopolies anti-competitive behavior scholars “anti-monopoly” law break trusts lost momentum detrimental economy trade therefore prohibited consumer welfare convenient predictable harmonious legal certainty tool not end in itself rely on competition sustainability reducing unfair competition scarce resources measures against monopolization space antitrust either hard law soft law self-regulation former legitimacy very time-consuming reaching consensus at all latter efficient timelier needed space commerce beckons antitrust incentivize space financial market space commodities case a space commodities exchange best polycentricity essential resource s monopolized few private entities restricting significant capacity space commerce commodities derivatives applicable law exacerbated decentralized tech blockchain soft law trend privatization seize this opportunity platforms manage financial assets make sure coded resource systems monopolize the market enforce their own rules and smart contracts over others fair competition address antitrust what how enforcing principles commercialization besides sectoral commercial law national legislation fills the gap opaque transnational and private legal mutations behind closed doors customary norms being set in motion anticipate the evolution of competition legal lens act on it fair competition mitigate the risk of monopolization

['Anti-monopoly Law', 'Antitrust, as a field of law per se, differs across national jurisdictions. On the one hand, in Europe, it merged into a transnational “continental” framework following the Treaty on the Functioning of the European Union (TFEU) (61). Success, however, remains limited due to divergent national interpretations and interests, and due to some of the articles’ wording perceived as controversial (62). European competition law considers anti-competitive behavior through abuse of dominance, collusion, concerted practice and cartelization and focuses on the consumer’s welfare while seeking to protect competition per se as opposed to protecting competitors. Competition law at the European level starts with article 101(1) of the TFEU which prohibits:', '"All agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between member states and which have as their object or effect the prevention, restriction or distortion of competition within the common market." (63) (emphasis added)', 'On the other hand, on the other side of the Atlantic, in the US, the Sherman Antitrust Act of 1890 (64), the Clayton Act of 1914 (65) and the Federal Trade Commission (FTC), also created in 1914, mostly oppose artificial monopolies (66), anti-competitive or deceptive behavior under the condition that there is an anti-competitive action leading to such an outcome. For instance, section 1 of the Sherman Antitrust Act provides that any contract or conspiracy to restrict trade is illegal. Furthermore, on monopolization, section 2 provides that:', 'Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony (...) (67) (emphasis added)', 'This explains why certain scholars (68) refer to US antitrust as, among others, “anti-monopoly” law. At the very beginning, it was used to break monopolizing trusts, in a serial fashion, but in time, it lost its momentum. According to Posner (69), monopolies can be either natural (which the Sherman Act refers to as “innocent monopolies”, to be allowed as legal” or artificial (illegal). Natural monopolies enable, in theory, massive economies of scale and are therefore permitted. Artificial monopolies, on the contrary, are detrimental to the economy as they seek to distort and restrict trade, and they are to be therefore prohibited. Such was the argument of SpaceX in its antitrust battle vs United States Alliance (ULA) when it stated that ULA did not in fact enable such economies of scale and that SpaceX could provide launching services at a cheaper price. Nonetheless, in reality, it is hard to draw the line since antitrust authorities pretend to favor consumer welfare (low prices), but it is hard to distinguish whether low prices are indeed aimed at the final consumer or, in fact, to disqualify competitors thanks to predatory pricing.', 'Space Antitrust', 'The extrapolation of anti-monopoly law to outer space (e.g., on orbit, on celestial bodies, etc.), raises the question as to which jurisdiction applies. In theory, the launching State’s jurisdiction extends to the launched space object, in perpetuity, such as in the case of the International Space Station’s modules. However, in many cases, there can be confusion in determining the “launching State”, which is defined at article I of the Liability Convention of 1972 (70), especially when several States are involved in the launching, as opposed to the “State of Registry”, according to article VIII of the OST and the Registration Convention of 1976. Sometimes, the two notions collide head-on (71). The situation gains in further legal complexity in connection with on-orbit transfer of ownership vs title. It is not clear whether ownership can be fully transferred in orbit, as opposed to title, which does not. This may prove over-complicated indeed. Therefore, it would be next to impossible to assign or attribute antitrust to a specific jurisdiction in space and that explains the need for a harmonized outer space regime in terms of antitrust, even more when the principles addressed supra stem from international public law. Otherwise, different antitrust regimes would then apply to different sites of activity by different actors, which could end up in aberrant scenarios. ', 'It would be more convenient to establish a predictable and harmonious legal certainty, appropriate for each resource system or specific application in outer space and to consider antitrust as a creative tool, not an end in itself. The rationale is to rely on competition law to ensure market sustainability, while reducing the risk of fierce and unfair competition. For instance, in the case of scarce resources (e.g., polar ice water on the Moon), essential services (e.g., oxygen supply on a station, etc.), there is a need for measures against reckless monopolization based on a “first come, first served” logic. As mentioned supra, due regard and non-harmful interference may be used in that sense, but implementation remains to be established. Should that be brought to public international bodies, in the form of binding measures or non-binding guidelines? Should recommendations be made at the national level (e.g., model law clauses (72) to be inserted as amendments to national space legislation? Without harmonization efforts at that level, there is a risk of increasing forum shopping whereby a private actor seeks to register its activities in jurisdictions with less stringent legislation and dubious enforcement resources. This trend starts in the space sector and this is alarming since space is a high risk sector and launching States’ international liability is a complex notion in terms of attribution, especially if the damage takes place in orbit which explains why some private entities either choose a complex forum architecture, mostly through contractual law (73), or try to escape any national jurisdiction altogether by launching from international waters (74), which is considered as yet another example of legal void and deserves more consideration.\u200d', 'The How', 'The previous sections addressed the “what” or more precisely, the space market through the lens of fair competition and antitrust. However, determining the “how” is more challenging. Indeed, as mentioned, sources of a space antitrust could either originate in future initiatives at the level of hard law or could be left to the realm of soft law and self-regulation. The former surpasses the latter in terms of legitimacy, but might be very time-consuming (75), if reaching consensus at all. The latter might not sit well with the space community at large, but might prove more efficient and timelier, which is needed especially when space commerce beckons. ', 'To come to grips with the implementation conundrum, this section draws from the legal field of intellectual property, which is considered, according to the Organisation on Economic Cooperation and Development (OECD) (76), as a part of competition law because of its monopolistic potential. Intellectual property has its share of controversy in terms of knowledge enclosure and excludability of knowledge commons (77), thus arguably reducing the advancement of innovation to the status of stagnation and limiting the diversity of knowledge itself (78). Intellectual property (IP) rights, as any aspects of property law, rely on a State’s jurisdiction. However, when transformed into financial assets, these intangible assets can eventually escape that given jurisdiction (79). Furthermore, as IP increasingly interacts with antitrust (80), it is interesting to note here the junction between property rights, IP, finance, antitrust and space. Through IP, antitrust could find yet another way to escape national legislation and incentivize the growth, at the same time, of a space financial market. In this situation, the content of IP could be space resources per se, however modified somehow in order to qualify for either a patent or trade secrets and translated into financial assets. They could then benefit from innovative and decentralized archiving through technology such as blockchain -- although “consortium blockchains” (81) might raise collusion or concerted practices issues, which qualify as "unfair competition” and enter the realm of smart contracts, which are self-executory by default (82), and increase transparency, while escaping a whole lot of jurisdiction. They could even become a source of space commodities in the case of an eventual space commodities exchange (83). Such opportunity for decentralized governance can perhaps be managed at best through polycentricity, which is based on Ostrom’s matrix of goods (84) trying to solve issues around the “commons” and their respective rights (85). This might prove essential as IP carries an inherent risk of monopolization. In this scenario, entire resource systems, altered to qualify as IP, can be monopolized by a few private entities, which could end up restricting significantly the capacity and diversity of space commerce in the future. Since this kind of assets would fall under the fifth basket of commodities (86), namely financial rights, and in this case, derivatives, it would be trickier to determine the applicable law because of increasing deregulation. Furthermore, this problem is exacerbated by decentralized cyber technology such as blockchain. Hence the bigger problem of identifying the appropriate source of law to intervene in this transnational occurrence. ', 'Having touched on the pros and cons of hard and soft law, supra, the observation which could be made in this section is that soft law, building on the trend of privatization of the law, could seize this opportunity to play an active role through different instruments such as compliance requirements, contractual clauses, or ethical principles, which often precede law chronologically (87). These private sources of law, and perhaps soon enough public sources too, stem from a potential business model involving platforms that manage decentralized blockchain systems housing the code of financial assets derived from space resources IP -- and arguably creating thus new property rights “from scratch” (88). These platforms could make sure that no set of coded resource systems take over and monopolize the market and enforce their own rules and smart contracts over others (89). Such purpose focused on fair competition could be orchestrated inside a given community of interest (90) and rely on an external entity (oracle form to be determined) for guidance with respect to perpetuating the protection of the given purpose (91). That could take the form of a trust (92) and contribute to laying the foundations for future sustainable customary practice, norms, or behavior. Such trust might indeed address antitrust on the level of the “what” (fair competition and resource systems) and the “how” (fair competition in terms of platforms, i.e., preventing monopolization of one or several blockchains through initial allocations) by enforcing principles such as open access and transparency.', 'Discussion', 'Outer space remains a heavily regulated and strongly politicized sector. However, the growing commercialization of the sector opens the gate to another form of regulation besides the sectoral one. International commercial law, hand in hand with national legislation, fills the gap left by the corpus juris spatialis, however, with opaque transnational and private legal mutations as the ones negotiated behind closed doors, in arbitration, it is difficult to fully anticipate the “soft” lex ferenda, especially when customary norms are being set in motion as of this writing. This note asserts the need to at least anticipate the evolution of competition in the space ecosystem, through the legal lens, and to act on it to ensure fair competition and mitigate the risk of monopolization for the benefit of a sustainable and diversified space economy ahead.', 'Borrowing from legal design, the knowledge mapping below (Figure 1) summarizes the key principles as enshrined in the corpus juris spatialis and their potentially beneficial impact as compliance catalysts for fair competition in the commercial space sector. The mind mapping also includes various strategies leading to antitrust solutions such as the thesis of IP.']

[(6, 19)]

ec0b04509e7cf10207451da5f880df47fdf0dcb2c47795c53dfc2f78dd163f10

It's a filter for risk---defense doesn’t assume the systemic nature of threats

José Monserrat Filho 15, Head of the international Affairs Office of the Ministry of Science and Technology Brazil, Vice President of the Brazilian Association of Air and Space Law, an honorary board member of the International institute of Space Law, member of the Space Law Committee of the International Law Association as well as the International Academy of Astronautics, Professor at the Hague Academy of International Law, “Earth in Danger and Space Law,” Proceedings of the International Institute of Space Law, edited by Rafael Moro-Aguilar et al., vol. 2015, Eleven International Publishing, pp. 657–674

For threats to existence O S T and initiatives in space law contribut to survival a conjunction of crises unprecedented resources biod food shortages pandemics none independent a single ‘poly-catastrophe’ disasters conflict terror reverse progress survival of the planet , are at risk the coming decade differs markedly with tech risks , notably cyber urban living infrastructure syn bio and a i TCBMs are vital as collective security creat mutual understanding reducing miscalc prevent confrontation they need to be developed O S T has important norms for Earth sat s are fundamental for sustainability If we are determined to avoid likely apocalypse it is urgent to build a positive agenda for space law

We live in “a time of profound transformations to our global context For unchecked climate change , global nuc lear weapons mod ernization, and out-sized nuclear arsenals pose undeniable threats to the continued existence of humanity While focusing on outer space international space law can be considered not only a probable victim of this disaster, but also an important instrument capable of preventing it . The O S T is inspired “ by the great prospects opening up for humanity as a result of man’s entry into outer space” and recognizes “ the common interest of all mankind in the progress of exploration and use of space for peaceful purposes the fate of humanity is in the core of its attention and viable initiatives in the space law are contribut ions to efforts to provide Earth with new guarantees of survival we are facing a conjunction of global crises that are unprecedented in history : depletion of natural resources , irreversible destruction of biod iversity, disruption of the global financial system , dehumanization of the international economic system hunger and food shortages , viral pandemics and breakdown of political orders none can be considered independent ly of the others. All are highly interconnected , constituting a single ‘poly-crisis’ that threatens the world with a ‘poly-catastrophe’ “ this is no butterfly effect , but the realization, grave and strong , that our common home is in danger of collapsing and that our salvation can only be collective Global health threats, more frequent and intense natural disasters , spiraling conflict , violent extremism , terror ism and related humanitarian crises and forced displacement of people threaten to reverse much of the progress made in recent decades . Natural resource depletion and adverse impacts of environmental degradation , including desertification, drought, land degradation, freshwater scarcity and loss of biodiversity, add to and exacerbate the list of challenges humanity faces . Climate change is one of the greatest challenges of our time The survival of the planet , are at risk “ The Earth is beginning to look more and more like an immense pile of filth each year hundreds of millions of tons of waste are generated, much of it non-biodegradable, highly toxic and radioactive, from homes and businesses, from construction and demolition sites, from clinical, electronic and industrial sources in the coming decade [...] our lives will be even more intensely shaped by transformative forces that are under way already differs markedly from the past, with rising tech nological risks , notably cyber -attacks , and new economic realities , which remind us that geopolitical tensions present themselves in a very different world from before . Information flows instantly around the globe and emerging technologies have boosted the influence of new types of warfare Past warnings of potential environmental catastrophes have begun to be borne out, yet insufficient progress has been made interconnections between geopolitics and economics are intensifying because States are making greater use of economic tools to establish geopolitical power . This threatens to undermine the logic of global cooperation and the entire international rulebased system The world is in the middle of a major transition from predominantly rural to urban living our ability to address a range of global risks - including climate change, pandemics, social unrest, cyber threats and infrastructure development - will largely be determined by how well cities are governed; and The pace of tech change is faster than ever . Disciplines such as syn thetic bio and a i present hard-to-foresee risks How to govern emerging tech We can manage tech or become victims of it The choice is ours, and the Clock is ticking.” The probability of global catastrophe is very high , and the actions needed to reduce the risks of disaster must be taken very soon The Earth being in danger, the TCBMs are as vital as those of collective security . These actions are means by which Governments can share info rmation aiming at creat ing mutual understanding and trust , reducing miscalc ulations and thereby helping both to prevent military confrontation and to foster global stability . They played an important role during the Cold War, contributing to reducing the risk of armed conflict through mitigating misunderstandings The need for such measures in outer space activities has increased significantly over the past 20 years, The world’s growing dependence on space-based systems and tech and the info they provide requires collaborative efforts to address threats to the sustainability and security of outer space activities. TCBMs “ can eliminate miscalculations with regard to the activities and intentions of States in outer space” these measures can augment the safety, sustainability and security of day-to-day space operations and can contribute both to the development of mutual understanding and to the strengthening of friendly relations between States and peoples.” Info rmation exchange about development programs for new space systems International cooperation measures in outer space activities, including measures aimed at capacity-building consistent with existing international commitments and obligations. some TCBMs for outer space activities have already been enacted They include pre-launch notifications, space situational awareness data-sharing, notifications of hazards to spaceflight safety and other significant events, and the publication of national space policies. But they need to be further developed . More than ever, it is time to think big. O S T has extremely important norms for the security of Earth and its inhabitants in Article IX The sky always has played a crucial role in the evolution of mankind and all life manifestations on Earth. However, today the importance of outer space to our planet and its common life has increased as never before . The data coming from sat ellite s are absolutely fundamental for any efforts to assure the sustainability of Earth and all its life expressions. In this global reality it is sheer recklessness to ignore the imperative of protecting our planet and its population outer space protection must be seen as indispensable to Earth protection If we are really determined to avoid a likely apocalypse on the horizon , one of the main tasks of the international space law that we must trigger is to help save the Earth from space , using powerful resources we have installed there Centuries ago Earth ceased to be the center of the universe, as our ancestors thought. But in face of unprecedented global dangers that threaten our planet today, its place cannot be other than the center of our universal concerns. Probably, a collapse of Earth would deprive the universe of a specie of intelligent life. “ the choice is a global partnership to care for Earth or risk the destruction of life In this context, it is urgent to build a positive agenda for international space law

profound transformations climate change nuc mod nuclear arsenals undeniable threats to the continued existence of humanity focusing outer space victim important instrument capable of preventing it O S T peaceful purposes fate of humanity core of its attention space law contribut Earth with new guarantees of survival conjunction of global crises unprecedented in history natural resources destruction of biod financial system economic system hunger food shortages pandemics political orders none independent interconnected ‘poly-crisis’ threatens the world ‘poly-catastrophe’ no butterfly effect grave and strong common home collapsing collective natural disasters conflict extremism terror related humanitarian crises reverse much of the progress made in recent decades Natural resource environmental degradation challenges humanity faces greatest challenges of our time survival of the planet at risk pile of filth tons of waste markedly tech risks cyber -attacks new economic realities very different world from before new types of warfare Past warnings progress geopolitical power logic of global cooperation entire international rulebased system urban living infrastructure tech change is faster than ever syn thetic bio a i hard-to-foresee risks govern emerging tech manage tech victims of it the Clock is ticking.” global catastrophe very high very soon TCBMs vital as collective security share info mutual understanding trust miscalc prevent military confrontation global stability dependence on space-based systems and tech info they provide collaborative efforts eliminate miscalculations sustainability and security of day-to-day space operations Info exchange new space systems already been enacted But they need to be developed More than ever, it is time to think big. O S T extremely important norms for Earth in Article IX importance of outer space to our planet common life increased as never before sat s sheer recklessness ignore the imperative of protecting our planet and its population outer space indispensable Earth protection really determined likely apocalypse on the horizon help save the Earth from space powerful resources global partnership care for Earth destruction of life urgent positive agenda for international space law

["We live in “a time of profound transformations to our global context,” stressed Klaus Schwab, Founder and Executive Chairman of the World Economic Forum, during the presentation of the Global Risks Report 2015,4 in Davos, Switzerland. For him, mankind faces the accelerated effects of climate change and the increasing uncertainty about the global geopolitical context. Going further, the Bulletin of the Atomic Scientists Science and Security Board, in a recent analysis, pointed out that “ in 2015, unchecked climate change, global nuclear weapons modernization, and out-sized nuclear weapons arsenals pose extraordinary and undeniable threats to the continued existence of humanity.”5 That led its Doomsday Clock to be advanced by two minutes. Today it marks three minutes to midnight, the moment of the Earth's collapse.", 'There are many other reports and studies alerting to this catastrophe. Such an immeasurable disaster on Earth may affect all space activities, and their legal achievements. While focusing on outer space and space activities, international space law can be considered not only a probable victim of this disaster, but also an important instrument capable of preventing it. The fundamental 1967 Outer Space Treaty,6 as its Preamble points out, is inspired “ by the great prospects opening up for humanity as a result of man’s entry into outer space” and recognizes “ the common interest of all mankind in the progress of exploration and use of outer space for peaceful purposes.”', 'This obviously means that the fate of humanity is in the core of its attention. This paper attempts to demonstrate the ability and the need for international space law to face the critical situation of the Earth in extreme danger, including the legal examination and the use of juridical provisions presented in the recommendations of the main scientific documents already drawn up on this transcendental subject. In conclusion, some viable initiatives in the space law field are proposed as contributions to efforts to provide Earth with new guarantees of survival.', 'I. The Preventive Function of Law', 'The paper’s proposals raise the opportunity and the need to expand the scope and the objectives of international space law, including in it specific space issues of the Earth and of its life expressions. Furthermore, it is timely to underline that “ in today’s world, the preventive function of law is more vital than ever,” as observed Manfred Lachs (1914-1993) about 28 years ago. For him, it would be necessary for men around the world to feel this reality, “ in order to incite them to abandon something of the parish spirit and give them the feeling of the existence of a common interest, and of responsibility in application of law in the everyday life of nations, as well as to make them understand that, as usually is said, it is worth more act wisely together than commit follies separately,” At the same time, as a notable jurist and thinker, Lachs foresaw the dangers that the Earth is currently experiencing: “Today, it is required to work at a time when science and technology have placed in man’s hands weapons capable of creating a danger to life and even cause total destruction; when modern techniques create other dangers threatening the earth, water and air; when economic and political relations between the states require that a new order abolishes abyss between rich and hungry [...]” .7 If the world already was in great danger in the 1980s, what could be the magnitude of danger today?', 'II, Poly-Catastrophe', '“Dark times [...] are not only not new, they are not a rarity in history,” as Hannah Arendt (1906-1975) observed.8 But today we are certainly living in often darker times. According to the Global Solidarity, Global Responsibility: An Appeal for World Governance - launched in Geneva, Switzerland, on 6 March 2012, and endorsed by the Collegium International members', '"we are facing a conjunction of global crises that are unprecedented in history: depletion of natural resources, irreversible destruction of biodiversity, disruption of the global financial system, dehumanization of the international economic system, hunger and food shortages, viral pandemics and breakdown of political orders [...] none of these phenomena can be considered independently of the others. All are highly interconnected, constituting a single ‘poly-crisis’ that threatens the world with a ‘poly-catastrophe’ [...]”', 'The Appeal stresses that “ the great crises of the 21st century are planetary,” and that “ this is no butterfly effect, but the realization, grave and strong, that our common home is in danger of collapsing and that our salvation can only be collective.”9', 'III. Our World Today', 'The new Global Sustainable Development Goals - Transforming our World: the 2030 Agenda for Sustainable Development10 - have been adopted by Heads of State and Government and High Representatives, during the meeting at the United Nations (UN) Headquarters in New York from 25-27 September 2015 - with the UN celebrating its 70th anniversary. Paragraph 14 of this historic document presents the vision of the UN General Assembly (UNGA) on the world global situation today, as follows: “We are meeting at a time of immense challenges to sustainable development. Billions of our citizens continue to live in poverty and are denied a life of dignity. There are rising inequalities within and among countries. There are enormous disparities of opportunity, wealth and power. Gender inequality remains a key challenge. Unemployment, particularly youth unemployment, is a major concern. Global health threats, more frequent and intense natural disasters, spiraling conflict, violent extremism, terrorism and related humanitarian crises and forced displacement of people threaten to reverse much of the development progress made in recent decades. Natural resource depletion and adverse impacts of environmental degradation, including desertification, drought, land degradation, freshwater scarcity and loss of biodiversity, add to and exacerbate the list of challenges which humanity faces. Climate change is one of the greatest challenges of our time and its adverse impacts undermine the ability of all countries to achieve sustainable development. Increases in global temperature, sea level rise, ocean acidification and other climate change impacts are seriously affecting coastal areas and low-lying coastal countries, including many least developed countries and small island developing States. The survival of many societies, and of the biological support systems of the planet, are at risk.”', '“ Climate change will amplify existing risks and create new risks for natural and human systems. Risks are unevenly distributed and are generally greater for disadvantaged people and communities in countries at all levels of development,” as Intergovernmental Panel on Climate Change (IPCC) says in Climate Change 2014 - Synthesis Report - Summary for Policymakers.11', 'IV. Care for Our Common Home', 'Pope Francis in his 2015 Encyclical Letter Laudato Si ~ On Care for Our Common Home - issued in 25 May - makes an “ urgent appeal for a new dialogue about how we are shaping the future of our planet.” According to Pope, “we require a new and universal solidarity,” as “ our present situation is in many ways unprecedented in the history of humanity.”', '“ The Earth, our home,” - he stresses - “ is beginning to look more and more like an immense pile of filth,” because “ each year hundreds of millions of tons of waste are generated, much of it non-biodegradable, highly toxic and radioactive, from homes and businesses, from construction and demolition sites, from clinical, electronic and industrial sources.”', 'Pope Francis also warns:', '“A very solid scientific consensus indicates that we are presently witnessing a disturbing warming of the climatic system [...} most of global warming in recent decades is due to the great concentration of greenhouse gases (carbon dioxide, methane, nitrogen oxides and others) released mainly as a result of human activity [...] The problem is aggravated by a model of development based on the intensive use of fossil fuels, which is at the heart of the worldwide energy system. Another determining factor has been an increase in changed uses of the soil, principally deforestation for agricultural purposes.”', '“Warming has effects on the carbon cycle. It creates a vicious circle which aggravates the situation even more, affecting the availability of essential resources like drinking water, energy and agricultural production in warmer regions, and leading to the extinction of part of the planet’s biodiversity. If present trends continue, this century may well witness extraordinary climate change and an unprecedented destruction of ecosystems, with serious consequences for all of us,” as “ climate change is a global problem with grave implications: environmental, social, economic, political and for the distribution of goods.”', 'Moreover, Pope Francis remarks:', '“We all know that it is not possible to sustain the present level of consumption in developed countries and wealthier sectors of society, where the habit of wasting and discarding has reached unprecedented levels. The exploitation of the planet has already exceeded acceptable limits and we still have not solved the problem of poverty. ”', '“Caring for ecosystems demands far-sightedness, since no one looking for quick and easy profit is truly interested in their preservation. But the cost of the damage caused by such selfish lack of concern is much greater than the economic benefits to be obtained,” points out Pope Francis, And he adds that “ the alliance between the economy and technology ends up sidelining anything unrelated to its immediate interests.”', '“The failure of global summits on the environment makes it plain that our politics are subject to technology and finance. There are too many special interests, and economic interests easily end up trumping the common good and manipulating information so that their own plans will not be affected.”', '“ It is foreseeable that, once certain resources have been depleted, the scene will be set for new wars, albeit under the guise of noble claims. War always does grave harm to the environment and to the cultural riches of peoples, risks which are magnified when one considers nuclear arms and biological weapons [...] Politics must pay greater attention to foreseeing new conflicts and addressing the causes which can lead to them. But powerful financial interests prove most resistant to this effort, and political planning tends to lack breadth of vision.” 52', 'Wouldn’t these observations also applicable to outer space?', 'V. The Tragedy f Common Goods', 'To explain how we arrived to it at current bad situation of the common resources of Earth, Eduardo Felipe P. Matias recalls the article Tragedy of Common Goods, written in 1968 by American ecologist Garrett Hardin (1915-2003). Hardin recounts the case of a village of shepherds, whose sheep used a pasture in common. Each shepherd was engaged in putting more and more sheep in the pasture in order to increase his income. Over time, the pasture was saturated, and there was no pasture left to feed all the sheep. Most of them died. In sum, a tragedy. The shepherds abused the common good to increase their individual gains, ignoring the limits of nature. Although they gained more in short term, they lost out in long run. Already in 1999, it was recognized that “ a globalized world requires a theory of global public goods to achieve crucial goals such as financial stability, human security or the reduction of environmental pollution.” And that “many of today’s international crises have their roots in a serious under supply of global public goods.” 13', 'As to global human security as a public good, the 1994 Human Development Report has showed threats to world peace in transborder challenges: unchecked population growth, disparities in economic opportunities, environmental degradation, excessive international migration, narcotics production and trafficking and international terrorism,” It was equally said that the society would be “willing to pay for public goods that serve our common interest, be they shared systems of environmental controls, the destruction of nuclear weapons, the control of transmittable diseases such as malaria and HIV/AIDS, the preservation of ethnic conflicts or the reduction of refugee flows,” 14', 'Addressing the present question of common goods in his 2015 Encyclical Letter, Pope Francis points out:', '“Whether believers or not, we are agreed today that the Earth is essentially a shared inheritance, whose fruits are meant to benefit everyone. Hence every ecological approach needs to incorporate a social perspective which takes into account the fundamental rights of the poor and the underprivileged. The principle of the subordination of private property to the universal destination of goods, and thus the right of everyone to their use, is a golden rule of social conduct He also notes that “ the natural environment is a collective good, the patrimony of all humanity and the responsibility of everyone. If we make something our own, it is only to administer it for the good of all. If we do not, we burden our consciences with the weight of having denied the existence of others.”', 'Antonio Cassese (1937-2011) commented that “ the concept of ‘common good’ is not yet felt by the members of the international society. Only state interests and their occasional convergence regulate international relations.” 15 The refugees tragedy in Europe today proves it.', 'VI. Uncertainty', 'According to Klaus Schwab, Executive Chairman of World Economic Forum, “ in the coming decade [...] our lives will be even more intensely shaped by transformative forces that are under way already. The effects of climate change are accelerating and the uncertainty about the global geopolitical context and the effects it will have on international collaboration will remain. At the same time, societies are increasingly under pressure from economic, political and social developments including rising income inequality, but also increasing national sentiment [...] [N]ew technologies, such as the Internet or emerging innovations will not bear fruit if regulatory mechanisms at the international and national levels cannot be agreed upon.”', 'The Global Risks Report 2015, in turn, stresses: “ 2015 differs markedly from the past, with rising technological risks, notably cyber-attacks, and new economic realities, which remind us that geopolitical tensions present themselves in a very different world from before. Information flows instantly around the globe and emerging technologies have boosted the influence of new players and new types of warfare [...] Past warnings of potential environmental catastrophes have begun to be borne out, yet insufficient progress has been made - as reflected in the high concerns about failure of climate-change adaptation and looming water crises in this year’s report.”', 'The Report sees three risk constellations that bear out its findings:', '“ 1) The interconnections between geopolitics and economics are intensifying because States are making greater use of economic tools, from regional integration and trade treaties to protectionist policies and cross-border investments, to establish relative geopolitical power. This threatens to undermine the logic of global economic cooperation and potentially the entire international rulebased system;', '2) The world is in the middle of a major transition from predominantly rural to urban living, with cities growing most rapidly in Asia and Africa. If managed well, this will help to incubate innovation and drive economic growth. However, our ability to address a range of global risks - including climate change, pandemics, social unrest, cyber threats and infrastructure development - will largely be determined by how well cities are governed; and', '3) The pace of technological change is faster than ever. Disciplines such as synthetic biology and artificial intelligence are creating new fundamental capabilities, which offer tremendous potential for solving the world’s most pressing problems. At the same time, they present hard-to-foresee risks. Oversight mechanisms need to more effectively balance likely benefits and commercial demands with a deeper consideration of ethical questions and medium to long-term risks - ranging from economic to environmental and societal. Mitigating, preparing for and building resilience against global risks is long and complex, something often recognized in theory but difficult in practice.”', 'How to govern the emerging technologies and uncertainties?', 'VII. The Doomsday Clock', 'It is a symbolic clock face, marking countdown to doomsday. On 19 January 2015, it went on to score 23:57h, three minutes to midnight - the time of global catastrophe able to extinguish the human species inhabiting the Earth for many thousands of years. The decision to advance the clock by two minutes was taken after consultations with more than 20 scientists, including 17 Nobel laureates, among them famous physicists, such as the British Stephen Hawking, the Japanese Masatoshi Koshiba, pioneer in the study of neutrinos, and the American Leon Lederman. The clock has been maintained since 1947 - when the Cold War between the USA and the former USSR began - by the members of the Bulletin of the Atomic Scientists Science and Security Board. In 68 years, this sui generis indicator has been adjusted 22 times. Its worst moment came in 1953, triggered by American and Soviet tests with hydrogen weapons when the Clock scored 23:58h.', 'The Clock was conceived by the celebrated Chicago Atomic Scientists, that had actively participated in the Manhattan Project in the creation of the atomic bombs launched over Hiroshima and Nagasaki, Japan, in August 1945. Haunted with these bombings - that killed more than 100,000 people just on the first day, and many more in the following months - they started to publish a mimeographed warning newsletter and then the Bulletin. The closer they set the Clock to midnight, the closer the scientists believe the world is to a global disaster.', "The Clock hangs on a wall in a Bulletin's office in the University of Chicago. Originally, it represented an analogy to the threat of global nuclear war. But since 2007 it has also reflected climate change, and new developments in the life sciences and technology that could inflict irrevocable harm to humanity.", 'The analysis of the Bulletin - addressed “to the leaders and citizens of the world” - says in sum: “ In 2015, unchecked climate change, global nuclear weapons modernizations, and out-sized nuclear weapons arsenals pose extraordinary and undeniable threats to the continued existence of humanity.” The group said in a statement: “ [Wjorld leaders have failed to act with the speed or on the scale required to protect citizens from potential catastrophe. These failures of political leadership endanger every person on Earth.” In 2014, with the Doomsday Clock at five minutes to midnight, the members of the Science and Security Board concluded their assessment of the world security situation by writing: “We can manage our technology, or become victims of it. The choice is ours, and the Clock is ticking.”', 'In 2015, with the Clock hand moved forward to three minutes to midnight, the Bulletin feels compelled to add, with a sense of great urgency: “The probability of global catastrophe is very high, and the actions needed to reduce the risks of disaster must be taken very soon.”', 'In face of the dangers affecting today civilization on a global scale, the Bulletin urges the citizens of the world to demand that their leaders, among other measures, "dramatically reduce proposed spending on nuclear weapons modernization programs” , as “ the USA and Russia have hatched plans to essentially rebuild their entire nuclear triads in coming decades, and other countries with nuclear weapons are following suit.”', 'At the start of 2015, nine States - the USA, Russia, the United Kingdom, France, China, India, Pakistan, Israel and Democratic People’s Republic of Korea (North Korea) - possessed about 15,850 nuclear weapons, of which 4,300 were deployed with operational forces. Roughly 1800 of these weapons are kept in a state of high operational alert, according to the Stockholm International Peace Research Institute (SIPRI). Launched on 15 June 2015, the SIPRI Yearbook 2015, which assesses the current state of armament, disarmament and international security, notes as one of its key findings that “ all the nuclear weapon-possessing states are working to develop new nuclear weapon systems and/or upgrade their existing ones.” 16', '“There are too many nuclear weapons,” said Sharon Squassoni, an expert in nuclear weapons nonproliferation at the Center for Strategic and International Studies in Washington, USA. And she added: “The existence of these weapons takes a lot of time, effort, and money to keep them safe, and the bureaucracies are poised to keep these systems going indefinitely.” 17', 'For Hans M Kristensen, director of the Nuclear Information Project at the Federation of American Scientists, “ the projected costs of the nuclear weapons modernization program are indefensible, and they undermine the global disarmament regime.” 18', 'That is why another demand from Bulletin, addressed to world leaders, is to “ re-energize the disarmament process.” In practice it means that “ the USA and Russia, in particular, need to start negotiations on shrinking their strategic and tactical nuclear arsenals.”', 'The creation of “ institutions specifically assigned to explore and address potentially catastrophic misuses of new technologies,” is also a requirement proposed by the Bulletin.', 'The Bulletin’s appeals are also, to some extent, applicable to outer space, and some of its requirements can be objects of proper regulation by international space law.', 'VIII. Transparency and Confidence', 'The Earth being in danger, the transparency and confidence-building measures (TCBMs) are as vital as those of collective security. These actions are means by which Governments can share information aiming at creating mutual understanding and trust, reducing misconceptions and miscalculations and thereby helping both to prevent military confrontation and to foster regional and global stability. They played an important role during the Cold War, contributing to reducing the risk of armed conflict through mitigating misunderstandings on military actions, particularly in situations where States lacked clear and timely information.19 The need for such measures in outer space activities has increased significantly over the past 20 years, The world’s growing dependence on space-based systems and technologies and the information they provide requires collaborative efforts to address threats to the sustainability and security of outer space activities. TCBMs “ can reduce, or even eliminate, misunderstandings, mistrust and miscalculations with regard to the activities and intentions of States in outer space” , This is the conclusion of the Report of the Group of Governmental Experts on TCBMs in Outer Space Activities - a study adopted by consensus and issued on 29 July 2013.20', 'The Report adds that “ these measures can augment the safety, sustainability and security of day-to-day space operations and can contribute both to the development of mutual understanding and to the strengthening of friendly relations between States and peoples.”', 'It is acknowledged that “ the existing treaties on outer space contain several TCBMs of a mandatory nature. Non-legally binding measures for outer space activities should complement the existing international legal framework on space activities and should not undermine existing legal obligations or ham per the lawful use of outer space, particularly by emerging space actors.” The Group also discussed other measures, including those of a legally binding nature. The Group further agreed that “ such measures for outer space activities could contribute to, but not act as a substitute for, measures to monitor the implementation of arms limitation and disarmament agreements,” help States to enhance clarity of their peaceful intentions and create conditions for establishing a predictable strategic situation in both the economic and security arenas.', 'Similarly, included in the Report were "coordination and consultative mechanisms aimed at improving interaction between participants in outer space activities and clarifying information and ambiguous situations.” Likewise the Report recommended a coordination between the Office for Disarmament Affairs, the Office for Outer Space Affairs (OOSA) and other appropriate UN entities. Moreover, the Report drafted “ a series of measures for outer space activities, including exchange of information relating to national space policy such as major military expenditure in outer space, notifications of outer space activities aimed at risk reduction, and visits to space launch sites and facilities.”', 'The Group took note of the “Guidelines for appropriate types of confidencebuilding measures and for the implementation of such measures on a global or regional level” , as contained in the “ Study on the application of confidence- building measures in outer space”21', 'TCBMs for outer space activities are integrated in a broader context. The UN General Assembly endorsed, in its resolution 43/78 H, the guidelines on confidence- building measures adopted by the Disarmament Commission at its 1988 session. This resolution noted that “ confidence-building measures, while neither a substitute nor a precondition for arms limitation and disarmament measures, can be conducive to achieving progress in disarmament” .', 'The Report indicates the following categories of TCBMs for space activities as relevant: “ a) General transparency and confidence-building measures aimed at enhancing the availability of information on the space policy of States involved in outer space activities; b) Information exchange about development programs for new space systems, as well as information about operational space-based systems providing widely used services such as meteorological observations or global positioning, navigation and timing; c) The articulation of a State’s principles and goals relating to their exploration and use of outer space for peaceful purposes; d) Specific information-exchange measures aimed at expanding the availability of information on objects in outer space and their general function, particularly those objects in Earth orbits; e) Measures related to establishing norms of behavior for promoting spaceflight safety such as launch notifications and consultations that aim at avoiding potentially harmful interference, limiting orbital debris and mini mizing the risk of collisions with other space objects; f) International cooperation measures in outer space activities, including measures aimed at promoting capacity-building and disseminating data for sustainable economic and social development, that are consistent with existing international commitments and obligations.', 'In fact, some TCBMs for outer space activities have already been enacted at the multilateral and/or the national level. They include pre-launch notifications, space situational awareness data-sharing, notifications of hazards to spaceflight safety and other significant events, and the publication of national space policies. But they need to be further developed.', 'IX. Common Law of Mankind and Earth', 'More than ever, it is time to think big. International space law is usually defined as dealing with outer space, celestial bodies - Moon and asteroids, Mars and other planets as well as with the space activities which so far are carried out only by the human species from the planet Earth, However, the very specific situation of Earth as celestial body responsible for the creation and development of the international space law is not taken into the due consideration. Earth is not recognized as one of the main objectives of this branch of law.', 'Ironically, in this context, we could say that the international space law takes care of the solar system and the universe as a whole, minus of Earth, although it is the cradle of the exploration and use of outer space in general, and, therefore, of international space law.', 'Let’s take just two examples. “At its broadest, space law comprises all the law that may govern or apply to outer space and activities in and relating to outer space,” write Francis Lyall and Paul B. Larsen.22 In the same sense, the Education Curriculum of Space Law, adopted by United Nations Office For Outer Space Affairs (UNOOSA), on March, 2014, states that “ space law can be described as the body of law applicable to and governing space related activities.”23', 'Nevertheless, the Outer Space Treaty, of 1967, has, at least, two extremely important norms for the security of Earth and its inhabitants in Articles IV and IX, respectively: 1) “not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction,” and 2) to avoid “harmful contamination and adverse changes in the environment of the Earth resulting from introduction of extraterrestrial matter.” The sky always has played a crucial role in the evolution of mankind and all life manifestations on Earth. However, today the importance of outer space to our planet and its common life has increased as never before. The data coming from satellites are absolutely fundamental for any efforts to assure the sustainability of Earth and all its life expressions. In this global reality it is sheer recklessness to ignore the imperative of protecting our planet and its population, based on inclusive international space legislation. Hence the necessity of a Common Law of Mankind24 and Earth, specially related with international space law.', 'More and more, outer space protection25 must be seen as an indispensable factor to Earth protection, and vice-verse. As the globalization of Earth - with the interdependence of physical, social and political events - is more than ever recognized as an undeniable fact, the universalization of outer space {its cosmic reach), with the interconnection of everything with everything, cannot be bypassed, as it has been in the past. As Ervin Laszlo remarks, “ the reality we call universe is a seamless whole, evolving over eons of cosmic time and producing conditions where life, and then mind and consciousness can emerge.”26 Or, as Edgar Morin says, “we carry inside of us all the cosmos” and “we are all children of the sun.”27', 'X. It Is up to International Space Law', 'If we are really determined to avoid a likely apocalypse visible on the horizon, one of the main tasks of the international space law that we must trigger is to help save the Earth from space, using the powerful scientific and technological resources we have installed there.', 'Centuries ago Earth ceased to be the center of the universe, as our ancestors thought. But in face of unprecedented global dangers that threaten our planet today, its place cannot be other than the center of our universal concerns. Probably, a collapse of Earth would deprive the universe of a specie of intelligent life.', 'In reality, as Jonathan Schell (1943-2014) pointed out, “ the vision that counts is the view from Earth, from life,” as “ from our strategic position on Earth different view opens, bigger even than the one taken from space. It is the vision of our children and grandchildren, of all future generations of mankind, stretching ahead of us into the future.”28', 'The question, as posed by Antonio Cassese, is that “ international society is still grounded in the mere juxtaposition of its subjects - not in their solidarity, let alone in their integration.” 29', 'In any event, “ from the microbes inhabiting the earth beneath our feet to environments of the universe unknown to us now, the next 100 years of ecological discoveries will influence our lives. We enter a time when society is armed with the scientific knowledge and ability to make responsible decisions,” as a recent editorial of Science affirms.30 And with “ a new human consciousness ” , as says Edgar Morin.31', 'So, “ the choice is our: form a global partnership to care for Earth and one another or risk the destruction of ourselves and the diversity of life,” according to The Earth Charter.32', 'The current global situation seems to be so serious that the titanic work of saving mankind and our planet can be seen as a kind of utopia, maybe the major utopia of all times. A dream still far from having a general support. Coincidentally we’ll commemorate in 2016 the 500 years since the English humanist and statesman Thomas More (1478-1535) published his Utopia„ considered “ a playfully serious social critique to a social reality deadly and tragically grave.”33', 'In this context, it is urgent to build a positive agenda for the international space law.']

[(15, 23)]

304ae711a69c32a4ee375cb5b91e4666c58327e6bbb0506c4a08b9e3e0d9f4a3

Goes nuclear---competitive commerce solves

Wendy N. Whitman Cobb 21, Associate Professor of Strategy and Security Studies at the School of Advanced Air and Space Studies (SAASS), USA, “The Commercial Space Peace,” Privatizing Peace: How Commerce Can Reduce Conflict in Space, Routledge, 2021, pp. 86–116

space weapons increase tension and contribute arms race that cannot be won provoke first strike create use or lose mentality and risk nuclear escalation economic concerns restrict conflict in space Competition can increase capabilities and enable coop economic peace act via connections between private actors which foster communication and trust can spill over into interstate relations increased competition lead to powerful collective action space openness makes it easily monitored provide means through which norms [are] enforced the commercial space peace ensure collective action

space weapons should not be used . The danger is that weaponization could increase tension and contribute to a growing arms race in space space weapons would instigat an arms race that cannot be won , by anyone . Further, space weapons could potentially provoke a first strike by an adversary, create a “ use it or lose it” mentality and risk rapid dangerous even nuclear escalation economic concerns can restrict military conflict in space reducing the chances of conflict competition is not bad The race itself had a civilian face with a military undertone , but its benefits were on the whole, positive . No overt military conflict arose, there was a significant investment and the two powers realized that they needed some international framework to preserve their ability to operate in space Competition can increase capabilities and those can in turn enable coop eration As more countries develop tech the ability to help one another increases cooperative activities can in turn foster greater cooperation in areas other than space and science one of the causal mechanisms through which the economic peace is hypothesized to act is via increased connections between private actors which foster communication and mutual trust liberalism embraces the importance of links among people to create peaceful global relations greater coop in space can spill over into other areas of interstate relations . increased competition could lead to the type of situation powerful in fostering collective action Increased ties reduce the costs of engaging in collective action space itself has been used to verify international agreements lowering information costs openness makes it an arena that is easily monitored it takes a fairly low level of technology to track satellites in their orbits States can provide the means through which private actors are coordinated and norms [are] enforced Private actors can also be empowered and lend considerable weight to the discussions the commercial space peace can bring countries to the negotiating table and create conditions to ensure collective action

space weapons not used tension arms race space instigat arms race cannot be won , by anyone first strike use or lose mentality rapid dangerous nuclear escalation economic military conflict in space reducing competition not bad undertone on the whole, positive overt investment international framework Competition increase capabilities those coop develop tech help one another cooperative other economic connections private actors communication mutual trust liberalism links among people peaceful global relations coop space spill over other areas interstate relations competition powerful collective action ties costs space itself verify agreements information costs openness easily monitored means norms [are] enforced Private actors discussions commercial space peace negotiating table create conditions collective

['This theory also does not rule out the weaponization of space or the deployment of weapons whether offensive or defensive in nature. It does argue, however, that they should not be used. The danger, of course, is that any sort of weaponization of space could increase tension and contribute to a growing arms race in space, something that will be discussed further in the next chapter. Writing on the attitudes of the Americans and Soviets at the high point of the Cold War, Steer argues that “the unique nature of the environment meant that weaponization could endanger each state’s own sovereign interests as much as any adversaries.”55 In analyzing today’s strategic environment, Johnson-Freese echoes the argument: ', '[W]hile space weapons might offer the United States a short-term advantage, in the long term they would actually weaken US security by instigating an arms race that cannot be won, by anyone. Further, space weapons could potentially provoke a first strike by an adversary, create a “use it or lose it” mentality among US forces, and risk rapid and dangerous—perhaps even nuclear—escalation.56', 'Weaponization will likely stimulate a space arms race but to the extent that a state is rational and interested in reducing and mitigating potential economic, weaponization should still be avoided.', 'This theory also does not rule out other motivations for reducing conflict in space, including the limitation of a potential opponents use of space through diplomatic means. This would follow a pattern established during the Cold War where', 'Following a series of arms tests in space, both the United States and the USSR realized that if they wanted to continue to have access to space for intelligence, reconnaissance, and surveillance purposes, they would need to come to some compromises as to its use.57', 'The resulting diplomatic outburst produced not just the Outer Space Treaty, which banned the placement of nuclear weapons in orbit, but the Agreement on the Rescue of Astronauts, the Convention on the International Liability for Damage Caused by Space Objects, and the Convention on Registration of Objects Launched into Outer Space. In other words, economic concerns can serve to restrict military conflict in space with other concerns, including diplomatic, reinforcing the effect, further reducing the chances of conflict.', 'As described at the beginning of this chapter, while work on codes of conduct for space or new international agreements is ongoing, to this point, there does not appear to be any momentum to conclude any such talks. It is possible that major space states could suddenly realize the impact of their own actions in space and work to reduce tension like the US and Soviet Union did in the late 1960s. However, should that not be the case, this theory suggests that an international regulatory framework or code of conduct is not absolutely necessary to restrain state behavior. Instead, as commercial and economic dependence on space grows and the space market is encouraged to expand, economic restraints can fill the void until such time that an international agreement becomes feasible. Moltz argues that this option of “muddling through,” or engaging in a piecemeal fashion, could continue, but that it has several significant drawbacks.58 These include a failure to include considerations of national and military power and lack of enforcement against those who violate norms. However, in viewing conflict in space through the theory presented here, the economic realm does not have to take into consideration military concerns as long as economic costs are considered in military planning. And as long as states behave in a rational way, we can assume that they will. States have a strong, rational interest not only in protecting the economic wellbeing of their states but also in increasing their economic standing. As detailed earlier in this chapter, economic considerations are already rooted in American military doctrine. In terms of sanctions for violating norms, they could be carried out through loss of economic activity as the economic peace literature proposes. States who violate acceptable standards of behavior may find space commerce fleeing from their country and a lack of partners who may want to work with them. While “muddling through” might not be the optimal strategy, it is one that has worked to this point.', 'The value of competition', 'As noted in the first chapter, a subsidiary argument offered here is that, even if a space race should break out, military or civilian in nature, competition is not necessarily a bad thing. Much of the technological development noted previously that arose from space investment came at the height of the space race as both the US and the USSR were pouring billions of dollars into a race to the moon. The race itself had a civilian face with a military undertone, but its benefits were on the whole, positive. No overt military conflict arose, there was a significant investment in research, development, and technology, and the two space powers realized that they needed some sort of international framework to preserve their ability to operate in space. Both of these elements continue to be present today.', 'First, the increased threat of conflict in space could, coming as it does with an increased number of public and private actors and a greater economic threat, impress upon space participants the need to reign in dangerous actions and rhetoric. While it took an atmospheric nuclear test on the part of the Soviets to encourage both the US and USSR to come to the table in the 1960s, increasing awareness of economic and military dependence and the consequences arising from conflict in space could increase the enthusiasm to pursue new international agreements. For its part, the US military increasingly recognizes the dangers and the need to mitigate them, however, mitigation efforts have largely concentrated on offensive rather than defensive capabilities.59 A focus on offensive weapons can only aggravate the situation and there are still significant technological hurdles in developing on-orbit offensive weapons. As such, a move away from such rhetoric, like Johnson-Freese argues for, is necessary.', 'Competition can also increase technological capabilities and those technological capabilities can in turn enable cooperation.60 China is a case in point. In the 1990s and early 2000s when they were beginning to restart a human spaceflight program, Chinese officials often stated their desire to work with other powers in space, particularly the United States. China did in fact forge ties with other countries via space, in particular Brazil. However, as Chinese spaceflight technology advanced, the rhetoric of cooperation was pulled back some over a desire to enter into a partnership on equal footing. Once the Chinese could establish their abilities in space, they would be able to cooperate with potential partners as an equal, rather than junior, partner.61 ', 'As more countries develop space technologies, the ability to help one another out also increases. The Agreement on the Rescue of Astronauts obligates signatories to “take all possible steps to rescue and assist astronauts in distress and promptly return them to the launching state.”62 More states with the ability to conduct crewed operations in space will only facilitate this type of help and cooperation. While fictional, this is just the type of scenario that played out in the book (and later movie) The Martian. When a supply rocket blows up on launch, NASA turns to China for a replacement that enables a Mars crew to return to Mars to rescue a stranded astronaut. These types of cooperative activities can in turn foster greater cooperation in areas other than space and science. In fact, one of the causal mechanisms through which the economic peace is hypothesized to act is via increased connections between people and private actors which can foster communication and mutual trust.63 Similarly, sociological liberalism embraces the importance of links among people to create more peaceful global relations.64 As greater cooperation emerges in space, it can spill over into other areas of interstate relations.', 'To return to the discussion of space as a global commons, the increased competition and potentially increased cooperation could lead to the type of situation that Ostrom finds powerful in fostering collective action. Increased ties, diplomatically and/or economically, can reduce the costs of engaging in collective action. Historically, space itself has been used to monitor and verify international agreements, thereby lowering the information costs for participants. The openness of space and the vulnerability of space infrastructure makes it an arena that is easily monitored; it takes a fairly low level of technology to track satellites in their orbits. States can provide the means through which private actors are coordinated and norms [are] enforced. Private actors, given their increasing role in the commercial and military aspects of space can also be empowered and lend considerable weight to the discussions. Thus, while the commercial space peace theory presented here may seem rather pessimistic about the possibility of cooperation among states, it can also be seen as an optimistic vision where increased economic ties between space and among actors, state and non-state alike, bring countries to the negotiating table and create the conditions needed to ensure collective action.']

[(17, 24)]

4092c728e9d354c01ebc485bb49f40b6a5de8bb7711884fb02b20e92d297f688

RF interference triggers nuke war

Scott K. Johnson 16, Master's in Hydrogeology from the University of Wisconsin-Madison, Hydrogeologist for the Wisconsin Department of Natural Resources and the Wisconsin Geological and Natural History Survey, Lecturer at Coconino County Community College and Northern Arizona University, Science Editor for Climate Feedback, Writer for Ars Technica, “The Solar Storm That Could Have Started A War”, Ars Technica, 8/18/2016, https://arstechnica.com/science/2016/08/the-solar-storm-that-could-have-started-a-war/

full-scale exchange of nuc s because of misunderstanding spectrum disrupt radio communications included B M E W S To US military seemed like jamming mean missiles en route bombers in the air i n minutes might have lost comm s Orders to return might never be received mean they drop bombs

If there’s a possibility worse than a full-scale exchange of nuc lear weapon s it’s a full-scale exchange of nuclear weapons launched because of a misunderstanding in the radio portion of the electromagnetic spectrum the Earth’s ionosphere disrupt radio communications for a few days the early disruptio ns included NORAD’s B allistic M issile E arly W arning S ystem To US military leaders, it seemed like jamming —Russia blinding the eyes watching for incoming nuclear weapons. Did that mean there were missiles en route ? With US bombers kept on constant alert , they could have been in the air with i n minutes the problems with the radar stations were just the start of the disruptions so those bombers might have lost comm unication s after they took off. Orders to return to base might never have be en received standing orders mean t they would continue to their target and drop their bombs

worse than a full-scale exchange of nuc s misunderstanding spectrum disrupt radio communications B M E W S US military seemed jamming missiles en route constant alert in the air i n minutes lost comm s return never be received standing orders mean drop bombs

["If there’s a possibility worse than a full-scale exchange of nuclear weapons, maybe it’s a full-scale exchange of nuclear weapons launched because of a simple misunderstanding. In 1967, we may have come close to that scenario, but you can thank some meteorologists for the fact that it didn't come to pass. ", 'In late May of 1967, an active spot on the Sun threw a remarkable storm our way, and it continued over several days. The spot released charged particles and serious bursts of radiation in the radio portion of the electromagnetic spectrum (among other things), disturbing the Earth’s ionosphere and magnetic field. All this resulted in disruptions to radio communications and radar systems for a few days—as well as Northern Lights seen as far south as New Mexico. ', 'Critically, the early disruptions included NORAD’s newly built Ballistic Missile Early Warning System. The three high-latitude radar stations (in Alaska, Greenland, and the UK) pretty much went dark in the afternoon of May 23. As the Sun sank lower in the sky, these radar systems were pointed right at the source of the radio emissions just as they arrived. To US military leaders, it seemed an awful lot like jamming—Russia blinding the eyes watching for incoming nuclear weapons. Did that mean there were missiles or aircraft en route? ', 'With US bombers kept on constant alert, they could have been in the air and headed for Russia within minutes. Of course, the problems with the radar stations were just the start of the disruptions that followed, so those bombers might have lost their communications link after they took off. Orders to return to base might never have been received. In that scenario, standing orders meant they would continue to their target and drop their bombs. ']

[(9, 19)]

9a3feaa3e80d67a340de9c195782f6634b95a1fd202eb749da91d8f86c1b7389

Back-contamination causes extinction

Dr. Rhawn Gabriel Joseph 17, Ph.D., American neuropsychologist and writer, Astrobiology Associates, Emeritus, Brain Research Neuroscience Laboratory, “NASA is the Inquisition: NASA's 50 Year History of Defaming Scientists Who Discovered Evidence of Extraterrestrial Microbial Life,” Cosmology Science, 1/1/2017, http://cosmology.com/NASAIsTheInquisition.html

organisms pose a threat to life on Earth if transported cause plague destroy metal, plastics, and infrastructure organisms identified by dozens of experts could attack plants and trees which produce air and kill life on our entire planet by toxins horizontal gene transfer and bio-corrosion

Martian organisms pose a threat to life on Earth if transported to our planet they may cause disease and plague , and possess the capability of destroy ing metal, plastics, and the infrastructure of civilization. Martian bacteria and fungi had contaminated and were damaging the Mars rovers this plan, would be like giving 7-year olds atomic bombs any Martian samples returned to Earth will undoubtedly include Martian organisms that have been identified as fungi by dozens of experts these sample will contain Martian viruses bacteria and pathogens which could attack the plants and trees which produce the air and kill innumerable life on this planet, including humans When Martian samples containing bacteria and fungi escape or are sold or stolen our entire planet may be contaminated metals and non-metals the infrastructure of civilization may be destroyed by toxins secreted by these organisms--dangers which are well known and referred to as horizontal gene transfer , plague, and bio-corrosion

organisms threat to life on Earth disease plague destroy metal, plastics, and infrastructure contaminated damaging the Mars rovers giving 7-year olds atomic bombs undoubtedly Martian organisms fungi dozens of experts viruses bacteria pathogens plants trees air innumerable life including humans escape sold stolen entire planet contaminated metals non-metals infrastructure of civilization destroyed toxins gene transfer and bio-corrosion

['Dr. Joseph predicted that Martian organisms pose a threat to life on Earth if transported to our planet--which NASA plans to do in a few years--as they may cause disease and plague, and possess the capability of destroying metal, plastics, and the infrastructure of civilization. Dr. Joseph then tested his prediction, and in December of 2016 provided evidence, to a Federal Court, that Martian bacteria and fungi had contaminated and were damaging the Mars rovers (http://Cosmology.com/FungiContaminateMarsRovers.html). NASA responded to this evidence by demanding that the Courts not look at the evidence, which is what the Inquisition demanded of Galileo: do not look.', 'Science means "re-search"; search again, look again, keep looking; and NASA\'s recent demand that the Federal Court, and the scientific community, not look at the evidence is just more evidence that NASA is no friend to science.', 'Science is premised on the "scientific method" which includes observation, the collection of a body of evidence, and experimentation and the testability of predictions. Science is not refusing to look at the evidence, and attacking those who do; yet this is NASA\'s M.O.', "NASA fears the truth. Forty biologist, identified by their universities as experts in fungi formed a consensus, there is life on Mars (Joseph 2016), and now there is evidence Martian fungi have contaminated the rovers (Joseph & Rabb 2016); findings which have twice humiliated NASA by discovering what was right before their eyes but were too blind to see. A culture of denial is policy,so they demand of the Court, and the scientific community: do not look at the evidence. In fact, NASA's official policy is not just denial and lies, but defamation, slander, and if all else fails: death threats.", "NASA is the Inquisition, and NASA has a fifty year history of attacking and destroying the reputations of scientists who make discoveries NASA opposes; and NASA's victims include NASA scientists.", 'NASA is an Anti-Science Organization which Promote Religion Masquerading as Science', 'NASA is, the Inquisition, and employs tactics little different from those of the Inquisition of the Middle Ages so as to terrorize the scientific community into silence. In the late 1500s, Copernicus was so terrified of his fellow "scientists" and the Inquisition, that he did not allow his master work to be published until after his death. His crime? He provided evidence that Earth was not the center of the Universe, or this solar system--a discovery which contradicted the Jewish and Christian religion. NASA, like the Inquisition, prefers to keep the faithful ignorant, and despite all evidence to the contrary, NASA has rejected Copernicus and placed Earth right back in the center of the Universe, and makes ridiculous claims as to the age of distant stars, based on how far away they are from Earth; and claiming that stars--so far detected--furthest from Earth must have been formed right after the "Big Bang". Its laughable. This is how children think. These people at NASA are fools and idiots. NASA is not even a scientific organization, but an engineering and aerospace agency controlled by the military and staffed by mathematicians, geologists, and astronomers who are little more than government bureaucrats. NASA doesn\'t even have a space ship, no longer has the know how to put men on the moon, and has to rent space on Russian craft to shuttle its "astronauts" to and from the ISS which is not even in space, but orbits in the thermosphere.', 'NASA is not a scientific organization, but an anti-scientific organization with some great engineers. In fact, many of the so called scientific discoveries claimed by NASA, have been faked, fudged, and reek of fraud and magical thinking, and cannot be replicated by independent scientists. One of the more notorious examples of this fakery, is NASA\'s claims that "A Bacterium That Can Grow by Using Arsenic Instead of Phosphorus" and which was published with little or no legitimate "peer review" by the journal of minutia: "Science" in 2010 (Wolfe-Simon, et al, Science, DOI 10.1126/science.1197258). No one could replicate this garbage and the study was widely rejected as "crap" (see http://cosmology.com/Arsenic100.html). NASA\'s entire purpose in concocting this fraud was to provide evidence against an extraterrestrial origin for life on Earth, and in favor of the religious view found in Genesis 1. Much of what comes out of NASA cannot be trusted, has been faked, misinterpreted, can\'t be replicated outside of NASA, and is little more than fantasy, dogma, and religion masquerading as science.', 'NASA Lies About Life on Mars Because NASA Plans to Transport Martian Organisms to Earth', 'NASA has ignored, censored, suppressed, and lied about the evidence, and sought to terrorize and silence the scientific community, not just because of the ignorance, incompetence, and mendacity which runs rampant at NASA, and not just because of military orders requiring denial, but because NASA intends to transport invaluable and extremely dangerous Martian organisms to Earth so as to harvest their invaluable Martian genes. These Martian organisms and their genes will become the most valuable and most sought after property on Earth; and the most dangerous due to contamination; which NASA admits, cannot be completely prevented as stated on the Mars sample return website.', 'And then, despite all the evidence for past and present life on Mars, NASA assures the public: "... it is highly unlikely that living organisms will be found on the samples...." and thus no reason for public oversight or any special precautions. This is an incredibly dangerous lie. To allow the bone-heads at NASA to go forward with this plan, would be like giving 7-year olds atomic bombs. The folks are NASA are not competent and cannot be trusted--which was also the judgment of NASA\'s Inspector General who, in 2011, discovered widespread theft of astromaterials which NASA tried to cover up.', 'Fact is, NASA\'s own scientists, and 40 experts in biology, have already proven NASA is wrong--there is life on Mars-- and the consequences of NASA\'s "willful ignorance" and "deliberate indifference" --in a "worst case scenario"-- could be contagion, disease, plague, and a sixth mass extinction.', 'NASA displays "willful ignorance" and "deliberate indifference" to the evidence for life on Mars and the dangers, because NASA knows an informed public might panic at the prospect of Martian plagues and diseases, and the effect of Martian organisms on crops, trees, and the environment. NASA wishes to avoid any public hysteria, or oversight or interference by elected officials who will rightfully fear contagion and may cancel NASA\'s plans. Thus, NASA lies, ignores, impugns, censors and suppresses the evidence of life on Mars even when its an "earthshaking" discovery made by NASA\'s project manager for the Mars rover, or the expert opinion of dozens of experts on the faculty of accredited universities.', 'The fact is, any Martian samples returned to Earth will undoubtedly include Martian organisms that have been identified as fungi by dozens of experts (Joseph 2016a). And, as deduced from the work of McKay, Levin, and others, these sample will contain Martian viruses, Martian bacteria, and perhaps Martian pathogens which--in a "worst case scenario"-- could attack the microbes, and plants and trees which produce the air we breath, and sicken and kill innumerable life forms on this planet, including humans.', 'NASA\'s conduct and plans are a direct assault on the Public Trust Doctrine secured by the 9th Amendment and case law. In the case of the United States v. Beebe, 127 U.S. 338, 342 (1888), it was concluded: "The public domain is held by the government as part of its trust. The government is charged with the duty, and clothed with the power, to protect it . . . and... all the people as the beneficiaries of the trust." Instead, NASA displays "willful ignorance" and "deliberate indifference" to the dangers to environment, and animal and human life; and NASA lies in order to avoid any oversight by elected officials.', 'NASA is also in violation of the Due Process Clause which protects fundamental rights and liberties which are "deeply rooted in this Nation\'s history and tradition...so rooted in the traditions and conscience of our people as to be ranked as fundamental" (Moore, 431 U.S. at 503; Snyder v. Massachusetts, 291 U.S. 97, 105 (1934), and "neither liberty nor justice ... implicit in the concept of ordered liberty... would exist if they were sacrificed" (Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937).', "When Martian samples containing bacteria and fungi escape or are sold or stolen (which is what befell most of the samples retrieved from the moon as determined by NASA's Inspector General in 2011), our entire planet, its biosphere, life on Earth, may be contaminated, and even metals and non-metals, the infrastructure of civilization, may be destroyed by toxins secreted by these organisms--dangers which are well known and referred to as horizontal gene transfer, plague, and bio-corrosion."]

[(18, 24), (25, 27)]

7031e180e9f38922f33b936a6d61ff9d53acd549f33c4fd57d9f4b46ea347c01

Space-tailored antitrust is key AND prevents the collapse of space governance

Maria Lucas-Rhimbassen & Lucien Rapp 21, Lucas-Rhimbassen serves as a Research Associate at the Chaire SIRIUS and is also a PhD Candidate in space law since 2016, is also a guest lecturer at ISAE-Supaero, served in the International Institute for Space Law (IISL) in the trilateral IISL-IAA-IAF working group on Space Traffic Management (STM), co-chaired the Responsible Lunar Governance Sub-Committee of the Global Experts Group on the Sustainable Lunar Activities (GEGSLA) at the Moon Village Association (MVA), research fellow at the Open Lunar Foundation; Lucien Rapp is tenured Professor at the Law School of University Toulouse1-Capitole and currently lectures at HEC Paris, as an Affiliate Professor, “New Space Property Age: At the Crossroads of Space Commons, Commodities and Competition,” Journal of Property, Planning and Environmental Law, vol. 13, no. 2, 08/17/2021, pp. 88–106

space antitrust would have higher principles not in “normal” antitrust, such as benefit sharing , non-discrimination , equal access and fair competition the scope of antitrust should be broadened global governance is multigenerational has yet to appear . In the meantime Decentralized polycentricity is emerging . How these forces interact can be facilitated by “space” antitrust based on OST principles to ensure transnational lex mercatoria do not collide with international space law i law is not equipped to deal with the private sector. , antitrust is space concentration is likely To mitigate risks legal safeguards must be in place to prevent privatization that erode principles of space law antitrust channel fragmentation in a sustainable manner while ensuring conventional principles which root in connectivity and have consequences on life, planetary protection, environmental aspects a broad space antitrust scope should consider non-market factors Without such a regime outcome would be dystopia property is domestic and so is competition can evolve in parallel and merge into an international framework reducing fragmentation

there is a significant movement in space toward the commoditization of the space economy , which involves the commodification of (space) goods The topic of space goods, per se, is contentious as certain space resources might be considered res communis To mitigate the volatility of the future space economy, the space market could benefit from increased commoditization, if properly regulated . Such regulation would have the benefit of reigning in market speculation , inherent of financial derivatives which, in our case, would apply to a space commodities category , and thus, lead to speculation in the space sector A commoditized space market is bound to raise antitrust questions in the future Historically , these markets were heavily regulated but benefited from immunity vis-à-vis antitrust because of the agency overseeing deregulation can compound risks of collusive or anti-competitive behavior within space antitrust would have several higher principles to protect , which are not the case in “normal” antitrust, such as benefit sharing , non-discrimination , equal ity of access and fair competition . “Space antitrust” would reach into the ethical sphere, as opposed to the strict market dynamics it usually seeks to ensure polycentric antitrust maintain synergies and interdependencies of the growing space ecosystem. ANTITRUST CONSIDERATIONS avoid actions that result in unreasonable restraints of trade ; or imposing material anticompetitive burden increasing competitive market dynamics call for antitrust enforcement ; however the scope of the antitrust considerations should be broadened by Congress antitrust has the potential for further regulatory impact and reach this could be extrapolated to space in a more complex fashion , as space is a peculiarly vast and complex domain space antitrust could provide for both a pragmatic and efficient manner to contain the volatile forces of a space commodities market Centralized global space governance is a vast, multigenerational project, presumably in the works and a manifestation of its shapes has yet to appear . In the meantime alternate methods must be investigated. Decentralized models are surfacing from a bottom-up approach and polycentricity is emerging organically . How these polycentric forces will interact , compete, cooperate and evolve can be facilitated by a “space” antitrust framework based on OST principles , which cover interactions relevant to “space antitrust” These principles, which all have an incidence on competition, are benefit sharing, equality of access, non discrimination, non-harmful interference, due regard, cooperation and fair competition Polycentricity could work hand in hand with space antitrust to ensure that the transnational lex mercatoria and the commoditization of the space market do not collide with the higher principles , which international space law relied on for half a century i nternational space law , as opposed to national is not equipped to deal directly with the private sector. However , antitrust has the tools to do so . The broader range of space antitrust might help delve further down into the elusive transnational commercial law , which is likely to accelerate and multiply space concentration , leading to monopolies , is a likely outcome of further development of space commerce. To mitigate the risks of monopolization, collusive and of other anti-competitive behavior, especially when considering the particular nature of space resources , to be exchanged on the emerging space-based market legal safeguards must be put in place to incentivize competition while containing risks of fragmentation This is important to enable healthy expansion of the ecosystem Our goal is to prevent the risk of privatization that might gradually erode principles of international space law in striking a balance between regulatory intervention and free initiative , we prefer the carrot antitrust channel the fragmentation of forces in a sustainable manner while ensuring the respect of the conventional set of ethical principles to which many corporations already subscribe to in the context of corporate compliance These higher principles are root ed in system inter connectivity and complexity and have direct consequences on life, planetary protection, environmental aspects , intergenerational equity, etc . In approaching these issues through the angle of antitrust antitrust is bound to evolve and adapt in Space a broad space antitrust scope might benefit polycentric governance when concrete self-determination claims would manifest Any future space colonies (or settlements) would either rely on their own resources or would depend on the import and the export of resources, and therefore, on resource commodification having an ethical space antitrust regime well in place appears as a foreseeable necessity . An ethical space antitrust should also consider non-market factors Without such a n ethical regime one possible outcome would be the dystopia described by Artemis economy based on credits applied to one’s consumption of oxygen A bleak perspective antitrust is an adequate response as property law is , at its basis, domestic law and so is competition law They can evolve in parallel in the space sector and merge into an international framework adapted to the international space law forum. There is no internationally harmonized antitrust framework except guidelines Perhaps, a “ space antitrust” would help bridge that gap and contribute to reducing growing issues such as “ forum shopping ,” fragmentation and “ conflict of laws .”

commoditization of the space economy (space) goods contentious res communis volatility space market benefit properly regulated reigning in market speculation financial derivatives space commodities category speculation questions future Historically regulated immunity vis-à-vis antitrust the agency overseeing deregulation compound risks collusive anti-competitive behavior space higher principles to protect not “normal” benefit sharing non-discrimination equal access fair competition ethical strict market usually polycentric antitrust synergies interdependencies ANTITRUST CONSIDERATIONS unreasonable restraints of trade material anticompetitive burden competitive market dynamics antitrust enforcement scope broadened antitrust further regulatory impact and reach extrapolated space complex fashion peculiarly vast and complex domain space antitrust pragmatic efficient manner global multigenerational shapes yet to appear meantime alternate Decentralized polycentricity emerging organically interact facilitated “space” antitrust framework OST principles “space antitrust” benefit sharing, equality of access, non discrimination, non-harmful interference, due regard, cooperation and fair competition Polycentricity hand in hand space antitrust transnational lex mercatoria not collide higher principles international space law i law national not equipped antitrust has the tools to do so delve further down elusive transnational commercial law is accelerate multiply concentration monopolies likely outcome mitigate the risks particular nature of space resources emerging space-based market legal safeguards in place competition containing fragmentation important expansion of the ecosystem privatization erode principles of international space law regulatory free initiative prefer the carrot antitrust fragmentation sustainable manner ensuring root connectivity complexity life, planetary protection, environmental aspects , intergenerational equity, etc antitrust bound evolve adapt Space broad space antitrust scope polycentric governance concrete self-determination claims well in place foreseeable necessity consider non-market factors Without a regime dystopia Artemis economy credits consumption of oxygen bleak perspective adequate response property domestic so is competition law parallel in the space sector merge international framework adapted no internationally harmonized antitrust framework guidelines space help bridge that gap contribute forum shopping fragmentation conflict of laws

['4. Rationale', 'While the legal debate around the Art. II of the OST principle of non-appropriation is still ongoing, there is a significant movement in the space community toward the commoditization of the space economy, which involves the commodification of (space) goods. The topic of space goods, per se, is a contentious issue, as certain space resources might be considered as being part of the res communis, even though, according to Art. I of the OST, only space activities themselves are considered as “commons.” To mitigate the potential volatility of the future space economy, the space market could benefit from increased commoditization, if properly regulated. Such regulation would have the benefit of reigning in market speculation, inherent of financial derivatives (significantly deregulated in the USA in 2000 [5]), which, in our case, would apply to a space commodities category, and thus, potentially lead to speculation in the space sector. However, making allowance for any type of commodification in this context is likely to run into several legal challenges as construed on the basis of existing space law and established property rights in space. Therefore, there is a need to clearly determine the property regime in space and to properly define the extent of rights to and nature of resources. In this light, it would be relevant to distinguish between economic and legal commons (Tepper, 2019) to identify the adequate property rights, which would pertain to the corresponding space resources and, possibly, to space commodities. If not, there is a risk of a reverse situation, where customary practice on the market dictates future regulation. A commoditized space market is bound to involve a “space commodities exchange,” which would, in turn, raise antitrust questions in the future [6]. Historically, these markets were heavily regulated but benefited from a relative immunity vis-à-vis an antitrust claim because of the agency overseeing. However, after deregulation, the decrease of the agency overseeing is slowly being compensated by antitrust law (e.g. preventing collusion or concerted practice), especially owing to globalization, technological development and to an increase in the size and importance of competing exchanges. A consequence of the Clinton Administration, the deregulation of commodities in the USA [7] has normalized a certain amount of speculation and volatility, which can usually be attributed to the self-regulated exchanges, and to which must be compounded possible risks of collusive or other anti-competitive behavior. For this reason, this paper adheres to the viewpoint of several scholars who pledge for further antitrust reach into the commodities market (Falvey and Kleit, 2006; Scopino, 2016). Moreover, within the space sector, antitrust would have several higher ethical principles to protect, which are not the case in “normal” antitrust, such as benefit sharing, non-discrimination, equality of access and fair competition. “Space antitrust” would indeed reach into the ethical sphere, as opposed to the strict market dynamics it usually seeks to ensure. Finally, while the debate in space law urges on with regard to the question of whether to create a global space governance institution or authority to regulate space matters more extensively and exhaustively, this paper explores briefly the decentralized potential of polycentric space antitrust to maintain synergies and interdependencies of the growing space ecosystem.', '5. Commons', 'According to various scholars (Tepper, 2019), the “commons” can be divided into two parts, namely, economic resources, such as “common pool resources” or CPR (Ostrom, 2010) and legal rights, more precisely the res communis doctrine to which rights such as “free access” and “use” apply but which exclude ownership. The work of Nobel Prize laureate, Elinor Ostrom, divides economic goods into four main categories (Table 1) where CPR are both non-excludable and non-rivalrous. CPR are thus, an economic resource and the rights attached to such common-pool resources are multiple, such as in the case of the high seas and even more so when resources are to be further divided up into further categories, and, namely, resources systems and resource units (Tepper, 2019). Resource systems refer to the different uses of the same resource, such as illustrated by the Colorado River example whereby seven States signed the Colorado River Basin compact [8] in 1922 to increase sustainable management of the river resources. Resource units, on the other hand, refer to a more quantifiable function. In the case of the high seas, the atmosphere, Antarctica and outer space, the commons regime is oftentimes referred to as the “global commons.” However, it is argued that, at the end of the day, “global commons” in the space sector does not stand as a legal argument on its own with regard to respective legal rights, as the areas they cover entail multiple property rights (e.g. in the example of the high seas, fish is considered as “commons,” as opposed to seabed resources, which are subject to the “common heritage of mankind” (CHM), regime [9]).', 'The legal community is divided with respect to the term “global commons” and it remains unclear, without a formal definition and no presence in any international treaty (Tepper, 2019, p. 190). Furthermore, and, perhaps, adding to the confusion (or perhaps, locating its partial source, depending on one’s viewpoint), it has been argued that Hardin mistakenly attributed his “tragedy of the commons” (Hardin, 1968) to CPR (commons being owned by all) instead of “open access,” which pertains to a res nullius regime (not yet owned by anyone) (Tepper, 2019, p. 122). It would be difficult to accept space as a res nullius, as the regime would, in that instance, not preclude sovereignty claims. However, the OST explicitly forbids sovereignty claims in outer space or on celestial bodies. The outer space and celestial bodies have no property regime yet, as there are no clear classifications yet as to what they are (what is a planet? Is Pluto a planet? Is an asteroid a celestial body or a space resource?). It is, therefore, difficult to attribute respective property rights and to establish what space objects, resources or celestial bodies are. According to Pop and others, a celestial body would qualify as a public good (equivalent to the Roman concept of seashores) also based its non-excludable and non-rivalrous nature (Pop, 2009, p. 139). However, in terms of legal property rights (Art. I of the OST), only the activities conducted on the celestial body would be considered commons. Another argument to be made against proclaiming outer space and celestial bodies as global commons would be the instance of Earth, where the term [TABLE 1 OMITTED] is strictly reserved to the high seas, to the atmosphere and to Antarctica and does not extend to the whole planet Earth (Tepper, 2019). We determined that, after all, “global” is superfluous. This preceding argument might even possibly be construed as an indirect attempt at short cutting the absence of a proper property regime in space, while actually attempting to instill one: a regime of commons (just as in the case of CHM), when in proper fact, commons refer merely to the (human) activities in space, and not to physical reality. CHM refers to resources and property, whereas the Province of all Mankind, (despite the possibly obfuscating geographic flavor of the term “province”) refers strictly to exploration and use-related activities, such as exploitation and extraction (Maiorsky, 1986, p. 60); therefore, both terms “CHM” and “province for all mankind” cannot be “equated” (Goswami, 2017, p. 77).', 'The concept of “global” commons is equally debated; however, as discussed below, the argument for either categorization is subordinated to underlying considerations. It can be subsumed to the trend of space resources commodification and dismissed or on the contrary, depending on the future categorization of economic goods as shown in Table 1, it can be reasserted, in which case polycentric governance is necessary to manage the different regimes pertaining to each sub-category and systems.', 'The human activities in outer space – which fall under the aegis of commons – are referred to in Art. I of the OST and are defined in terms of the freedom of exploration and use by all States:', 'The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.', 'If “use,” as an activity performed in space, is deemed to take place “in the province of all mankind,” then “use” should indeed be considered as being comprised within the commons regime, but the rights would differ according to the classification of the goods/services in use and remain valid even if commodification takes place.', 'Furthermore, some space jurists (Berrisch, 1990, p. 190) are of the opinion that “global” commons are aimed at the “use” of outer space, and thus, aimed at exploiting and extracting resources, therefore individualistic in essence despite the term “global.” To infer real “concepts of solidarity” would require reverting back to the CHM or rather of humankind (CHH). However, despite being, perhaps, more prone to benefit sharing than the commons, CHM/CHH is still contemplating the same uses, and therefore, “guilty” of anthropogenic interests and unsustainable uses of resources (Goswami, 2017, p. 77):', 'The underlying problem with the concept of global commons or the CHM is that their very categorization of being such is based upon a resource-exploitation-centric anthropogenic methodology rather than nature-preservation approach based on ecocentrism[...] (Goswami, 2017, p. 68).', 'Therefore, either “global” commons or CHM/CHH can partly be understood in terms to the relationship (and arguably the proximity) to mercantile functions, which can be argued to converge toward commoditization.', 'CHM/CHH was initially proposed for equitable access to seabed resources: “[...] use and exploitation for peaceful purposes and exclusive benefit of mankind as a whole” (Pardo, 1975, p. 38). This would indeed continue in the line of redistribution over conservation and maximize exploitation (Goswami, 2017, p. 70):', '[...] these global commons are labeled as such not in the hopes of maintaining pristine treasures, but for extracting the most profit over the longest period (Clancy, 1998, p. 601).', '6. Property', 'As mentioned previously, there is a property vacuum in outer space according to international space law. This vacuum is being filled by national legislation (e.g. the US 2015 Space Act [10], the Luxembourg Act of 2017 [11] and the more recent UAE national space legislation [12]) whereby the fruits of space activities can be rightfully appropriated. “Fruits” takes us back to Roman property law: Usus, Fructus, Abusus, which evolved into the “bundle of rights” recognized in the common law. This refers to the right to use, to enjoy the fruits and to abuse (dispose of) one’s own goods as insofar as the law allows. Property is, therefore, “a stream of benefits from a given set of resources” (Meyer, 2000). However, property per se is not a material concept, rather a variable and metaphysical concept; a mere conception of the mind (Bentham, 1802). The argument can be further pushed (Pop, 2009):', 'With private property, as with many illusions, we are[...] seduced into believing that we have found an objective reality which embodies our intuitions and needs. But then, just as the desired object comes finally within reach, just as the notion of property seems reassuringly threedimensional, the phantom figure dances away through our fingers and dissolves into a formless void (Gray, 1991).', 'We can draw the parallel that space property is a vacuum, yet to be filled with legal rights. In space, the legal rights pertaining to the property are still to be determined on a multilateral basis. Essentially, as Art. II of the OST provides for the principle of nonappropriation and, as no State can claim sovereignty over celestial bodies, the question immediately rises as to how it might even be possible to establish property rights in the absence of sovereignty. Alternate interpretations are particularly useful in answering this question as they invite us to consider the nuance between ownership “de jure” and ownership “de facto” (Fasan, 1966, p. 160). The latter type of ownership equates with the appropriation of the resources by the occupation of the land, while not legally owning the land itself nor claiming ownership of it. In this latter case, occupation may remain permissible insofar as it is not ad infinitum – which would amount to ownership by occupation, itself expressly forbidden by Art. II of the OST:', 'Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.', 'This begs the question of how redundant or even of how necessary the term “temporary” might be when applied to the newly (bilaterally) agreed upon “safety zones” in the National aeronautics and space administration (NASA) 2020 Artemis Accords. Indeed, when NASA presented the concept of safety zones, it generated significant controversy, as many States considered this to be an attempt to establish keep-out zones and eventually try to establish ownership de facto. As a consequence, NASA added “temporary” to the safety zones to clarify the lack of intent toward land ownership claims. However, as already mentioned, occupation cannot be ad infinitum. The same rationale could be applied to the US 2020 Executive Order [13] denying the global commons regime in space: it would not be able to carry any legal impact.', 'Nonetheless, these safety zones are obviously a means of occupation. For uses implied within Art. I of the OST, occupation would suffice and there would be no need of ownership de jure over the surface in question to appropriate the extracted resources according to the “enterprise rights,” which are frequent within the extraction industry (Sterns and Tennen, 2002, p. 2). In other words, and following this same argument, entities extracting resources off the surface of a celestial object would not require a fee simple, as simple occupation would suffice. One of the potential outcomes of this approach is to open the floodgates to a race toward a deregulated space rush for territorial occupation on the sheer basis of the “first-come, first-served” principle. Safety zones and Cultural Heritage Sites on the Moon (Smith, 2021) are recent examples initiated by the USA, but other creative or far-reaching initiatives from non-traditional space actors can see the light in the future.', 'It has been argued in the past that the first in time, first in right principle is already enshrined within Art. IX of the OST itself:', 'In the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the moon and other celestial bodies, may request consultation concerning the activity or experiment.', 'From this, Pop (2009) infers a duty of non-interference from the part of latecomers and thereby a “first-come, first-served” regime benefiting first-comers, potentially incentivizing a race for grabs:', 'Article XI requires States Parties to publicize, “to the greatest extent feasible and practicable” the nature, conduct and locations of their space activities [...]. If an activity by a State Party or one of its nationals is likely to cause “potentially harmful interference” with the space activities of other States Parties, the first State Party is required by the same tenet to “undertake appropriate international consultations” prior to carrying out such activity. In the same time, should a State Party to the OST rightfully fear that a space activity of another State Party could harmfully affect its own activities, the first State is entitled to request appropriate consultations on this subject. While the Treaty makes no mention of it, it is nonetheless understood that a “first-come, firstserved” regime exists. (Pop, 2009, p. 76).', 'Furthermore, Pop (2009, p. 77) extends his reasoning and applies his criterion to questions asked by previous scholars with regard to the race for grabs and to scarce resources in general:', 'If on Mars a very valuable pool of water is found and one state sets up a base, which depends completely on this water resource, has then another state or party got the right to extract this water (or a part of it) for purposes of its own and thus to coerce the other state to liquidate its base at once, or, far worse, causes the death of all inhabitants of the station in question? (Fasan, 1962, p. 11).', 'To which the answer would be:', '[...] under the light of Article IX, is certainly in negative, and such a situation would violate even the Lockean proviso, i.e., that one has the right of acquisition only if one leaves “enough and as good” for others (Locke, 1690, Section 26) (Pop, p. 77).', 'One proposal to regulate this in a sustainable manner is a new “Riparian Rights Rule” whereby all stakeholders should comply with sustainability standards and equality of access to resources and ensure a model of “appropriation that better protects the benefits of Mars for all humankind” by:', ' A licensing regime for resource production on Mars would be granted by a coalition of sovereign governments under an international treaty.', ' Price regulation for the sale of resources by the first producer that has established a natural monopoly-like advantage on Mars, which would, to a certain degree, resemble the rate-making process for vertically integrated electricity providers in the USA.', ' The Martian Riparian Rights Rule, under which existing producers of Martian resources would not have the right to extract more than necessary for their own use or for sale to current or foreseeable future consumers (Conte, 2019).', 'Others are of the view that when a scarce resource is appropriated, the parties could resort to adjudication:', 'In the spirit of Article IX OST, Brooks (1968, p. 347) [14] considered that, were a space resource so scarce that its use would endanger future uses or the needs of other States, “this situation may be an appropriation” and consultations would have to be held: “In such case the resource may be shared, or conflicting needs may be subject to settlement by agreement or adjudication (Pop, 2009, p. 77).', 'Clearly, intergenerational rights and equity is an issue:', 'The requirement to take into consideration the interests of all States also includes future generations. The principle of equal right to access assures that all members of the international community should be in a position to reap the benefits that are derived from outer space, irrespective of the disparities in the growth and development that exist between new and old space players. As such, differing levels of economic and technological development should not be considered an insurmountable obstacle to any State expecting to benefit from outer space. The first States and entities active in space, therefore, must explore and use outer space with the consideration of the latecomers. This includes not only avoiding taking exclusive use of limited natural resources, such as radio frequencies and geostationary Earth orbit (GEO) slots, but also avoiding the creation of space debris or creating other threats to the peaceful uses of outer space. In short, there is an obligation that States should not act in a way that creates barriers that will compromise the capacity of others to use outer space going forward. Outer space benefits should be understood as a broad concept, including benefits derived from the exploration, use, and exploitation of space (Jakhu and Pelton, 2017, p. 553).', 'An ideal way to ensure such intergenerational benefit sharing would be through a centralized organization, such as the Trusteeship Council proposal by former Secretary General of the UN, Kofi Annan, in 1997, where the trustee would hold the legal title, but the beneficiary would hold the equitable title. However, the Council suspended its activities [15], which gives strength to our argument in favor of adhering to a much more resilient polycentric structure. One of the suggested approaches of our proposed solution would entail a decentralized cluster of trusteeships relying on the same general principle or principles such as the proposed UN Model. The benefit of such a model would be to instill a long-term vision culture, spread out through multiple generations. However, there is no formal mechanism in place to ensure that. Therefore, it is argued that we can expect a race for grabs in terms of space occupation and resources if the market is left to its own devices.', '7. Resources', 'As discussed supra, to determine precisely, which property rights might be developed in space, it is important, as a preliminary, to determine and to define in exact scientific and legal terms what outer space is (at least given what we now know about it at the present time), while leaving the door open to adapting those definitions as we gain more knowledge about the universe and as the technology matures (adaptive governance). For now, basic questions such as “what is a planet?” can be asked. If scientists go back and forth about Pluto, what could be expected of space lawyers? There is no clear definition of space objects, space resources or celestial bodies, etc. A space object might include facilities for space mining, habitats, shelters, etc., (Jakhu and Pelton, 2017, p. 396) and this begs the question of whether they could be defined as a spatial extension of the land (and therefore, fall under lex situs) or as a material extension (lex domicilii) (Pop, 2009, p. 50). Celestial bodies have no definition now. Therefore, the issue of determining whether they are extra or intra commercium remains a puzzle (Manoli, 2015, p. 31). Furthermore, a significant difficulty remains in determining in legal terms what constitutes movable resources and what constitutes immovable goods. For instance, which would be applicable the case of asteroids? – as in the universe, everything moves (Pop, 2009).', 'Moreover, on Earth, we see increasingly innovative property rights mechanisms emerging with regard to natural resources. Examples of conferred legal personhood rights have been in constant flux. For instance, the Whanganui River in New Zealand has recently been granted legal rights, which led scholars into extrapolating this to space resources or celestial bodies (Tepper and Whitehead, 2018). This begs the question of what could be expected of water itself in the future, either on Earth or in space or even both? In fact, an ancillary question is how will water’s legal regime evolve, especially, as outlier scientists recognize surprising attributes of water such as molecular memory (Emoto, 2005)? From both public and private good to legal person? To commons? However, until the legal debate about the status of water will be settled, water has become a commodity, in December 2020, with its own index (Tappe, 2020).', 'Maude Barlow, the former Chairperson of the Canadian Council, stated in 2017 that a water futures market would be very likely:', 'Economist Richard Sandor, the “father” of carbon trading, predicts the near-term launch of a global water futures market. He says water will replace oil as the number one commodity of the 21st century and that it will be bought, sold, and traded on the open market.', 'Sandor is not alone. In business schools across the world, students are taught that the solution to the global water crisis is to commodify water and let the market settle who gets water and how [16].', 'Scholars with a background in finance and private entities are already looking into case studies about water as a commodity in space, as discussed infra.', '8. Commodities', 'On Earth, water has been identified indeed as the next major commodity to overtake oil the future economy, according to Barlow and others (see above). In space, according to the newly created Space Commodities Exchange company [17], water is equally expected to be the top commodity and this issue raises the larger question of how new commodities are to be framed legally in the future. About the Space Commodities Exchange Company, its very infrastructure and business model is suggestive of a larger pattern that might be easily replicated. The organization is split into two parts:', '(1) Space commodities.', '(2) The Exchange (SCX). In its case study on water, the company advertises on its website that water will be the:', '[...] first commodity to be extensively traded in space: In space, water is a vital resource and provides air and spacecraft propellant. Delivering water as a commodity to on-orbit facilities will be an important driver for sustainable human and commercial presence in space. A centralized commodity market for space resources; water, propellant, volatiles, and other valuable metals and minerals, will be a key component of a growing space economy and will expand the range of commercial opportunities in space [18].', 'Commodities are financial futures, interchangeable/unspecialized goods/services. They imply standards (form, phase, composition and location):', 'Commodification transforms physical goods and services into standardized contracts and turns capital today into contractual rights for delivery of goods in the future (Ahadi et al., 2020).', 'They can form an infrastructure, which can be divided into five main “buckets” such as raw materials, processed materials, space-based services, financial derivatives and indexes (Cahan, 2017). Their standardization could represent a catalyst for economic growth by encouraging natural economies of scale (which is reminiscent of the idea behind “natural” monopolies). Pros include price discovery, transparency, resilience, economies of scale, risk management, mitigation of ad hoc market volatility, standardization, interoperability, liquidity, etc. On the other hand, counterarguments might include participation costs, risk of cartelization/collusion inside or between exchanges (which, again, lead us to be reminded of antitrust issues), deregulation, speculation, further volatility, etc. Speculation extrapolated to the space sector has a radical potential such as in the situation of space weather events, knowing that climate change is already highly impacting speculation based on the deregulated natural resources and commodities here on Earth.', 'Commodities can further be divided into units called “Units of Space Convenience” (USC), which are a tradable value, leading to standardization and market resilience (Cahan, 2017). The sum of these arguments leads up to a nexus pointing to the resource units referred to in the commons section (Tepper, 2019, p. 234) and the USC. Polycentric governance, in this context, comes into play as a valuable commoditization governing tool.', 'In terms of space commodities, Ahadi et al. (2020) identifies them according to Cahan’s five buckets: (Table 2).', 'A further stage of our intended research project entails juxtaposing these commodities with Ostrom’s types of goods, to infer resulting legal rights.', 'In Cahan’s words, the commodification of the space economy is essential to ensure certain market stability and resilience through its infrastructure. According to his argument, in terms of managing space resources, this is necessary. Otherwise, Cahan warns that the outcome would be much like the epic battles over the “spice mélange” in Frank Herbert’s “Dune.” His rationale is that monopolies are dangerous. While we agree that action is required against the monopolization of resources, it is important to be aware of the fact that exchanges, which used to be in the past protected from antitrust, can actually form natural monopolies in regulated markets (Falvey and Kleit, 2006). Even today, as this immunity becomes increasingly more diluted due to growing deregulation and competition, Exchanges can behave in an anti-competitive manner. As the last example, the regulation of crude oil as a commodity does not preclude concerted practice nor market volatility due to external factors ranging from monopolies to international conflict, which contradicts Cahan’s postulate. Indeed, commodities deregulation has led to great instability:', 'By mid-2007, the over-dependence on market forces and mechanisms, without proper and workable regulatory mechanisms and systems in place to govern the globalization process, had led to the appearance of large cracks threatening the stability of the world economy on two fronts: the sharp hike of primary commodity prices and the global financial crisis. After two decades of [TABLE 2 OMITTED] low, and at times dwindling, prices in the 1980s and 1990s, many primary commodities had registered a steep price increase since 2002, reaching an all-time high in the spring and summer of 2008 with extremely high volatility. The soaring key commodity prices hit the world economy at a time when most western economies were struggling with efforts to eschew a sharp economic downturn and recession, triggered by the sub-prime mortgage crisis in the USA in the background of global macroeconomic imbalances, and the subsequent credit crunch spreading to major industrial economies through poorly regulated global financial transactions and systems. (Nissanke, 2010).', 'To address these caveats, we turn to competition law.', '9. Competition law', 'New technologies, globalization and deregulation helped competition law to make its way into the derivatives industry, to compensate for decreasing agency oversight because of a long tradition of jurisprudence in that sense (Weinstein, 2019). The US Commodities Futures Modernization Act (CMFA) of 2000 both deregulated to a certain extent the derivate market while opening the door to antitrust measures (Falvey, 2006) as shown here:', 'ANTITRUST CONSIDERATIONS. – Unless necessary or appropriate to achieve the purposes of this Act:', '[a] board of trade shall endeavor to avoid –', '(A) adopting any rules or taking any actions that result in any unreasonable restraints of trade; or', '(B) imposing any material anticompetitive burden in trading on the contract market.', 'Indeed, increasing competitive market dynamics and commodity exchanges call for antitrust enforcement; however, it remains unclear as to how this will happen and to what degree. Nonetheless, the Commodities Futures Trade Commission (CFTC), created in 1974, provided for some antitrust authority vs anti-competitive conduct via its “antitrust considerations” within the 2010 Dodd-Frank Act [19] as is explained below, to help break collusive behavior and cartelization of the oligopolistic derivatives market in the highly increasing concentrated financial sector [20]:', 'One of Dodd-Frank’s central goals was to ensure that most derivatives transactions are centrally cleared (thereby reducing systemic risk) and traded on exchanges (reducing pricing opacity and promoting competition). The increased significance of derivatives clearinghouses and exchanges in the Dodd-Frank regulatory scheme raises the danger that firms controlling these entities could exclude derivatives-trading rivals who need access to complete their swaps. Such conduct could lead to reduced competition and higher prices in derivatives trading. Big-bank control of clearinghouses and exchanges also may give those firms the opportunity to manipulate the types of derivatives contracts that are exchange traded and centrally cleared, pushing certain contracts into the over-the-counter markets where the banks can charge higher prices. To the extent central clearing of derivatives trades reduces systemic risk (the key premise of Dodd-Frank’s derivatives reforms), this outcome may threaten systemic soundness. Despite these risks, antitrust immunity may shield such conduct from attack, leaving sector regulators as the only bulwark against anticompetitive activity in these markets (Weinstein, 2019, p. 6).', 'This measure proved inefficient, as it did not cover a major loophole (swap dealers [21]) and its reach was rather limited. Therefore, it is argued that the scope of the antitrust considerations should be broadened by Congress by amending the 1936 Commodities Exchange Act (CEA) – amended several times since [22] – to “prohibit any person who causes (or attempts to cause) unreasonable restraints of trade or material anticompetitive burdens in the markets for derivatives.” This amendment should also prohibit both in-house and inter-Exchanges anti-competitive and anti-ethical behavior such as unfair competition and derivatives price-fixing conspiracies (Scopino, 2016).', 'Weinstein concludes in that sense:', 'Concentration appears to be increasing in the financial sector and the broader economy. In this context, the Supreme Court’s restrictions on antitrust enforcement in regulated markets are especially concerning. This concern is heightened by evidence that sector regulators generally are poorly suited to protecting competition and reluctant to take on that job. This Article has proposed a regulatory-design solution to the challenge of protecting competition in regulated markets. Structural regulation of potential competitive bottlenecks can adequately preserve competition while allowing sector regulators to focus on their core missions. When executed properly, this approach may be superior to active sector-regulator competition enforcement and even to traditional antitrust enforcement (Weinstein, 2019, p. 59).', 'For this reason, antitrust has the potential for further regulatory impact and reach in the commodities sector and we posit that this could be extrapolated to space in a more complex fashion, as space is a peculiarly vast and complex domain, as has been shown throughout this paper.', '10. Space antitrust', 'In the light of the previous section, this paper argues that space antitrust could provide for both a pragmatic and efficient manner to contain the volatile forces of a space commodities market, as explained supra. Centralized global space governance is a vast, multigenerational project, presumably in the works and a manifestation of its shapes has yet to appear. In the meantime, however, alternate methods must be investigated. Decentralized models are surfacing from a bottom-up approach and polycentricity is emerging organically. How these polycentric forces will interact, compete, cooperate and evolve can be facilitated by a “space” antitrust framework based on the OST principles, which cover interactions relevant to an ethical “space antitrust” and sustainable space ecosystem. These principles, which all have an incidence on competition, are benefit sharing, equality of access, non discrimination, non-harmful interference, due regard, cooperation and fair competition. Future analysis as to their incidence is necessary to determine their interaction with an antitrust framework and how these interactions are to be governed. Polycentricity is timely given the complexities of systems of systems in space. It could successfully work for hand in hand with space antitrust to ensure that the transnational lex mercatoria and the commoditization of the space market do not collide with the higher ethical principles, which international space law relied on for half a century.', '11. Discussion', 'Traditionally, international space law, as opposed to national space law, is not equipped to deal directly with the private sector. However, antitrust has the tools to do so. The broader range of space antitrust might help delve further down into the elusive and transnational commercial law, which is likely to accelerate in the near future and multiply interest around the commodification of the space market. As suggested throughout this paper, space concentration, leading to monopolies, is a likely outcome of the further development of space commerce. To mitigate the risks of monopolization, collusive and of other anti-competitive behavior, especially when considering the particular nature of space resources, to be exchanged on the emerging space-based market – including the complex and specialized services attendant thereto – special ethical and legal safeguards must be put in place to incentivize competition while containing the risks of fragmentation mentioned previously. This is important to enable a healthy expansion of the ecosystem. Our emphasis on the market forces at play is rooted in the assumption that through the observation of the current trends of commercialization and of the growing number of non-traditional actors (either public or private) stemming from old and from new space-faring nations, it is easier to anticipate risk and to provide supporting regulatory proposals.', 'Our suggested approach toward an adaptive and polycentric governance model attempts to resolve some of these challenges, by allowing for a bottom-up framework that fosters commercialization, to surface organically, from the players, with minimal outside intervention. Our goal is to prevent the risk of privatization and commercialization that might gradually erode the ethical principles of international space law. To use the analogy of the carrot and the stick in striking a balance between regulatory intervention and free initiative, we prefer the carrot approach. Incentivizing the private sector to compete around ethically balanced markets has the potential to unlock new and unforeseen forces of antitrust in space to channel the fragmentation of forces in a sustainable manner while ensuring the respect of the conventional set of ethical principles to which many corporations already subscribe to in the context of their corporate compliance programs. Here we would an additional layer of space law higher ethical principles (such as enumerated supra) and investigate into further incentivizing soft law implementations. These higher principles are rooted in system interconnectivity and complexity, and have direct consequences on life, planetary protection, environmental aspects, intergenerational equity, etc. In approaching these issues through the angle of antitrust, we argue that antitrust is bound to evolve and to adapt, both in Space and on Earth. Furthermore, a broad space antitrust scope might also benefit from polycentric governance when concrete self-determination claims would manifest, such as Elon Musk’s self-governing principles on Mars. Any future space colonies (or settlements) would either rely on their own resources or would depend on the import and the export of resources, and therefore, on resource commodification. It then follows that having an ethical space antitrust regime well in place appears as a foreseeable necessity. An ethical space antitrust should also consider non-market factors such as the potential new rights granted to specific resources and regulate accordingly (e.g. the equivalent in space of legal rights to natural resources, etc.). Without such an ethical regime framework harnessing uncoordinated competitive forces, one possible outcome would be the dystopia described by Andy Weir’ Artemis economy on the Moon based on “soft landing grams” credits directly applied to one’s consumption of oxygen. A bleak perspective. Finally, antitrust is an adequate response to space property and resources, as property law is, at its basis, domestic law and so is competition law. They can evolve in parallel in the space sector and merge into an international framework, adapted to the international space law forum. There is no internationally harmonized antitrust framework as of this writing, except non-binding UN guidelines. Perhaps, a “space antitrust” would help bridge that gap and contribute to reducing growing issues such as “forum shopping,” fragmentation and “conflict of laws.”']

[(6, 24), (32, 39)]

a96b574713e99bb8e66354e02901671f19b0d0f069350d7a394ad71882308b1a

Inevitable attempts thump AND the benefits outweigh on probability

Marko Kovic 20, Social scientist (PhD in political communication, University of Zurich), co-founder and CEO of the consulting firm ars cognitionis, co-founder and president of the thinktank ZIPAR, the Zurich Institute of Public Affairs Research, “Risks of Space Colonization,” preprint, SocArXiv, 01/04/2020, DOI.org (Crossref), doi:10.31235/osf.io/hj4f2

risks could create disvalue failing will certainly impact trillions of future humans the question is moot academic discussions have little bearing on real-world decision-making debating whether colonization should happen is pointless because efforts are a foregone conclusion . What is not pointless is how we can mitigate risks

Is space colonization desirable in light of its risks? The main argument in favor of space colonization is the immense moral value that successful colonization entails —colonizing space could create immense amounts of future wellbeing . But, at the same time, the risks could also create disvalue failing to colonize space will certainly have an immense negative impact (the trillions of future humans who could come into existence will not ), whereas engaging in space colonization will create disvalue only with some probability. In order to decide whether space colonization is morally desirable overall , we accordingly need to weigh certain extinction against possible damage In practical terms the question is moot academic discussions of the value of space colonization have little bearing on real-world decision-making debating whether space colonization should happen is pointless , because efforts towards space colonization are a foregone conclusion . What is not pointless is the question of how we can mitigate the risks

desirable in light of its risks? favor immense moral value that successful colonization entails immense amounts of future wellbeing risks could disvalue failing certainly trillions of future humans could will not engaging some overall certain extinction possible damage is moot academic real-world decision-making should pointless efforts are a foregone conclusion not mitigate

['5.1 Is space colonization desirable in light of its risks?', 'In the preceding sections, I have outlined some major risks of pursuing as well as engaging in space colonization. Given these risks, it is appropriate to ask whether space colonization is desirable at all. The main argument in favor of space colonization is the immense moral value that successful colonization entails—colonizing space could create immense amounts of future wellbeing. But, at the same time, the risks of space colonization mean space colonization could also create immense future moral disvalue—so much so that the moral benefit of colonizing space would be overshadowed.', 'One argument in favor of space colonization in light of its risks is the fact that failing to colonize space will certainly have an immense negative impact (the trillions of future humans who could come into existence will not), whereas engaging in space colonization will create disvalue only with some probability. In order to decide whether space colonization is morally desirable overall, we accordingly need to weigh the certain stagnation and eventual extinction of humankind against the possible damage that could be done by pursuing and engaging in space colonization. Such an assessment requires a more careful and more precise specification of space colonization-related risks than I provide in the present article.', 'In practical terms, however, the question of whether space colonization is morally desirable given its risks might be moot. Philosophical, academic discussions of the value of space colonization have little bearing on real-world decision-making on matters related to space colonization. The socioeconomic incentives and motivations for space exploration in general and space colonization in particular are largely divorced from abstract philosophical considerations. Or, put more simply: The Soviet Union did not launch Sputnik 1 into orbit because there was philosophical consensus about the merits of doing so. Similarly, today’s early efforts towards space colonization are not motivated by philosophical risk assessments, but by the will to explore, develop, discover, and profit.', 'For the context of real-world decision-making, debating whether space colonization should happen at all is therefore probably somewhat pointless, because efforts towards space colonization are a foregone conclusion. What is not pointless in practice, however, is the question of how we can mitigate the risks of space colonization. The main lever for doing so is governance.']

[(6, 14)]

8e87bcde86933e78f20c008551e81129592a3ecadd5742beb30d0346ea4967a1

AND they’re not real

Chris Craddock 15, Senior Principal Architect at Splunk, MS in Computer Science from the University of New England, Former Senior Director of Cloud Architecture for Development and Operations at Oracle, “Are We Technologically Close To A Feasible "von Neumann Probe" For Exploration?”, Quora, 7-31, https://www.quora.com/Are-we-technologically-close-to-a-feasible-von-Neumann-probe-for-exploration [language modified]

Von Neumann probes are science fiction we are nowhere near that now it is highly unlikely we will be a thousand years from now . The first red flag is travel time to the nearest star is 20,000 years . Subsequent hops the same. Nothing has lasted a fraction of that insurmountable problem is the assumption our probe could find raw materials Wide-eyed optimists offer asteroids but they are spread out average distance is gigantic We have no clue what materials might be available the idea the probe can build a copy of itself is laughable

Von Neumann probes are imagined to be Self-replicating spacecraft It is science fiction . We are conditioned to believing that anything is possible if we just develop the technology, but we are nowhere near that now and it is highly unlikely we will be a thousand years from now . The first red flag is that, at the kinds of speeds our probes can currently muster, the travel time from Earth to the nearest star is 10- 20,000 years . Subsequent hops would be more or less the same. Nothing [hu]man-made has lasted a fraction of that time in workable shape The insurmountable problem is the assumption that our probe could find rocky bodies that have raw materials , mine and refine them and assemble and launch one or more copies of itself. Wide-eyed optimists offer all manner of scenarios There are thousands of asteroids but they are spread out The average distance between them is gigantic . How would our probe pick the right one? And navigate to it? We also have no clue what materials might be available the idea that the probe can be dropped in some random place and build a copy of itself is laughable

science fiction nowhere near that now highly unlikely thousand years from now 20,000 years lasted a fraction of that time insurmountable problem Wide-eyed optimists no clue laughable

["In science fiction Von Neumann probes are imagined to be Self-replicating spacecraft. The idea is you launch one at some far off place in the universe and when it arrives at its destination (thousands of years later) the probe's automated machinery finds and obtains raw materials locally. Then it builds at least one copy of itself and sends it/them on their way to additional destinations. This is similar to the model of bacterial infection. ", 'It is science fiction. We are conditioned to believing that anything is possible if we just develop the technology, but we are nowhere near that now and it is highly unlikely we will be a thousand years from now. The first red flag is that, at the kinds of speeds our probes can currently muster, the travel time from Earth to the nearest star is 10-20,000 years. Subsequent hops would be more or less the same. Nothing [hu]man-made has lasted a fraction of that time in workable shape. ', 'The seemingly insurmountable problem is the assumption that our intrepid little probe could find rocky bodies that have raw materials, mine and refine them and assemble and launch one or more copies of itself. Wide-eyed optimists offer all manner of scenarios. For example they say "we know that asteroids have all the raw materials it would need" ... That\'s not a well tested hypothesis, but "ok". Let\'s assume the probe finds a solar system like ours. There are thousands of asteroids for sure but they are spread out over a circle of more than 70AU radius. The average distance between them is gigantic. How would our probe pick the right one? And navigate to it? ', 'We also have no clue what materials might be available. On Earth our raw materials used in satellite production come from all over the globe and a very sophisticated global supply chain gets them to factories that build the components of our satellites. If you compare the scale of the infrastructure required to build such a probe on Earth the idea that the probe itself can be dropped in some random place and build a copy of itself is laughable. ', 'Think about it for a while.', '']

[(6, 17)]

3344c54ef4f8150177f12a95d0c293a428b7a705a1e151de45a6d2f3188cd5ac

No maximizers---AI Darwinism

Milan M. Ćirković 19, Future of Humanity Institute, Faculty of Philosophy, University of Oxford, “Space Colonization Remains the Only Long-Term Option for Humanity: A Reply to Torres,” Futures, vol. 105, 01/01/2019, pp. 166–173

Torres conflates the “orthogonality thesis” generalization is not warranted , since evolution is likely to be non-ergodic the spaceship maximizer would have made short work of the paperclip maximizer Therefore, it is far likelier the spaceship maximizer would leave progeny Therefore, it is naïve to conclude that the orthogonality thesis suggests unconstrained future evolution will bring about equipartition and that all posthuman species could be encountered in equal measure the contrary nonsensical evolutionary trajectories , like maximizing , will be driven to zero

Torres inadvertently conflates the two interpretations of the “orthogonality thesis” Orthogonality thesis originally conceived applies to possible evolutionary pathways of a superintelligent AI , or a posthuman species , or perhaps an e t Its generalization to a large set of such entities is not warranted , since the evolution of such entities is likely to be strongly non-ergodic while the orthogonality thesis allows for a stock example of maximizer it certainly does not tell us that the two are on the same footing Obviously, the spaceship maximizer would have made a short work of the paperclip maximizer in any conflict if they start from the same initial conditions and distribution of resources. Therefore, it is far likelier that the spaceship maximizer would be able to leave progeny and fill the universe with its spaceship-maximizing values Therefore, it is naïve to conclude that the validity of the orthogonality thesis suggests that the unconstrained future evolution will bring about equipartition of the available design space and that all kinds of posthuman species could be encountered in equal measure . Quite the contrary , it is likely that nonsensical evolutionary trajectories , like those leading to maximizing , will be driven to zero relative frequency

“orthogonality thesis” superintelligent AI posthuman species e t generalization large set of such entities not warranted evolution strongly non-ergodic stock maximizer certainly same footing spaceship short work paperclip any conflict far likelier spaceship maximizer spaceship-maximizing values naïve unconstrained future evolution equipartition available design space all kinds of posthuman species could be encountered in equal measure contrary nonsensical evolutionary trajectories maximizing driven zero relative frequency

['Perhaps the least importantly, Torres perhaps inadvertently conflates the two interpretations of the “orthogonality thesis” of Bostrom (2012, 2014). Orthogonality thesis as originally conceived applies to the possible evolutionary pathways of a superintelligent AI, or a posthuman species, or perhaps an extraterrestrial intelligent species. Its generalization to a large set of such entities at any particular epoch in time is not warranted, since the evolution of such entities is likely to be strongly non-ergodic (to fill just a small region of the overall parameter space). It is easy to understand why this is so: while the orthogonality thesis allows for a stock example of paperclip maximizer, as well as, for example, spaceship maximizer, it certainly does not tell us that the two are on the same footing in a wider scheme of things. Obviously, the spaceship maximizer would have made a short work of the paperclip maximizer in any realistic conflict, violent or not, if they start from the same initial conditions and distribution of resources. Therefore, it is far likelier that the spaceship maximizer would be able to leave progeny (in sufficiently broad sense of the term) and fill the universe with its spaceship-maximizing values, rather than the paperclip-maximizing values. Therefore, it is naïve to conclude that the validity of the orthogonality thesis suggests that the unconstrained future evolution will bring about equipartition of the available design space and that all kinds of posthuman species could be encountered in equal measure. Quite the contrary, it is likely that nonsensical evolutionary trajectories, like those leading to the paperclip maximizing, will be driven to zero relative frequency. Thus, the original, microevolutionary version of the orthogonality thesis does not entail the wider, macroevolutionary version. And we need macroevolutionary insights in order to assess the merits and demerits of our future space colonization efforts. ']

[(9, 20)]

3c18607fd0e10fbc765e5a789e351ad3de4bc696912224d62b31463282135f55

Back-contamination’s inevitable

Robert Zubrin 19, President of Pioneer Astronautics and also president of the Mars Society, senior engineer for Lockheed Martin, “Chapter 4 Mars: Our New World,” 05/14/2019, The Case for Space: How the Revolution in Spaceflight Opens Up a Future of Limitless Possibility, Prometheus

diseases by Mars is plain nuts Earth has already been exposed to trillions of tons by meteor s space would sterilize objects when it comes to Martian projectiles , this planet is Torpedo Alley

A persistent objection to Mars exploration from some quarters is the need for “planetary protection.” The story goes we would have no resistance to diseases caused by Martian pathogens . Until we can be sure Mars is free of harmful diseases, we cannot risk infecting Earth to destroy the terrestrial biosphere The kindest thing that can be said about the above argument is that it is just plain nuts if there are or ever were organisms on or near the Martian surface, then Earth has already been , and continues to be , exposed to trillions of tons of Martian surface material have been blasted off the surface of the Red Planet by meteor s , and a considerable amount has traveled through space to land on Earth . We know this for a fact Despite that each must wander through space for millions of years neither this extended period traveling through hard vacuum nor the trauma associated with ejection or reentry would sterilize these objects , if they had originally contained bacterial spores. if you're scared of Martian germs, your best bet is to leave Earth fast , because when it comes to Martian biological warfare projectiles , this planet is smack in Torpedo Alley . But don't panic they're not dangerous

exploration “planetary protection.” diseases pathogens sure Mars cannot risk infecting Earth terrestrial biosphere The kindest thing that can be said about the above argument is that it is just plain nuts Earth already continues to be exposed trillions of tons meteor s considerable amount land on Earth fact space sterilize best bet is to leave Earth fast biological warfare projectiles smack in Torpedo Alley don't panic not dangerous

['FOCUS SECTION: PLANETARY PROTECTION?', 'A persistent objection to human Mars exploration from some quarters is the need for “planetary protection.”', "The story goes like this: No Earth organism has ever been exposed to Martian organisms, and therefore we would have no resistance to diseases caused by Martian pathogens. Until we can be assured that Mars is free of harmful diseases, we cannot risk infecting the crew with such a peril that could easily kill them or, if it didn't, return to Earth with the crew to destroy not only the human race but the entire terrestrial biosphere.", "The kindest thing that can be said about the above argument is that it is just plain nuts. In the first place, if there are or ever were organisms on or near the Martian surface, then the Earth has already been, and continues to be, exposed to them. The reason for this is that over the past billions of years, trillions of tons of Martian surface material have been blasted off the surface of the Red Planet by meteor strikes, and a considerable amount of this material has traveled through space to land on Earth. We know this for a fact because scientists have collected nearly a hundred kilograms of a certain kind of meteorite called “SNC meteorites” and compared the isotopic ratios of their elements to those measured on the Martian surface by the Viking landers. The combinations of these ratios (things like the ratio of nitrogen-15 to nitrogen-14), as well as the fact that the gas trapped in the rock matches the Martian atmosphere, represent an irrefutable fingerprint proving that these materials originated on Mars. Despite the fact that in general each SNC meteorite must wander through space for millions of years before arrival at Earth, it is the opinion of experts that neither this extended period traveling through hard vacuum nor the trauma associated with either initial ejection from Mars or reentry at Earth would have been sufficient to sterilize these objects, if they had originally contained bacterial spores. Indeed, chemical investigations of the famous SNC meteorite ALH84001 have shown that portions of it never rose above 40°C at any time during its entire interplanetary journey, and therefore, if there had been bacteria within it when it departed Mars, they easily would have survived the trip. Furthermore, on the basis of the amount we have found, it has been estimated that these Martian rocks continue to rain down upon the Earth at a rate of about five hundred kilograms per year. So, if you're scared of Martian germs, your best bet is to leave Earth fast, because when it comes to Martian biological warfare projectiles, this planet is smack in the middle of Torpedo Alley. But don't panic—they're not so dangerous. In fact, to date, the only known casualty of the Martian barrage is a dog who was killed by one of the falling rocks in Nakhla, Egypt, in 1911. Statistically, the hazard presented to pedestrians by furniture being thrown out onto the street from upper-story windows is a far greater threat."]

[(7, 16)]

fb131000b5ac45bec39be9ff0c6d2095496a8ec599f7ffc395310a6e8dbe8e99

There’s no germs on Mars---UV rays

Robert Zubrin 19, President of Pioneer Astronautics and also president of the Mars Society, senior engineer for Lockheed Martin, “Chapter 4 Mars: Our New World,” 05/14/2019, The Case for Space: How the Revolution in Spaceflight Opens Up a Future of Limitless Possibility, Prometheus

life certainly does not exist on the Martian surface. There is no water the planet is covered with oxidizing dust and bathed in u v Both common methods of sterilization

however life certainly does not exist on the Martian surface. There is no liquid water there —the average surface temperature and atmospheric pressure will not allow it. Moreover, the planet is covered with oxidizing dust and bathed in u v radiation Both of these are common ly used on Earth as methods of sterilization

certainly does not exist no liquid water oxidizing dust bathed in u v radiation common sterilization

['So the idea of quarantining rocks brought back from Mars by astronauts or a robotic sample return mission makes about as much sense as having the border patrol inspect incoming cars to make sure they are not transporting Canada geese into the country. They are flying in all the time on their own.', 'The fact of the matter, however, is that life almost certainly does not exist on the Martian surface. There is no (and cannot be) liquid water there —the average surface temperature and atmospheric pressure will not allow it. Moreover, the planet is covered with oxidizing dust and bathed in ultraviolet radiation to boot. Both of these last two features—peroxides and ultraviolet light—are commonly used on Earth as methods of sterilization. No, if there is life on Mars now, it almost surely must be ensconced in underground water.']

[(7, 16)]

aaa152d1ec664327f5364aa47e5f32cf25ab2cd353d3289940291966ce4ce19f

Even if, they’re not dangerous

Robert Zubrin 19, President of Pioneer Astronautics and also president of the Mars Society, senior engineer for Lockheed Martin, “Chapter 4 Mars: Our New World,” 05/14/2019, The Case for Space: How the Revolution in Spaceflight Opens Up a Future of Limitless Possibility, Prometheus

couldn't life, if unearthed be harmful? Absolutely not. organism adapt to a particular environment human disease is the human humans do not catch Dutch elm disease and trees do not catch colds any Martian organism would be far more distantly related as silly as that sharks transported to Africa would replace lions

But couldn't such life, if somehow unearthed be harmful? Absolutely not. Because disease organisms are specifically keyed to their hosts . Like any other organism , they are expressly adapt ed to life in a particular environment . In the case of human disease this environment is the interior of the human body For almost four billion years , the pathogens that afflict humans today waged a continuous biological arms race with the defenses developed by our ancestors. An organism that has not evolved to breach our defenses and survive in the freefire that constitutes our interiors will have no chance of successfully attacking us. This is why humans do not catch Dutch elm disease and trees do not catch colds any indigenous Martian host organism would be far more distantly related to humans than elm trees if there were hosts, the huge differences between them and terrestrial species would make the idea of common diseases an absurdity . Equally absurd is the idea of independent Martian microbes coming to Earth and competing with terrestrial microorganisms The notion of Martian organisms outcompeting terrestrial species on their home ground is as silly as the idea that sharks transported to the plains of Africa would replace lions

unearthed Absolutely not. keyed to their hosts organism expressly adapt particular environment human disease interior of the human body four billion years humans today continuous biological arms race defenses not evolved freefire interiors no chance humans do not catch Dutch elm disease trees do not catch colds Martian far more distantly related to humans than elm trees absurdity Equally competing with terrestrial microorganisms home ground as silly sharks transported to the plains of Africa replace lions

["But couldn't such life, if somehow unearthed by astronauts, be harmful? Absolutely not. Why? Because disease organisms are specifically keyed to their hosts. Like any other organism, they are expressly adapted to life in a particular environment. In the case of human disease organisms, this environment is the interior of the human body or that of a closely related species, such as another mammal. For almost four billion years, the pathogens that afflict humans today waged a continuous biological arms race with the defenses developed by our ancestors. An organism that has not evolved to breach our defenses and survive in the microcosmic freefire zone that constitutes our interiors will have no chance of successfully attacking us. This is why humans do not catch Dutch elm disease and trees do not catch colds. Now, any indigenous Martian host organism would be far more distantly related to humans than elm trees are. In fact, there is no evidence for the existence of, and every reason to believe the impossibility of, macroscopic Martian fauna and flora. In other words, without indigenous hosts, the existence of Martian pathogens is impossible, and if there were hosts, the huge differences between them and terrestrial species would make the idea of common diseases an absurdity. Equally absurd is the idea of independent Martian microbes coming to Earth and competing with terrestrial microorganisms in the open environment. Microorganisms are adapted to specific environments. The notion of Martian organisms outcompeting terrestrial species on their home ground (or terrestrial species overwhelming Martian microbes on Mars) is as silly as the idea that sharks transported to the plains of Africa would replace lions as the local ecosystem's leading predator."]

[(7, 16)]

ebac63b62a88d69f5c505cfed88f33d4555878ed195fe0d3aea2a54ceee20de5

Bringing organisms back enables research to solve actual pandemics

Robert Zubrin 19, President of Pioneer Astronautics and also president of the Mars Society, senior engineer for Lockheed Martin, “Chapter 4 Mars: Our New World,” 05/14/2019, The Case for Space: How the Revolution in Spaceflight Opens Up a Future of Limitless Possibility, Prometheus

Martian organisms would be a find beyond price but constitute no threat we differentiate life idiosyncratic to terrestrial life and those generic We could learn something fundamental Such could provide astonishing advances in medicine No one will die of a Martian disease but thousands are dying of terrestrial ailments whose cure would be apparent

a sample of live Martian organisms would be a find beyond price but certainly constitute no threat by examining Martian life , we would have a chance to differentiate between those features of life that are idiosyncratic to terrestrial life and those that are generic to life itself. We could thus learn something fundamental about the nature of life . Such basic knowledge could provide the basis for astonishing advances in medicine . No one will ever die of a Martian disease , but thousands of people are dying today of terrestrial ailments whose cure would be apparent if only we had a sample of Martian life in our hands

live Martian organisms find beyond price no threat Martian life differentiate learn something fundamental about the nature of life basic knowledge astonishing advances in medicine Martian thousands dying today terrestrial apparent only sample of Martian life

['Just as the discovery of a viable dinosaur egg would represent a biological treasure trove but no menace, so a sample of live Martian organisms would be a find beyond price but certainly constitute no threat. In fact, by examining Martian life, we would have a chance to differentiate between those features of life that are idiosyncratic to terrestrial life and those that are generic to life itself. We could thus learn something fundamental about the very nature of life. Such basic knowledge could provide the basis for astonishing advances in genetic engineering, agriculture, and medicine. No one will ever die of a Martian disease, but it might be that thousands of people are dying today of terrestrial ailments whose cure would be apparent if only we had a sample of Martian life in our hands.']

[(7, 16)]

4c7551cae2c23d11b08415adb877ae1bf4d764a4202f7bf68d7261f557cebfca

There is a moratorium on regs that can only be overcome by Congress, which is gridlocked without fiat

Gerardo Inzunza Higuera 22, J.D. Candidate 2022, University of California, Hastings College of the Law, “What Got Us Here, Won’t Get Us There: Why U.S. Commercial Space Policy Must Lie in an Independent Regulatory Agency,” Hastings Law Journal, Vol. 73, Iss. 1, pp 105–128

current entities lack regulatory functions as a result of moratorium on regulation of space established by CSLCA merely to provide advice it is unclear how an entity would implement without regulatory power Space recommendations have all gone nowhere due to Congress’s gridlock , which attention towards other legislation

recognition of inefficiencies stemming from the current approach has led to the creation of numerous entities these entities lack regulatory functions as a result of the moratorium on regulation of commercial space established by the CSLCA the function merely to provide advice it is unclear how such an entity would implement these without possessing some regulatory power . Both the N Space C and OSC have provided recommendations yet these have all gone nowhere due to Congress’s gridlock , which siphons Congress’s attention away from these matters towards other politically expedient and controversial legislation s

inefficiencies current approach numerous entities lack regulatory functions moratorium regulation of commercial space CSLCA merely advice unclear how implement some regulatory power N C OSC recommendations all gone nowhere Congress’s gridlock siphons Congress’s attention other politically expedient and controversial legislation

['Federal recognition of the inefficiencies stemming from the current fragmented regulatory approach to commercial space activities has led to the creation of numerous oversight and management entities, such as the National Space Council73 and the OSC.74 However, these entities do not (and cannot) go far enough because they lack central regulatory functions,75 as a result of the current moratorium on the regulation of commercial space activities established by the CSLCA—as a way to allow the commercial space sector to develop without costly and burdensome regulations in an unexplored area.76 For example, the National Space Council’s function is merely to provide advice on civil, commercial, and military space issues and to coordinate the implementation of the President’s space policies. 77 However, it is unclear how such an entity would go about implementing these policies without possessing some regulatory power. Both the National Space Council and the OSC have provided recommendations to Congress to improve the current regulatory framework for commercial space activities, yet these have all gone nowhere due to Congress’s current gridlock, which siphons Congress’s attention away from these administrative matters towards other politically expedient and controversial legislations. 78 Although the creation of a new administrative agency requires congressional action, the current regulatory inefficiencies will continue to worsen without a dedicated agency with the authority to promulgate the aforementioned recommended changes.']

[(16, 26)]

643c60722e5ebbcd9895fdf1e40c12546395b2d263445eb117749e424068c122

AND, suits are coming---but they’ll use squo, ill-defined frameworks

Maria Lucas-Rhimbassen et al. 21, Lucas-Rhimbassen serves as a Research Associate at the Chaire SIRIUS and is also a PhD Candidate in space law since 2016, is also a guest lecturer at ISAE-Supaero, served in the International Institute for Space Law (IISL) in the trilateral IISL-IAA-IAF working group on Space Traffic Management (STM), co-chaired the Responsible Lunar Governance Sub-Committee of the Global Experts Group on the Sustainable Lunar Activities (GEGSLA) at the Moon Village Association (MVA), research fellow at the Open Lunar Foundation; Lucien Rapp is tenured Professor at the Law School of University Toulouse1-Capitole and currently lectures at HEC Paris, as an Affiliate Professor; Lucas Mallowan is with Chaire SIRIUS (University of Toulouse I Capitole), “Uncommon Commons, Commodities and Tokens in Outer Space: A Critical Viewpoint on New Competition Issues,” Astropolitics, vol. 19, no. 1–2, Routledge, 05/04/2021, pp. 116–127

Space antitrust lawsuits wait around the corner . It is not in the interest of the space ecosystem to rely on lawfare , rather act ex ante with a space antitrust framework

Space it is expected that monopolies shift from natural to artificial and that antitrust lawsuits will be wait ing around the corner . It is not in the interest of the space ecosystem to rely on lawfare to settle issues , rather it is preferable to act ex ante with a space antitrust framework

expected shift natural artificial lawsuits wait around the corner interest ecosystem lawfare ex ante space antitrust framework

['In contrast with artificial monopolies, natural monopolies are allowed as long as they enable economies of scale, or simply do not have any competitors. They can also be subsidized by the state on markets that incur high fixed costs and strong externalities, such as in the case of United Launch Alliance (ULA), a joint venture between Boeing and Lockheed Martin, on the defense launching market. However, a New Space entrant, Space Exploration Technologies (SpaceX), proved through several antitrust lawsuits, which ended up in settlement, that ULA’s natural monopoly did not enable economies of scale. On the contrary, ULA charged the U.S. Department of Defense (DOD) excessively and abused its dominant position. This illustrates how, albeit initially perceived legitimacy of a monopoly can, in fact, subsequently, hide a different reality. Space being “hard”, it is likely that other incumbent actors rely on state-aid and seek to secure a monopolistic status. It is to be expected due to the harsh and peculiar circumstances of the sector. However, it is also expected that such monopolies shift from natural to artificial and that antitrust lawsuits will be waiting around the corner. It is not in the interest of the space ecosystem to rely on lawfare to settle these issues, rather it is preferable to act ex ante with a noble space antitrust framework.']

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