If you’re not a particular kind of sports fan, a certain trademark dispute may have escaped your attention. The Chicago Bears quarterback is Caleb Williams and he’s pretty great. He also has acquired a nickname: “Iceman.” This nickname has become so associated with him that it is even referenced on Williams’ appearance on the cover of this years Madden video game.
George Gervin is an NBA legend and he was pretty great. A Hall of Famer who played in the 70s and 80s, Gervin’s on the court demeanor was one of calm and focus. As such, he acquired a nickname: “Iceman.” The nickname became so associated with Gervin that it resulted in then-iconic posters featuring it, such as this one.
And, rounding out our participant list for this particular story, is LaCrosse Footwear. They make boots. I have no idea if they’re pretty great or not. More on them in a moment.
Okay, so here’s the timeline of what happened. After being nicknamed “Iceman,” Williams decided to apply for several trademarks for the term, including both stylized logos and a basic word mark for the term itself. This appears to have pissed off Gervin who never attempted to trademark the term himself. After learning the Williams applied for the mark, Gervin then applied for the same mark afterwards, arguing that because he’d been using it all this time, it was his first.
Williams’ application has been initially rejected by the USPTO, but not due to anything to do with Gervin. Gervin’s application has also been rejected by the USPTO, but not due to anything to do with Williams. Instead, it’s LaCrosse Footwear and their line of insulated boots which are branded, you guessed it, “Iceman.”
LaCrosse, an Oregon-based footwear company, owns the trademark “Iceman” for one of its boots and boot liners. Williams had applied for trademarks in multiple categories, including clothing, and that allowed the USPTO to offer the broad refusal of his application.
“These marks are identical in appearance, sound and meaning,” the USPTO wrote in its refusal letter. “… Additionally, because they are identical, these marks are likely to engender the same connotation and overall commercial impression when considered in connection with applicant’s and registrant’s respective goods and/or services.”
The USPTO on Friday also gave an initial refusal to Gervin’s attempt to trademark “Iceman 44” due to the LaCrosse line.
Now, this may sound absurd, and it sort of is, but these initial rejections are also very common. Well more than half of trademark applications are initially rejected based on the USPTO finding literally anything similar so that they can broadly reject the application. It’s a sort of weeding out process that allows for the applicant to then appeal the decision and argue against any likelihood of confusion. I fully expect that to happen here, because nobody is going to somehow mistake a clothing line for an NFL star, or an NBA legend, with a line of insulated sporting boots.
Which sets up the real question of who gets to be “Iceman,” Williams or Gervin? Josh Gerben chimes in on the ESPN article.
“The registration that they’re citing here is for obviously a very limited product line. Literally insulated boots,” Gerben said. “Look, it might be harder for him to get Iceman registered for a brand of clothing items because of that, but there’s other things in his application that he could possibly still wind up with a registration here.”
The USPTO examiner, though, warned in the refusal to Gervin that if both he and Williams appeal and win, Gervin’s application would likely still be potentially denied because Williams applied first. That could set up a trademark battle between the two athletes, Gerben said.
Indeed. Because the American system is a first-to-use instead of a first-to-file trademark system, Gervin would then need to oppose Williams’ mark, or sue him, in order to argue in court that he has a valid claim to the mark based on first use. But that isn’t all. He’d also have to demonstrate that he’s been continuously using the mark in commerce as well. I poked around a bit and can’t really find any explicit uses of the mark by Gervin since the 90s and it appears that at least one of his applications indicated that he wasn’t currently using it in commerce for some of the categories for which Williams applied.
In this case, Gervin’s use of the trademark ‘Iceman’ appears to be limited to a few videos on his website. His applications even admit that he has no active use of the ‘Iceman’ brand for clothing.
This is not the type of active, ongoing commercial use that is likely sufficient to defeat a prior-filed trademark application (such as Caleb Williams’s) on a claim of priority based on longstanding use of the trademark. Of course, Gervin may have other evidence that was not put into the trademark application, but at the moment, it appears Williams may have room to push back on the claims being made by Gervin.
Now, another option here would be for everyone to just calm the hell down and let a nickname be a nickname, sans any need to trademark the term. Gervin has demonstrated pretty well that a trademark wasn’t needed for his nickname to be associated with him, nor to be used (at least a ways back) in commerce. There’s no reason that they can’t both be “Iceman” in other words.
But if it’s a fight we’re going to get, I’m with Gerben in thinking that Williams is in the strongest position. And I’m damned sure that a boot maker probably can’t argue any real likelihood of confusion.
Frank Ssekamwa says the United States presented his country with an impossible choice. If it accepted the terms of a new health agreement, Uganda would have to give the U.S. access to the data of millions of his fellow citizens — a decision he worries would make their personal information more vulnerable to breaches and possible exploitation.
But if it refused, the East African nation would likely lose out on more than a billion dollars to address HIV, malaria, tuberculosis and other illnesses, even as its people face ongoing threats from Ebola and other deadly infectious diseases.
So, on Dec. 10, it agreed.
“If you take the deal, you’re going to be exploited. If you don’t take it, you’re going to die,” said Ssekamwa, an attorney and digital rights expert in Uganda. “It’s the essence of digital colonialism.”
Across Africa, countries have faced similar dilemmas as the U.S. has held a series of closed-door negotiations in which lifesaving aid has been conditioned on access to citizens’ health data. The negotiations come in the wake of the dismantling of the U.S. Agency for International Development, which — in contrast with the new contracts — provided billions of dollars in aid with few strings attached. Officials in Zambia, Zimbabwe and Ghana have been so outraged by the demands that they rejected the initial deals.
The demand to access health data is central to the Trump administration’s new America First Global Health Strategy, an openly transactional approach that seeks to leverage the desperate need for medical treatments abroad. Aid will now be given “in a way that directly benefits the American people and directly promotes our national interest,” Secretary of State Marco Rubio stated in September.
The State Department declined to publicly release global aid and data-sharing agreements it has signed with more than 30 countries as part of its new approach. But a ProPublica analysis of nine of the deals offers a window into the extensive U.S. demands for access to data — and the potential risks and vulnerabilities for the citizens of countries that have signed them. ProPublica also reviewed a data-sharing agreement struck with Uganda, which has not previously been reported; a data agreement with Kenya; six agreements over the sharing of pathogens that can cause pandemics that were made public by the State Department this week; generic templates of deals for sharing both data and pathogens that can cause pandemics; and an analysis of the documents the advocacy group Public Citizen shared exclusively with ProPublica.
ProPublica also consulted more than a dozen experts in data privacy and global health, including several with direct knowledge of U.S. policy who said that the insistent demands for data access and other resources as a condition of aid are unprecedented. Without seeing the full suite of agreements, they could not identify all vulnerabilities. But they spotted some red flags: The terms of the deals are vague and lack language standard in most data-sharing agreements that adequately limits what data is collected and how it can be used. That increases the risk that individuals’ personal data could be exposed, misused or commercialized without their consent.
In the Ugandan data deal, the U.S. will get direct, real-time access to nine of the nation’s health data systems for seven years, including the central repository that stores all of its health information, lab data, data collected by community health workers and, critically, its system for managing individuals’ electronic medical records.The agreement calls for the sharing of aggregated data with all personally identifiable information removed. It also says the data should be used for delivering and auditing healthcare services.
But lawyers and digital privacy experts argue that the deal raises questions about who will have access to the massive cache of health data and whether it could be inappropriately accessed and exploited.
Some expressed concern that, because it is possible to reverse-engineer data that has been anonymized, people with HIV, tuberculosis and other diseases could have their records exposed.
Stephanie Psaki, who served as the U.S. coordinator for global health security under President Joe Biden, described the Trump administration’s approach as a “blunt instrument of ‘just give me the login to your data systems.’”
“The U.S. would never agree to that,” she said, if the deal were offered in reverse.
In Uganda, the U.S. will provide up to $1.7 billion over five years for global health security and the treatment and prevention of deadly conditions such as malaria, tuberculosis, HIV and polio.In the past, the U.S. gave this aid without asking for direct benefits in return, saving an estimated 170,000 Ugandan lives per year.
While a significant investment, it is less than the U.S. previously spent in Uganda and will decrease every year of the agreement. By 2030, the African nation will receive 45% less global health funding than when Trump retook office, according to an analysis by Vincent Lin of Partners in Health, which provides healthcare in poor countries.
Several experts said there is broad support for some of the goals of the new plan for aid, including reducing African countries’ dependence on the U.S. for healthcare needs. But they worry the transactional nature of the approach could backfire by undermining trust or, in some cases, driving nations to reject deals altogether.
After withdrawing from the World Health Organization and losing access to its global network that tracks and combats disease outbreaks, the U.S. is attempting to obtain the information necessary to address potential pandemics through a patchwork of deals with individual countries. Each of the agreements ProPublica reviewed includes a section on responding to outbreaks. And some countries have signed separate pathogen-sharing agreements, which state that countries must “initiate sharing specimen(s) and related data” within five days of a U.S. request. The Trump administration is also planning unprecedented involvement of private companies to manage and process data.
The State Department told ProPublica that it needs access to the data to improve health outcomes in recipient countries and keep Americans safe. The new approach also requires countries to invest more in their own health systems in exchange for the aid, a promise many countries will likely struggle to fulfill. And, in some cases, including the deal with Uganda, it aims to boost local manufacturing through partnerships with American companies.
The State Department said it took multiple factors into account to ensure the required investments from other countries were “realistic and achievable.”
“The United States is investing billions of dollars in other countries’ health systems to fight infectious disease. In return, we expect governments to increase their own spending on health, so programs are sustainable and under genuine national ownership, not permanently financed by U.S. taxpayers. For the first time, both sides are putting skin in the game to ensure lasting impact,” a State Department spokesperson said in response to questions about the agreements.
In response to follow-up questions from ProPublica, spokesperson Tommy Pigott said the agreements “share only the same kinds of aggregated, de-identified data that has been shared and used for years in the fight against HIV/AIDS, malaria, tuberculosis, and other diseases. All data sharing is consistent with each country’s laws and approvals. No personally identifiable information is being received or shared by the United States government.”
Uganda’s Ministry of Health, Ministry of Foreign Affairs, Personal Data Protection Office and embassy in Washington, D.C., did not respond to questions for this article.
In the age of artificial intelligence, large health data sets have become so valuable they’ve been referred to as the new gold. The precise value of the health data of an entire nation is unclear, but it could be extremely valuable to AI-driven companies for training models.The industry of buying and selling such information troves is worth billions. And countries around the world have come to regard their citizens’ health records as national assets that deserve special protections and can confer economic and strategic advantages.
Yet the agreements, which are part of a strategy the State Department openly states is intended to make America “more prosperous” and “promote American health innovations,” provide no guarantee that Africans subject to them will have a say in what happens with their data or receive a fair share of its benefits. “Once companies get this data, the value is being accrued. But there’s no way for the [African] population to know how companies will use it,” said Jane Munga of the Carnegie Endowment for Intenational Peace, who has argued that the agreements may violate African privacy laws.
Africans have also expressed concern that they will not be able to access and benefit from medicines and vaccines developed from pathogen samples shared with the U.S. Five of the six specimen-sharing agreements reviewed by ProPublica state that, in the event that a medical product is developed primarily from a specimen from the country, the U.S. government “shall prioritize” a request from that government behind the needs of the U.S. Only one of the agreements, with Nigeria, commits the U.S. to facilitating “priority access” to — and the donation of — any medical products developed using the specimens.
The phenomenon of extracting information and samples from less-resourced populations and failing to credit and compensate them for their contributions to medical developments is well known enough to have several names, including “parachute science.” Just a few years ago, countries, including some in Africa, hosted COVID-19 vaccine trials, only to later struggle to access the shots they helped to develop.
Each agreement includes “benefit-sharing provisions,” the State Department said in response to questions.
After the Trump administration dismantled USAID, the world’s largest provider of humanitarian assistance, it also drastically reduced funding for international health work done by the Centers for Disease Control and Prevention and severely scaled back the President’s Emergency Plan for AIDS Relief, which combats HIV globally. In addition to withdrawing from the WHO, the U.S. removed itself from international negotiations over a pandemic agreement intended to affirm countries’ sovereign rights to their biological resources and ensure equitable access to medical interventions.
Brad Smith, an entrepreneur who served in the first Trump administration, is now in charge of creating the system that would rise from the ashes. Before joining this administration, Smith founded three companies with business models that rest in part on using data to reduce healthcare costs, including CareBridge, a home care provider that sold for a reported $2.7 billion in 2024. During the presidential transition that year, Smith led the government efficiency panel that would become Elon Musk’s Department of Government Efficiency. After Trump took office, he presided over some $67 billion in sweeping cuts to the Department of Health and Human Services before being brought on as an adviser to the State Department.
Although the humanitarian aid system had been largely dismantled, Congress required the executive branch to continue providing aid. So Smith and his team had to find new ways to get the funding to countries, ensure that it was being spent wisely and address potential pandemics — all without most of the international partners and staff the government had previously relied on to carry out this complex work.
A Rhodes scholar known for his intense work ethic, Smith threw himself into the effort. State Department staff fielded calls from him at all hours of the night to explain budget items on spreadsheets. Through his personal lawyer, Smith referred questions to the State Department.
One of the greatest challenges lay in the handling of health data. In the past, PEPFAR, the HIV program, built its own systems to handle anonymized data, separate from government health records — a setup that Trump administration officials and others have criticized as inefficient.
The America First plan proposed standardizing data collection and processing within countries. The Ugandan data agreement requires the country to provide the U.S. — and its contractors — with logins “or other secure access mechanisms” to directly enter the country’s data systems. The new approach, U.S. officials say, will enable the U.S. to continue auditing programs and track outbreaks.
The agreements ProPublica reviewed include statements about the U.S. government’s intent to ensure data security and say that the data is being accessed for the purposes of addressing diseases and auditing that work, but they leave open the possibility that sensitive information could be revealed, according to the data privacy experts ProPublica consulted.
At particular risk are countries that don’t have national data privacy laws, such as Liberia, whose memorandum of understanding requires “interlinked and interoperable” data systems for “surveillance, laboratory, response, health, environment, agriculture.” That country’s main health agreement doesn’t require the U.S. to limit the amount of data it takes to the least needed, a standard clause in U.S. contracts, according to Abdoul Jalil Djiberou Mahamadou, a recent postdoctoral fellow focusing on bioethics at Stanford University. (Neither Liberia nor the State Department has released the supplemental data-sharing agreement.) “Once data is breached, it’s nearly impossible to get it back,” Mahamadou added.
The Liberian government did not respond to a request for comment.
The Ugandan data-sharing agreement says it will comply with the laws of both nations and permits the sharing of “sensitive personal data” if the consent of individuals whose data is shared is obtained, there is a compelling public health emergency of international concern and it is the only way information can be provided in a “timely and accurate format.”
Ssekamwa, the digital rights expert who also founded and runs the African Centre for Digital Justice, said there are important questions that haven’t been answered by the Ugandan government.
“Does the U.S. have appropriate data protections? Can the systems provide anonymized data? Are they really up to that standard?” said Ssekamwa. “If I’m someone who has had health issues, can you deny me a visa because of the health issues I’m having?”
Psaki, the former global health security coordinator, worried about the haste with which the changes to data access are happening. “Even in the best of circumstances, you can’t go from having parallel data systems that were established over 20-plus years to finding some way to integrate those data systems in six months.”
Speed has been a hallmark of the America First global health effort. In September, just a month after Smith joined the State Department, it launched the strategy at an event co-sponsored by the U.S. Chamber of Commerce and five large pharmaceutical companies. By November, Smith was crisscrossing the African continent with a small team of negotiators, trying to persuade dignitaries to agree to deals.
The State Department said the deals were “negotiated in a thoughtful and strategic way over many months.”
On Dec. 4, Kenya became the first country to sign, during a triumphant celebration with Rubio and President William Ruto in Washington. Outcry over the agreement had already begun two days earlier, when a Kenyan activist named Nelson Amenya announced on the social platform X that he had seen a sample of the specimen-sharing agreement as well as a legal analysis that showed it would violate Kenyan law.
As a condition for receiving $1.6 billion in aid, the Kenyan government agreed to provide access to seven years’ worth of health records — two years longer than the U.S. would provide financial support.
Although the Kenyan data-sharing agreement states that the U.S. will take “all reasonable measures to protect the confidentiality of information” and abide by American and Kenyan laws, Amenya worried that wouldn’t be enough. “Every HIV test, TB diagnosis, malaria case – accessible to US officials,” he wrote in the post, which now has one million views. “Your medical records, your children’s health data – all exposed.”
A few days later, a Kenyan senator named Okiya Omtatah sued members of the Kenyan government over the agreement, arguing that it poses a threat to citizens’ constitutional right to privacy by “allowing broad foreign access to sensitive data.” A Kenyan nonprofit also sued, and more than 50 groups weighed in on their side, describing the document as giving the U.S. “excessive access” to African data and raising the possibility of serious human rights violations.
In court filings, the Kenyan government argued that it is obligated to achieve the “highest attainable standard of health” and that it is unable to do that on its own. After blocking the deal for months, in May, the Kenyan court temporarily allowed implementation of the agreement to proceed while it considers the case.
Since outrage bubbled up in Kenya, some other countries have negotiated shorter terms for sharing data and pandemic specimens, and have inserted additional protections, according to the Public Citizen analysis.
Revealing whether someone has had an abortion, mental health condition, substance use treatment or sexually transmitted disease can be devastating anywhere. In Africa, research has shown it can lead to discrimination and violence. And even when personal information has been removed, individuals in “anonymized” data can be reidentified using AI and other tools.
The Ugandan data-sharing agreement calls for the U.S. government to “promptly notify the Government of Uganda of any unauthorized access” in such cases and requires the parties to conduct a joint breach assessment and remediation plan afterward. But by that point, it may be too late, Ssekamwa fears. “Once the data gets out of Uganda, we are skeptical that the government of Uganda will actually have any power to control it,” he said.
The secrecy around both the negotiations and the agreements has raised further suspicions. The State Department has declined to share the agreements, telling ProPublica the agency will release them when negotiations with all partner governments are complete and describing its actions as “protecting sensitive negotiations—not ‘secrecy.’” In response to a public records request filed by ProPublica, the State Department said it planned to provide the documents in September 2027. The advocacy group Public Citizen recently filed suit against the federal government in an effort to obtain the documents.
“Why are they hiding the agreement if they think the terms are OK?” asked Bernard Okpi, a Nigerian lawyer who sued his government in March, alleging that the deal violates the country’s constitutional right to privacy and promotes religious discrimination by prioritizing funding for Christian faith-based health facilities. That suit is pending, and the Nigerian government did not respond to questions from ProPublica.
The State Department said that the agreement with Nigeria “was negotiated in connection with reforms the Nigerian government has made to prioritize protecting Christian populations from violence.”
The Trump administration says that its new global health strategy is designed to save lives and keep the U.S. — and the world — safe from disease outbreaks. But ultimately its hard-driving and secretive negotiations may work against those goals.
While the administration aspired to strike agreements with 50 nations, including the three countries that walked away from negotiations in part over concerns about data sharing, it has fallen far short of that number. (In Zambia, officials also balked at U.S. demands for critical minerals.) The loss of aid in those countries is already proving tobe devastating.
Despite the Trump administration’s stated goal of putting “America first,” the U.S. may feel the consequences of those failed negotiations, too, as mistrust compounds the loss of long-standing systems that provided care and responded to disease outbreaks.
“It’s in everyone’s interest to have a comprehensive approach to respond to an outbreak early,” said Psaki, who pointed to the quickly escalating number of Ebola cases in the Democratic Republic of Congo as evidence. While that country struck a healthcare deal with the U.S., five of the nine countries bordering it have not. “We need to get data and samples from all nine countries to collaborate effectively on that outbreak, and now we don’t have that.”
The State Department said the U.S. has responded swiftly to the outbreak and has provided over $270 million to the global fight against Ebola.
In Uganda, where people have also fallen sick and died from Ebola, Ssekamwa said that his country needs all the help that the healthcare deal can bring, including improved protection from outbreaks, but there needs to be more robust protection of people’s personal data.
“We are happy to benefit from the technological advancement and the fruits of big data,” he said. Instead, he said, “the U.S. has left so many gaps within the agreement, which can be exploited in their favor.”
In 1978, the Federal Trade Commission, the agency that regulates unfair or deceptive advertising, proposed limiting TV ads for sugary foods on programs targeted at children. The Washington Post’s editorial board scoffed that the plan would “turn the agency into a great national nanny.” Congress clipped the agency’s wings, and “kidvid” entered history as a cautionary tale of regulatory hubris. Once again, the FTC is channeling its inner Mary Poppins in the name of consumer protection. Only in this incarnation, she pulls a novel theory of deception from her regulatory carpetbag to control what AI chatbots say.
Under the FTC’s proposed policy statement on “Suppression of Accuracy in Artificial Intelligence Systems,” announced July 1, AI developers “likely” commit false advertising whenever they “steer” their models’ outputs toward objectives users don’t expect. The theory: because AI companies market their products as helpful, consumers expect maximally accurate answers, and any undisclosed editorial shaping of a model’s responses is deception.
It is a policy proposal in search of a problem. True to Mary Poppins’ “I never explain anything” credo, it does not identify a single false advertisement or deceived consumer.
It is also wanting on the legal front, failing to pay even lip service to relevant Supreme Court precedent. In Brown v. Entertainment Merchants Association, the court held that video games—interactive software sold for profit—receive full First Amendment protection, because the Constitution’s protections “do not vary” when a new medium appears. In Moody v. NetChoice, the court reaffirmed that a platform’s choices about what expressive content to present are protected editorial discretion. The design choices underpinning large language models make them legally indistinguishable from video games and social media.
What the FTC calls “steering” is what the Supreme Court calls editing.
The FTC says developers could avoid liability under the policy by “clearly and conspicuously” disclosing that their systems prioritize objectives other than pure accuracy. But how would that work for Truthly, an AI chatbot promoted for its Catholic bias? Truthly’s slogan is “Every other AI is built to agree with you. Truthly tells you the truth.” Although Truthly affirmatively discloses its Catholic worldview and disclaims impartiality—seemingly just what the FTC policy demands—it also claims that, unlike secular chatbots, its news and information is filtered “through truth and morality.” Consumers might struggle to reconcile the chatbot’s biased-but-true disclaimers, rendering them ineffective under the FTC’s own disclosure standards. Paradoxically, a religious chatbot could face false-advertising charges for fulfilling its core function—generating religious outputs.
Freedom of the press, an explicit guarantee of the First Amendment, also would be vulnerable under the proposal’s legal logic. In theory, it would put a target on any media outlet that promises accuracy while exercising editorial judgment, including the NY Times, whose front page has promised “All the News That’s Fit to Print” since 1897.
Right-leaning media also would be at risk. Newsmax tells viewers it delivers “real news.” Breitbart’s editorial guidelines declare its goal is “to report the truth – accurately and fairly.” One America News brands itself “Your Credible Source for National & International News.”
Would print articles resort to cigarette-style bias warning labels to avoid an FTC investigation? Would cable news programs run a continuous chyron with their editorial criteria?
In 2004, the agency rejected any application of FTC law in this manner when it declined to challenge Fox News’s “Fair and Balanced” slogan as false advertising. According to then-Chairman Timothy Muris, the inquiry would have entailed an evaluation of the news content at issue, which is a “task the First Amendment leaves to the American people, not a government agency.”
The FTC’s new proposal, however, points the opposite way.
Not so long ago, FTC Chairman Andrew Ferguson touted the Commission’s enforcement focus on actors that use AI to violate the law or deceive consumers about the capabilities of their generative AI. When DoNotPay promoted a “robot lawyer” as comparable to a human professional, then-Commissioner Ferguson rightly voted to hold it accountable. When Workado exaggerated the accuracy of its AI-detection product, the FTC, with Ferguson as chair, ordered it to stop making unsubstantiated claims.
At the same time, Ferguson was advocating for regulatory humility, declaring that “the FTC’s enforcement actions ought to be guided by the law, not the personal ideology, politics, or novel legal theories of its chairman or commissioners.” Under the Biden administration, he dissented from a proposed consent order against Rytr, a generative AI writing tool that was capable of generating deceptive outputs, arguing that the Commission was punishing “a product that helps people speak, quite literally.”
Commissioner Melissa Holyoak, whom Ferguson joined in dissent, observed that “[p]art of generative AI’s promise is its ability to suggest new lines of thought that may never have occurred to a user in the first place.” In other words, he signed on to the view that generative AI may be most valuable when it defies consumer expectations. As chairman, Ferguson went further, vacating the Rytr order outright and condemning law enforcement “unsupported by facts or law.”
But that was then.
The Supreme Court in Trump v. Slaughter subsequently stripped the FTC of its statutory independence, blessing a two-member, one-party Commission. And this Commission has not been shy about asserting its anti-left viewpoints. The FTC proposal puts “equity” in scare quotes and castigates Colorado’s AI law, while ignoring AI laws in Texas and Utah. Meanwhile, the administration the Commissioners serve requires federally purchased AI models to conform to its own official version of the truth. When a future administration inevitably jerks the ideological steering wheel leftward, consumers and AI developers—not the current Commission leadership—will suffer the whiplash.
In the 1964 film, Mary Poppins measured the children with a tape measure calibrated with subjective character traits instead of inches. Of course, she was deemed “practically perfect in every way.” The FTC’s proposal similarly cloaks a subjective assessment in the language of unassailable objectivity. But all the spoonfuls of sugar in the history of children’s advertising could not mask the bitter taste of conformity with a single worldview.
By fostering regulatory uncertainty, the FTC’s proposal threatens to stall the innovation that the administration insists is essential to AI supremacy. Its facile assurance that developers could avoid deception liability through a disclosure that “dispel[s] the notion that the system is designed to give the best answer possible” is, in “Mary Poppins” parlance, “a piecrust promise. Easily made, easily broken.”
Keith R. Fentonmiller served more than two decades as a senior attorney in the Federal Trade Commission’s Division of Advertising Practices. He is also a published fiction author. The views expressed are his own.
We spent a few years pointing out the ridiculousness of the whole “TikTok ban” moral panic, and the fact that all of the “concerns” magically melted away after Trump became president and then effectively gifted a controlling stake to some of his friends should raise some pretty big questions. However, most people seem to have accepted the new arrangement without much fuss — even though ByteDance still retains a 19.9% stake in the company, and users at no point needed to switch to a brand new app, continuing instead to use the very app we were told was a security nightmare. All of which suggests the entire moral panic was absolute bullshit.
Either way, prior to the full “ban” that forced further ownership into the hands of Trump’s friends, there was a separate law from Senator Josh Hawley which simply banned TikTok on government devices. That law is still in effect. It’s pretty clear that it applies to “the social networking service TikTok or any successor application or service developed or provided by ByteDance Limited or an entity owned by ByteDance Limited.” It’s also clear that such an application is not allowed on any government devices, with exceptions only “for law enforcement activities, national security interests and activities, and security researchers.”
Now, a plain reading of the law would suggest that the current app is still banned. The law is still in place. ByteDance still owns a significant stake in the new “US joint venture” and the app is absolutely a “successor app” since users never needed to download a new app after the joint venture was established.
But, the Trump administration apparently would like to use TikTok on their devices. So, they’ve had the Office of Legal Counsel put out a decision claiming that, you know, ownership doesn’t really mean ownership and that the Trump administration can ignore the law and start using TikTok on their devices again. First things first, we discover that because Josh Hawley wrote a stupidly drafted law that directly called out “TikTok,” the OLC has to first tap dance around the fact that the law’s clearly named “TikTok” apparently doesn’t mean this TikTok, even though that’s exactly what the statute says:
Blackletter statutory-interpretation principles illuminate which particular “TikTok” Congress sought to prohibit. It is old wisdom that “a general phrase can be given a more focused meaning by the terms linked to it.” Fischer v. United States, 144 S. Ct. 2176, 2184 (2024). Namely, “the canon of noscitur a sociis teaches that a word is ‘given more precise content by the neighboring words with which it is associated.’” Id. at 2183 (quoting United States v. Williams, 553 U.S. 285, 294 (2008)). We apply this rule to “avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving ‘unintended breadth to the Acts of Congress.’” Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995) (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)). And precisely that kind of unexpected breadth would ensue here, were the Government Ban understood to apply to any future social networking platform based on its name alone.
[….]
We have considered the counterargument that, under the Dictionary Act, “words importing the singular include and apply to several . . . things,” 1 U.S.C. § 1—thus indicating that the Government Ban’s use of the phrase “the social networking service TikTok” could denote multiple unrelated variations or iterations of social media companies named TikTok. But the Dictionary Act itself provides that its general prescriptions do not apply when “context indicates otherwise,” id., and context does so in this case. “In context[,] the phrase ‘[the social networking service TikTok]’ should not be interpreted to mean literally ‘any [social networking service called TikTok],’ but must be understood against the background of what Congress was attempting to accomplish in enacting the [Government Ban].” Gustafson, 513 U.S. at 575 (cleaned up) (quoting Reves v. Ernst & Young, 494 U.S. 56, 63 (1990)). Here, the plain text of the Government Ban indicates Congress was attempting to address a particular national security threat posed by the presence on federal government devices of software “developed or provided by ByteDance Limited or an entity owned by ByteDance Limited.” Government Ban § 102(a)(1), 136 Stat. at 5258. TikTok USDS thus is covered by the ban only if it, like the version of TikTok operative when the ban was passed, falls into that category of software.
Call me pedantic, but if Congress didn’t want to ban an app “based on its name alone” maybe they shouldn’t have drafted and then passed a law that banned an app based on its name alone. And if Congress thinks that the new TikTok is somehow safer, they should repeal the original, poorly drafted law. Instead, the OLC has to start asking “what is ownership, really, other than a concept”?
For three reasons, we conclude that “ownership” in the context of the Government Ban is best understood as referring to a controlling stake, such that TikTok USDS falls outside the prohibition’s scope.
First, the “control” sense of the word “own” is most “consistent with the way that an appropriately informed speaker of the language would understand [that term’s] meaning” in the specific context of corporate structure. Van Buren v. United States, 141 S. Ct. 1648, 1657 (2021) (quotation marks omitted). The United States is home to “large numbers of firms with widely dispersed share ownership.” Henry Hansmann & Reinier Kraakman, The End of History for Corporate Law, 89 Geo. L.J. 439, 443 (2001). But it would be unusual for someone to say that a person or even an institutional investor “owns,” for example, Meta, simply because the investor holds some of its stock. Cf., e.g., Van Buren, 141 S. Ct. at 1657 (“In the computing context, ‘access’ references the act of entering a computer ‘system itself[.]’”). Instead, in the corporate context, we generally recognize Mark Zuckerburg as the “owner” of Meta because he retains control of the company through so-called “super-voting” shares. See Nathan Reiff, Top Facebook (Meta) Shareholders, Investopedia (Mar. 21, 2026), https://perma.cc/XQ6V-ZNTT; Gregory H. Shill, The Social Costs (and Benefits) of Dual-Class Stock, 75 Ala. L. Rev. 221, 224 & n.6 (2023).
So, hear me out, if Josh Hawley and Congress meant for the law to only apply if ByteDance “controlled” the company, then it could have (and arguably should have) written that into the law. But they did not. They said ownership. And that mattered because, technically before the “divestiture” and new US “joint venture” Western investors already owned about 60% of ByteDance, with employees and ByteDance’s founder holding most of the rest. The goal of the various laws to ban TikTok was to get ByteDance out of owning any of the company.
And that didn’t work. But we all have to pretend this “fixed” things, so the OLC just says “eh, because US entities now control it, we can ignore the law and pretend it said “control” rather than “own.”
Our textual interpretation is confirmed by the facts on the ground, which indicate that the TikTok USDS joint venture is wholly controlled by American interests as a functional as well as a formal matter—and thus exhibits none of the concerning security features that initially motivated the Government Ban. As our prior advice to you highlighted, if facts did not bear out that conclusion, then our understanding of “ownership” as used in the Government Ban could be called into question. But where, as here, the facts demonstrate that ByteDance Limited’s status as a minority shareholder in the joint venture has no impact on the exercise of control over the venture by United States investors, the inference runs the opposite way. Congress had no need to target minority ownership by ByteDance Limited in the Government Ban because that state of affairs is wholly compatible with the joint venture “operat[ing] [TikTok USDS] under defined safeguards that protect national security.”
Of course, all this really does is confirm Calvinball rules: the definitions change exactly as often as it takes to get the outcome someone in power wants. When “ownership” needed to mean any ByteDance stake to justify a ban, it meant that. Now that the administration wants TikTok back on its phones, “ownership” apparently means “controlling stake,” and 19.9% doesn’t count.
The real lesson here appears to be that the earlier concerns were exaggerated. Josh Hawley and Congress wanted to get headlines about how they were “taking on China” and “big tech” more than they wanted to write a clear law. They had a moral panic about one specific app, dressed up in national security language, and now that the political winds have shifted, the Office of Legal Counsel is left doing contortions to make the text say what the moment requires.
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The Trump administration’s continual trend towards maximum awfulness means that every report seems to be “I’ve got bad news and I’ve got worse news.” What was already bad has become even worse now that more of the administration’s actions have been exposed during court proceedings.
Last July, the Trump administration unilaterally decided ICE should have access to Medicaid data for the sole purpose of locating migrants to arrest and deport. That much was made clear by the administration itself, which said the data would give ICE officials better tools to discover “the location of aliens.” An agreement was reached with the Centers for Medicare and Medicaid Service by the DHS because of course that happened. The administration had already purged plenty of non-loyalists, which meant those remaining wouldn’t put up much of fight.
There was no legal basis for this demand, which is why the headline says “illegally.” If this was a legal request, we wouldn’t be seeing lawsuits challenging the sharing of this sensitive medical data because the law would already be settled. Specifically, ICE wanted access to Medicaid data that exposed “home addresses and ethnicities.” Not exactly subtle, but nothing ever is with this grotesque shotgun of an administration.
But this sharing was challenged in court, and that converts that bad news to worse news. Not only did ICE have access to information it wasn’t legally entitled to have, but its private contractors did too, as NPR reports:
After Medicaid officials improperly shared data about millions of people in January with immigration officials, ICE then shared that data with the data analytics firm Palantir, according to new court filings. Palantir operates an app called ELITE that is used by ICE agents to show the addresses of noncitizens who may be subject to deportation.
That revelation was made public in a motion filed Thursday by more than 20 Democratic attorneys general who sued the Trump administration last year over its data-sharing agreement between the Centers for Medicare and Medicaid Services and ICE.
Palantir’s thirst for data is constant. And it will take anything its government customers choose to give it, including information that has been obtained illegally.
Palantir issued a couple of statements in response to this reporting based on courtroom revelations in ongoing lawsuits.
First, it said that the data in question had been “purged.” That’s great if true, but this seems like something that needs verification before trust because who knows where else this data set ended up before court orders blocked the government from using this data. If you think only ICE was peeking into this illicitly obtained data, you’re awarding the government the good faith it not only hasn’t earned, but has spent pretty much every minute since Trump’s election actively destroying.
ICE’s surveillance tech contractor also said this:
Palantir provided the following statement to NPR: “Our customers control their own data and manage access to that data. When Palantir employees are granted access to a customer’s dataset, it is solely to help integrate and analyze that data — which is what our software does — not to store it or use it for our own purposes. Palantir can confirm that the dataset in question was purged pursuant to government instruction.”
Well… I’d like to believe this much in the same way I’d like to believe a system of checks and balances is capable of constraining a rogue regime, much less its private contractors who are not subject to these particular restraints.
I believe Palantir to the extent that its employees aren’t just surfing waves of incoming data for their own personal reasons, but I find it extremely difficult to believe that a belated “purge” has actually scrubbed the data and removed any ancillary… well, let’s call them “infections.” Without turning over evidence of this purge to the courts, it’s easy to say it’s all been handled, even if the only thing that happened what Palantir deleting the source CSVs (or whatever) from its system, which isn’t the same thing as stripping it from Palantir’s databases.
Another reason for high levels of skepticism is this: ICE somehow couldn’t stop itself from passing this illegally obtained data to Palantir despite (apparently) trying to comply with a court order.
In a court filing last week, the Justice Department said that CMS again inadvertently reshared with ICE the dataset with millions of names that CMS had first improperly shared with ICE in January. The government said the error occurred during an effort to share data from states not involved in the lawsuit.
You see the problem, right? Because not every state sued over this illegal data collection, ICE continues to collect data that should — at this point — be considered off-limits. The only reason it doesn’t is because some states (you know the ones) have decided they’ll do whatever it takes to ensure the administration gets to keep being openly racist.
Consequently, the data sets aren’t being sorted between racist/non-racist (or whatever the SORT term is), which means ICE continues to retain data it’s been ordered to delete and Palantir keeps getting handed data the government isn’t allowed to collect, much less distribute.
Then there’s the ultimate problem. No matter what’s happening here in the lower courts, the administration will continue to push for a resolution from the US Supreme Court. And the odds are about 6-3 that SCOTUS will say the government can do whatever it wants with whatever data it collects, ignoring years of precedent and administrative firewalls that are meant to protect US citizens (and residents) from being abused and surveilled by their government.
Last month I wrote a feature for The Verge exploring how Republicans had hijacked the Biden-era infrastructure bill to redirect billions of dollars away from next-generation fiber, and instead funnel it into the pockets of billionaires Elon Musk and Jeff Bezos — in exchange for congested, expensive, satellite broadband service they’d already planned to deploy.
The piece explored in detail how some communities, like several low-income areas of Louisiana, were all set to receive next-generation affordable fiber, before Republicans hijacked the program, redirected those funds to their top donors, then proudly declared “mission accomplished.”
While Republicans like NTIA boss Arielle Roth have tried to claim this hijacking has been a net improvement, the adjustments not only showered billionaire Trump allies with unneeded subsidies, it eliminated all the provisions in the program ensuring the resulting broadband was affordable or deployed equitably. Affordable fiber evenly deployed to everyone was, the public was informed, “woke.”
I’m going to be writing about the impact and reverberations for years.
Dems have, as per brand tradition, mostly flubbed the opportunity to highlight and message around this obvious corruption. There were a few good questions flung at Roth during a recent House telecom hearing (Rep. Troy Carter of Louisiana did a particularly good job pressing Roth), but by and large Dems haven’t capitalized on the opportunity to shame Republicans for their grift parade.
“I am not declaring that corruption was at work in this instance. I am saying that it sure looks like it,” Johnson said in an interview. “Public confidence in the bidding process has been undermined.”
His plan comes after Starlink received 99% of the state grants in a government program designed to improve rural broadband access. Johnson said the company received an estimated $110 million.
It’s not clear how far he’ll get, since the roots of the corruption extend federally to Howard Lutnick, Arielle Roth, and the NTIA. But state broadband offices also had to sign off on the grift and were tasked with doling out grant awards, so we’ll see what paper trails disclose.
Keep in mind: the money Musk and Bezos have received from this $42.5 billion grant program pales to what they could ultimately receive. As unnecessary wars, tariffs, inflation, and additional economic chaos unfolds, a lot of providers and states that planned to deploy multi-gigabit affordable fiber are expected to balk and default on their bids, opening the doors for billions more for Musk and Bezos to fill the gaps with “good enough” satellite service.
It’s worth noting that after redirecting billions to satellite, Republicans proclaimed that they’d “saved” $21 billion or so. There’s now an ongoing battle over what happens to these “non-deployment funds” Congress specifically earmarked for broadband access. There are some clear hints that Trump and friends are eager to pocket it for themselves if they think they can get away with it. Great stuff. Very populist.
As I’ve noted previously, while low-Earth orbit services like Starlink are great for folks completely off the grid (who can afford it), congestion and physics make it ill-suited to meaningfully address the lack of internet-access at scale in denser urban, suburban, or even some rural environments. It’s generally designed to be a niche gap-filling option you use after pushing fiber, cellular, and fixed wireless everywhere; Republicans are treating it like a magic bullet simply because Musk is involved.
As a flood of government-subsidized users jump on the Starlink network, existing congestion problems (see this recent study out of Penn State) are going to get worse, resulting in all sorts of annoying network management approaches (throttling of 4K video) you don’t see on higher-capacity fiber. The company has also been charging users fees of up to $1500 in high-capacity areas.
The problems with this approach will become more and more apparent to taxpayers over the next few years, at which point all the folks responsible will have moved on to other opportunistic grifts. It might be nice if Democrats aspiring for higher office kept corruption in the spotlight and remained laser-focused on accountability. It’s not like there’s a shortage of very clear targets of opportunity.
