ICE Is Hauling In More Data Than Ever And Palantir Is Helping It Turn Data Into Detainments

from the surveillance-state-adds-surveillance-capitalism dept

ICE has gotten bigger and bolder under the Trump Administration. The minimal constraints placed on it by previous administrations have been removed, allowing the agency to gorge on data and engage in widespread surveillance. Billions of dollars and an untold amount of tech are being thrown at a "problem" that isn't even criminal. Living in this country while undocumented is a civil violation, but ICE (and the Administration) treats it as one of the most severe threats to the nation.

America is apparently going to be made great by tossing out those aspiring to be Americans, or at the very least just trying to escape the horrors or poverty of their native countries. To ensure ICE can remove as many people as possible, the agency has tapped into national ALPR databases, run facial recognition searches against drivers license databases, and hooked up with a tech company nearly as reviled as ICE is.

But that's not the full extent of ICE's surveillance/deportation efforts. As Alvaro M. Bedoya reports for Slate, the agency is leveraging everything it can get it hands on to ensure a steady flow of undocumented immigrants out of this country.

In 2017, breaking with prior practice, ICE started to use data from interviews with scared, detained kids and their relatives to find and arrest more than 500 sponsors who stepped forward to take in the children. At the same time, ICE announced a plan for a social media monitoring program that would use artificial intelligence to automatically flag 10,000 people per month for deportation investigations. (It was scuttled only when computer scientists helpfully indicated that the proposed system was impossible.)

And it's not enough for immigrants to steer clear of the entities that may help them get ejected from the country. ICE is all over anything that might lead it to more deportees.

Many immigrants avoid contact with any government agency, even the DMV, but they can’t go without heat, electricity, or water; ICE aimed to find them, too. So, that same year, ICE paid for access to a private database that includes the addresses of customers from 80 national and regional electric, cable, gas, and telephone companies.

There's a private company weaving this massive amount of data into usable intel for ICE. Palantir provides the software that analyzes data, builds profiles, and makes sense of ICE's massive data stash. The company even fills in any blanks ICE might have by adding in information purchased from data brokers.

Palantir doesn't like to talk about its work with ICE. Bedoya points out the company's most recent securities filing makes no mention of ICE or the company's assistance in tracking down undocumented immigrants. It prefers to discuss its military customers and its supposed commitment to keeping this country safe. When asked directly about ICE, Palantir has downplayed its involvement. This is how Palantir's CEO, Alex Karp, spins things.

When criticized, Karp has described Palantir’s work for ICE as “limited,” “a de minimis part of our work”—strange things for American contractor to say about its second-largest U.S. government client.

This toxic partnership has done little to damage Palantir's reputation -- at least as far as investors are concerned. Its work with ICE targets what many consider to be unimportant people: immigrants who are in the country illegally. If the company is good at what it does and customers like ICE are happy and willing to sign multi-million dollar contracts, any moral and legal qualms shareholders might have will be papered over with money.

Filed Under: big data, data, deportation, dhs, ice, immigration, trump administration
Companies: palantir

Bizarre: Democrats In Congress Agree To Give Trump More Of The Spying Powers He Complains Were Abused Against Him

from the someone-explain dept

If ever there were a time to end Constitutionally questionable FISA surveillance powers it should be now. Democrats have been, quite rightly, concerned about an out of control Trump administration, abusing the powers of government to target his enemies and critics. Republicans have been screaming from the heavens, quite rightly, about the FBI's abuse of the FISA process to conduct surveillance on members of the Trump Campaign. And all this is coming at a time when the crown jewel of the program -- the phone metadata surveillance -- has been shown to have been a huge, wasteful mess that has been effectively useless.

And it's up for renewal. So just kill it.

But, no, that's not how Congress works. Instead, earlier this week, the House worked out a bipartisan "compromise" that lets them each claim victory -- when all it really does is reauthorize powerful, frequently abused, Constitutionally-questionable surveillance powers -- the very same powers that the Trump administration has been insisting are being abused by "the deep state" against the President himself. As Marcy Wheeler explains, the final bill involved Rep. Adam Schiff -- who ran the impeachment effort against Trump, pointing out how incompetent and dangerous Trump can be -- watering down an earlier proposal to make sure that Trump has much greater surveillance powers with less oversight.

Effectively, Adam Schiff took the Jerry Nadler bill, watered down some key provisions, but added a bunch of symbolic certifications that would do nothing to eliminate the kinds of problems in the Carter Page application, probably are less effective than certifications presiding FISA judge James Boasberg required the other day, but give Republicans who are too stupid to understand FISA the ability to claim victory.

She goes on to detail the rather sneaky language in the bill that seems designed deliberately to give William Barr could use the program to hide some pretty scary shit:

Finally, and most outrageously, the government can still move not to give that notice based on a claim that providing it “would harm to the national security of the United States.” Outrageously, they don’t even have to convince a judge that such harm is real. A court “or other authority of the United States” could agree with such a finding. The Attorney General is “an authority of the United States.” So Attorney General Bill Barr — the father of the first subpoena based dragnet — could make a motion saying that notice of a dragnet would harm the national security of the United States, and Attorney General Bill Barr could agree with Bill Barr that that’s the case.

This is how the whole dragnet problem started in the first place, when, in 1992, Bill Barr decided that he could authorized secret dragnets.

I'm sure that won't be abused at all...

Of course, Bill Barr is thrilled with this outcome:

"I have reviewed the House FISA bill and support its passage. The bill contains an array of new requirements and compliance provisions that will protect against abuse and misuse in the future while ensuring that this critical tool is available when appropriate to protect the safety of the American people.

I am pleased that the bill contains a number of provisions Director Wray and I put forward to address past failures, including compliance failures that the Inspector General has identified for us in his recent audit work. The IG’s analysis and recommendations have helped shape our proposals. The Director and I will promulgate additional, implementing rules that advance these reforms.

It is of the utmost important that the Department’s attorneys and investigators always work in a manner consistent with the highest professional standards, and this overall package will help ensure the integrity of the FISA process and protect against future abuses going forward. This legislation deserves broad bi-partisan support."

Because none of this makes sense any more, the bill has both bipartisan support -- and bipartisan opposition, with the opposition coming from those who tend to actually fight to protect our civil liberties from either party. CNN has some of the details:

But the agreement has also come under fire from lawmakers in both parties, criticized by both liberals and libertarian-leaning Republicans for not going far enough to address privacy concerns.

In a sign of the odd alliances over the vote, both the leader of the conservative House Freedom Caucus, Rep. Andy Biggs, and the co-chairs of the liberal Congressional Progressive Caucus, Reps. Pramila Jayapal and Mark Pocan, opposed the measure.

"It's not real reform," said Rep. Zoe Lofgren of California, a Democratic member of the House Judiciary Committee who took part in the negotiations with Democratic leaders.

On the Senate side, Senators Rand Paul, Mike Lee, and Ron Wyden have all complained about the bill as well -- with threats to block and requests for Trump to veto the bill.

And, of course, privacy advocates are reasonably concerned about this as well. The ACLU has asked Congress to vote against the bill:

Over the last several years, it has become abundantly clear that many of our surveillance laws are broken. The Foreign Intelligence Surveillance Court is not equipped to protect Americans’ rights -–with an Inspector General report finding a litany of errors in the government’s applications to the court to surveil Trump campaign advisor Carter Page. During a House hearing last month, FBI Director Christopher Wray agreed with the characterization of at least a portion of the surveillance of Carter Page as illegal. Also last month, the FISC court itself accepted the Justice Department’s position that at least two of the surveillance applications for spying on Page were “invalid” and the court took extraordinary steps to order the government to try to remedy its wrongdoing and avoid a repeat. Despite the secrecy around FISA proceedings, the Page episode offers a window into the abuses that predictably follow from giving the government extraordinary powers with minimal checks and no meaningful due process.

At the same time, Section 215, which is one of the Patriot Act provisions set to expire on March 15th, has been used to engage in large-scale collection of Americans’ information, and the call detail record program operated under the authority has been suspended following compliance violations that resulted in unlawful collection of information.

Despite this record, disappointingly, the reforms contained in H.R. 6172 are minimal –in many cases merely representing a codification of the status quo. In addition, the bill contains provisions that would be a step back from even our flawed current law, including an additional criminal penalty. Given this, we believe that a short six week extension of the expiring

One hopes the criticism of the bill -- and the bizarre situation of Trump possibly signing a bill that continues the program he's been railing against (while pretending to limit it) -- leads this bill to die.

Filed Under: adam schiff, carter page, fisa, fisa renewal, house, mass surveillance, section 215, senate, surveillance, trump administration

White House Now Thinks Harvesting Fitness Tracker Data Could Stop The Next Mass Shooting

from the no-conceivable-downsides-no-sir dept

In the wake of more mass shootings, everything coming from up top has been bat shit insane. The Trump Administration has a bunch of suggestions, and they're no better than those offered by a bunch of policy makers who think pulling the plug on certain areas of the internet will somehow reduce the frequency of mass shootings in the US.

Despite being able to do actually useful things at the federal level, Trump has decided preventing gun violence should be everyone else's job. First, he declared it's time for social media companies to engage in even greater vetting of users' posts, apparently in hopes of finding the next mass shooter before they start shooting.

We're headed to pre-crime territory, with the feds in tow. Working together, these entities can be expected to create a massive mess -- one that criminalizes words and will result in plenty of non-dangerous people spending more time interacting with federal agents. This isn't going to solve the problem. It's only going to create a new set of problems, waste limited law enforcement resources, and deprive people of their rights and liberties.

So, of course, the Trump administration is out there trying to make a bad situation even worse. Working backwards from a stillborn idea to come up with a catchy acronym, the White House brain trust is planning on inflicting this on America:

Last week, the Washington Post reported that the White House had been briefed on a plan to create an agency called HARPA, a healthcare counterpart to the Pentagon’s research and development arm DARPA. Among other initiatives, this new agency would reportedly collect volunteer data from a suite of smart devices, including Apple Watches, Fitbits, Amazon Echos, and Google Homes in order to identify “neurobehavioral signs” of “someone headed toward a violent explosive act.” The project would then use artificial intelligence to create a “sensor suite” to flag mental changes that make violence more likely.

According to the Post, the HARPA proposal was discussed with senior White House officials as early as June 2017, but has “gained momentum” after the mass shootings in El Paso, Texas, and Dayton, Ohio. The latest version of the plan, reportedly submitted to the Trump administration this month, outlined the biometric project called “SAFE HOME,” an acronym for “Stopping Aberrant Fatal Events by Helping Overcome Mental Extremes.”

Jesus Christ. Doesn't take long for dystopia to take hold. We already knew every fitness tracking device is, first and foremost, a TRACKING device. They generate the sort of data cops and terrorists alike like getting their hands on. Now, the administration is suggesting this data will be able to stop killers before they kill by looking for elevated pulse rates or, I don't know, heart conditions common to mass shooters. Or whatever.

Somehow, this patchwork of "volunteer data" will be Frankensteined into a "multi-modality solution" that can provide the government with "early diagnoses of neuropsychiatric violence." Ok, then. But can it even do this? Or will analysts pore over tons of garbage data looking for patterns that don't actually exist -- all while being pressured to prevent mass shootings? If so, the desire to show the program works might overwhelm the desire to proceed in a scientific manner, leading to garbage outputs more aligned with numerology enthusiasts and that Timecube guy.

Expecting anything "advanced" from a fitness tracker is asking for trouble. As Emily Gorecenski points out on Twitter, a FitBit can somehow detect the heartbeat in the breast from a chicken that's been killed, butchered, processed, packaged, sent to a grocery store, and purchased by a consumer.

These are the tools we're going to use to do pre-crime? This is the scientific wonder that's going to track down mass shooters before they can kill anybody? If we're lucky, we'll all live long enough to regret this.

Once you get past the HARPA buzzwords and the shininess of the tech toys, you're left with the unpleasant feeling this is going to result in people being hustled off the street by black-clad government agents and rushed to the nearest reeducation center.

“Creating a watchlist of citizens who most likely will never act violently based on their mental health is a very dangerous proposal with major ethical considerations,” Emma Fridel, a doctoral candidate at Northeastern University specializing in mass murder, told Gizmodo in an email. “Doing so to predict the unpredictable is utterly absurd.”

This system will be little more than an efficient generator of false positives. Adopting as much intrusive surveillance as possible as quickly as possible is bound to result in a few prevented crimes. So would random house searches and 24-hour police checkpoints. Backing into this with a catchy acronym, technobabble, and a bunch of junk science isn't acceptable. The government may feel obligated to do something about mass shootings, but everything it has come up with so far has been resolutely terrible, if not terrifying.

Filed Under: data, fitness trackers, guns, mass shootings, school shootings, surveillance, trump administration

Trump Admin Hopes Kavanaugh Supreme Court Delivers The Killing Blow To Net Neutrality

from the pulling-it-up-from-the-roots dept

So you'll recall that before Comcast, AT&T, Verizon and friends convinced the Trump FCC to ignore the public and kill net neutrality, they had attempted to dismantle the rules legally. That effort didn't go very well, with the U.S. Court of Appeals for the D.C. Circuit upholding the FCC's Open Internet Order in June of 2016, and ISPs losing a subsequent en banc appeal. More specifically, the courts found that the former Wheeler-run FCC was well within its legal right to reclassify ISPs as common carriers under the Telecom Act.

The 2016 FCC victory made sense, especially if you recall that the agency lost its 2014 legal fight with Verizon in part because it tried to implement net neutrality without first putting itself on legal footing by classifying ISPs as common carriers under Title II. You might also recall that Wheeler at the time initially wasn't sure about the Title II route, but changed his mind based on available facts and evidence, back when people, you know, actually still did that.

But that was then and this is now. Lawyers for the FCC and Department of Justice filed a brief (pdf) with the Supreme Court last Friday, urging it to vacate the 2016 court ruling that upheld the Wheeler-era net neutrality rules. The move is necessary, FCC lawyers inform the court, because of the FCC's new, comically-named "Restoring Internet Freedom" proposal has purportedly changed the facts on the ground:

"The court of appeals upheld the 2015 Order primarily because it concluded that it was required to defer to the FCC’s legal and factual judgments as reflected in that order. But the Commission itself has now repudiated those factual and legal judgments in a new order issued after full notice-and-comment proceedings."

Of course we've noted time and time again how the repeal of net neutrality was a facts-optional shitshow of comical proportions. Given the FCC's entire justification for repeal was based on bogus ISP lobbyist math and bullshit, the FCC leaning on the facts here is pretty funny. Even if the courts don't agree with that, FCC lawyers state, the Supreme Court should just go ahead and agree with ISPs anyway:

"Alternatively, if this Court concludes that the 2018 Order did not render this case moot, or if it prefers not to resolve that issue, it should grant the petitions for writs of certiorari, vacate the judgment below, and remand for further proceedings to allow the court of appeals to consider in the first instance the effect of the 2018 Order on this litigation.

Wouldn't that be Comcastic!

So what is the Trump FCC and DOJ (read: AT&T, Verizon, Comcast and Charter) up to here? Because the FCC engaged in so much bizarre and shady behavior during the net neutrality repeal last fall (from making up a DDOS attack to turning a blind eye to identity theft and fraud in the public comment period), ISPs are well aware the FCC repeal could fall apart in court.

That could happen for a number of reasons, including the court finding the FCC violated the Administrative Procedure Act by dismantling a major regulatory effort based on little more than hot air and string cheese. The FCC can't just reverse such a massive regulatory move without first showing that broadband market realities changed dramatically enough to warrant it, something SEC filings, CEO statements and earnings report show didn't happen. That's why you'll often see Ajit Pai routinely lying about how net neutrality demolished sector investment, something that isn't supported by the facts.

In short, giant ISPs like Comcast and AT&T know they'll soon have to relitigate this in court. That's why they're pushing for a new fake net neutrality laws they've written with an eye on passing something that pre-empts both the restoration of the federal rules, or the myriad of state solutions that are now popping up. And they know that should they lose, this could very likely head to the Supreme Court. A Supreme Court that could soon be staffed by Brett Kavanaugh, who bizarrely bought the completely bogus ISP claim (during the first round of the FCC's fight with Verizon) that net neutrality rules violate an ISPs First Amendment rights.

The short version? ISPs are worried that Ajit Pai's ham-fisted and facts-optional attack on net neutrality won't survive the looming court challenge by consumer groups and Mozilla. As such, they're gearing up for what they hope will be a Kavanaugh-staffed Supreme Court to help deliver the killing blow, something that would be greatly aided by neutering existing precedent. ISPs are well aware that public sentiment, factual data and lower course rulings could restore the FCC's extremely popular net neutrality rules, and we wouldn't want that, right?

Filed Under: ajit pai, brett kavanaugh, broadband, doj, fcc, net neutrality, supreme court, tom wheeler, trump administration

Sean Spicer Launches Witch Hunt Over The 'Secure' App He Just Said Was No Big Deal

from the keep-up dept

So here's a story that goes from weird to bizarre in record time. A few weeks ago, Axios was among the first to report that White House staffers were using an app called "Confide" to make use of its disappearing message feature, specifically to avoid putting things down on the record, that might later be leaked or revealed:

We spoke with one influential GOP operative who is using the app. He told us he especially likes that Confide makes it harder to take a screenshot—you have to slide your fingers over text and it only captures a portion of the screen. He also likes the integration with iMessage, allowing him to write self-destructing encrypted messages within the confines of the iPhone's standard-issue messaging platform.

He says Republicans like him are especially paranoid about their communications after Hillary Clinton's email scandal. "For folks that are on the inside in this city, it provides some cover," he said.

Among those found to be using the app? Trump Press Secretary Sean Spicer, who got upset that anyone might think it was a big deal that the app was on his phone:

BuzzFeed News found the phone numbers of Spicer, along with Hope Hicks, the director of strategic communications, via a feature that allows users to see friends who have already joined.

In a phone call with BuzzFeed News, Spicer confirmed that he used the app, but said that he had done so only once, when asked to by a reporter “months ago.” He offered to show a BuzzFeed News reporter his phone as proof.

“I downloaded it, but I’m glad to show anyone my phone and that I’ve literally sent one message on Confide,” said Spicer. “These are personal phones… I also have iTunes on my personal phone, Solitaire, and other apps. Frankly I think the idea that you guys are writing a story, the idea of what apps I use on my phone, is an invasion of my privacy.”

Of course, if the messages are deleted soon after sending, as the app advertises, then showing the app to a reporter doesn't really prove much of anything. Either way, hold that thought.

Security experts have ripped apart Confide, saying that it's claims of being secure are "a triumph of marketing over substance," however others in the White House are making use of an app that is generally considered more secure: Signal.

And, apparently, that has some in Congress worried that the apps are being used not to undermine things like federal record keeping laws, but rather that it may be used by people inside the government to go undermine the administration or to leak information to the press.

And, indeed, this weekend it was reported that Sean Spicer (remember him from above?) conducted a surprise leak crackdown last week, ordering staffers into a conference room and then searching their phones for Confide or other apps, and telling them not to use such apps:

Upon entering Spicer’s office for what one person briefed on the gathering described as “an emergency meeting,” staffers were told to dump their phones on a table for a “phone check," to prove they had nothing to hide.

Spicer, who consulted with White House counsel Don McGahn before calling the meeting, was accompanied by White House lawyers in the room, according to multiple sources.

There, he explicitly warned staffers that using texting apps like Confide — an encrypted and screenshot-protected messaging app that automatically deletes texts after they are sent — and Signal, another encrypted messaging system, was a violation of the Presidential Records Act, according to multiple sources in the room.

Leaving aside, for now, the humor in this information (of course) then leaking to the press, it does seem somewhat amusing that Spicer is now suddenly running surprise phone checks on staff members over these apps when he, himself, admits to having used at least Confide, and his insisting that its presence on his phone was really no big deal. Remember, "Frankly I think the idea that you guys are writing a story, the idea of what apps I use on my phone, is an invasion of my privacy." And yet... it's not such an invasion of privacy to suddenly order lower ranked staff members into a conference room to do a "phone check" to see if they have any of those apps on their phones?

Filed Under: confide, donald trump, encrypted chat, leaks, sean spicer, signal, trump administration, white house

President Trump's White House Reaching New Lows In Accountability And Transparency

from the 'man-of-the-people'-lol dept

It's still very early in the Trump presidency, but so far, things aren't looking good. Overt and implicit threats to freedom of speech continue to linger in the air. Recent comments suggest Trump will look to roll back the few measures taken over the last few years to curb asset forfeiture abuse. Wording in one of President Trump's first presidential statements suggests the administration is going to value "law and order" over citizens' rights. Then there's the travel ban, which is being contested in federal courts.

We're now seeing a rollback of the few transparency and accountability objectives the supposed-Most Transparent President Ever managed to accomplish over eight years of generally making things worse on both fronts.

This follows Trump's secrecy during his presidential campaign, where he shrugged off over four decades of precedent by refusing to release his tax returns. He's made it clear on multiple occasions -- while standing in front of a memorial to dead CIA operatives and during his Black History Month speech -- that he does not trust the media. But the actions taken during the first few weeks of his presidency suggest he also does not trust the general public.

The White House comment line is shut down. New signatures aren’t being counted on petitions posted on the White House’s website. Federal agencies are not allowed to respond to requests.

[...]

Transcripts, executive orders and news releases aren’t being posted online. Social media accounts, including Flickr, Pinterest and Tumblr, are no longer in use. Sending information to the Federal Register, the daily journal of the U.S. government, is delayed.

Steve Bannon, Trump's top advisor, has a permanent seat at the National Security Council and seems to be eliminating any paper trail that may result from those meetings. Several agencies have been muzzled by the administration, which has informed them that everything -- including press releases, blog posts, and social media interactions -- will be "centrally-managed" and run through the White House's "digital strategist." The "We the People" petition page lives on, but no one in the administration has given any indication whether the White House will actually be responding to these petitions.

These actions appear to be a concerted effort to run a top-down White House -- one that will determine the stance of every federal agency to ensure they stay on message. While some coherence is preferable to multiple opposing viewpoints on issues of public concern, the removal of the public from the equation is distressing.

As the McClatchy article points out, it's not just social media accounts and federal register postings that have been affected. It's also the few "direct" lines of communication the public has with the administration.

Cottmeyer, a self-described moderate Republican who has called the comment line for more than a decade, wants to speak to someone at the White House about Trump’s decision to pull out of the massive Trans-Pacific Partnership trade agreement, which she thinks will hurt her state’s economy.

But when she calls 202-456-1111 she gets a recording: “Thank you for calling the White House comments line. The comment line is currently closed. But your comment is important to the president.” It then refers her to www.whitehouse.gov/contact – or Facebook, where the White House is accepting comments on its posts, but not messages.

While some of this may smooth out as the administration becomes more comfortable with the inner workings of the White House, these early steps don't do much to indicate better, more transparent/accountable days are ahead. If anything, they give the impression that the White House isn't going to act as the public's servant, but rather a podium from which orders and directives are issued. Questions and comments are not only discouraged, but they appear to be considered completely irrelevant to the political process.

Filed Under: accountability, donald trump, foia, transparency, trump administration, white house

Who The Hell Is Actually In Charge Of The US Patent And Trademark Office?

from the perhaps-no-one dept

I recognize that many (especially regular Techdirt readers) will assume from the title above that the question is a rhetorical one in response to the latest craziness around a stupid trademark or awful patent. But, no, we mean that literally. You see, right before the Trump inauguration, it was widely reported that Michelle Lee would stay on as the Director of the US Patent and Trademark Office. That was undeniably good news. For all the complaints we have about the USPTO, Lee has done a fairly amazing job running that office, and seems to be one of the first Patent Office directors who actually understands how patents can do serious harm to innovation. Keeping her on would be a really good sign. After seeing the stories claiming that she was staying, we'd mostly moved on. However, Politico reporter Nancy Scola sent me down something of a rabbit hole after tweeting that it's basically impossible to know who's in charge of the Patent Office right now.

The USPTO's site still says it's Lee:

That seems like that should be that. However, there are conspiracy theories afoot -- mainly being discussed by Gene Quinn over at IP Watchdog. Gene and I disagree about basically everything as it relates to patents, and he's got a history of insulting me, so I have every reason to basically ignore him. But, on this, he may have a point. And the questions about whether or not Lee is actually in charge are also being asked by a much more respectable patent website, Patently-O.

The issue started when Quinn noticed that, despite the claims that Lee was staying on, the Commerce Department (which the USPTO is a part of) leadership page says the role is "vacant." Here's the latest screenshot I took:

As for the PTO's own website, Quinn rightly points out that its leadership page still lists out a number of other individuals who have announced resignations and are no longer there, but whose profiles are still on the website. The Commerce Department seems to be refusing to comment to anyone who asks (I've sent in my own question) and it's quite unclear if Michelle Lee really is the director.

If you look through the fairly long list of articles by Quinn on the subject, it's quite clear that he (as someone who is not a fan of Lee) is hoping that she's been pushed out, and is trying to drum up controversy over the possibility that she might remain. But the lack of any clarity from anyone... is bizarre. Quinn's most recent post on the subject notes that while no one seems willing to say who's running things, Lee "continues to be seen" in the building. That would certainly support the theory that she's staying. But... she's also cancelled a bunch of speaking engagements, and no one at the USPTO or Commerce Dept. seems willing to say anything. Also, in an earlier report, Quinn noted that he'd been told, unofficially, that Drew Hirshfeld is "Acting Director," implying Lee had left. But the whole thing seems to be... unclear:

Who is running the United States Patent and Trademark Office? That straightforward question shouldn’t be imponderable, but it seems that the Trump Administration has chosen to sequester the Director as if he or she has gone into the witness protection program. Indeed, we seem no closer to an answer to who is running the USPTO today than we were 18 days ago. Although sources tell me that Michelle Lee continues to be seen on the 10th floor of the Madison Building, which is where the Director’s Office is located.

As we begin the third week of the Trump Administration I cannot tell you with any definitive certainty who is Director, or if there is an Acting Director, or if the Commissioner for Patents is merely carrying out the responsibilities of Director without being named Acting Director, which has been the case at least once in the past.

Yes, the Trump transition has been a bit of a mess, but this seems particularly bizarre. There's a decent chance that the problem is just that something is afoot and it just hasn't been discussed publicly yet, so the Commerce Dept. and PTO are staying silent. But, as Quinn notes, there are actual, real implications of not having anyone as PTO director:

Indeed, there are many things that the law leaves to the discretion of the Director of the USPTO. While some of those decisions have been delegated out to subordinate officials within the Office, some do still remain only with the Director. For example, if you are a patent owner who believes you are being harassed by repeated post grant challenges the Director alone has the authority to provide a protective remedy. Without knowing who is Director how can patent owners appropriately seek to obtain the assistance of the Director?

Another thing that will soon become problematic is with respect to lawsuits involving the USPTO. Who should be the named party? Generally, the Director or Acting Director of the agency is named as the party on behalf of the agency. While it seems a small point, properly identifying the party is no minor matter in federal court. Are patent applicants supposed to style their appeals to the Federal Circuit as Applicant v. John or Jane Doe, Director of the U.S. Patent and Trademark Office?

In his most recent post, Quinn further wonders if those of us who tend to think certain patents shouldn't have been issued could even use this as a way to claim patents issued recently are invalid:

Sources tell me that the USPTO was prepared last week to issue patents with the signature of Drew Hirshfeld, who is the Commissioner of Patents and seems to be currently in the position of Acting Director. At the last minute, however, a decision was made to reverted back to Michelle Lee’s signature. This creates several significant problems.

First, if Lee is not currently the Director patents that are being issued with her signature are being issued in violation of §153. If we know anything about patent litigators it is that they raise every challenge possible, and it is only a matter of time before the provenance of patents issued during these first weeks and months of the Trump Administration are challenged as being invalid.

These are not unsolvable issues, once things are clarified, but it still... very, very strange. I doubt that challenging the validity of the patents would have much of a chance, but it is interesting. And while I desperately hope that Lee remains, and Quinn desperately hopes that she is forced out, I think (for once!) Quinn and I agree: whatever is happening, and whoever is in charge, should be disclosed publicly.

Filed Under: commerce department, gene quinn, michelle lee, patents, trump administration, uspto