This Week in 2016

• Cy Vance Still Arguing For Mandated Encryption Backdoors; Believes Third Party Doctrine Supports His Theory
• Sen. McCain Unhappy Apple Turned Down His Invitation To Be Encryption Hearing Punching Bag
• Cable Industry’s False Copyright Claims Are Killing Cable Box Reform Efforts
• Prenda (Mostly) Loses Again; Court Says ‘We Warned You To Stop Digging, But You Still Did’
• Paris Court Says Search Engines Don’t Need To Block Torrent Searches
• Kickass Torrents Gets The Megaupload Treatment: Site Seized, Owner Arrested And Charged With Criminal Infringement

This Week in 2011

• Who Do You Trust On Whether Or Not PROTECT IP Will Break The Internet? The Guys Who Built It… Or The MPAA?
• How The Monkeys & Copyright Debate Explains Why Congress Shouldn’t Rush To Approve PROTECT IP
• Feds Charge Aaron Swartz With Felony Hacking… For Downloading A Ton Of Academic Research
• You Know What’s Missing From The Aaron Swartz Indictment? Any Mention Of Copyright
• The Lack Of A Legal Or Moral Basis For The Aaron Swartz Indictment Is Quite Troubling
• Copyright Alliance Takes On The Aaron Swartz Case With A Post Full Of Bad Analogies

This Week in 2006

• No, Mobile Phone Antenna Booster Stickers Don’t Work
• And Here Come The YouTube Copyright Lawsuits
• Even Friendster Looks Good Next To Wal-Mart Social-Networking Site
• Finally, A Telco Gets Blamed For Its Own Data Leaks
• PC Guy Helps Explain Net Neutrality
• MPAA Betting On Its Next Silver Bullet

Stop me if you’ve heard this one:

Federal judges in the Western District of Washington had unanimously appointed Roger Rogoff to be the Justice Department’s top official there, filling a vacancy that the president has never addressed. But the Trump administration has largely defied attempts by federal judges to fill vacancies, leading to Mr. Rogoff’s swift dismissal, via email, after 54 minutes.

If this sounds familiar (and it should), it’s because Trump loves promoting people to US Attorney positions, but absolutely refuses to engage with the nomination process that’s required by law.

This has happened more than once, as the New York Times article notes. The last time we covered it here at Techdirt, it took nearly five hours for Trump to fire a US attorney appointed by the courts.

The firing of court-appointed US attorneys is going to be a thing going forward. The legally approved process for appointment of US attorneys is pretty simple and every president before Trump has somehow managed to respect it. If an administration wants to appoint a US attorney, it needs to run this pick past the Senate for a thumbs up/down. If it doesn’t, the person can only hold that office for 120 days. If that doesn’t happen, the courts get to put someone in that position.

Trump has blown off the confirmation process multiple times and courts have responded by engaging with their legal duty to elevate someone to that position. When that happens, the Trump administration lurches into semi-consciousness and “fires” the actually legally appointed US attorney.

The thing is that it doesn’t matter how fast the administration fires prosecutors appointed by federal judges. Until Trump actually shepherds some prosecutor picks through the confirmation process, this is just going to keep happening every four months or so.

The US attorney dumped by Trump in less than an hour is utilizing the court system the administration chooses to ignore 90% of the time. If Trump wants to ignore the legal process for prosecutor appointments, the administration should be on the hook for wrongful termination.

In his lawsuit filed Tuesday, Rogoff argued that his termination was unlawful because the president lacks the authority to remove judicially appointed judges. 

“By purporting to fire Mr. Rogoff — and apparently committing to firing anyone else a district court appoints without ‘the support of POTUS’ — the President has attempted to negate Congress’s exercise of its constitutionally enumerated power,” the suit alleges. 

Rogoff argued his firing was an unconstitutional separation of powers, noting Congress set up a mechanism to appoint U.S. attorneys until the president nominates — and the Senate confirms — a U.S. attorney. He also alleged that he was denied due process. 

While it’s impossible to tell how this will all play out — especially when our Supreme Court is at least 50% MAGA-cooked — it seems like everything involved here has been established for years and never ignored so completely as it has been since Trump began his second term.

While the administration appears to believe that every firing resets the clock, I don’t think courts should feel obligated to humor this pretense. Instead, courts should simply reinstate their picks if the administration doesn’t have anyone lined up for confirmation. Instead of allowing Trump to pick whoever he wants and fire whoever he doesn’t the moment a court appoints them, courts dealing with this bullshit should appoint the same person over and over again or, at the very least, refuse to recognize the position of US Attorney until one has been properly and legally confirmed.

We’ll see where this lawsuit goes. But even if it ends up the victim of executive privilege, courts still retain the power to enforce the laws this administration willfully ignored.

Just last week we had the story of the Trump DOJ issuing very questionable subpoenas of NY Times journalists while trying to track down who leaked information to those reporters regarding the potentially catastrophic security flaws of the “gift” 747 plane he received from Qatar. As we noted in that original post, this appeared to be a wholly abusive use of the government’s subpoena powers, and well outside the norm.

On Thursday, the DOJ agreed to withdraw those subpoenas, but only after a long court hearing in which the DOJ thoroughly embarrassed itself in front of the judge, Arun Subramanian, who noted many, many problems with the subpoenas, which the DOJ tried to tiptoe around, calling them “inadvertent errors.” Most of the media coverage of this is pretty weak, but Matthew Russell Lee of the Inner City Press did a wonderful liveposting of the hearing that suggests just how badly the DOJ fucked this up.

It started out with the DOJ saying they weren’t going to withdraw the subpoenas, and claiming that they believed the subpoenas were “properly” issued. But the court quickly pointed out that there is precedent in the Second Circuit regarding when and how you can subpoena journalists, and the DOJ basically ignored all of that. The DOJ’s Sean Buckley argued that following those rules would amount to conceding the rules applied — something the DOJ apparently didn’t want to admit, leading the judge to say that following the rules wouldn’t be seen as any such admission.

Judge Subramanian kept pressing Buckley on why the DOJ rushed to issue these incredibly broad subpoenas when there appeared to be much more straightforward ways to obtain the information they were seeking. Indeed, another part of what was discussed is that the DOJ’s subpoenas were so broad that they included phone records of reporters’ relatives who had nothing whatsoever to do with the reporting:

A Justice Department lawyer, Sean Buckley, cast the government’s missteps as inadvertent errors and said: “No one was trying to pull a fast one.” Buckley apologized for other subpoenas that sought records for phone numbers belonging to one reporter’s mother and two of the journalists’ spouses.

“That was an error, judge, which we own,” Buckley said. “It was a consequence of trying to move quickly.”

“These things are starting to pile up,” Subramanian said, becoming increasingly testy.

The judge also explored whether or not the DOJ misled the judge who signed off on the subpoenas, by not letting them know that the subpoenas were for information associated with reporting. He even noted that the Assistant US Attorney who got the subpoenas, Kevin Sullivan, was in the room, but not at the table, asking him to come out of the galley and join the DOJ table (this is not something that usually happens).

Following that was an incredible exchange wherein Judge Subramanian asked Sullivan about whether he told the original subpoena-issuing judge that the subpoenas were for reporters, leading Sullivan to say it “was an oversight” and that later on they “did legal research.”

Around that point, a clearly fed up Subramanian said that if this were a normal case, this would be the point where he would issue an order to show cause why the DOJ shouldn’t face sanctions for abusing the subpoena process. There was some more back and forth scolding, including Subramanian pointing out that the “errors” for the DOJ seemed to be “piling up” and asking the DOJ if he should expect to see more mistakes like this moving forward.

Around this point, the DOJ regrouped and changed their stance from earlier in the hearing, saying they were now willing to drop the subpoenas. After the hearing was over, the ever petulant Trump Justice Department quickly whined to the media how unfair it was that federal judges expected them to actually follow the rules and stuff:

After the hearing, the Justice Department lashed out at Subramanian in a statement, saying he “threatened our attorneys with sanctions unless subpoenas were withdrawn, and blocked us from presenting the meticulous process of this investigation.”

“The grand jury has a right to hear testimony from all material witnesses in a federal criminal investigation. This judge’s conduct overrides clear longstanding principles and common sense — blocking the grand jury from receiving core evidence in a national security investigation,” the statement said.

“Make no mistake,” it added, “this investigation remains ongoing, and we will pursue justice against those threatening national security by leaking classified information, a serious federal crime.”

Once again, we have an overly aggressive, understaffed, and generally incompetent DOJ that seems not to realize that there are significant and important Constitutional limits on what it can do. And when a judge calls them out on it, the fact that their immediate response is to start whining about it like they were the victims here suggests a good reason that the entire DOJ will need a massive overhaul post-Trump.

Ctrl-Alt-Speech is a weekly podcast about the latest news in online speech, from Mike Masnick and Everything in Moderation‘s Ben Whitelaw.

Subscribe now on Apple Podcasts, Overcast, Spotify, Pocket Casts, YouTube, or your podcast app of choice — or go straight to the RSS feed. To get extended episodes with additional coverage, support us on Patreon.

Our third annual Live at TrustCon recording of Ctrl-Alt-Speech! Ben was back this year! Mike and Ben were joined live on stage with Kat Duffy, senior fellow for digital and cyberspace policy at the Council on Foreign Relations and Zoe Darme, Director for Trust, Knowledge and Information Products at Google. They cover:

• Security incident disclosure — July 2026 (Hugging Face)
• OpenAI and Hugging Face partner to address security incident during model evaluation (OpenAI)
• An OpenAI test model escaped and broke into a real company’s servers (CNN)
• France Joins a Global Move Toward Restricting Social Media for Children (NY Times)
• xAI sues user for exploiting AI tool to sexualise minors (Al Jazeera)

Special thanks to the Trust & Safety Professionals Association (TSPA) and all the work they do each year in putting on TrustCon, and for allowing us to host the live podcast as the closing session again this year.

Will Elon Musk actually face legal consequences for illegally paying voters in an attempt to interfere in an election? We’re at least one step closer to finding out.

Back during the 2024 Presidential election, he got away with offering $1 million to a “random” (not actually random) voter who would sign his petition in an effort to get out the vote for Donald Trump in Pennsylvania.

He then tried to run back that strategy a few months later during a special election for judges in Wisconsin. It didn’t work out so well for him. It flopped so badly that Musk said he would no longer get so invested in elections any more. Who knows if he’ll keep that promise. Probably not.

And now the Wisconsin Elections Commission has decided that the whole “we’ll pay you to sign this petition” nonsense likely violates the law.

The motion approved by the elections commission said it found probable cause that Musk broke Wisconsin law by making a social media post offering $1 million to people who voted in the Supreme Court election “in order to induce them to vote in that election.”

[….]

Three Wisconsin voters received checks from Musk, including two who got them in person at the Green Bay rally. Two weeks before the election, Musk’s political action committee, America PAC, offered $100 to voters who signed a petition in opposition to “activist judges,” or referred someone to sign it.

And, before you rush out to claim that it was clearly a partisan/biased decision, turns out it really wasn’t. The commission is equally split between Republicans and Democrats:

The Wisconsin Elections Commission, consisting of three Democrats and three Republicans, voted 5-1 in closed session on Thursday to refer the complaints to the district attorney, the commission’s spokesperson, Emilee Miklas, said.

Brown County District Attorney David Lasee, a Republican, did not immediately return a message seeking comment Tuesday.

Of course, it is an open question as to whether or not Lasee will actually do anything about this. Some groups are pushing him to act on the referral. And they called out that Lasee had put a stop to other “get out the vote” campaigns, warning them that their actions (offering food, water, and rides to the polls) could violate election bribery laws. Here’s Kristin Lyerly from the Committee to Protect Healthcare:

“The commission did their job. Now it’s time for District Attorney Lasee to do his,” she added. “This isn’t about political outcomes. It’s about whether the law applies to everyone or just everyone except the richest man in the world.”

Others argued the law should be applied fairly, pointing to an April 2024 incident where Lasee warned local get out the vote organizers that an event they planned risked violating state election bribery law. 

The event offered food, water and rides to the polls — as well as cash prizes for social media influencers who got the most people out to vote. The groups canceled the effort after receiving a letter from Lasee questioning its legality.

“When the district attorney’s office believed local organizations may have crossed a legal line, it acted quickly,” said community organizer Christina Thor. “Our community deserves to see that same standard applied today. The same urgency, the same scrutiny, and the same commitment to applying that law fairly.”

So, here we have a very clear opportunity to see whether the law is applied equally to Musk, or whether yet another law enforcement official decides that there can be no consequences for rampant law-breaking.

Should this move forward, I guarantee you that Musk and his hordes of cult-like fans will insist that this prosecution is political. But, again, that seems like bullshit. At some point, those who break the law with impunity have to be held accountable for their actions.

One of the most frustrating things about the last decade has been watching the rich and powerful face zero consequences for doing many, many terrible things — a pattern that breeds exactly the kind of toxic cynicism that lets everyone else assume that the rules don’t apply to themselves either. This is a chance to take a stand and prove that wrong. Those actions should have consequences, and screaming “political prosecution” when it’s clearly not should never be a literal get out of jail free card.

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No punishment is too vindictive. No cruelty is too small. The administration that is openly seeking to create a white Christian nationalist autocracy will do whatever it can to expel as many non-white people from this nation as possible.

Trump and his cabinet members constantly claim the country has been overrun by dangerous foreign migrants, many of them from (direct quote right here) “shithole countries.” They blame Biden for this completely imaginary “crisis” and preach the same message to the faithful over and over again: “worst of the worst.”

But it’s not that and it’s never been that. If the administration was simply trying to eject dangerous criminals, ICE wouldn’t be sending officers to immigration courts to pounce on migrants who are following the rules for staying in this country. ICE wouldn’t have set up a fake college to snare foreigners following the visa rules by continuing their education. And the government wouldn’t be telling its lawyers to dismiss ongoing removal proceedings solely for the purpose of making migrants attending scheduled probation check-ins immediately arrestable.

It’s only getting nastier and uglier. The Trump administration is now moving up immigration hearing dates for the sole purpose of generating more unearned “wins” that will, in turn, generate more deportations. Here’s Gwynne Hogan with the brutally nasty details for The City Reporter:

The mass immigration hearings picked up in New York City in early June, The City Reporter reported at the time. They were dubbed mega masters because a single judge could be assigned a docket of more than 100 cases a day, about double a regular master calendar docket before.

In addition to the large number of cases, many of these hearings were scheduled just weeks in advance and replaced hearings people might have had on the books months or years away.

The City Reporter observed one such mega master hearing where, on a docket of 121 cases, 39 people and their family members were ordered removed for failing to show up to court. In some instances, family members’ cases were linked.

As this report notes, for years most hearing dates were generally scheduled 180 days out from the initial hearing. But in the past few months — along with the creation of these so-called “mega masters” — the lead time has dropped precipitously. In May, the average was 98 days. By June, it was 42 days.

This is deliberate. Migrants engaged in the legal process would have no reason to believe their cases would be accelerated. After all, the mass deportation surges the Trump administration has generated tens of thousands of new cases, which would generally result in additional delays, rather than sudden accelerations.

And while the government is required to notify migrants of schedule changes, it’s not as though it’s a push notification via the normally accepted form of human connection these days. It’s a letter sent by snail mail. And it’s not as though this government is going to perform any due diligence to make sure the notification is seen by the intended recipient.

What’s happening here is the administration flooding the docket and ambushing migrants who fail to check their hearing status daily and who would have no reason to do so when they hadn’t seen any changes to hearing dates for several months.

The plan is as ugly as it is shitty: accelerate thousands of hearing dates and send federal officers out to scoop up migrants who are now on the wrong end of in absentia rulings handed down by judges who are deliberately overloaded to prevent them from fully engaging with these cases.

This is all in service to the impossible deportation goals set by the administration. You can’t get 2-3,000 arrests per day without cheating. Here’s how this has been playing out over the past couple of months.

In June, 4,447 people were ordered removed by immigration judges in the [New York City] “in absentia,” meaning they’d missed their hearings, the report found. That was more than double the number in May when 2,189 were ordered removed in absentia. 

The analysis found the surge echoed a rise in absentia removal orders across the country. There were 53,808 such orders nationally in June, a 55% jump from a month earlier. 

The real human cost is as incalculable as it is heartbreaking:

On Friday morning, several dozen people managed to make it to a courtroom inside 26 Federal Plaza for their mega master hearing where Immigration Judge Thanos Kanellakos appeared virtually from a courtroom in Maryland, overseeing a docket of 90 cases.

Most of the people who made it to court had traveled hundreds of miles from Tennessee, Georgia, North Dakota and Illinois to attend.

[…]

Several people at court told The City Reporter they’d had a court date scheduled months or even years away when they happened to double-check the online portal recently and learned they had a new hearing scheduled a few days away.

There is no legitimate reason for the government to be doing this. There is only the constant desire to hurt human beings this administration considers to be less than human. That’s why it’s trying to eradicate temporary protected status for all but the whitest migrants. And that’s why it’s engaging in barely disguised entrapment to keep its flying rail cars and prison camps loaded with its preferred scapegoats.

Earlier this year FCC boss Brendan Carr launched a series of fake investigations into ABC because the network (1) hosted Democratic Texas Senate hopeful James Talarico on The View, (2) aired comedians who made fun of the president and his wife, and (3) occasionally engaged in journalism critical of Trump corruption.

The details of these investigations really don’t matter at this point. We’ve discussed how they’re legally incoherent, clearly violate the First Amendment, and involve Carr actively manufacturing false claims that ABC violated FCC rules it was long-exempt from. At other points it just involves Carr being incoherently racist on Trump’s behalf; such as claims that ABC didn’t eliminate its “DEI” requirements quickly enough.

Carr’s now dumping additional empty threats into the mix, claiming that his ongoing review of ABC’s local broadcast licenses will take into consideration the network’s refusal to air Trump’s recent prime time speech, which mostly just involved Trump spewing more false election fraud conspiracy theories surrounding his 2020 loss.

ABC and NBC wisely refused to air the speech live, knowing that helping to spread distrust in election integrity in real time would be the opposite of useful journalism. That made Trump mad, so he’s clearly urged Brendan Carr to levy some additional empty threats against ABC:

“I think when you have the President of the United States standing inside the White House delivering an important speech, I think that’s something that broadcasters should be carrying. And so, obviously, this is an issue,” Carr told reporters Wednesday. “There have been lots of concerns raised, including by members of Congress, about whether broadcasters and their decisions there comply with the public interest.”

Carr is somewhat vague here because he knows this is a bunch of bullshit.

Obviously it’s ABC’s First Amendment right to determine what it broadcasts and when. Carr has absolutely zero legal role in determining the scheduling lineup of a private company. Carr’s once again pretending that networks that refuse to pander to our mad idiot king will be subjected to FCC review of their public interest obligations affixed to ownership of public airwaves.

As we’ve mentioned countless times already, Carr doesn’t want any of this to actually head to court because he knows it’s an absolute loser on First Amendment grounds. The real goal remains to threaten U.S. media companies with costly and annoying legal headaches if they challenge Republicans or the unpopular president. It’s typical lazy autocrat stuff by weak men who are afraid of words.

When it comes to ABC, that’s still been embarrassingly effective. The company agreed to pay Trump a $16 million bribe in 2024 to settle a baseless lawsuit the company easily could have won. And more recently, ABC shows like The View have shied away from hosting any political candidates at all for risk of upsetting Trump.

Brendan Carr has openly stated in interviews he fancies himself a tough, pit bull enforcer; but as Trump’s health and political power wane, the threats will hold less and less weight. As a result you’ve already seen ABC execs start to show a backbone in their fight with Carr, openly pointing out how he colluded with local right wing broadcast affiliates to manufacture evidence suggesting ABC broke FCC rules (something I’m sure will play great in court).

Carr’s threats will become weaker and weaker until he’s ultimately booted from office by subsequent administrations, at which point he’ll fail upward to some mid-six figure job at a telecom or media think tank, where he’ll spend the rest of his life helping corporate America dismantle whatever’s left of competition, labor, and consumer protection standards.

One of the ironic things, for Carr, is that his authoritarian censorship and saber rattling often draws press and public attention away from all the other terrible things he’s doing, whether it’s destroying media consolidation limits, making life easier on robocallers, dismantling broadband consumer protection standards, or making it easier for giant shitty companies to run amok.

You’d like to think Carr ultimately faces some sort of meaningful accountability for being one of the most censorial, petty, captured, and authoritarian regulators in U.S. history, but I wouldn’t hold your breath.

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.

This story was originally published by ProPublica. Republished under a CC BY-NC-ND 3.0 license.

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.

Still, groups across Africa have sounded alarms about dangers inherent in these provisions, including data breaches. Examples of such unauthorized access to personal data abound, including a recent case where the healthcare data of some 500,000 participants in the UK Biobank wound up listed for sale on the Chinese website Alibaba. 

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 to be 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.”