What You Need to Know About the Conservancy / SFLC Dustup.

November 8th, 2017

TL;DR:

The Software Freedom Conservancy is responding appropriately to a surprising and unwarranted trademark action from SFLC (the Software Freedom Law Center).

SFLC’s action is especially indefensible given their role in helping set up the Conservancy in the first place. SFLC’s own public statement on the matter does not stand up to scrutiny. If you’re just following this from the bleachers and aren’t sure which side you’re on, then support Conservancy. They’re behaving responsibly in this unexpected situation. For more details, read on.

The Full Story:

If you’re still reading, then you’d like to know more about what happened. I can offer some information and context that may be helpful to you. But first, you should read Conservancy’s short post of Nov. 3, which explains the bare facts of what happened.

The rest of my post is an analysis of SFLC’s public followup of Nov. 6, which I reproduce in full below in order to comment on it. Please take the time to read all of what they wrote, even if you don’t read all of my analysis. I’ve highlighted some particularly egregious passages, but my comments are not exclusively about the highlighted parts — SFLC’s post is, as the saying goes, a “target-rich environment”, unfortunately. Even so, I must leave many things unresponded to, because there’s just too much there.

Concerning a Statement by the Conservancy

By Eben Moglen & Mishi Choudhary | November 6, 2017

On Friday, while we were putting on our annual conference at Columbia Law School, a puff of near-apocalyptic rhetoric about us was published by SFLC’s former employees, Karen Sandler and Bradley Kuhn, who now manage the Conservancy, which was originally established and wholly funded by SFLC, and still bears our name. We were busy with our conference when this happened, which seems to have been the point. We are glad to have the chance now, after a little much-needed rest, to help everyone avoid unnecessary hyperventilation.

A couple of points:

First, the line “and still bears our name” is a lovely example of what in classical rhetoric is called petitio principii and in English we call “begging the question”. The whole dispute here is about whether SFLC should get an exclusive trademark on the phrase “software freedom” in this domain. How convenient for the USPTO that the SFLC can already state as fact that the phrase belongs to SFLC — I guess we can all go home now.

Second, SFLC had a choice about the timing here. If SFLC didn’t want to deal with this until after their conference, then they could easily have delayed their USPTO filing until after the conference. It’s true that Conservancy didn’t respond to the filing immediately, but that’s understandable: it takes time to prepare a formal response at the USPTO and an appropriate public statement. No organization turns that kind of stuff around on a dime. I don’t know whether Conservancy intentionally timed their statement to go up during SFLC’s conference — I haven’t asked them — but even if they had, who could blame them? I would certainly have done so in their shoes: that’s when the statement would be most effective, after all. It’s a little hard for me to work up sympathy for SFLC on this one (and it’s not as if SFLC gave Conservancy any warning about the original action in the first place — more on that below). It seems kind of nervy for SFLC to blame Conservancy for a timing opportunity that was basically SFLC’s choice.

In general I won’t comment on matters of tone, except to say once here at the start that SFLC’s tone is arrogant and condescending: “…a puff of near-apocalyptic rhetoric…”, “We are glad to … help everyone avoid unnecessary hyperventilation”, and so on.

Wait a moment: SFLC just asked the U.S. government to essentially force Conservancy to change the name it has been using publicly for over a decade. I do not think that Conservancy’s well-reasoned and basically calm opposition to this bizarre proposal counts as “hyperventilation”.

What Has Happened?

At the end of September, SFLC notified the US Patent and Trademark Office that we have an actual confusion problem caused by the trademark “Software Freedom Conservancy,” which is confusingly similar to our own pre-existing trademark. US trademark law is all about preventing confusion among sources and suppliers of goods and services in the market. Trademark law acts to provide remedies against situations that create likelihood of, as well as actual, confusion. When you are a trademark holder, if a recent mark junior to yours causes likelihood of or actual confusion, you have a right to inform the PTO that the mark has issued in error, because that’s not supposed to happen. This act of notifying the PTO of a subsequently-issued mark that is causing actual confusion is called a petition to cancel the trademark. That’s not some more aggressive choice that the holder has made; it is not an attack, let alone a “bizarre” attack, on anybody. That’s the name of the process by which the trademark holder gets the most basic value of the trademark, which is the right to abate confusion caused by the PTO itself.

The holder of the junior mark causing the confusion has of course a full range of due process rights to defend the mark that it has registered, as it should have. So the result is very like a trial, and is conducted before an administrative tribunal called the Trademark Trial and Appeals Board. Its job is to decide whether the PTO wrongly registered a mark likely to cause confusion, which the PTO isn’t statutorily authorized to do. The process is formal, conducted under rules like the Federal Rules of Civil Procedure, and its records are publicly accessible. This is not a proceeding in which anyone is seeking an injunction or claiming damages. The only question being asked is whether the PTO should have issued the trademark.

The junior mark causing the confusion was applied for in November 2011, almost a year after SFLC ceased representing the Conservancy; the Conservancy had its own lawyer, who signed the trademark application.

From reading this, you’d never guess that SFLC was fine with the name from 2006 until recently, and had even served as Conservancy’s counsel until 2011, with the name “Software Freedom Conservancy” in active use the entire time, would you?

By no means does this situation justify the tone of defensive overreaction we heard from the Conservancy management on Friday, which was like reading a declaration of war issued in response to a parking ticket.

Two points:

One, there was nothing resembling a declaration of war, at least not by Conservancy (re-read their post and see for yourself). Conservancy is understandably opposed to a trademark action filed against them, and they rightly question the wisdom of a supposed ally in taking that action. If their response is a “declaration of war”, then I’m Marie of Roumania.

Two, this is much more serious than a “parking ticket”. It is not an overreaction to be very irked when an ally — an ally that had never expressed a problem with the organization’s name in all the years before — suddenly goes straight to the top and asks the USPTO to cancel the trademark. SFLC’s simile does not convince.

Why Didn’t You Settle This Between the Organizations?

We too think this is a very good question. We have tried repeatedly for almost three years to get a meeting with Karen and Bradley in order to discuss this and other claims we have concerning their and the Conservancy’s activities. In all that time, they have never once agreed to meet with us to hear and discuss our concerns. They have presented transparently dilatory responses, such as being “too busy,” or even “always too busy” when we asked them to set their own time. Sometimes we have not been offered so much as the courtesy of a refusal.

We have asked intermediaries—friends, business associates, comrades in the free software movement, other alumni of SFLC—to stress to Bradley and Karen the importance of opening negotiations. One would think this unnecessary with people who talk so frequently about the importance of communication and opening connections with respect to “compliance enforcement.” But here, when the shoe is on the other foot, no efforts on our part have gotten us the slightest progress in bringing about discussions to resolve differences.

We think that waiting more than thirty months after initial contact—and after repeated efforts at both direct and mediated communication seeking to open negotiations—is not too little time to allow before beginning to bring our claims.

These paragraphs are disingenuous in several ways.

First, Conservancy has consistently been willing to meet, but merely insisted as a ground rule that the conduct of the meeting must be professional and civil. This was both responsible and a smart move on their part. The meeting isn’t going to be productive if it involves shouting and insults, and they had reason to believe that was a real possibility.

If you don’t know the personalities involved here, you might not understand why such a ground rule would be necessary. Let me simply say this: I have known Conservancy’s Executive Director, Karen Sandler, for a decade now, and worked very closely with her on a number of efforts, some of which involved contentious counterparties. I have never seen Karen lose her temper nor engage in personal insults or ad hominem arguments, not even with parties who frankly deserved it. She has consistently gone out of her way to keep dialogue constructive, to treat people with respect, and wherever possible to find solutions that work for everyone, even in very difficult conversations. If Karen is unwilling to meet with someone without getting agreement on ground rules, there must be a very serious reason for that.

So when SFLC says “they have never once agreed to meet with us”, I read that as “Conservancy wasn’t willing to waste time on a pointless face-to-face meeting on SFLC’s home turf with no written agenda and with SFLC refusing to explicitly commit to basic ground rules of civil discourse”. If I were running Conservancy, I would have made exactly the same decision.

Second, regarding SFLC’s claim that they tried to communicate about this specific trademark complaint:

I think I am probably one of the intermediaries referred to in SFLC’s post, and as I don’t wish to violate any confidences, I cannot go into detail about the conversation in which I was asked to be a go-between. But I can state the conclusion that I immediately drew from that conversation, which was that there was no point trying to be an intermediary. SFLC’s view of things was so different from Conservancy’s, and so far removed from anything I could recognize as reality, that I could not carry any useful message to Conservancy other than “I don’t understand what you should have done differently”. I can also state that this trademark issue was not raised then. The dispute at that time was about something else entirely (and, for the record, that other matter was also an instance where I felt that SFLC had acted poorly toward Conservancy, though it was not nearly as serious as this trademark claim).

I never heard a word about this supposed trademark problem from either party before SFLC filed their public protest at USPTO. Now, I talk to people at Conservancy all the time, sometimes multiple times a week. We discuss all sorts of things, including occasionally matters that they have asked me to keep in confidence. If SFLC had sent Conservancy some kind of notice, written or verbal, that they had a trademark issue with Conservancy and would like to discuss it, I am pretty sure I would have heard about that. Actually, let me state that more strongly: I am positive I would have heard about that. There is just no way something so important wouldn’t have come up in our conversations. It’s too big. If I didn’t hear about it, the obvious conclusion for me to come to is that Conservancy hadn’t heard about it either.

So SFLC’s claim that they have been trying to get in touch with Conservancy “in order to discuss this and other claims we have concerning [their] activities” is misleading. Notice how carefully SFLC worded it. They do not quite say that SFLC did something to make Conservancy aware of this specific trademark claim before filing a protest at the USPTO. If you read the post quickly, of course, you might get that impression, but if you read it carefully, like a lawyer, you realize SFLC hasn’t actually said that at all. What they’ve said is that they tried to get a meeting, and that they (SFLC) knew what they wanted that meeting to be about. But they don’t actually say that they informed Conservancy of the agenda, and my belief is that they did not — because if they had, their post would surely quote the email or document they had sent. SFLC shows us no such quote, and they don’t show it because it doesn’t exist.

From the evidence I’m aware of, and based on SFLC’s own post, I don’t believe the SFLC gave Conservancy any warning about their trademark complaint, let alone tried to raise the issue in a good-faith way before resorting to a USPTO filing. I would be happy to be corrected by SFLC or by anyone else possessing the requisite information on this point.

In any case… come on, it’s 2017: if you need to communicate something to someone, there are lots of ways to do it that don’t involve an in-person meeting. Send an email — then you get a date-stamped digital record, as a bonus. Send old-fashioned registered mail through the U.S. Postal Service. Send a courier; the two organizations are both in New York City, so it won’t be expensive. Or, if it’s so important that it be in person, ask to meet on neutral ground with some trusted third party present. To the best of my knowledge, SFLC did none of these things. Again, corrections welcome.

When Conservancy says they were surprised by the USPTO filing, they mean it — for them, it came out of the blue. Conservancy’s exact words on this: “… SFLC made no efforts — over the last eleven years since Conservancy was formed, nor in the last five years since we registered our name as a trademark — to express any concerns about our name, or a desire for us to change our name. We first learned of SFLC’s complaints from this surprise attack of legal action.”

I have never known anyone at Conservancy to lie.

Safety For Others

Friday’s response from the Conservancy’s management is grossly disproportionate, and—in view of their long-maintained refusal to communicate with us—irresponsible. The first responsibility of asset managers, who have others’ rights and valuables in their keeping, is prudence. One would hardly associate the word “prudent” with either their statement on Friday or the course of conduct over the last three years that it culminates.

Special concern should be expressed about the aspect of their statement darkly suggesting that we are creating risks for projects associated with the Conservancy. The driver of any risk, it seems to us, is the reckless refusal of the Conservancy’s management to negotiate with us for settlement of our claims, which has left us to pursue last-resort approaches we have done everything we could to avoid.

But we absolutely agree that within the free software community we must protect projects producing software from any avoidable risks in the organizational or legal situation around them. That’s what our law practice at SFLC is always about. Any project working with the Conservancy that feels in any way at risk should contact us. We will immediately work with them to put in place measures fully ensuring that they face no costs and no risks in this situation.

I was shocked when I read that. I mean, is this a trademark dispute or a 1930’s-style Stalinist whispering campaign?

This is a transparent attempt to undermine Conservancy’s mission by sowing fear, uncertainty, and doubt among its members and supporters. It is unlikely to have any harmful effect on Conservancy, fortunately. My prediction instead is that SFLC will one day come to understand that including that not-particularly-subtle attack was an unwise and deeply unprofessional non sequitur.

For what it’s worth: I’m pretty familiar with Conservancy’s operations, and have sat on their Evaluation Committee for several years (the Evaluation Committee assists Conservancy by providing third-party evaluation of applications by free software projects to become members; the position is unpaid). I cannot imagine an organization having higher ethical standards and levels of care regarding the management of member projects’ assets. Anyone who knows Conservancy staff personally knows how seriously they take their work, and how they bend over backwards to make sure they always behave with utmost responsibility. If the Software Freedom Conservancy were a bank, I would sleep soundly at night knowing my accounts were there. The idea that software projects should suddenly worry about Conservancy, and should contact SFLC of all places to assuage that worry, is risible.

What Should Happen Next?

Everyone observing this situation, we suspect, knows the answer to this question. But we cannot bring to the table counterparties who have so far refused to meet us, and who on Friday used their communications energies greatly and unnecessarily to increase polarization, thus making diplomacy harder. We recognize this pattern in their conduct from other situations. We have spent the last eighteen months preparing to bring our claims in the various relevant fora. We are now, as we have been throughout, fully prepared to meet immediately for a discussion of all outstanding issues without preconditions. Otherwise, it seems evident that more shoes will drop.

It wouldn’t be a Stalinist whispering campaign without the thinly veiled threat at the end, would it?

I am very familiar with both organizations. Though I’m somewhat more familiar with Conservancy these days, as I’ve worked more closely with them in recent years, I have watched (and learned from) SFLC for a long time as well, and have even been represented by them. I have utmost confidence in Conservancy’s ethics and sense of responsibility regarding both their mission and their members. If a defense fund becomes necessary as a result of this action, I will contribute to it and will urge others to do the same.

Now comes the sad part of this post.

When I moved to New York City in 2008 (I stayed there until 2012), I was both professionally and financially at a low point. I knew I cared deeply about free software, but I didn’t really have a game plan or much in the way of resources. New York is a tough place to land in that condition.

SFLC’s founder and Executive Director, Eben Moglen, was extraordinarily supportive. He let me use some space — private space, with a door! — at SFLC’s offices in Manhattan. This was much more than just a desk and somewhere to go in the morning: it was a community of like-minded people, many of whom remain friends and colleagues of mine to this day. My (now) business partner James Vasile was one of them; so was Karen Sandler and so was Bradley Kuhn, now both at the Software Freedom Conservancy.

Eben didn’t just give me a space and a community. He gave generously of his time and attention, even when he had plenty else on his own plate. He has a fine strategic mind, and knows how to combine that with his broad knowledge of history to see whole that which others — myself included — see only in parts. He would ask questions and share his thoughts; I benefited from his advice and perspective many times, and have continued to do so, albeit less often, even after leaving New York.

It pains me to pay back his help and friendship with this post. I have written in an angry tone because I am angry; SFLC’s treatment of Conservancy has been unacceptable for a while now, and this trademark action was the last straw for me. These two organizations should be allies, working together where they agree on tactics and respectfully parting ways where they do not. Conservancy has consistently demonstrated a willingness to do that; SFLC should too.

Update 2017-11-11: Eben Moglen and I have now talked about this post. We discussed many things, and he made two points that I felt were undeniable. One was that in my original version I mentioned a previous matter in which SFLC had “acted in bad faith” toward Conservancy. This was both too strong and simply inaccurate, as it was not bad faith. I have reworded that passage to say instead “acted poorly toward Conservancy” — and apologized to Eben: acting in bad faith is a serious accusation, and I should have not have used those words. He also pointed out that it would have been both proper diligence and proper friendship to call him and ask about the trademark matter (and anything else) before posting. I agree, and he has my apology for not having done so.

Unrelated to the above, I made a minor change after initial publication, to clarify one point. I don’t think the change is very important, but for the sake of transparency, here’s the diff.

Corrections.

November 8th, 2017

An Op-Ed by Senator Jeff Flake (R) of Arizona on Tuesday (“In a Democracy, There Can Be No Bystanders”) was printed with the wrong title. The correct title is “I Am Running For President in 2020 Via a GOP Primary Challenge”.

The New York Times regrets the error.

Is Anyone Helping Anti-Trump Republicans?

April 18th, 2017

Update 2017-05-14: I’d thought Brand New Congress might be the group this post was looking for, but on closer examination, it’s clear that their platform would be unacceptable to most conservative politicians, including anti-Trump Republicans. Not that Brand New Congress has bad ideas — I like most of them. But their plans won’t fly in GOP constituencies.

Dear Internet,

Do you know if there’s any organized support for anti-Trump Republicans out there? For example, a group promote openly anti-Trump Republicans in GOP primaries or special elections — something comparable to Indivisible but right-leaning?

I’d wanted to go on a data-gathering spree, and find out what constituencies normally lean Republican but nevertheless either didn’t go for Trump or didn’t go for him strongly in the general election. But I am not going to have time to do it (my company is doing well, which is great, but it means I’m swamped with work right when I’d most like to be involved in politics). So I’m taking the lame way out and asking the Internet.

If there’s data out there that could identify such voting districts — places where an openly anti-Trump Republican candidate might get elected, and is more likely than a Democrat would be to defeat a pro-Trump Republican — it would be great for those places to get more attention. There are a whole lot of GOP voters and donors out there who have always disliked Trump. If they had an outlet to support a better GOP, that would be a win for everyone. This is a realistic hope: after all, Republicans failing to fall in line behind Trump is what led to the embarrassing failure — or would be embarrassing, were he capable of embarrassment — of his attempt to repeal Obamacare.

So I’m just curious if anyone’s working on this. The closest thing I’ve found so far is Stand Up Republic, but there is not yet any clear call to action at their site, other than signing up for their email list.

Another source of good journalism in the Trump era: Talking Points Memo.

January 20th, 2017

In my post yesterday advocating support of independent journalists now more than ever, I forgot to mention Talking Points Memo.

I’m a Prime member there, which just means I pay $50/year to read the same articles anyone can read for free, because the site is so good I want to support them. TPM has done sharp political reporting for a long time — they broke the U.S. attorneys firing scandal back in the George W. Bush administration — but they’ve really come into their own since the election of Donald Trump. In addition to their reporting, their commentary, especially from founder Josh Marshall, is spot-on. Two examples, just from today: He Xeroxed the Convention Speech and A Few Thoughts on Entering the Trump Era. Yes, I like them because they’re on my side (our side, I hope). TPM doesn’t pretend to neutrality: it’s a center-left political reporting site that hires really good investigative journalists, is aghast at the election of Trump, and intends to give its readers the tools they need to figure out what’s happening and to counter it.

Give it a try. If you like it too, I hope you’ll also become a paying subscriber. It’s cheap and they’re doing great work. Enough said.

What To Do.

January 19th, 2017

I was corresponding with a friend recently about what one can do to help repair the damage. This is what I came up with:

1. Support independent journalists, and encourage others to do the same.

What we most need during the next four years is a lot of people digging around and uncovering stuff. Facts have not become wholly irrelevant yet. Facts are at least part of how groups of people construct narratives, and narrative momentum counts for a lot. Trump had it during the campaign, but he’s already entering office with record disapproval ratings. That means the right alternative narrative can take hold very easily; many people are looking for it already.

I support some great journalists on Patreon, and pledged to the City Bureau initial fundraising campaign. I’d love some tips — in the comments, please — on who you think is doing great work.

2. Join the ACLU and the EFF right now.

3. Tell your representatives you support financial transparency for Presidential candidates.

Legislatures (state legislatures, not just Congress!) can require financial transparency from Presidential candidates. If Trump can’t be on the ballot in some states in 2020 because they require release of tax returns and he won’t do it, that’s a fine and democratic outcome. It’s already required for some offices, just not for President. Several states are considering such bills; we should press for it everywhere. If it’s already being considered in your state, let your representatives know you support it. I’m trying to find out if anyone’s submitted a bill like this in my own state of Illinois. In the meantime, here’s California, New Mexico, Maine, Hawaii, Massachusetts, New York, and thank goodness for Ron Wyden in the U.S. Senate. These bills haven’t passed yet, but in some states they can. The one in the Senate probably won’t, of course, but the attempt to do so would be useful in raising awareness of the state-level efforts.

4. Support openly anti-Trump Republicans in their primaries.

If your district has competitive GOP primaries, support anti-Trump Republican politicians. It’s okay to be involved in a Republican primary even if you do not consider yourself a Republican. Political parties are not clubs, and political affiliation is not a kind of membership. By definition, any primary election in which you are qualified to vote is one in which you have the right to vote. Use it. You can vote for someone else in the general election, but please help responsible Republicans change their party’s direction, for everyone’s sake.

5. Send letters to GOP representatives of whom you are a constituent, letting them know when you are against Trump.

(You’ll have plenty of chances to do so, don’t worry.) Most of the country doesn’t like Trump already, and that includes a lot of Republicans. If GOP representatives start sensing that Trump is electorally dangerous, they’ll start opposing him too.

Five-Day Forecast: Cloudy With an 80% Chance of Faked Kompromat

January 17th, 2017

Update 2017-01-19: After I wrote this post, I read Thomas B. Edsall’s excellent What Does Vladimir Putin See In Donald Trump? in the New York Times, and realized that faked kompromat against credible politicians who oppose Trump is even more likely than against Trump himself. So, er, watch out for that too. I can’t even describe how depressing that is to contemplate. Imagine, say, Tim Kaine’s or Cory Booker’s potential run in four years being headed off by a faked video of him accepting a bribe. The only countervailing forces I can think of are 1) good investigative journalism, and 2) the fact that fake kompromat still has to be believable to be effective — which is why Trump is so especially vulnerable to it.

I don’t think the Russian government installed Donald Trump as President — American elections aren’t that easy to control. But as Louis Pasteur allegedly said: “Chance favors the prepared mind.” Russia got lucky, but also knows how to play a good hand when dealt one.

What would you want right now if you were Vladimir Putin?

Something like this: a weakened, delegitimized, and more easily manipulated Donald Trump being sworn in as President on Friday. Ideally, a Donald Trump who does not necessarily think that whatever weakened him came from Russia, but who thinks that Russia might have worse stuff in the dumpster out back (worse stuff than lopsided business debts to state-affiliated Russian oligarchs, that is, which is what I’m guessing Trump has in his dumpster out back).

With rumors of video clips now already in public discussion, Russia — or really any party with access to skilled and discreet technical talent — is now in the perfect position to release a video tape of Donald Trump that shows whatever the heck they want.

The age of widespread faked kompromat has arrived.

Unfortunately, it will start with an ugly interim period in which realistic digital video is fakeable but most people still believe that video footage represents reality. The technology to produce convincing fake video and audio has not yet become available to the average computer user, so people aren’t yet accustomed to discounting what they see with their own eyes and hear with their own ears. (It’s just a matter of time; expect open source code modules for it pretty soon.) This weapon of misinformation is already available to any well-resourced state actor, however. Know anyone whom that description fits?

At any time, starting now, someone could leak a video that convincingly shows Donald Trump saying anything they want him to say (update 2017-07-18: they can fake it even better now). Or, as the case may be, they can show him doing anything they want to show him doing.

Will people think he really said or did those things? Ah, that’s the beauty of a politician like Trump: he’s so outrageous that people will believe anything about him, and he’s such a chronic liar that his own protests will not carry much weight even with his supporters. Denial’s difficult when you have no credibility.

It would be illogical not to take advantage of this opportunity; let us assume someone will behave logically. It doesn’t have to be Russia, but Russia has the right combination of access to technical skills, experience, motivation, comfort with this type of tactic, and reasons to be confident that those involved will never breathe a word of it to anyone on the outside.

The days right before or right after inauguration would be a good time to do it. Just sayin’.

I’m not sure there’s anything we can do about this, even if we know it’s coming sooner or later. Just sit back and enjoy the production values, I guess. Here in the U.S. that’s how we’ve often reacted to our military deployments, particular those involving laser-guided missiles and other high-tech things that go boom. Isn’t it time we learned to appreciate the subtler but no less exacting attention to detail required to produce high-quality fake kompromat?

This is not going to be fun :-(.

Back from the Brink: Un-Trumping America.

November 25th, 2016

I’m not going to be a perfectionist about anti-Trump posts — it’s more important just to get them out there. What we need right now is a lot of people being very visible about the fact that they’re not on board with this kind of politics, and being visible about it frequently throughout his presidency.

It all comes back to this question:

What happens when a leader has the ability to make each person in a room think that every other person in the room will obey that leader?

Anyone who has lived in certain kinds of countries understands why that question is so important. It’s how indecent people take and keep power. It happens suddenly. Even if every single person in the room is opposed, they’ll all still obey, because each person is afraid that they’re alone. No one can afford to be the only resister. In fact, no one can afford even to look like a slacker in reacting quickly to persecute a minority resistance — slavish obedience to the new leader is always the safest course. Once the system gets going, it’s very hard to stop. North Korea’s been stuck there for generations now.

The speed with which it happens is usually a surprise to more scrupulous competitors for leadership. That’s part of the method. It’s how Joseph Stalin did it, and, with some finesse, how Vladimir Putin did it too. It’s how Mao Zedong did it. Heck, Saddam Hussein did it in one day. By the time you realize what’s going on, you must already make a decision about whether to join or resist — the realization itself is the sign that the flip is under way, and by that point your resistance has become a risky proposition, not just for you but for everyone who knows you.

The reliably perceptive Josh Marshall of Talking Points Memo already spotted it in Donald Trump. Read his “This Is How Dictators Talk”.

Then read Trump’s own words on why he backed off his promise to prosecute Hillary Clinton:

“I don’t want to hurt the Clintons, I really don’t. She went through a lot and suffered greatly in many different ways, and I am not looking to hurt them at all. The campaign was vicious.”

Translation: I am dominant now, whereas you suffered greatly and are weak. Look how generous I am in victory. If you don’t make me angry, you have nothing to worry about. But remember, the tools of the state are in my hands. If you give me reason to change my mind, I can hurt you.

It’s worth quoting Josh Marshall’s explanation of what exactly is so wrong about this:

The personal desires of the President, his mercy, is irrelevant to this kind of decision. Either there is something to investigate or there’s not — and a lengthy investigation that came up with nothing to prosecute suggests there isn’t anything. This isn’t the Colosseum where everyone waits on the Emperor’s thumbs up or down. America is not a place where those who lose elections live freely at the sufferance of the victors. This is certainly better than Trump trying to jail Clinton as he promised, but only so much. What if Hillary Clinton becomes an outspoken critic of President Trump? Does he reconsider? None of this is normal. This is how strongmen talk.

None of this is normal. This is how strongmen talk.

This is un-American, and I don’t just mean that as some kind of jingoistic synonym for “bad”. I mean it in literally. Our country’s system of government was specifically organized to avoid this, and now that system is in danger, because someone who doesn’t value it at all — who just feels hampered by it — has been elected President, and is surrounding himself with people who will put loyalty to him above everything else.

So what do we do now?

Mostly I don’t know yet, except in very general terms: think, organize, act, cooperate. Lot of friends and allies are talking and we’re all figuring out what to do. I hope you’re in that group. But a few principles seem obvious:

  1. Don’t hide the fact that you’re opposed, and never, ever stop calling out the violations. Don’t let normal get redefined. Especially, don’t hide because of fear (n.b.: illegal immigrants get an exception to this one). Don’t ever let the other people in the room think they’re alone. They need to know that not only are they not alone, but they’re actually the majority.

  2. Trump lies habitually, and in a way that’s unusual for politicians. He will say the mirror opposite of the truth, if doing so serves his purposes, and in a peculiar kind of twisted projection, he likes to accuse others of doing what he’s actually doing. (Once you start watching for this, you will notice it all the time — try it!)

    Don’t stop being shocked. Do get used to pointing out the lies, and try to do so in ways that a Trump supporter might be open to listening to. Here’s one amazing example, complete with primary source video (there’s a nice side-by-side comparison here of what actually happened versus what Donald Trump said happened). There were so many equally bad instances during the campaign that I couldn’t catalog them all, but fortunately others did. Take ownership of, say, one lie a month — I promise, you won’t lack for supply. Consider it an exercise in outrage preservation.

  3. Trump supporters are not Trump, so don’t treat them like they’ve done something wrong — they haven’t. They’re decent people who don’t recognize Trump’s character for what it is, and don’t see the danger. Maybe they haven’t had enough personal experience with narcissistic sociopaths in their lives, and so don’t realize that there really is such a thing as a person with no fundamental goodness at bottom (that kind of direct knowledge is not something I would wish on anyone, but it looks like we’re all going to get it now whether we like it or not).

    I’ve said before, and continue to believe, that we need not just a wealth redistribution but a dignity redistribution in this country. People voted for Trump because they thought he might bring that. He won’t, but it’s understandable that people are looking for it. Clinton never seemed to really understood the roots of that need, and it’s not surprising that so many voters turned away from her and toward a charlatan who was willing to surround himself with a reality distortion field and say anything at all to get elected.

Those principles apply to one’s public actions and statements, of course. Private communications are a different matter. We have every reason to be more worried now than we were before (and before wasn’t all that great either). If you do any political organizing, or even if you don’t, you should install Signal on your phone, and encourage those you communicate with to do the same. If Donald Trump gets eight years in office, he’ll have the chance to shape not just the executive branch but a lot of the judicial branch as well, just through natural turnover. By making private communications the norm, you not only protect your own privacy, you help normalize the practice of privacy so that others who do the same don’t stand out so much.

I had this conversation (via Signal) with a friend recently, whom I thought was so clear and eloquent that I asked for permission to just quote it. Here it is, lightly edited:

Me:

I’m thinking hard about what to do, talking with friends in Chicago about next steps… Even the re-election of George W. Bush didn’t feel like an existential shift the way this does. NORMAL PEOPLE NEED MORE EXPERIENCE WITH SOCIOPATHS SO THEY CAN RECOGNIZE THEM. It’s so depressing. His supporters have no clue; even most of his opponents don’t really get it. They keep thinking they’ll appeal to his “decency”. F*ck. How can we communicate to people what’s really going on here?

Friend:

Yes, it seems like we had some tipping point and everything feels at stake to me.

I’m really hoping that when he runs this country into the ground his followers don’t double down on loyalty, but there’s a model for that very thing happening. The book “When Prophesy Fails” refers to this.

This situation we’re in — a dangerous leader who doesn’t hesitate to appeal to racism and misogyny, single party government, eroding infrastructure, manipulated electorate — it’s a knot with a lot of threads and it’s going to take a lot of us, working on even just one thread each, to untangle it.

There will certainly be people, especially young people, who will need to know how to recognize a wolf, and that kind of education will be necessary. And that can come in a lot of forms, appropriate to the learner, from fairy tales to pop culture blog posts to academic classes.

As for the manipulated electorate who are adults, I actually don’t think the best goal is to try to get them from where they are now to “oh he’s a sociopath.” Most adults are not able to make this leap.

So I think for the manipulated electorate, the answer is to approach them via a single issue that you can earnestly and humbly talk with them about. When Trump doesn’t deliver on jobs, talk to them about unions, et cetera.

Me:

“all of the above”. I think some people will be open to understanding what Trump really is, others won’t. The methods are not mutually exclusive, anyway.

Friend:

Give them one line of change, one way that they can begin to take ownership of differing from Trump, in a way that feels to them like it came from them.

That one line of difference can maybe ignite parallel currents with acknowledging other ways Trump did a bait and switch, and all together, eventually, it may form into the gestalt of “wolf.”

“Stronger Together”. I never expected Hillary Clinton’s campaign slogan to take on such a deeper meaning, but, unfortunately, it has.

Semi-optimistic thoughts after the election.

November 10th, 2016

Quick reaction post — I haven’t edited this much, just jotted it down and put it out there:

It looks like a lot of voters apparently didn’t see Trump the same way I do. This post is not for them. It’s for the folks who voted against Trump and are disappointed now. It’s also partly a followup to this post by my friend Laura.

First: we’re in new territory. Has there ever been a time when a functioning democracy, with reasonably healthy institutions, voluntarily elected a completely non-establishment populist strongman/demagogue in a normal election, with the usual ballot privacy protections and everything? Without those institutions having been hollowed out first? This situation might be genuinely unprecedented. Which is good news: the worst historical comparisons really don’t apply here. I’ve heard some people making comparisons to Germany in the early 1930s. That’s misplaced, and unfair to Trump supporters. Trump is not that kind of ideologue; he’s just a talented narcissist who correctly read a mood that more experienced politicians missed. The situation has some resemblance to Berlusconi in Italy in the 1990s, but even that is not a perfect fit.

So we’ll learn this road as we travel it, but there is no reason to be fatalistic. Nothing is pre-determined here. We’re still going to have elections in two years, and again in four years. Trump is not operating outside politics. He’s skilled at politics, and he’s operating in a purely political framework as a political actor; he hasn’t actually pushed those boundaries. (Some people seem to think he has, that somehow his election is akin to a coup, but it’s not. He won the election by campaigning and winning votes. He’s despicable, but he showed that pretty clearly and people still voted for him.)

Second, just because he’s President, or President-elect, doesn’t change who he is, or who this country is. He’s just some guy who got elected President. The qualities a President should have have not changed nor been cheapened, even if he doesn’t have them. His behaviors have not been rendered Presidential except in the tautological sense that he’s been elected President. He’s just who he is. The office does not change that. Furthermore, even if he hadn’t won, about the same number of people would have voted for him. In other words, the percentage of dissatisfied people in the country would be about the same, it’s just that it would be other people. What makes us Trump opponents so sure that the dissatisfied half should be them and not us, this time around? Which brings me to:

Third, the cycle will come around again. Remember the re-election of George W. Bush? The world was stunned; they couldn’t believe we’d re-elected the same President who’d started the unnecessary and already disastrous invasion of Iraq. Someone even set up SorryEverybody.com. And yet four years later we elected Barack Obama, and then elected him again. Trump is the 45th President of the United States, but he is not the last.

Fourth, it’s the Democrats who have to change. My friend Karen Underhill nailed it: “We didn’t redistribute wealth. That’s why this happened.” I would say, actually: “We didn’t redistribute dignity.” Raw redistribution of wealth can happen with mere handouts, in theory, but that’s not the point. People need to feel both economically secure and dignified. Trump understood this. He’s not going to deliver it, or worse, maybe he’ll deliver it for some (lighter colored) people at the expense of other (darker colored) people. But he understood a raw need that the DNC has shown little understanding of in recent years. (Update: looks like Naomi Klein agrees.)

Bernie Sanders would have won this race, I think (not everyone agrees). This was an election where the majority of voters wanted a roll-the-dice candidate. Clinton was the exact opposite of that; she even thought she was criticizing Trump when she repeatedly said he was a risky gamble, not understanding that that was exactly the quality voters liked about him. When things aren’t going well, why not roll the dice?

Bernie Sanders and Donald Trump both were very much roll-the-dice candidates, but the Democratic establishment wasn’t ready to give Sanders and his ideas their support. Either the Democrats will change, or Donald Trump will be re-elected. I honestly don’t know if they can change, but between Sanders in the primaries and Trump in the general, the message could not be clearer. Blaming this on the Republican Party’s own problems (which are real enough) is convenient, but it absolves the Democratic Party of too much. If this election doesn’t cause healthy change — by which I mean, of course, change I agree with 🙂 — in the Democratic Party, then our problems are much worse than just this election result.

Finally, I don’t mean to sound naive, but this is a democracy. There were protests yesterday, the day after the election, in a lot of major cities. These protests are a mistake and make the anti-Trump half of the country look bad. The organizers described them as protests against hate, against racism, etc, but that’s just wishful thinking. If you hold a protest that is clearly aimed at the winning candidate the day after an election, then the only possible interpretation people will have of that is that it’s a protest against the election outcome. Democracy means accepting the outcome of the election. It’s fine to protest the resultant policies and actions that are then enacted, but since Trump doesn’t even take office for another couple of months, now is clearly not the time to protest.

I get it: people don’t want to feel like suckers, and they know that if Donald Trump lost, he’d be doing everything he could to work the refs, stoke his supporters’ outrage, and fuel speculation that the election had been stolen. That’s probably true, but it’s not what happened. The damage done (and still to be done) by his obvious disrespect for norms will only be made worse if the rest of us toss them aside too. The way to counter Trump is to demonstrate that we stand for certain things. Respect for norms is only one of those things, but it’s the most accessible one at this moment, so let’s try to keep it strong. It’s going to need all the help it can get.

Meanwhile, there are mid-term elections coming up! Let’s get to work supporting candidates who understand that the way the Democratic Party has been operating since Reagan/Bush won’t cut it anymore.

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July 14th, 2016

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Starbucks buys their TLS certs on fiscal year boundaries?

July 5th, 2016

This screenshot is from just after agreeing to the Terms of Service for the Google/Starbucks free wifi at the Starbucks at Bryn Mawr and Winthrop in Chicago. My best guess at an explanation is that Starbucks buys their TLS certificates on fiscal year boundaries, but then they’re very busy around the end of the fiscal year and forget to renew? 🙂

close-up view of 1 July TLS cert expiration, shown on 5 July

Either that or the wifi here is being hijacked by devious delinquents determined to defenestrate my data. But I’m not worried — between certificate pinning and SSH host-key checking, surely nothing could possibly go wrong.

Here’s the full screenshot:

close-up view of 1 July TLS cert expiration, shown on 5 July