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The United States has yet to show up to this information fight. U.S. cyberstrategists prioritize defending physical infrastructure—routers, servers, and endpoint devices such as laptops and smartphones—but consistently underestimate the economic and political significance of the information carried on that infrastructure. The U.S. private sector, which rarely acts in the American national interest, is primarily responsible for protecting data and information platforms.

It can be tough to craft regulations and national security policies for data and technology that do not fall afoul of democratic and capitalist values. A national information strategy can sound, or indeed become, Orwellian without the right political leadership. But to thrive in the twenty-first century, democracies must now put information at the center of domestic, security, and foreign policy.

In the industrial world, when a switch is flipped, we take for granted that it will produce light, boot a computer, illuminate a stadium or activate a power plant. We know, of course, that power losses can and do occur. Many of us have lit candles during a thunderstorm or brought out extra blankets when a blizzard takes down transmission lines. As of this writing, the most populated state in the United States, California, is experiencing rolling blackouts.1 Yet even in prolonged power outages, we expect that electricity will be restored and, consequently, life will return to normal. Perhaps we need ask, however, what if power cannot be restored in a timely manner? Concern is growing that in the not-too-distant future our electricity supply could be irreparably compromised by a cyber attack. The issue when considering a systemic grid failure of this nature is twofold: how did we reach a point where something so critical to routine life now presents an existential threat, and what can we do to mitigate the risk of a catastrophic grid attack?

This article posits that the emergence of cyber attacks on industrial control systems, as a means of war or criminal menace, have reached a level of sophistication capable of crippling those systems. This article argues that a new grid security policy paradigm is required to thwart catastrophic grid failure – a paradigm that recognises the inextricable link between commercial power generation and national security. In section 5, seven policy recommendations are outlined that may, in part, mitigate a future where grid attacks pose existential risk to nations and their citizenry. Those recommendations are: first, develop a comprehensive insurance programme to minimise the financial risk of grid disruption; second, train more cybersecurity professionals with particular expertise in industrial control systems; third, institute a federally mandated information-sharing programme that is centralised under United States Cyber Command; fourth, subsidise and/or incentivise cybersecurity protections for small to mid-size utilities; fifth, provide university grants for grid security research; sixth, integrate new technologies with an eye towards securing the grid; and, lastly, formulate clear rules of engagement for a military response to grid disruption.

Data has become a critical component of the Utilities Sector. But as data becomes more valuable to utilities, Data Security is now at the top of the agenda. And as grids become smarter, energy models become more distributed and flexibility becomes a day-to-day part of balancing the grid, the role of data is only going to become more important.

A data breach can be costly, both financially and reputationally and it has a knock-on effect on trust both with customers and energy sector partners.

The Seventh Circuit may have said the quiet part out loud: "The standing rule reduces the workload of the federal judiciary...." (205) While literally true, that is neither an accepted nor acceptable justification for standing doctrine. (206) The existence of a "Case" or "Controversy" does not depend on how pleased the court will be to hear it. Article III does not give the judiciary the ability to set its caseload. And a dispute will be no less adversarial between the parties if it is the tenth hearing on a court's calendar rather than the first. Indeed, around the time that the Supreme Court threw standing jurisprudence for a loop in Clapper, it admonished that federal courts are obligated to hear cases falling within their jurisdiction. (207)

Yet the appeal of the standing dismissal to the federal judge is impossible to ignore. The massive and increasing caseload in the federal courts is well known. In the data-protection context, cases typically promise to be long and involved. Most arise from large-scale data breaches or inappropriate, indiscriminate data collection. As such, they are usually brought as class actions and implicate complex technical issues. One can certainly understand why overworked judges might be eager to get such cases off their dockets.

Terrorism by wildfire, or pyroterrorism, is relatively lightly studied. Many references lead back to the master’s thesis of a Marine Corps major, Robert Baird, titled “Pyro-terrorism: The Threat of Arson Induced Forest Fires as a Future Terrorism Weapon of Mass Destruction.” In it, Baird assesses the prospects of terrorists unleashing “latent energy in the nation’s forests to achieve the effect of a weapon of mass destruction.”

Pyroterrorism is different from arson. It has a political and psychological effect, the thesis explains. The textbook definition of terrorism is a violent act with four characteristics: it is politically motivated, perpetrated by an organization, targets non-combatants, and has a psychological impact.

Before exploring the link between the rule of law and terrorism, these two concepts must be clarified, as their definitions remain controversial. Terrorism is a particularly difficult concept to define because of its value-laden nature: one country’s terrorist may be another country’s freedom fighter. For analytical clarity, I follow the definition of terrorism of LaFree and Ackerman (2009, 348) as ‘‘the threatened or actual use of illegal force, directed against civilian targets, by non state actors, in order to attain a political goal, through fear, coercion or intimidation.’’4 Domestic terrorism includes incidents such as the Oklahoma City bombing since they arise only against domestic targets of the terrorists’ home country. International terrorism, then, is a situation in which a terrorist incident in country A involves perpetrators, victims, institutions, governments, or citizens of country B (Enders and Sandler 2006, 7; Dugan 2010). These subtle differences are important, as they provide clarity to a discussion of terrorism in general.

Like the concept of terrorism, the rule of law is also ‘‘subject to various definitional and normative disputes’’ (O’Donnell 2004, 34). For analytical parsimony, I limit myself to two fundamental components that should be present in most democratic societies with a high-quality rule of law: (1) fair, impartial, and effective judicial systems and (2) a nonarbitrary basis according to which laws and the legal system as a whole can be viewed as legitimate.5 As legal scholar Joseph Raz (1977, 198-201) argues, fair and impartial judicial systems require at least an independent judiciary branch with fair-minded judges, prosecutors and lawyers, as well as strong and stable law enforcement or police (for a similar view, see Fuller 1969). Institutionalizing an independent judiciary system reflects a strong commitment by government to the basic principle that all people are equal before the law and those people deserve the opportunity to have their grievances and disputes heard and settled in court.

As Thomas Paine famously said, “In America, the law is king.” This year’s Law Day theme—the rule of law—embodies the concept that no individual is above the law; that everyone is subject to and accountable under the law, including lawmakers, law enforcement officials, and judges. This principle was recognized by the ancient philosophers. Democracy focuses on how societies select those who will hold political power; the rule of law concerns how that power is exercised. The rule of law is the foundation of our rights and liberties in the United States. The courts, of course, perform a critical role in ensuring the rule of law. Without an independent, fair and efficient court system, the rule of law would be little more than a lofty, but hollow, gesture. Crime would go unpunished, negligent acts would not be redressed, business contracts would lack enforcement, property rights would be ignored, family legal disputes would be left unresolved. In short, civilized society, as we know it and which we often take for granted, would cease to exist. This is precisely why we worked so hard in New York to keep courts open—to ensure access to justice—even throughout the darkest days of the pandemic. Although during the early weeks of the pandemic the magnitude of the public health crisis necessitated that court operations be limited to emergency and essential matters, in very short time technology was deployed to permit access to justice for a rapidly expanded range of proceedings that did not meet the emergency and essential criteria. Indeed, as of the writing of this article, typically each week over 20,000 virtual court conferences and related proceedings are being conducted, roughly 5,000 cases are being settled or otherwise disposed of virtually, over 1,000 remote bench trials and other evidentiary hearings are being held, and over 2,000 written decisions are being issued. So the miracle of technology, the ingenuity of judges and court staff, and the cooperation and determination of the bar have enabled the rule of law to endure over the past year. ave been serious challenges. Proceedings that do not easily lend themselves to the virtual format—in particular, jury trials—have suffered. And although virtual proceedings are here to stay and will continue to be an important part of how the New York courts conduct business, there are many examples of where virtual is not always as effective as in-person, especially when self-represented litigants are involved. As a result, backlogs have grown in some, although not all, case courts and case types. This is of vital concern, because the viability of the rule of law requires an efficient court system that can consistently resolve legal disputes in a timely fashion. The rule of law would be an empty gesture if the rights of the accused and the interests of crime victims are not speedily addressed, injury victims are subject to lengthy delays in securing redress, contract rights are not expeditiously interpreted and enforced, and critically sensitive family disputes are allowed to fester. So as we approach the final stage of the pandemic, and as we begin the return to eventual full complements of jury trials and other in-person proceedings, our focus is being re-directed to the expanded backlogs of cases we see in many of our courts. The good news is that we have broad experience to draw upon in confronting this challenge. Chief Judge Janet DiFiore’s Excellence Initiative, which up until the pandemic had been so successful in attacking case delays and promoting efficiencies in case processing, provides a blueprint for meeting the challenges we now face. This involves, first and foremost, extensive collection of caseload data for courts throughout the state, and the widespread sharing of that data with Administrative Judges, Supervising Judges, and, importantly, individual judges so they can review and fully understand their case inventories and pinpoint where the problems lie. This intensive focus on addressing aging cases includes, particularly in high-volume jurisdictions, designation of judges to concentrate on resolving the oldest cases and, if they cannot be resolved, readying them for trial. Also critically important is a careful evaluation of how court resources, judges and court staff alike, are allocated and, where necessary, reassigning those resources to allow for maximum efficiency. Finally, any meaningful effort to attack case backlogs must include a major emphasis on alternative dispute resolution (ADR). This includes traditional forms of ADR such as mediation and neutral evaluation, to be conducted by court-established rosters of neutrals and community dispute resolution centers, but it also includes concerted efforts by judges and court legal staff to presume all civil matters are appropriate for settlement, and to endeavor to do so at the earliest stages of the case. A statewide program to dramatically expand presumptive, early ADR had begun in the months preceding the pandemic, and that effort will be renewed in the months ahead as a critical element of the courts’ plans to attack case backlogs and delays. The past year has offered unprecedented challenges for society as a whole, and that includes the courts. But we can take great assurance in the fact that, despite the challenges, the rule of law has endured. Our courts have continued to provide an independent and fair forum for the resolution of legal disputes. The courts’ timely and efficient resolution of legal disputes, however, is an important component of the rule of law. New Yorkers can be assured that this goal will be of the highest priority for our courts as we navigate the challenges that lie ahead.

On January 15, 2024, the Office of Advocacy held a roundtable with the U.S. Patent and Trademark Office (USPTO) to discuss pendency rates for trademark applications. Pendency rates represent how quickly the Trademark Office can issue or deny a trademark application. The Commissioner of the Trademark Office, David Gooder, and Deputy Commissioner of Trademark Operations, Dan Vavonese, joined the roundtable to discuss steps aimed at reducing the backlog in issuing trademarks.

The roundtable focused on the rise in trademark application pendency, and a surge in received applications has led to the average application review to go from under 4 months to over 14 months. During the pandemic, there was an increase in bad faith applications for trademarks, including filing trademark applications without an intent to use it in the U.S. and attempting to register a trademark with an identical or confusingly similar existing trademark. This led to spikes in applications in September and December of 2020. The agency aims to reduce the trademark pendency to four or five months but invites feedback from small businesses as to what goals and benchmarks the agency should set for applications.

It is time for Congress to empower “weaker” trademark owners by way of added protections to the Lanham Act that achieve greater uniformity in the application of the use requirement. In doing so, Congress would finally provide protection to trademark owners whom the Act, as currently written, denies. In order to ensure the Act’s use requirement is uniform in its application, Congress should amend the Act to broaden the nature of the activities that constitute use and ensure the use inquiry is a qualitative analysis that explicitly includes bona fide but minimal use. The current use requirement is unpredictable and blurry, given that what constitutes a de minimis quantum of use is ultimately at the court’s discretion and is not readily predictable by market participants. The regularity of federal cases litigating the use issue can be explained by the lack of a bright-line rule specifying what types of activity, and what quantum of use, will satisfy the use threshold. Without any change or development in the law, one can expect that actions will continue to saturate the courts. By broadening and clarifying the use provision — including specifying that certain pre-sales activity constitutes use and loosening the quantum of use standard — Congress can keep countless lawsuits from the federal court system while strengthening the underlying spirit of the Act.

This note advocates equal treatment for all trademark owners under the use inquiry of the Lanham Act. As in United States law, the concept of use is a bedrock principle of Australian trademark law, and it is fair to say that under both systems trademarks are born from use. Whilst both systems require use to a lesser or greater extent in order to maintain federal registration, and both adopt a measure of flexibility in analyzing this type of use, a comparison of use under both systems demonstrates that the differences are more than merely theoretical or academic. The focus on the use being open and public is less pronounced under Australian trademark law. Additionally, in contrast to the United States, Australia mandates a minimal use standard in evaluating whether there has been sufficient use of the trademark. In Australia, minor use will suffice to maintain a registration as long as it is genuine use. Put another way, genuineness trumps volume, resulting in a focus on use that is qualitative rather than quantitative. The analysis of Clorox and Gameologist suggests that uniformity under the Act has not been achieved for certain trademark owners. The benefits that adoption of a broader use requirement may have can be seen when the outcomes for the plaintiffs in Clorox and Gameologist are analyzed under use concept standards akin to the standard in Australia. Under the Australian use standard, the outcomes would have been more favorable to the respective mark owners because the use demands placed on Australian trademark owners are modest in comparison to those placed on their American counterparts. Consequently, there is a need for legislative action to amend the use requirement to better protect trademark owners who are vulnerable under the current standard. Specifically, Congress should revise the Lanham Act, broadening the use requirement to bring it more in line with the less demanding standards of Australian trademark law.

A. Broadening the Use in Commerce Standard

Climate change is an existential threat to humans and global biodiversity, as was reinforced in the sixth assessment report (1) of the Intergovernmental Panel on Climate Change (IPCC), as well as Conferences of the Parties of the IPCC (Glasgow, UK; November 2021) and the UN Convention on Biological Diversity (Montreal, Canada; December 2022). But these gatherings also implicitly highlight severe shortcomings in how conservation scientists and policymakers are addressing the climate change threat.

Research in climate change ecology and conservation is still dominated by attempts to understand how species are vulnerable to the altered abiotic conditions driven by climate change alone (e.g., rising temperature) (2). This threat is undoubtedly important. But we argue that other facets of climate disruption could have vastly greater impacts—in particular, the ways in which climate-altered human societies, demographics, and economies interact with natural ecosystems and species. Unfortunately, these human dimensions of climate change ecology have received scant attention. Broad-scale assessment of the scale of biodiversity responses to climate change (3) are therefore underestimating the problem—potentially on a massive scale—when only incorporating direct, abiotic impacts.

Today’s best-case ecological scenario was a horror story just three decades ago. In 1993, Bill Clinton declared that global warming presented such a profound threat to civilization that the U.S. would have to bring its “emissions of greenhouse gases to their 1990 levels by the year 2000.” Instead, we waited until 2020 to do so; in the interim, humanity burned more carbon than it had since the advent of agriculture. Now, it will take a historically unprecedented, worldwide economic transformation to freeze warming at “only” 2 degrees — a level of temperature rise that will turn “once in a century” storms into annual events, drown entire island nations, and render major cities in the Middle East uninhabitable in summertime (at least for those whose lifestyles involve “walking outdoors without dying of heatstroke”). This is what passes for a utopian vision in 2021. If we confine ourselves to mere optimism — and assume that every Paris Agreement signatory meets its current pledged target for decarbonization — then warming will hit 2.4 degrees by century’s end.

The reality of our ecological predicament invites denial of our political one. Put simply, it is hard to reconcile the scale of the climate crisis with the limits of contemporary American politics. Delusions rush in to fill the gap. Among these is the fantasy of national autonomy; the notion that the United States can save the planet or destroy it, depending on the precise timeline of its domestic decarbonization. A rapid energy transition in the U.S. is a vital cause, not least for its potential to expedite similar transformations abroad. But the battle for a sustainable planet will be won or lost in the developing world. Although American consumption played a central role in the history of the climate crisis, it is peripheral to the planet’s future: Over the coming century, U.S. emissions are expected to account for only 5 percent of the global total.

Call it cleantech 2.0. In recent years, there has been a huge increase in public and private spending, both in the US and elsewhere, on technologies and infrastructure to address climate change. A recent analysis estimates that total green investments reached $213 billion in the US during the 12 months beginning July 2022. Most of that spending is allocated to building sources of renewable energy, such as wind or solar, as well as to supporting battery and EV manufacturing and creating green hydrogen infrastructure. And the enormous amount of money is creating potential opportunities for the next generation of technologies to feed the expanding markets.

For startups like CubicPV, this means that after years of little market demand, the appetite for its products is suddenly almost insatiable. The company is designing a billion-dollar plant to make the silicon wafers needed to feed the rapid expansion in US solar production. What’s more, a bigger solar manufacturing base could eventually provide the startup with a lucrative future market for its next innovation: a new type of solar panel that is far more efficient at capturing sunlight than conventional silicon ones.

The rise of the “superbugs” is here. The death toll is already in the millions each year, and it won’t be too long before “superbugs” are killing tens of millions of people each year. In my last book I identified a number of long-term trends that threaten to collapse our society, and now you can add this one to the list. The clock really is ticking for humanity, but most people in the general population simply do not understand what we are facing. They just assume that life will go on as it always has, but that is simply not going to be possible.

If you are not familiar with “antimicrobial resistance”, the following is a decent definition from the official CDC website…

Biotechs do not have the arsenal of antibiotic hopefuls in their pipelines to match the growing threat of antimicrobial resistance, according to a new BIO report (PDF) published Monday.

“The breadth and novelty of the antibacterial clinical-stage pipeline is insufficient to meet the ongoing threat of wide-spread infection from drug-resistant strains,” the report concluded.

Biotechnology entrepreneurs early this year hoped for venture investment in their industry to recover. They’re still waiting.

Biotech venture financing remains tight as investors channel money into fewer companies considered the strongest players. While biotech venture investment globally rose from $6.3 billion in the fourth quarter of 2023 to $7.4 billion in the first three months of this year, according to market tracker PitchBook Data, the number of completed biotech venture financing deals is on the decline.

The tabletop military exercise proceeds as follows. During a freedom of navigation exercise in the South China Sea taking place in the year 2034, a group of US frigates board a Chinese civilian vessel in distress. The Americans learn the vessel houses sensitive technology and seize it. While the operation is underway, the US vessels are attacked by a Chinese fleet, which totally paralyzes them using advanced cyberweapons.

When the US dispatches two aircraft carrier battle groups to the Pacific in a show of force, a total of 40 American ships are sunk with negligible Chinese losses. The numbers are not quantified, but some tens of thousands of American sailors, airmen, and marines must have lost their lives.

The exponential growth of emerging technologies (ETs),Footnote1 including 5G networks, Big Data, quantum computing, and artificial intelligence (AI), demands a reassessment of the role of technology in international affairs and its impact on the international system. Control over ETs is no longer limited to the private sector, having become “the new strategic national security fulcrum of the 21 century” (You 2021). This heightened sensitivity toward ETs arises chiefly from the unpredictable implications these technologies pose for national security, as well as their potential impact on shifting the Balance of Power due to the economic and military advantages they confer (Steff et al. 2020). And while ETs on the whole have been viewed as potential game changers in military and strategic affairs, resulting in a securitization of the high-tech sector (Sechser et al. 2019; Huang and Mayer 2023), special attention has increasingly been paid to China’s technological advancements and assertive technology policy through such initiatives as Made in China 2025, Next Generation Artificial Intelligence Development, and Digital Silk Road Project (under the Belt and Road Initiative).Footnote2

Assessed alongside their international economic, geopolitical and military developments, and despite their limitations, China’s technological advancements have led to a widely circulated assumption that China is seeking to challenge the United States’ (US) global primacy (Allisson 2017; Eslami et al. 2023; Heath et al. 2021). As a result, China has been viewed as a strategic competitor of the US and a growing threat (in US and other countries),Footnote3 a notion that proliferated under the TrumpFootnote4 administration, with its emphasis on decoupling in the technological domain, and has continued during the Biden administration.Footnote5 The resulting heightened competition, reflected in the new “Tech Cold War” (Bremmer and Kupchan 2018; Culpan 2019; Wu et al. 2019) and “AI Arms Race” debates (Pecotic 2019; Scharre 2019), has characterized the relationship between China and the US ever since.

In recent years, China has emerged as a major player in the global VC market with a growing local and foreign investor base; it was estimated that $1.17 billion was raised by VC firms to invest in China in 2005, up from a mere $325 million in 2002 (Ahlstrom et al., 2005). Indeed, the emergence of entrepreneurial investment funds, more notably those supported by the government, aligns with president Xi Jinping’s most recent 5-Year Plan which describes the upcoming years as an important period of opportunity for innovation. However, despite the efforts made to separate state control and private sector ownership, the government’s influence in shaping the development of the private sector remains noticeable. For instance, the local government in the city of Wuhan, a high-tech development zone, announced in March 2022 the creation of a $1.5 billion investment fund aimed to ‘combine the animal spirits of private capital with the industrial objectives of the state’ (The Economist, 2022). Moreover, Shenzhen Capital Group, an important Chinese VC with a total investment size of around RMB 77.3 billion, is heavily affiliated with the Shenzhen local government and actively manages 108 government guidance funds. Their investment strategy seems to depict an overarching synergy with the local and national governments’ objectives with their holdings comprising mostly of expanding companies involved in information technology, energy, and high-end equipment manufacturing. Therefore, VC investment in China seems to be congruent with the government’s strategic priorities, where the development of startups seems to cluster around sectors deemed as important by the state. The growth of the technology sector, in particular, was partly promulgated by the government’s establishment of SEZs in coastal cities such as Shenzhen where local firms consequentially benefitted from the expertise brought by foreign firms which drove innovation. This caused the sector to expand in that period with many multinationals choosing to set up operations in Shenzhen, first due to its proximity to Hong Kong as well as the favorable investment climate which encouraged foreign investment. Shenzhen eventually became known as the ‘Silicon Valley of China’ and is currently one of the most influential technology and innovation centers in the country.

Nonetheless, whilst government ties can be formalized as exemplified by Shenzhen Capital Group, private investment firms, and emerging startups looking to generate strategic advantages in China also recognize the importance of establishing informal ties with the government. Thus, it is not uncommon for successful fund managers and directors to hold interpersonal relationships with government officials and to participate in government-led initiatives. This has proven to be increasingly essential over time due to the vast opportunities that government relationships can offer in China’s competitive business environment such as access to funds, resources, and support to secure business transactions. For instance, SenseTime Group, a Chinese artificial intelligence startup that develops deep learning and computer vision technologies, leveraged its government relationships to receive funding from various investors, raising a substantial sum of $410 million in 2017 from a funding round led by Beijing-based investment firm CDH and Sailing Capital China Reform Holdings, a state-backed investment firm. The deal marked one of the largest fundraising rounds by an AI firm, valuing it at over $1.5 billion. Research actually shows that political connectedness is a significant success factor for Chinese entrepreneurs as demonstrated by Burt and Opper (2020) who conclude that with the presence of regulatory constraints, ‘politically disconnected entrepreneurs are less likely to benefit from the breadth, timing, and arbitrage advantages associated with open networks, advantages they see benefitting entrepreneurs who are politically connected’. As such, whilst open networks are vital for the success of entrepreneurs, political connectedness has been shown to be especially significant in providing Chinese startups with opportunities and resources such as obtaining necessary licenses for their businesses, receiving funding for new projects, and acquiring leads and insights into the changing regulatory environment.

Emerging industries, such as biotechnology, artificial intelligence, and renewable energy, are creating unprecedented opportunities for startups and offer fresh avenues for growth and disruption. Amidst this excitement, protecting intellectual property, particularly trademarks, becomes paramount for startups aiming to establish a strong brand presence and safeguard their innovations.

The Power of Trademarks in Emerging Industries