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If a non-state group realized that the possession of nuclear weapons could trigger a total catalytic war between two or more major nuclear-armed states, what possible situations might set these dynamics in motion? The potential success of a catalytic nuclear detonation by a terrorist group during a crisis between two nuclear-armed states (i.e., the original target of the nefarious attack and the victim of a subsequent inadvertent retaliatory strike), when tensions are running high, and a heightened state of alert is in place – at a nuclear or sub-nuclear level – would likely be amplified. That is, a broader nuclear exchange would likely occur. Moreover, a non-state actor might exploit a tense situation by making provocative false claims that its attack had been sanctioned by the state with which the victim of the attack was already in a crisis, or worse still, nuclear brinkmanship. Against the backdrop of fear, acrimony, and paranoia – when decision-makers are more susceptible to misperception and misunderstanding – any denials or assurances would fall on deaf ears.24 If a repeat of the 1999 Kargil crisis or the more recent Indian-Pakistani stand-off in 2019, a non-state nuclear detonation (or the credible threat of one) could spark an accidental or inadvertent nuclear exchange. 25 Thus, any confidence Indian or Pakistani has in their ability to manage a conflict below the nuclear-level would likely be unreliable in the event of a non-state nuclear attack. Absent unambiguous and incontrovertible evidence to the contrary, an unprovoked non-state attack may compound mutual suspicions about the other side’s intentions and behavior, and in turn, confirm worst-case scenario assessments. 26

IND = Improvised Nuclear Device, RDD = Radiological dispersal device, RED = Radiological explosive device

NEW DYNAMICS IN NUCLEAR TERRORISM POSE NEW RISKS

Taken together, President Trump’s declaration that corruption and human rights abuse constitute a national emergency and the catalogue of threats identified in the NSS have recognized all of the topics discussed in this report (i.e., great power competitors, nuclear aspirants, terrorism, organized crime, state failure, genocide, and obstruction of peace and stability operations). The central lesson that should be derived is that kleptocratic regimes are not an added threat that is competing in a zero-sum manner for scarce national security resources; rather they are a cross-cutting national security threat that either causes or contributes decisively to the threat actors already identified by the Trump Administration. Our first order of business is to catalogue why kleptocratic regimes constitute a pervasive threat to national security. Our second purpose is to propose recommendations for neutralizing this threat by being smarter about how we deal with it. These arguments are summarized below.

Kleptocratic Regimes: A Pervasive Threat to National Security

Illicit economies are not harmless and can have tremendous human, economic, societal and security costs and consequences.

Illicit economies come with vulnerabilities to peace and security — including corruption, violence, chaos, organized crime, terrorist financing and instability. Illicit economies are the lifeblood of today’s bad actors, enabling kleptocrats to loot their countries, criminal organizations to co-opt states and export violence and terrorist groups to finance their attacks against our societies.

The SHOP SAFE Act “incentivizes e-commerce platforms to adopt best practices designed to limit the sale of counterfeit products that pose a risk to consumer health and safety,” according to the House Committee’s press release.

Projected to reach an aggregate value of $1.9 trillion by 2022 – excluding digital piracy proceeds – according to a 2016 report authored by European financial consultants Frontier Economics, the global counterfeit market has increasingly migrated online, right alongside the modern consumer.

While trademark counterfeiting has been around for many years, the scope of the problem has changed dramatically with the advent of online shopping. The sale of goods in online marketplaces, both licit and illicit goods, has grown exponentially in the past decade;3 and particularly since the onset of COVID-19, consumers have increasingly shopped online.4

The United States leads the world in total e-commerce sales and business to business sales, and is second in the world in business to consumer sales.5 With virtual storefronts and easy online transactions, online marketplaces give businesses of all sizes the opportunity to achieve global profits and reach previously inaccessible consumers, and also give consumers access to products delivered to their door that they might not be able to find in local markets.

It is fundamental that service providers should not be discouraged from taking proactive measures that increase their level of knowledge on misconduct occurring on the platform. In the European Union, as discussed broadly by several scholars (e.g., Buiten et al., 2020), platforms might not have appropriate incentives to monitor online activities. This is because the current liability regime grants hosting platforms liability exemption based on the so-called “knowledge standard”. In other words, platforms can benefit from immunity when they do not know about illegal ongoing activity or information hosted on the platform and when they act expeditiously to block access to it upon notification. One often proposed solution is the adoption of a “Good Samaritan” approach, already present in the US, which exempts platforms from liability when pro-active measures to detect online misconduct are undertaken (Buiten et al., 2020). Such an approach would not only induce platforms to observe, monitor, and become informed about online misconduct but would also increase their incentives to ban and report wrongdoers in a timely fashion because of the reduced expected costs that banning and reporting would imply.38 In this sense, a “Good Samaritan” rule may foster self-regulation. We note that the recent proposal unveiled by the European Commission for a Digital Services Act fills the void that was present in the previous regulation by introducing a liability exemption also for those intermediary services that “carry out voluntary own-initiative investigations or other activities aimed at detecting, identifying and removing, or disabling of access to, illegal content” (Art. 6).

Trademark law promotes three distinct policies: (1) to prevent consumer confusion, (2) to protect the goodwill of businesses, and (3) to promote competition within the market. 110 From an economic perspective, trademark law's furtherance of these policies contributes to efficiency by reducing consumer search costs."' Instead of inquiring into the provenance and qualities of every potential purchase, consumers can avoid confusion by looking to trademarks as shorthand signals of quality and source. 112 In this way, trademarks make obtaining information about products less costly. Consumers will demand more of these signals and will arguably become better informed, leading to a more competitive market.113 Thus, one way to express "[t]he value of a trademark is the saving in search costs made possible by the information or reputation that the trademark conveys or embodies about the brand." 114

These benefits depend on the continued ability of trademarks to function as a reliable shorthand indicator for consumers. For this to be the case, a consumer's past experience with a product or service must be a good predictor of their future experiences with the same brand. 115 This gives trademark owners an incentive to maintain consistent quality of their goods so that the shorthand information conveyed by the trademark is consistent with consumer expectations. 116

The common law principles discussed above are based on the bedrock concept of reasonableness under the circumstances. Properly applied, these principles contemplate precisely the paradigm of joint cooperation that best furthers trademark policies. With that in mind, an appropriate standard for contributory liability in the online marketplace should contain the following features. First, it should provide for liability based on actual knowledge of infringing conduct by third parties, coupled with a failure by the online marketplace to remove the infringing listings. Such a test would cover the active inducement and actual knowledge standards recognized in Ives. Such a provision should also include an explicit recognition that actual knowledge may be satisfied with willful blindness, which has long been recognized as being equivalent to knowledge, even in trademark cases.147

Second, the proper standard should provide for liability through constructive knowledge, which can be established where the online marketplace fails to take reasonable precautions in circumstances in which the infringing conduct can be reasonably anticipated. This prong is based on the common law standards embodied in the language of the Restatement (Third) of Unfair Competition § 27. As discussed in Part III, the "reasonably anticipated" language is based on the "has reason to know" standard in tort law. Thus, under this test, trademark-infringing activity can be "reasonably anticipated" when a reasonable marketplace operator under like circumstances would have reason to know of infringing third-party conduct. As discussed in Part III above, a consideration in determining whether infringing third-party activity can be "reasonably anticipated" is the prevalence of third-party infringing activity in the marketplace. As in Snow Crest and Ives, the plaintiff would bear the burden of demonstrating prevalence sufficient to trigger reasonable anticipation.

Alternatively, the Supreme Court could adopt a broader but also clearer interpretation of the “reason to know” standard found in Inwood. The Court could hold that without specific notices of infringing posts, e-commerce platforms could satisfy the “reason to know” standard if they are aware that a significant amount of infringing activity is happening on their websites. However, the Supreme Court should only hold platforms contributorily liable if they fail to at least do an investigation.165 This approach is similar to the Eleventh Circuit’s holding in Luxottica.166

(jump to footnote 165)

Widespread and consistent access to food makes it possible to live in a stable society. Without this guarantee, the incidence of political instability and war tends to increase. There is an emerging body of evidence that food crises can initiate political instability5,6,7, increasing the risk of conflict through various means, such as a decay in the ability of a state to govern its people.8

In one recent example, the severe drought that struck Syria between 2007 and 2010 contributed to massive crop failures that undermined livelihoods and forced 1.5 million people from rural areas into cities, exacerbating existing social stresses.9 Though the drought was clearly not the primary cause of the Syrian Civil War, it contributed to a regional refugee crisis that spilt over into Europe, and had profound effects on the politics of countries across the region, which are still playing out today.

At a certain point, we have to wonder how much more the global food system can take.

Historic flooding in Pakistan. Droughts across the American West. Russia’s invasion of Ukraine. The global food system and the supply chains that have long allowed us to move food from where it is grown to where it is needed have rarely been stretched so thin, or so far.

What danger do the mutual attacks portend for international security? The international system is such that an incident in one country or a group of countries has reverberating effects on the entire system. Witness the collapse of the financial system in the US in 2008 that affected the entire globe. In like manner, US-China cyber-attacks portend a lot of dangers to international peace and security in the following ways. As reported by Richie (2023, May 25), a British Broadcasting Corporation (BBC) journalist, Chinese hackers used stealthy malware to attack US bases in Guam. The bases serve strategic purposes, particularly in responding to conflicts in Asia for America and its allies. A crippling of the infrastructure represents not only a threat to America but its allies, hence the international dimension of the security threat. Cyber-attacks on critical infrastructure can snowball into mutual attacks on weapon systems. As observed by Fox (2022), in this digital age, cyber-attacks can shut down nuclear power plants. Knowing fully that the two countries are nuclear superpowers, confrontation by the two countries could escalate to nuclear attacks, which might effectively mean the end of civilisation. A nuclear confrontation has the potential of spillover effects on other countries apart from the belligerent states. The fallout of nuclear bombs will be carried by winds and rivers or seas making such a threat to other countries. Therefore, nuclear attacks cannot be localised in their effects even if there is no immediate threat of nuclear Armageddon because both parties observe restraints not to embark on an all-out nuclear attack.

The United States faces imminent danger from a devastating cyber-attack against its electric power grid. This attack is more probable because a Revolution in Military Affairs has weakened the deterrence traditionally associated with conventional and nuclear weapons, changed the escalation ladder, and consequently lowered the barrier to intensive conflict between the superpowers.

A new form of cyber-attack against the electric grid has emerged in the form of a "non-shooting" war between Nation States. This type of attack might take place between superpowers as something that is short of use of conventional or nuclear force.

For several years, Members of Congress, executive agencies, and third-party organizations have been sounding the alarm on the potential risks caused by Chinese components and hardware embedded into U.S. energy grid. In testimony before the Senate Energy and Natural Resources Committee, Director of CESAR (the Department of Energy’s (“DOE”) Office of Cybersecurity, Energy Security, and Emergency Response) Puesh Kumar, pointed to reports from the Director of National Intelligence (“DNI”) and emphasized that cyber actors are targeting U.S. energy infrastructure, and they are posing serious threats to national security.73 Further, the 2023 Annual Threat assessment from DNI identified China as representing “the broadest, most active, and persistent cyber espionage threat to U.S. Government and private-sector networks [and that] China’s cyber pursuits and its industry’s export of related technologies increase the threats of aggressive cyber operations against the U.S. homeland.”74

Today, outsider actors are capable of exploiting hardware vulnerabilities in U.S. systems to destroy physical components of the U.S. electric grid.75 The attacks could originate from hardware within the grid itself, or the transmission of malicious code to the grid from external hardware devices, such as electric vehicles (“EV”) charging stations, large data and power storage devices, or telecommunication equipment scattered nationwide. Large attacks on the U.S. electric grid, should they occur, will have devastating impact on the United States population – leaving masses without access to electricity and heat and will cause critical service systems such as hospitals, emergency services, utility providers (water/sewer, gas), and military installations incapable of performing essential tasks.76 Attacks on military utility installations have been a particular area of concern as hostile nations could utilize preemptive blackouts to limit U.S. defensive and responsive capabilities.

the University of Maryland Carey School of Law “Debugging the Trademark Laws: The Lanham Act and Counterfeit

Microelectronics,” 31 TEX. INTELL. PROP. L.J. 211 (2023). Hein Online. Accessed via University of Michigan //DH

The Tiffany standard for contributory liability-requiring contemporary knowledge of which particular listings are infringing-improperly allows ecommerce platforms to insulate themselves from liability. Online marketplaces organize their operations in such a way as to avoid contemporary knowledge and then essentially suggest that they are too large to know which listings are infringing, all the while profiting from every sale by their sellers. 429 The burden is disproportionately placed on brand owners to continually screen platforms, seek out listings that are potentially counterfeit, and send takedown notices to the platforms. 430 It has been repeatedly described as a game of "whack-a-mole." 431 Further, by the time the infringing listings are removed, the items may have already been sold, and new listings may have appeared. That is out of touch with today's world. 432 It has led to a flood of counterfeit products, including counterfeit microelectronics, being sold on the internet, and the result is lost sales by original manufacturers, damage to brands, and threats to public health and safety.

The Lanham Act should be amended to specifically recognize contributory liability for anyone who knowingly facilitates direct infringement by a third party. That should include an online marketplace that "continues to supply its [service] to one whom it knows or has reason to know is engaging in trademark infringement." 33 "Reason to know" (i.e., constructive knowledge) of infringing activity should be context-dependent and could be demonstrated in multiple ways, including sample purchases that were identified as counterfeit, unusually large numbers of listings for an item, unexpectedly low prices, suspicious images, law enforcement raids, and other indicators. Requiring actual knowledge of specific infringing acts is not the correct standard. Imposing liability when an intermediary has constructive knowledge that infringing activity is occurring will redistribute the burden and force e-commerce platforms to bear partial responsibility for identifying and curtailing that activity. It could also encourage electronic parts manufacturers to pursue civil actions against online purchasing platforms hosting vendors of counterfeit parts.

E-commerce platforms today are integrally involved in the commercial process – rather than mere conduits for buyers to connect with sellers, many e-commerce platforms actively facilitate sales by categorizing, optimizing, and promoting products and sellers, handling inventory and logistics, shipping, and processing financial transactions. These platforms facilitate access to the US marketplace and US consumers at a level that would otherwise generally be unavailable to international merchants, and which allows sellers within the US and abroad a level of anonymity that brick and mortar retailers in the US are simply not afforded. As a result, the current US legal regime applied to e-commerce platforms has enabled the circumvention of certain aspects of the usual commercial regulatory scheme, which has been unable to keep pace with rapid technological developments.

Currently under US law, online intermediaries are generally not liable for the products sold on their platforms by third parties unless they fail to act upon specific knowledge of particular infringements. Because e-commerce platforms have no affirmative duty to prevent or remedy infringement, there is a strong disincentive for those intermediaries to proactively stop the sale of counterfeits and other harmful products. On the contrary, e-commerce platforms have a strong financial incentive to allow these sales to proliferate, as they make their profit regardless of whether the articles sold are genuine or infringing. Furthermore, many direct infringers using e-commerce platforms are located outside the US, putting them beyond the jurisdiction of US courts and therefore leaving limited recourse to brand owners or consumers impacted by sales of counterfeit or other infringing products by such foreign sellers. Remedies at the border against the import of infringing goods, such as through the International Trade Commission or Customs and Border Protection, are often practically infeasible when attempting to stop the flow of small parcel shipments that are commonly used by international counterfeiters – especially where their products are intermingled with other supplies by e-commerce providers or shipped using the e-commerce providers’ own branded packaging.

However, we do not see this theory being applied in the online marketplace space. Instead, the current case law leaves a gap by not requiring e-commerce marketplaces to take responsibility for guardianship and protection of consumers on their sites.

i. The Tiffany v. eBay Case

Nearly seven in 10 people were deceived into buying counterfeit products online at least once in the past year, according to new research from Michigan State University.

The study was led by researchers in MSU’s College of Communication Arts and Sciences: Professor of Advertising Saleem Alhabash, Associate Professor of Advertising Anastasia Kononova, Professor of Retailing Patricia Huddleston, and graduate students Moldir Moldagaliyeva and Heijin Lee.