Copyright Office’s AI Report: The Good, The Bad, and The Controversial
The Copyright Office just dropped Part 3 of its AI report, which aimed at addressing certain copyright law in regards to Artificial Intelligence. The thing that’s got everyone talking is the fact that the report was supposed to tackle infringement issues head on, but instead teased us by saying that answer will come up in “Part 4” that is expected to be released at a later date. Let’s dive into what was actually discussed.
Legal Theory: A Case by Case Basis
The report’s central thesis is a pretty straightforward legal theory. Basically, they recommend that there will be no blanket rule on whether training AI on copyrighted content constitutes infringement or fair use. Everything gets the case by case treatment, which is both realistic and frustrating depending on where you sit. That’s because most lawyers like clear bright line rules backed up by years of precedent, but when attempting to make legal frameworks regarding emerging technologies, the brightline approach is easier said than done.
The report acknowledges that scraping content for training data is different from generating outputs, and those are different from outputs that get used commercially. Each stage implicates different exclusive rights, and each deserves separate analysis. So in essence, what’s actually useful here is the recognition that AI development involves multiple stages, each with its’ unique copyright implications.
This multi stage approach makes sense, but it also means more complexity for everyone involved. Tech companies can’t just assume that fair use covers everything they’re doing and content creators can’t assume it covers nothing. The devil is in the details.
Transformative Use Gets Complicated
The report reaffirms that various uses of copyrighted works in AI training are “likely to be transformative,” but then immediately complicates things by noting that transformative doesn’t automatically mean fair. The fairness analysis depends on what works were used, where they came from, what purpose they served, and what controls exist on outputs.
This nuanced approach is probably correct legally, but it’s also a nightmare for anyone trying to build AI systems at scale. You can’t just slap a “transformative use” label on everything and call it a day. The source of the material matters, and whether the content was pirated or legally obtained can factor into the analysis. So clearly purpose also matters since commercial use and research use will likely yield different results in the copyright realm. Control and mitigation matter in this context because developing the necessary guardrails is paramount to preventing direct copying or market substitution.
Nothing too revolutionary here, but the emphasis on these factors signals that the Copyright Office is taking a more sophisticated approach than some of the more simplistic takes we’ve seen from various opinions on this matter. This should be reassuring since a one size fits all approach at such an early stage of developing AI could stifle innovation. However if things are left to be too uncontrolled copyrighted works may face infringements to their copyright.
The Fourth Factor Controversy
Here’s where things get interesting and controversial. The report takes an expansive view of the fourth fair use factor: which is the effect on the potential market for the copyrighted work. That is because too many copyrighted works flooding the market brings fears of market dilution, lost licensing opportunities, and broader economic impacts.
The Office’s position is that the statute covers any “effect” on the potential market, which is broad interpretation. But that broad interpretation has a reason, they are worried about the “speed and scale” at which AI systems can generate content, creating what they see as a “serious risk of diluting markets” for similar works. Imagine an artist creates a new masterpiece only to get it copied by an AI model which makes the piece easily recreatble by anyone, diluting the value of the original masterpiece. These types of things are happening on the market today.
This gets particularly thorny when it comes to style. The report acknowledges that copyright doesn’t protect style per se, but then argues that AI models generating “material stylistically similar to works in their training data” could still cause market harm. That’s a fascinating tension, you can’t copyright a style but you might be able to claim market harm from AI systems that replicate it too effectively. It is going to be interesting to see how a court applies these rules in the coming future.
This interpretation could be a game-changer, and not necessarily in a good way for AI developers. If every stylistic similarity becomes a potential market harm argument, the fair use analysis becomes much more restrictive than many in the tech industry have been assuming.
The Guardrails
One of the more practical takeaways from the report is its emphasis on “guardrails” as a way to reduce infringement risk. The message is clear: if you’re building AI systems, you better have robust controls in place to prevent direct copying, attribution failures, and market substitution.
This is where the rubber meets the road for AI companies. Technical safeguards, content filtering, attribution systems, and output controls aren’t just up to the discretion of the engineers anymore they’re becoming essential elements of any defensible fair use argument.
The report doesn’t specify exactly what guardrails are sufficient, which leaves everyone guessing. But the implication is clear: the more you can show you’re taking steps to prevent harmful outputs, the stronger your fair use position becomes. So theoretically if a model has enough guardrails they may be able to mitigate their damages if the model happens to accidently output copyrighted works.
RAG Gets Attention
The report also dives into Retrieval Augmented Generation (RAG), which is significant because RAG systems work differently from traditional training approaches. Instead of baking copyrighted content into model weights, RAG systems retrieve and reference content dynamically.
This creates different copyright implications: potentially more like traditional quotation and citation than wholesale copying. But it also creates new challenges around attribution, licensing, and fair use analysis. The report doesn’t resolve these issues, but it signals that the Copyright Office is paying attention to the technical details that matter.
Licensing
The report endorses voluntary licensing and extended collective licensing as potential solutions, while rejecting compulsory licensing schemes or new legislation “for now.” This is probably the most politically palatable position, but it doesn’t solve the practical problems.
Voluntary licensing sounds great in theory, but the transaction costs are enormous when you’re dealing with millions of works from thousands of rights holders. Extended collective licensing might work for some use cases, but it requires coordination that doesn’t currently exist in most creative industries.
The “for now” qualifier is doing a lot of work here. It suggests that if voluntary solutions don’t emerge, more aggressive interventions might be on the table later.
The Real Stakes
What makes this report particularly significant isn’t just what it says, but what it signals about the broader policy direction. The Copyright Office is clearly trying to thread the needle between protecting creators and enabling innovation, but the emphasis on expansive market harm analysis tilts toward the protection side.
For AI companies, this report is a warning shot. The days of assuming that everything falls under fair use are over. The need for licensing, guardrails, and careful legal analysis is becoming unavoidable.
For content creators, it’s a mixed bag. The report takes their concerns seriously and provides some theoretical protection, but it doesn’t offer the clear-cut prohibitions that some have been seeking.
The real test will come in the courts, where these theoretical frameworks meet practical disputes. But this report will likely influence how those cases get decided, making it required reading for anyone in the AI space.
As we can see AI and copyright law is becoming only more and more complex. The simple answers that everyone wants don’t exist, and this report makes that abundantly clear. The question now is whether the industry can adapt to this new reality or whether we’re heading for a collision that nobody really wants.
“It takes violent shocks to change an entire nations psychology.”
– John F. Kennedy
This quote written in John F. Kennedy’s Magnum Opus ‘Why England Slept’ encapsulates the current collective psychology of the United States after the tragic assassination of Brian Thompson. Some people celebrated the CEO’s death, a symbol of the frustration many Americans have been feeling regarding the nation’s healthcare system. Critiques of the healthcare system are definitely warranted, and Luigi Manginoni’s tragic act has once again put the nations healthcare debate at the forefront a public discourse.
President Kennedy’s quote is correct, often violent acts can change an entire nations collective psychology, there are plenty of examples in history that agree with that proposition. However, people are wrong assuming that the assassination will trigger meaningful change due to the fear healthcare insurance executives may feel after the assassination of Brian Thompson. People’s idealism can cloud the reality on how institutions operate in the real world. History has proven powerful players rarely relinquish control freely. The healthcare industry could hypothetically double down and refuse to budge, further entrenching an “us vs. them” mentality that pervades many contemporary national debates. Though, admittedly, the act could hypothetically result in meaningful change in the healthcare industry- but not in the way people celebrating the death would imagine. A good case study as to why that is the case would be the Ludlow Massacre.
On April 20, 1914, in Ludlow, Colorado, striking coal miners demanded better pay, safer working conditions, and the right to unionize ( more info on Ludlow here). The strikers were attacked by the Colorado National Guard and company-hired guards, killing the protestors and some of their family members. The Ludlow Massacre lead to the Colorado Coalfield War, where workers formed a militia and started attacking Colorado National Guardsmen and private law enforcement . The workers successfully attacked many of their oppositions positions and had a lower casualty count but when the dust settled the strikers’ demands were not met, the union did not obtain recognition and many striking workers were replaced. Further 408 strikers were arrested, 332 of them were indicted for murder. The institution decided to double down on the crackdowns resulting in none of the strikers work demands being met.
Though the workers themselves did not reach their goals, the tragedy of Ludlow spurred a greater national debate on workers rights in the United States. Slowly the grievances raised by the Ludlow massacre lead to the enactment of federal labor laws that we still use today. American society should turn this tragedy into a positive and reinvigorate the discussion and action that will lead to fundamental changes in the healthcare industry. The Ludlow Massacre forced the nation to confront workers’ rights, and similarly the tragic assassination of Brian Thompson could prompt similar discussions about the systemic failures in healthcare. However, history shows that institutional change is slow and often requires sustained public pressure. Hopefully, this time around the change will come sooner, if not there are indications that matters may get worse rather than better. Analyzing the economic incentives causing this turmoil will illuminate the problem areas in the sector and hopefully lead to some practical solutions.
Economic Moral Hazards
The problem with the healthcare sector is that it produces bad economic incentives. 1 Often healthy economic incentives encourage behavior that benefits both individuals and society, they are aimed at promoting positive economic action while discouraging negative consequence such as waste or harm. For example good economic incentives would be efficiency standards for cars, they incentivize manufacturers to produce efficient automobiles by offering various government benefits. For example, car companies may get tax breaks, recognition for meeting higher energy efficiency standards, or might get access to lucrative government contracts. This makes energy utilization effective, lowers bills for consumers, and helps reduce environmental impacts by using wasteful technology.
The healthcare industry seems to be running in the opposite direction regarding incentives. Large hospitals commonly increase prices for services and lab technology, knowing that insurers and government programs will foot the bill one way or the other. 2 A big reason hospitals can do this is due to lack of competition within the sector. 3 On average Americans have access to only a few healthcare providers, which incentives monopolistic practices such as price gouging. 4 These practices shift the financial burden onto patients, insurers, and taxpayers, exacerbating the system’s inefficiencies. Insurance companies also contribute to producing bad economic incentives but in a different way.
Source: American Enterprise Institute
Health care Insurers also contribute to overall inflated healthcare prices. That’s because insurance companies have few incentives to negotiate for better rates or challenge the high prices set by hospitals. They are well aware that they can pass those costs onto consumers in the form of higher premiums or deductibles in order to fulfill their fiduciary duty to their shareholders. 5 By passing those costs on to their consumers they ensure their shareholders are maximizing profits effectively fulfilling their duty. This leads to a disconnect between the price of healthcare and the actual cost to consumers leading to the inflated cost of healthcare of the healthcare system.
Additionally, some companies during economic downturns might only focus on the volume of services provided, rather than the quality or necessity of those services. This may encourage doctors to prescribe unnecessary treatments overuse of healthcare and can result in unnecessary tests or procedures, which drive up the overall healthcare costs. If you are fully covered getting extensive tests is beneficial for your health but unnecessary care drives up the price for people who do not have adequate coverage. That is because higher utilization of healthcare services- necessary or not artificially inflates demand, which providers often use to justify price increases. Most insurance companies operate within fee-for-service payment systems, where providers are reimbursed based on the volume of services delivered rather than the value or outcomes. This further incentivizes unnecessary treatments, tests, and procedures, as healthcare providers have a financial interest in maximizing billable services
Further, the administrative complexity of health insurance also adds significant costs to the healthcare system. Insurers maintain vast bureaucracies to process claims, determine coverage, and manage provider networks, which requires substantial resources. Anecdotally, after spending some time in the insurance sector, a lot of the administrative tasks incentivize an incredible amount of waste. These costs are ultimately passed on to consumers. For example, administrative expenses in the U.S. healthcare system account for nearly 8% of total spending, compared to 2-3% in countries with simpler, more centralized systems. 6
Action is Necessary
The tragic events surrounding Brian Thompson’s assassination have understandably stirred intense emotions and reignited a national conversation about the flaws in our healthcare system. While these tragedies can bring the issue to the forefront, history shows us that meaningful change doesn’t come from fleeting moments of outrage. The shockwaves from Thompson’s death can grab attention temporarily, but true change only happens when we confront the deeper economic incentives that drive the inefficiencies and inequalities in healthcare.
Reform, as we’ve seen in the past, is rarely quick or easy. It faces resistance from entrenched interests that benefit from the status quo. But the time to act is now. The monopolistic pricing, the disconnect between what healthcare actually costs and what patients pay, and the lack of meaningful negotiation from insurers- all of these must be tackled with urgency. It’s time to rethink the economic incentives behind the healthcare system and shift the focus toward transparency, competition, and patient-centered care. The current model is unsustainable, and the responsibility for change lies with all of us; policymakers, healthcare providers, insurers, and the public.
Let us use this tragedy not as a fleeting moment of anger but as a rallying point to demand systemic reform. By ensuring that economic incentives align with the well-being of patients and the long-term sustainability of the system, we can move toward a healthcare system that serves the needs of every American, not just the powerful few. Now is the time for thoughtful, deliberate action to reform the healthcare system in a way that reflects the values of justice, fairness, and efficiency for all.
“The time to repair the roof is when the sun is shining.”
-John F. Kennedy
Right now, I’m sad to say, it seems like we’re attempting to repair a roof in the middle of a tornado. Urgent action is needed.
Sources
According to the Journal of the American Medical Association (JAMA), the U.S. healthcare system is plagued by administrative inefficiencies, price inflation, and overuse of medical services, which are driven by poorly aligned incentives among providers, insurers, and payers.
Source: JAMA. “Waste in the US Health Care System: Estimated Costs and Potential for Savings.” (2019). ↩︎
Research from the RAND Corporation indicates that hospitals charge private insurers an average of 247% of Medicare rates for the same services. This price disparity exists because private insurers lack the bargaining power to negotiate rates effectively, and hospitals rely on these inflated payments to subsidize their operations.
Source: RAND Corporation. “Prices Paid to Hospitals by Private Health Plans Are High Relative to Medicare and Vary Widely.” (2020).. ↩︎
Research shows that hospital consolidation reduces competition and leads to higher prices. A study by the National Bureau of Economic Research (NBER) found that hospital mergers result in price increases of 6% to 18%, depending on the level of market concentration.
Source: NBER. “The Price Effects of Cross-Market Hospital Mergers.” (2018). The Health Care Cost Institute (HCCI) reports that the average price for hospital services is significantly higher in concentrated markets than in competitive ones.
The American Medical Association (AMA) found that in 2019, 90% of metropolitan areas in the U.S. were highly concentrated for hospital markets, meaning patients had limited choices among providers. This is also the case in more rural areas as well.
Source: AMA. “Competition in Health Insurance: A Comprehensive Study of U.S. Markets.” (2019). ↩︎
Premiums and deductibles for employer-sponsored health insurance have been steadily rising, with average family premiums increasing by 55% over the past decade. Insurers often attribute this to rising healthcare costs from hospitals and providers.
Source: KFF. “2022 Employer Health Benefits Survey.” ↩︎
The Study highlights the disproportionately high administrative costs in the U.S. healthcare system compared to other high-income nations with centralized systems, where administrative spending ranges between 2-3% of total healthcare expenditures
Source: Woolhandler, S., & Himmelstein, D. U. “Administrative Work Consumes One-Quarter of U.S. Physicians’ Working Hours and Lowers Their Career Satisfaction.” Health Affairs, 2014. ↩︎
This article is an excerpt of a larger working paper aimed at policy makers, economists, and investors. This article was aimed to be shorter and less technical than the larger paper.
International commercial arbitration has been touted by many members of the business community and legal profession as a suitable means of settling trade disputes outside of a formal court room. The reasons a person would want to choose to arbitrate a commercial dispute could range from the rapidness of arbitral proceedings in comparison to domestic courts to the ability to keep proceedings confidential. But the benefits of commercial arbitration are not strictly limited to the parties involved in the arbitrational proceedings. There have been numerous studies outlining how commercial arbitration also facilitates economic growth and social well being within nations. The United Nations has acknowledged the many benefits of commercial arbitration fact and has incentivized the use of arbitral institutions. No other continent can benefit more from arbitration than Africa.
The UN has facilitated arbitration by incentivizing a multilateral treaty regime for international commercial transactions. One of the main treaties that attempted to incentivize arbitral proceedings is formally known as United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as the ‘New York Convention’). Every signatory to the New York Convention makes two fundamental promises. The first promise is to honor written agreements that call for parties to arbitrate matters that are capable of settlement by the arbitration agreement. And the second fundamental promise is that nations who are signatories to the New York Convention agree that their national domestic courts will recognize and enforce arbitral awards. (New York Convetion). Out of 193 nations, 162 nations are signatories to the New York Convention. The 162 nations include some of the worlds trading powerhouses most notably China and the United States.
Africa is the continent with the least signatories to the New York Convention. Further, in comparison to other continents, Africa is the least economically developed. (per the Global Policy Forum). This is not a correlation that should be overlooked. International commercial arbitration attracts investment and can play a vital role in developing a nation’s overall political economy. At a surface level commercial arbitration facilities trade between nations increasing trade input and output, improving economic activity. However, there is subtle message being sent when a nation has a robust institutional system of commercial arbitration and has domestic courts willing to enforce arbitral awards. That message is simple, “we want to incentivize international trade in a fair and equitable manner”. When a nation does this business are more likely to invest and contract with people/entities within that nation, because they have the confidence that domestic courts will enforce arbitral awards. Continents which are considered to be ‘highly developed’, namely Europe and North America, have robust systems that facilitate international commercial arbitration. (Latham & Watkins).
During the 20th century Africa as a continent relied heavily on aid from other wealthier nations to develop. And foreign aid to this day still plays a major role in Africa, and has it’s benefits. However, research done by Mai Abdulaziz Alghamdi suggests that foreign aid may be doing more harm than good. (Alghamdi). He argues that burdensome amounts of foreign aid can have deleterious effects on aid-recipient countries. (Alghamdi). That is because Africa is the largest recipient of foreign aid. The effect of foreign aid on economic growth is positive however the net benefit of foreign aid is small, suggesting that foreign aid does not result in drastic increases in economic growth.( Alghamdi). Countries need aid to develop but there are negative consequences if a nation heavily relies on aid to fund its government and develop its economy. For example, Bazoumana Ouattara analyzed the effect of aid flow in Senegal. He found that that a large portion of aid flow (around 41%) is used to finance Senegal’s debt and 20% of the government’s resources are devoted to debt servicing. (Ouattara). Secondly, he found that the impact of aid flows on domestic expenditures is statistically insignificant, and that debt servicing has a significant negative effect on domestic expenditure. (Ouattara). In essence, the aid given to Senegal is used to finance the government and not neccesarily used to directly develop the economy as a whole. Several African nations seem to have recognized that in order to sustain meaningful economic development then they must not rely so much on foreign aid. Many nations have attempted to stimulate business activity within their jurisdiction via various economic initiatives. But Africa’s economic powerhouses seem to have one thing in common when it comes to economic/ legal development in the 21st century. They all are utilizing the tools of international commercial arbitration to stimulate economic growth. One significant nation
Four years after Kenyan independence, that Kenya would enact its first sovereign arbitration legislation, The Arbitration Act of 1968. It was largely influenced by the Arbitration Ordinance of 1914 which was legislation used in colonial Kenya. However, for some unexplained reason, the act adopted outdated arbitral protocol when instead they ideally should have used the New York Convention as a model for Kenya’s arbitral legislation. So, in essence what occurred is that Kenya kept Britain’s colonial arbitral law intact. Unfortunately, the act allowed the court to retain their oversight over all arbitral proceedings in Kenya, meaning that parties could manipulate the court system to frustrate and delay the arbitral process. (Mbithi). In contrast to Kenya’s pre-colonial arbitral past. For example, in East African Power & Lightning Co. Ltd v Kilimanjaro Construction ltd, the Court of Appeals, declined to stay proceedings in favor of arbitration in spite of the fact of the existence of an arbitration agreement.
However a comprehensive piece of arbitral legislation would come in to effect in 1995. After Kenya aggressively pursued policies that successfully attracted foreign direct investment, it quickly became apparent that the Arbitration Act of 1968 needed reform in order to keep foreign investment within Kenya high. (Mbithi). Kenya had some of its worst economic performances between the years of 1991-92. Growth stagnated. Inflation reached a historic level. Further the government’s budget deficit was over 10% of GDP. In effect, due to treaty requirements, bilateral and multilateral donors suspended their aid programs in Kenya in 1991, resulting in economic uncertainty. One of the ways Kenyan legislature attempted to remedy the dire economic situation was by repealing the old arbitration act and creating a new framework. (Mbithi). The legislature enacted the Arbitration Act, No. 4 of 1995. The new piece of legislation adopted the UNCITRAL model law, a more modern framework arbitral framework. It also was expanded to include both domestic and international arbitration. (Mbithi). But despite these major improvements, there was a profound change to the new piece legislation. Section X of the Arbitration Act stipulated “except as provided in this Act, no court shall intervene in matters governed by this Act”. This not only had ramifications in international commercial arbitration, but it also was a check on the judiciary by the legislature, prior to this act the courts had absolute oversight over all adjudicative functions in the country.
In 2006, Kenya’s government drafted a new developmental program that would make sure that by 2030 Kenya is “newly industrialized, middle income country that provides a high quality of life to all it’s citizens”. (Vision 2030). The plan is called Kenya Vision 2030. As of 2020, the initiative has proven fruitful. (World Bank). Kenya far at performs its neighbors economically, mainly due to the influx of foreign investment and their well developed social and physical infrastructure. (World Bank). Further, in 2020 Kenya ranked number 56 in the Ease of Doing Business Index. This is a significant jump in rankings when compared to Kenya’s position in 2010 which was 95. This improvement can be partly explained by changes made within Kenya’s Constitution. In order to facilitate the Kenya Vision 2030 plan, the constitution was changed to include this provision: “alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause”. (Muigua). Arbitration was now backed via statute and Kenya’s constitution. This signaled to foreign investors and businesses that commercial arbitration is being incentivized within the nation. After the constitution was changed, Kenya made exponential improvements economically, and their rankings in the Ease of Doing business index would continue to rise. (Muigua) Kenya will likely fulfill the goals set out in the Kenya Vision 2030 plan.
Going into the 21st century Germany has rapidly developed its renewable energy sector. A large reason for that growth are feed-in tariff policies. In contrast, the United States has not developed their renewable energy sector at the same rate or fashion as their European counter parts. This blog will aim to investigate why the US hasn’t developed their renewable energy policies, a large part owing to the relative lackluster feed in tariff programs.
In general feed-in tariffs (FiTs) are performance-based incentive (1) supporting renewable energy generation (2) guaranteeing payments to a producer for total kWh produced, (3) access to the grid and (4) a long-term contract, and/or similar additional terms. The origins of FiT programs can be found investigating the U.S. and Germany.
The US Energy Crisis & PURPA
The U.S. is where the first form FiT programs were implemented. During the late 1970’s, the US was facing an energy crisis stemming from various factors, both domestic and international . The Carter administration and Congress were tasked with implementing policies which mitigated the economic effects stemming from the energy crisis. The U.S. desperately needed to diversify its energy portfolio to mitigate both real and potential economic losses. The National Energy Act (NEA) was subsequently passed as legislation in response to the growing issue. The stated purpose of the NEA was to encourage energy conservation and efficiency. It also aimed to develop new energy resources which included renewable sources such as wind and solar power. The NEA contained five acts, one of which was called the Public Utility Regulatory Policies Act (PURPA) which was where the first form of FiT programs began to develop.
PURPA requires electric utilities to make purchases of electric energy from co-generation facilities and small power production facilities that are at 80 MW or less in size at a rate that does not exceed the incremental cost to the electric utility of alternative electric energy ( see Public Power, 2020, p. 1-2) This requirement is commonly referred to as the avoided cost. Due to federalist principals underpinning American jurisprudence, the Federal Energy Regulatory Commission (FERC) and the individual states are the ones that are responsible for implementing PURPA. FERC primarily determines what constitutes a qualifying facility and provides guidance on avoided costs. Avoided costs are meant to mirror the cost a utility would incur to facilitate that same electrical generation (see Public Power, 2020, p. 2-3)
As disputes filtered through the US legal system various interpretations of PURPA began to take shape. Some of the utilities and state utility commissions construed avoided costs narrowly. They believed avoided cost only included avoided fuel costs. Other utilities and state commissions chose a broader interpretation for “avoided costs” as the “avoided long-run marginal cost” of generation. Another provision included PURPA was that utilities were prevented from owning more than 50% of projects, to encourage new market entrants. Over time states began to offer contracts (known as Standard offer Contracts) to producers. These contracts used fixed prices based on the expected long-run cost of generation. (Graves, Hanser,& Basheda 2- 13). The long-run estimates of electricity costs were based on the widely held assumption that gas and oil prices would continue to increase .Id. This led to an escalating schedule of fixed purchase prices, designed to reflect the long-run avoided costs of new electrical generation. (Louise Guey-Lee, 1999, p 92-96).The adoption and implementation of PURPA lead to ample amount of renewable energy generation in certain states. Furthermore, by the mid 1990’s power producers installed roughly 1,800 MW of wind Capacity in California. Some of those systems are still being used and serviced to this day. The Standard Offer contracts can be called the first form of FiTs since producers were compensated for (1) KwH produced, (2) given access to the grid, (3) incentivized the development of renewable energy sources and (4) the contracts were long term.
Overtime, gas and oil prices went down and the energy crisis subsided. This made the PURPA Standard Offer contracts that encouraged renewable development a lot less attractive since oil and gas could now be purchased a lot cheaper. That meant there was little incentive to generate renewable energy sources because the oil and gas market recovered back to their favorable prices. Further, large utilities felt threatened when it came to their market share. That is because PURPA was partly implemented to encourage non-utility generation, which could threaten a monopolistic utility’s market share. Further, some industrial suppliers began to build inefficient generators which though met PURPA’s regulatory requirements, lead to market and ecological inefficiencies. These factors likely contributed to the steady decline of these kind of PURPA contracts that encouraged renewable generation. Though the US’s first form of a FiT program was declining into the 20th century, in another part of the world the most robust feed in tariff policy began to sow its seeds.
Stromeinspeisungsgesetz: Germany’s Feed-in Tariff
Germany is where the first comprehensive FiT program developed. In the early 1990s, a piece of energy legislation spearheaded by Matthias Engelsberger would pass through the German Bundestag to become federal law. That piece of legislation was called the Stromeinspeisegesetz (“StrEG”) (translated from German ‘electricity feed-in law’). This is the first piece of legislation that explicitly calls itself a feed-in tariff law.
StrEG was the first time the world would be introduced to a systemic feed-in tariff program that would operate in the free market. The program mandated that network operators purchase electricity produced by renewables, as long as a large utility did not produce the energy. (Allen & Davies,2014, pg 937-938). And it established incentive prices that had to be paid for those purchases (Id). These innovations were key to StrEG’s success. That’s because the mandatory purchase requirement eased the process for German renewable generators to bring their product to market. For example the law stipulated that:
“Generators were not required to negotiate contracts or otherwise engage in much bureaucratic activity”.(Lauber & Mez,, 2004, pg. 3)
This meant that StrEG removed an important barrier to entry because it was StrEG that imposed the mandate to connect and purchase electricity. This stipulation meant that the process for energy generators was significantly simplified. Had that stipulation not existed monopolistic utilities would have likely resisted efforts by new entrants to connect with their networks. (Allen & Davies,2014, pg 937-938). The graph below shows the market share of wind turbine manufactures in Germany during 1998(top) and US market share in 2015 (bottom). Germany had about the same amount of manufactures the US has now:
Going into the 21st century, the German Bundestag decided to restructure the policies found in the StrEG. In the 2000s they reinforced their FiT policy by passing the ‘Eneuerbare-Energien-Gesetz (EEG) which in English translates to ‘Renewable Energy Sources Act’. The EEG added three new initiatives to StrEGs. First, the EEG adopted the Aachen model and decoupled feed-in rates from retail electric prices. (Gipe 2007). The Aachen Model takes its name from a city in Western Germany. That city implemented one of the best policies during the StrEG era, instead of paying renewables producers a percentage of retail rates, Aachen established a solar FiT based on the technology’s cost, plus an adder to cover a modest investor profit. (Gipe, 2007). German policy makers saw this as an innovate measure because previous support mechanism tended not to reflect the price of the technology itself but rather external factors such as retail electric prices or conventional generation prices (Allen & Davies, 2014, pg 943). Second, the EEG had fixed periods of time that the feed-in rates would be paid which was usually twenty years (Id). This was a major change since previously under the StrEG, the duration of tariff payments was not specified. Finally, the EEG created a stronger investment incentive for renewables by prioritizing electricity produced from these resources over others. (Id). Therefore, German FiT had these four fundamental characteristics (1) the mandatory purchase of renewable electricity by grid operators, (2) at cost-based tariff rates guaranteed for twenty years, (3) with a priority for renewables use on the system, and (4) mandatory grid connection.
EEG was able to rapidly develop Germany’s renewable energy sector. That’s because it made renewable energy production simpler in Germany. For example, in America a typical power purchase agreement between a producer and utility would be 85 pages. While in Germany the average contract is 2-4 pages. (Farrell, 2014, pg. 14). They also make the market fairer by removing barriers of entry, entities with little to no tax liability can participate. And finally, since FiT contracts are long term they offered more stability and predictability.
Despite the EEG’s efficacy over time in developing the renewable sector, there is still plenty to critique.
The Negatives
EEG has had a beneficial impact on Germany’s renewable sector, but it has come at significant monetary cost for tax payers. In total estimated cost over these past 20 years hover around $200 billion. (Reed 2017). There are roughly 80 million Germans living during that time which means each paid about $2,500 dollars in taxes to fund these programs. Furthermore, consumers in Germany pay some of the highest rates for electricity in comparison to consumers in the US and UK. (Id).
Christop Podewils, an energy policy analyst highlights an interesting problem with EEG “It’s about saving money, but there aren’t many opportunities to save money…you can’t shave the old contracts, and new contracts are very cheap.”. Over time renewable tech has gotten better which means some electric producers are fixed at rates that do not reflect the price to produce the electricity in contemporary time. For example, a homeowner with a rooftop solar system who signed an EEG contract in 2009 is compensated 43 cents per kilowatt-hour through 2029. Now the rate for a similar system would pay no more than 13.7 cent, less than half of the 43 cent rate. Lowering new tariff prices will not affect the backlog of previous high price contracts. Lawmakers in Germany have been trying to find measures to counteract this affect, but most of the solutions run counter to principals of German contract law. (Farrell, 2014, pg. 14). The only apparent option is the passing of a new EEG bill that cuts some of the unnecessary expenditure the inefficient contracts create.
A reform bill has been proposed which would cut exemptions for industrial customers, impose a surcharge on customers who generate their own power, put caps on new developments, further accelerate the decline in payments for certain renewables, and cutting “market incentives” to sell renewables on the power exchange. (Paulos 2014). Exemptions are given to 2,100 companies that are “electricity-cost intensive and trade intensive,” according to the Ministry of Economic Affairs and Energy (BMWi). Generally these companies use 25 percent of Germany’s power, but only pay 2 percent of the surcharge. (Paulos 2014). Residential and small commercial customers pick up the cost, paying roughly 30 billion dollars a year. High energy costs are harmful for consumers. Especially indigent consumers since they will likely have to pay higher proportion of their income to meet their energy needs. The European Bank has studied this issue extensively and has noted that Germany’s EEG could exacerbate economic conditions for certain segments of their society. (Fankhauser & Tepic 2005). That is because renewable development has been focused away from poorer communities, meaning these community members may find it harder for them to heat and power their homes in an efficient manner. These consumers help finance the renewable grid, but do not get to directly benefit from the service. This can lead to resentment to the energy policy since the consumer pays but does not benefit from the service.
In essence the EEG has greatly expanded renewable development by mandating 1) the mandatory purchase of renewable electricity by grid operators, (2) at cost-based tariff rates guaranteed for twenty years, (3) with a priority for renewables use on the system, and (4) mandatory grid connection. Along with several amendment that expanded EEG. However, these measures have come at a great monetary cost for the German Government and German taxpayer.
Though the US is where the first form of FiT developed, those polices would not thrive in the 21st century. Unlike Germany, the U.S. has not implemented any federal feed-in tariff legislation. There has however been significant legislative activity within the states.
The California Model
The German Bundestag had Aachen as a model for their FiT policy design and implementation. But if the US were to enact a federal FiT program they would likely use California as a referential model. Mainly because California has one of the most robust and successful FiT programs in the US. There are plenty of factors that explain that. As noted before FiTs can be expensive to implement. Government expenditure can easily rise over time. California is an international economic powerhouse, and so their government has the capital to create a lucrative FiT program. Furthermore, California is also one of the “tech hubs” of the world which makes a favorable economic environment for developing new renewable tech. They are also leaders in renewable technology. These market conditions make California prime for FiT programs.
In 2008 The California Public Utilities Commission (CPUC) approved an FiT. The CPUC press paper stated that :
The power that is sold to the utilities under the feed-in tariffs will count toward the utilities’ Renewables Portfolio Standard (RPS) goals. California’s RPS program is one of the most ambitious renewable energy standards in the country. The RPS program requires electric corporations to increase procurement from eligible renewable energy resources by at least 1 percent of their retail sales annually, until they reach 20 percent by 2010.
This marked California’s first FiT program. Shortly thereafter, Marin Energy Authority launched the first Community Choice Aggregate Feed-in Tariff program. The program was updated in November 2012, and now offers 20-year fixed-price contracts, with prices varying by energy source (peak, base-load, intermittent) and progress towards the current program cap of 10-MW. (MCE Clean Energy). California would then enact state laws which would greatly expand it’s FiT program. Some of these laws allowed homeowners to sell excess power that they generated to utilities. One of these laws was the California Solar Initiative (CSI). Unlike the German EEF, The CSI stipulated that customers were not allowed to install systems that overproduced, encouraging efficiency. (Id).
According to a study conducted by Dan Kammen and Max Wei at Berkeley’s Renewable and Appropriate Energy Laboratory Energy and Resources Group, a well-designed FiT could bring California $2 billion in additional tax revenue and $50 billion in new investment, while adding an average of 50,000 new jobs a year for a decade. (Kammen and Wei). But such progress may be diminished. Recently a FiT program called Re-MAT was deemed to be unconstitutional by the federal courts. (See Winding Creek Solar LLC v. Michael Peevey, et al.). A company failed to secure a Re-MAT at what they deemed an acceptable price, so they decided to challenge the constitutionality of the program in federal court. The Northern District of California held that the Re-MAT program conflicts with PURPA and its implementing regulations and thereby violates the Supremacy Clause of the U.S. Constitution. The court made two factual determinations: One was that the CPUC’s imposition of caps in the Re-MAT program violates PURPA’s must-take obligation for QFs, and secondly that the procedure for setting Re-MAT pricing strays too far from the PURPA requirement that QF contract pricing be set on a utility’s but-for cost. These types of court decisions signal that the FiT market in California is not predictable and therefore not the most stable.
Lessons for the US
The most obvious measure the U.S. would likely benefit from is a federal FiT program. Ideally the federal legislation would offer a significant latitude of power to the states in implementing their state FiT programs. The US is different both culturally, geographically, and economically than Germany, so an EEG replica would not necessarily work everywhere. Some states like California could copy and paste the EEG into their state law and see significant benefits. (Stokes 2013). But some states like Wyoming would have to operate differently. If there was federal legislation it would have to be catered away from the “one size fits all” theories of legislation. FiTs need to be allowed to be flexible to develop a state’s renewable energy sector.
Another key factor would market participation from all consumers and producers. FiT’s in the US should be inclusive of both large utilities, startups, and average consumers. This could encourage market participation since everyone has an “equal” chance to participate in FiTs with little to no barriers. (Stokes 2013). But as seen in the amendments made overtime in the German EEG, any exemptions to the rules made for certain entities should be continuously evaluated to make sure participants do not financially abuse the FiT system.
Broadly speaking the equal footing doctrine stipulates that all states admitted to the Union under the Constitution in 1789 enter on “equal footing” with the 13 states already in the Union. This doctrine has implications for natural resources law, specifically, state’s title interests in their public lands. Under the Equal Footing Doctrine States’ have title to land that was navigable at the time the State entered the Union. This established equality between the states regarding their political power and state sovereignty. Several landmark cases illustrate this point.
In Pollard v. Hagan, the Supreme Court held that the shores of and land beneath navigable waters were reserved for that state. The proper test to determine navigability for Equal Footing purposes is the Daniel Ball test. The test necessitates making a factual determination about whether a source of water was navigable at the time of a state’s unionization. For example, in Ball the issue was whether a federal law mandating a permit to transport merchandise or passengers extended to wholly state activity. The court determined that it was navigable because the water way’s capacity was customarily used as a “highway for commerce” and “travel”, implicating the commerce clause.
Hagan outlined the limitations on Federal power on state lands. This case was decided during a period of growth for state rights advocacy which may have had a slight influence on the outcome of the case. The issue was whether Alabama had title to the submerged lands between the shores of navigable waters within their border. The court held that Alabama had title to the lands since the land underneath navigable waters was vested to the states under the Equal Footing Doctrine. Even dried lands that are intrastate and are modestly used for commerce are subject to the Equal Footing Doctrine (see Utah v US). The implications of that are that states hold title via the Equal Footing Doctrine but are limited in use by the Public Trust Doctrine.
In contrast, the Public Trust Doctrine comes from state law and controls what the states can and cannot do with lands underneath navigable and tidal waters that were acquired under the Equal Footing Doctrine. However, this discretion is limited by the federal government. States cannot abdicate this trust duty in the same way they cannot give up their police power (Defenders of Wildlife v. Hull (2001)). States may also not discriminate between residents and non-residents in granting access to these areas that fall under the Public Trust Doctrine (Neptune City v. Avon-By-The-Sea (1972)).
Despite these federal limits, the scope of the public trust is quite expansive and includes non-navigable tributaries (National Audubon Society v. Superior Court (1983)), as well as lands influenced by the tides, whether or not they are navigable (Philips Petroleum Co v. Mississippi (1988)).
The purpose of the public trust is to provide for navigation, commerce, fishing, and preservation (Illinois Central Railroad Co v. Illinois (1892)). The navigability “for title” test is further broken down into navigable in fact and tidal. Whether the state, using the Public Trust Doctrine, has discretion depends on whether the waters were navigable at the time the state entered the union, which falls under the Equal Footing Doctrine.
While the Public Trust Doctrine provides a method for separating public waters from private waters based on the federal Daniel Ball test, this distinction is further complicated by recreation. This led to the development of the navigability “for use” test. States vary in their application of this test. Some states like Colorado hold there is no right to recreational use over private property containing non-navigable waters (People v. Emmert (1979)) whereas other states like Montana hold that there is (Montana Coalition for Stream Access, Inc. V. Hildreth (1984)).
In conclusion there are similarities between the two doctrines, but they operate differently. The Equal Footing Doctrine allows states equal title for lands underneath navigable waters. While the states are limited by this federal doctrine, the Public Trust Doctrine allows for discretion by the states through the use of the other navigability tests.
Robert Moses is a figure that’s relatively obscure to the general public. However his influence has had a lasting impact throughout the United States. He would be paramount in engineering how cities in the States were structured, effectively influencing how and where Americans would spend their money.
Who was Robert Moses? Well, to start, he was unelected public official who held about 12 positions in the Greater New York city area. His stints in public office span from 1924-66. The positions he held had tremendous influence over urban planning. Urban planners aren’t often thought of as being political behemoths but Robert Moses’s tenure in these positions forces us to reconsider the influence unelected politicians may have over society.
Mr. Moses was a relentless, effective, and a calculated worker. His ability to start and finish public projects is arguably unmatched within the scope of American history. Furthermore, his ability to manipulate power goes far beyond the scope of anything Machiavelli could have imagined within a democratic republic. Robert Moses wasn’t fully understood or recognized outside of New York until the publication of Rob Caro’s Pulitzer winning book The Power Broker. The book gives us a grandiose look into the Moses. Robert Caro spent years researching for his book which spans roughly 1,300 pages. His scholarship, alongside with years of historical developments since the initial publication, are what guide my analysis on Robert Moses. Through our investigation of Robert Moses we will come to understand how a lot of cities in the United States mirror each other in terms of structure and societal development. And, albeit indirectly, an analysis of Moses forces us to consider a few philosophical questions when it comes to ideal local governance in the United States. But before we attempt to get understand why these two inquires are relevant , we have to investigate the rise of Robert Moses.
Robert Moses assent spanned various societal backgrounds. His tenure in public office spans three major historical events in the United States. Moses held positions during the economic boom of the 1920s, a crippling Depression in the 1930’s, World War II, and the subsequent post war economic boom.
The 1920’s: The Rise to Power
After finishing up his PhD at Columbia University, Moses decides to enter New York politics as a political idealist motivated to make change. A story familiar to many young professionals who aim to change the “old guard” within political systems. Moses had plenty of issues he wanted to grapple over. The society he was living in was corrupt, had little to no consumer protection, and certain industries were dominated by monopolies. He briefly worked for the Bureau of Municipal Research and with the U.S. Food Commission. But soon he realized that philosophical theories and logic, no matter how beneficial, wouldn’t take you far when it came to political advancement. His initial propositions were brushed under the rug by the seasoned veterans of government. Though his theoretical understanding of politics would come in handy from time to time, his practical education of political power would be where he was able to hone the craft of political power.
After a series of fortunate events Moses found himself appointed as the chief of staff to a woman named Belle Moskowitz. She was the leader of a commission tasked with organizing New Yorks administrative structure. A responsibility which came with significant power. It’s worthy to note Belle Moskowitz wasn’t elected by anyone. Rather, Moskowitz was appointed by Alfred Smith the Governor of New York. Smith was of course elected. I include these details not to be redundantly informative but rather to highlight the opaque nature of local government when it comes to transparency. People who you may assume are in control are passing that responsibility to an “advisor”, meaning there are various puppeteers pulling the strings. Moses’s time with Moskowitz is where he would learn the “tricks of the trade” in terms local governance. After managing to impress Alfred Smith through the early 1920’s, Moses found himself appointed to his first positions of power. The appointments would lead him to a notorious political squabble with an eventual US president, Mr. Franklin Delano Roosevelt.
The Appointed One & The Fight with Roosevelt.
In 1924 Moses was appointed as the leader of both the Long Island State Park Commission and State Council of Parks. Moses actually drafted the legislation that created the power of these commission earlier in his career. Personally, when I read the names of these positions I didn’t immediately think POWER. But let’s remember that Moses was calculated. He strategically used the power that he did have to gain even more power. Being head of these political bodies allowed him unprecedented control over land-use and highway construction. Behind the scenes he usurped control over certain political entities from elected officials. Moses would lobby constituents, politicians, and special interest groups into allowing him to have independent control over land-use and highway development commissions. Overtime he began to resemble a mini dictator. However, his power wouldn’t go unchallenged.
Young Roosevelt.
Franklin Roosevelt, at the time leader of the Taconic State Parkway Commission, had a political spat with Moses. It all started when Roosevelt had a plan to build a parkway through a region of New York City called the Hudson Valley. Moses had different plans. He managed to funnel all the funds from Roosevelt’s project to his own project. Moses was able to keep the funding to Roosevelt’s project so low that it could barely even maintain operations. Roosevelt complained to the governor that Moses was “skinning” Smith’s administration alive. But nothing happened. Eventually, Roosevelt became governor and eventually his parkway project was completed. Roosevelt had another goal in mind, and that was to remove Moses from power. But the removal of Moses was almost impossible by the time Roosevelt became governor. Robert Moses had set up a powerful base of political independence by using legislation, public funding, the press, and young political reformers to support his positions. He would later spearhead a commission which aimed to consolidate 187 separate agencies into eighteen departments. In just 10 year’s Moses was able to absorb power from potential opponents and build a powerful network to get his projects done. But this was just the start there was much more to come from Robert Moses.
The Depression & Beyond
During the 1930’s the United States suffered an economic depression. During this economic catastrophe Robert Moses would blossom. Ironically, his former rival actually enabled this via New Deal legislation lead by President Roosevelt. Moses was granted even more executive and monetary incentive to solidify his power by the Federal Government. Roosevelt, not forgetting his political tenure in New York, attempted to get Moses ousted by making federal funds available only if Moses was removed from office. Moses wasn’t threatened. He told the press of Roosevelts demands. Subsequently, the Federal Government had to stop after increasing public pressure. But as World War II was being waged, Robert Moses’s influence on New York City began to take shape. The Master Builder started to work on his vision. One unnamed federal official commented on Moses during this era saying:
“Because Robert Moses was so far ahead of anyone else in the country, he had greater influence on urban renewal in the United States – on how the program developed and on how it was received by the public – than any other single person.”
That quote gives us an insight on the magnitude of power Moses had. He was responsible for many projects ranging from the United Nations Headquarters, Shea Stadium, and the Pratt Institute. But he also led initiatives to spur more highway developments, suburban housing developments, strip malls, and other public amenities. Moses got even better at getting projects done. A common strategy involved starting projects knowing that financially they couldn’t be accomplished , but he would leverage political clout in order to manipulate political officials to complete his projects anyway. While in the depression his projects employed a largely jobless populous during the Great Depression. During this era, he held numerous public positions at the same time. None of the positions required him to be publicly elected.
WWII & The New America
The world dramatically changed after World War II. The United States emerged as an economic and political powerhouse within the International community. Moses understood this and he wanted to further influence the new world around him. His goal for NYC was one that attempted to integrate an urban center to suburban areas which would all be interconnected via parkways. The bureaucrat’s vision would influence America for the years to come.
After World War II America’s social community began to change. Women entered the work force in droves, the nation was in better economic shape than a lot of nations in the world, and the ideal of “Americanness” began to solidify. What do I mean by Americanness? I mean white picket fences, increased home & automobile ownership, and the development of mass consumerism. After WWII plenty of soldiers came home to start anew. They were incentivized to start “nuclear” families, to buy homes, develop their market skills, and most importantly to spend money in order to expand the American economy. Robert Moses was fully aware of this societal shift. He saw the traditional layout of American cities as archaic and counter intuitive to the world’s economic demands. Small retail owners were dismissed in favor of shopping behemoths
Robert Moses and NYC Mayor Jimmy Walker.
such as Macy’s, Sears, and the advent of the shopping mall. Local restaurants were forgotten as Dairy Queen and McDonalds slowly became staples in the American diet. Automobiles slowly eliminated the reliance on public transport, allowing people to buy suburban properties further away from NYC. Moses preferred a sprawl model over concentrated urban communities. And he developed plenty of projects to incentivize the sprawl model. New Yorkers, such as Robert Caro, criticize Moses for destroying New York neighborhoods in favor of vast highways that connected the suburbs to the City. When developing these projects Moses displaced hundreds of thousands of people, destroyed economic centers, and arguably community identity. This led critics to surmise that Moses perhaps preferred automobiles and shopping centers over people. Furthermore, Moses played a part in depleting New York’s resources to develop his projects. But despite that, the Moses model was in demand in post war America. Plenty of public officials from around the country demanded Robert Moses’s expertise in developing their city plans. This may explain why many American cities, especially in the Midwest, mirror each other in a plethora of ways.
In hindsight Moses’s city planning was a perfect model for a globalized economy. It was predictable; generally people would work a similar hourly schedule, consistently consume products from publicly traded corporations, and, by driving, consumers would
Robert Moses
support the gas, oil, and automobile industry. This model has its merits. It’s predicable, safe, and allows people to consume their preferred products. However, a community too reliant on the Moses model is more susceptible to global economic crises. This isn’t just a theoretical proposition, practical examples are evident when we look at Detroit and Las Vegas during the 2008 financial crisis. But it’d be remiss to not mention how many new and innovative developments Moses was responsible for. He was able to engineer and execute massive urban plans that did help a considerable amount of people. But at the expense of displacing many people out of their communities. But one of the most disturbing things about Robert Moses is his ability to become an immensely influential political figure without having to get elected into political office.
Moses’s story forces us to think about the type of local (& perhaps national) governments people would prefer. Do we prefer governments that can be taken over by “Mosesesque” figures in order to get long term, and perhaps beneficial, projects done? Or do we want a system that is a bit more decentralized which doesn’t allow any one sole “political will” to dominate? Whatever you prefer, each has its positive and negative implication.
Which begs a peripheral question: How much do YOU know about the unelected officials in your local government? A question to consider.
Sources:
Power Broker by Robert Caro
ROBERT MOSES AND THE RISE OF NEW YORK THE POWER BROKER IN PERSPECTIVE by KENNETH T. JACKSON
A Consumer’s Republic: The Politics of Mass Consumption in Postwar America by Lizabeth Cohen
The first article of the new five part Forgotten American History series! The Forgotten American History series aims to introduce readers to the less commonly known aspects of American history. The first edition takes us to Colorado! Hope you enjoy.
Colorado’s Coalfield War is one of the most violent yet obscure events in American history. Which is a bit puzzling since The Coalfield War has all the allure of the quintessential American story. It has divisiveness, the quest for the American dream, violence, and an underdog. The Coalfield War took place after a rapid economic boom in the United States. The early 20th century saw the development of notable business magnates. Some you are most likely familiar with such as Andrew Carnegie, John D. Rockefeller, and Henry Ford. During their time they were commonly referred to as ‘industrialist”. That’s mainly due to the economic supremacy they had on industries such as fossil fuel, manufacturing, and transportation. The business strategies commonly used by these magnates were monopolistic. Common techniques used to monopolize included unilateral corporate acquisitions, price controls, and wage suppression. However, a new social development would attempt to countervail the monopolistic tendencies of these business tycoons. The development being worker’s unions.
Laborers in the early 20th century worked in abhorrent conditions. An unnamed worker who grew up in one of Pennsylvania’s mining communities provides an account on what life was like for a miner:
Our daily life is not a pleasant one. When we put on our oil soaked suit in the morning we can’t guess all the dangers which threaten our lives. We walk sometimes miles to the place- to the man way or traveling way, or to the mouth of the shaft on top of the slope. Add then we enter the darkened chambers of the mines. On our right and on our left we see the logs that keep up the top and support the sides which may crush us into shapeless masses, as they have done to many of our comrades. We get old quickly. Powder, smoke, after-damp, bad air- all combine to bring furrows to our faces and asthma to our lungs.”
Wages were often not paid in US dollars. Rather, workers were paid with metallic strips which were redeemable in company stores. A stark contrast to how modern wage payment is facilitated. Furthermore, workers often lived at their work sites. Worker’s would often build their own dwellings which ranged from tents to shacks. This led to the development of work specific settlements. In addition, workers often lacked representation in terms of corporate boardrooms. However, workers unions began to spring up providing an opportunity for representation. Exploited laborers could finally voice their frustration en masse.
Colorado’s Coalfield War gives us a perfect opportunity to examine the early relationship between industrialists and workers unions. The stereotypical relationship is often framed idealistically. The cliché often goes like this; workers are in discontent due to their impoverished work situation. They then begin to band together and organize. Managers are often against organizing but after some convincing they slowly join the workers’ cause. And in one harmonious swoop the workers walk over to administrative offices and demand that the industrialist improve conditions. The industrialist, understanding the gravity of the situation, then succumbs to their demands. And after both parties reach an agreement. But realistically it was never that straightforward. Colorado’s Coalfield War will give us a realistic glimpse of how a lot of early labor disputes panned out in the United States.
The story of Colorado’s Coalfield War begins in the coal mines of southern Colorado during the 1910’s. Colorado’s coal industry at the time was booming. So much so that roughly 10 percent of the state’s population was employed by the coal sector. At the time coal was highly profitable due to the demand of America’s expanding railroad system which needed coal to fuel their engines. One of the nation’s richest people were involved
One of Colorado’s mining families that was living in a tent community
in the coal industry. For example, John D. Rockefeller Jr (heir to John D. Rockefeller) recognized an opportunity to capitalize and acquired ownership of the Colorado Fuel and Iron company (CFI).
Coal mining for the CFI was physically arduous and hazardous work. CFI’s coal miners were under a considerable amount of fatal risk compared to other American coal miners. Statistically, miners in Colorado were twice as likely to die on the job compared to their peers in other states. That’s not to say that the other states were a pleasant place work. But Colorado’s coal mines were considerably risky. The fear of explosion, suffocation and collapsing mines was the reality for many coal miners . Ironically, Colorado had some of the best mining laws in the country. But Colorado’s mining laws were rarely enforced. The United States House Committee on Mines once declared:
Colorado has good mining laws and such that ought to afford protection to the miners as to safety in the mine if they were enforced, yet in this State the percentage of fatalities is larger than any other, showing there is undoubtedly something wrong in reference to the management of its coal mines
Furthermore, mining labor in Colorado was egregiously exploited. Worker’s were paid for the tonnage of coal produced. However, their “dead work” (maintenance, supply runs, and infrastructure repairs) were unpaid.
By 1913, 10,000 of Colorado’s miners had enough with their work environment and decided to strike. The strikers attempted to unionize via the United Mine Workers of America. They demanded improved work conditions, better wages, strict enforcement of Colorado’s mining laws, and union recognition. The CFI responded by rejecting all of the union’s demands.
Baldwin- Felts employees with an armored car.
There were considerable measures taken to countervail unionization. The CFI employed strikebreakers to keep the company running. The company evicted strikers from their company homes forcing the striker to build tents for their families nearby. Under Rockefellers orders, the CFI hired Baldwin- Felts Detective Agency (a private detective agency) to harass the strikers. The agency would shine spotlight on tents, fire live ammunition at strikers’ tents, and patrolled the tent communities with an armored vehicle that had a machine gun mounted unto it. Clearly these were terror tactics. The strikers were unphased. Strikers responded to the terror tactics by taking up arms and defending their tents. Eventually, the skirmishes were acknowledged by the governor of Colorado and he responded by sending the National Guard to the tent community in Ludlow. The strikers were under the impression that the National Guard was there to protect them. But several hundred strikers were arrested by them and often beat the strikers. The National Guard would add more fuel to the fire when they discovered that a strikebreaker had been murdered. The National Guard had been financed by the CFI to cover the expenses of deployment, so they had an implicit obligation to make sure the CFI’s interests were met. One day while the tent dwellers were at funerals commemorating two infants, the National Guard began to dismantle the tent community. However, the community members rebuilt the tents and they continued the strike, persevering through the winter. However, things would come to a boiling point on April of 1914.
The Ludlow Massacre
On April 20th 1914, two national guard posts were deployed on top of a hill, encircling the Ludlow tent community. They deployed an armed post with a machine gun overlooking the strikers. No one is exactly sure what instigated the violence. Some historical records suggest that the National Guard was demanding the release of a
The Masses cover art depicting the Ludlow Massacre
hostage, but the strikers refused to give the hostage up. One of the sides then opened fire (it’s unclear who fired the first shot). Nevertheless, a battle would ensue which lasted the whole day. The casualties included high ranking union members such as Louis Tikas. Innocent bystanders (mainly women and children) hid in their tents to avoid the gunfire. The strikers retreated. The National guard then went to the tents, doused them with kerosene, and set them on fire. One of the tents that were set on fire housed 11 children and 2 women. The women and children all died, they were either burned or suffocated to death. These casualties were deemed a massacre by several periodicals in Colorado. The news of the National Guard’s atrocities would then spread across the nation like wild fire.
Height of The Coalfield War
In Denver, the United Mine Workers declared “A Call to Arms”. They suggested that all union members should gather all “arms and ammunition legally available.” . Subsequently an insurgency would take place in Colorado. Three hundred armed strikers marched from all over Colorado to the Ludlow area. When they made it, the insurgents cut telephone and telegraph wires. And they prepared for battle. The New York Times described the event as such:
“With the deadliest weapons of civilization in the hands of savage-mined men, there can be no telling to what lengths the war in Colorado will go unless it is quelled by force … The President should turn his attention from Mexico long enough to take stern measures in Colorado
Furthermore, in an act of solidarity railroad workers refused to transport National Guard soldiers from Trinidad to Ludlow via railway. Up north in Colorado Springs, union
Colorado National Guardsman at an Outpost in Southern Colorado.
miners walked off their jobs and set off to Trinidad. They carried revolvers, rifles, and shotguns. Support was even shown on the East Coast. In New York City, picketers marched in front of the Rockefeller office located on 26 Broadway, New York City. However, these demonstrations were quickly quashed by local law enforcement.
When all the miners met in southern Colorado violence naturally ensued. They attacked antiunion town officials, supervisors/guards, and strikebreakers. Sporadic violence was rampant in southern Colorado as the miners carried out targeted killings, the statistical figures on fatalities vary considerably. So, a precise number can’t be drawn on how many people died. The insurgents also damaged a considerable amount of mining infrastructure. The Associated Press estimated the financial losses at $18 million (which is about $450,239,203 in 2019). The CFI alone lost $1.6 million. They were also able to strategically take control of an area that was roughly 50 miles long and 5 miles wide. However, this control didn’t last long. President Woodrow Wilson dispatched federal troops to Colorado, and the miners subsequently surrendered.
Aftermath
After the Coalfield Wars, Congress held hearings with John D. Rockefeller Jr, union leaders, and several high-ranking members of the National Guard. Though atrocities were recognized by both sides during the hearing, no one was ever formally indicted for their crimes. Unfortunately, a lot of the tangible benefits the strikers were fighting didn’t materialize. But all wasn’t lost. Rockefeller, feeling political pressure, lead an initiative so workers could have internal representation in the CFI. A measure akin to modern internal corporate arbitration. He also created an internal company union. And encouraged internal social services such as creating a YMCA for the Mining department. During this era, the YMCA played a substantial role in influencing morality and promoting athletic activity within American communities. But it’s important to remember these measures are a far cry from what the original demands the UMWA fought for. It can be argued that these measures were a bit of strategic marketing from Rockefeller. Think about internal company unions will always have corporate interest in mind. So full workers representation isn’t fulfilled. But there is a silver lining, the UMWA gained 4,000 new members.
In all the Coalfield War gives us an interesting look into the dynamic relationship between industrialists, the government, and workers. Namely, that when disenfranchised workers sought better work conditions that undermined corporate interests, considerable measures were taken to curtail workers goals. Measures which would disgusts modern American sentiments. Hiring private companies to terrorize workers, bringing in government officials to suppress workers, and massacring innocent bystanders would likely surprise many American households in the 21st century. We also get a key insight on what happens when “the people” get pushed too far in terms of getting their grievances acknowledged. Violent civil disobedience.
I’ll leave readers with song lyrics about the Ludlow massacre by Woody Guthrie:
The Ludlow Massacre: Class, Warfare, and Historical Memory in Southern Colorado by Mark Walker (Historical Archaeology Vol. 37, No. 3, Remembering Landscapes of Conflict (2003), pp. 66-80)
“words in their primary or immediate signification stand for nothing but the ideas in the mind of him that uses them (p. 146).”
The quote above is taken out of the work called An Essay Concerning Human Understanding by John Locke. Specifically, the quote is from Book III which talks about how humans come to understand words and communicate ideas to one another. From the quote above the reader can get a general idea of John Locke’s theory on words. We can reason that Locke thinks words are equal to ideas when he says “Words in the their primary…. signification stand for nothing BUT ideas in the mind…”. Additionally, he goes on to explain that humans are endowed with various thoughts that are supposed to benefit other people. But there’s a catch, these thoughts are all locked up within the individual. Despite this dilemma, words allow these ideas to become unlocked from the individual. According to Locke the unlocking process is what allows society to flourish (Chapter ii sec1. Pg 146 Locke). From that readers are compelled to conceptualize language as a phenomenon which instructs and provides knowledge in order for society to flourish. Furthermore, sharing ideas would be living in accordance with human nature, since he also believes that humans are inherently designed to be sociable (Chap I sec 1 pg 145). Since for Locke ideas are used to be sociable, that means words have utility as well. He argues there are two use values when it comes to recording words: 1. it aids memory 2. It brings ideas out in the open where others can see them (Chapter ii sec 2 pg 146). But words would become too idiosyncratic if people conceived of their own “markings” to translate their ideas. So words that flourish are a “mark” which are universally recognized. Locke explains this notion by saying:
“nobody can apply a word, as a mark, immediately to anything else. For that would involve making the word be a sign of his own conceptions, …applying the word as a mark of a thing involves applying it intending it to stand for that thing, which means applying it with an accompanying thought about the word’s significance.”
So if you want an idea to universally stand for a certain mark that means one must find a mark within the world which can generally signify the idea you are trying to convey. This process is what facilitates proper communication with others. So, for example, if “x” signified the idea “car” in a certain society, then another mark such as “y” (y= not car) would be inappropriate to use for car since “y” isn’t generally understood to mean car. Though Locke has interesting reasons to justify his views on words and ideas, that doesn’t exempt his arguments from criticism.
One objection to Locke’s reasoning would be one that challenges the claim that recording words aid personal memory. While yes, generally this may seem true, readers should analyze the full extent of this claim. Let’s consider a brief example. Imagine an individual who has trouble with long term memory but is proficient at remembering locations. Now let’s say this person is attending a speech and wants to remember the way the orator was talking, and so writes down “Remember the address”. Later on in the week the person finds the paper and reads what he had written. According to Locke the words written down on the paper should aid our forgetful person in remembering the infliction of the orator. But problems arise considering the fact the person is proficient at remembering locations. So he reads it and thinks “Right, it was 5th street”. On the surface this seems like it aided his memory but his initial intention was to remember the infliction of the orators voice, and not the location. After all the person is already good at remembering locations and didn’t necessarily need the words to remind him where the speech was. This could be mitigated by recording his voice (since address (location) and address (speech style) can have different pronunciations). But this would be problematic if the person voice recorded words like “councilor/counselor” or “bank”. Because these words sound the same, the forgetful individual might still find trouble in remembering what they meant.
Another detail we must pay attention to in Locke’s reasoning is the concept that when we write symbols to denote ideas we are doing this to share ideas with others. This once again is generally true. And we get a qualifier on why sometimes it may not be true, since popular symbols must be used to signify ideas (“x”= car example above). So Locke successfully explains why sometimes people don’t understand words that explain ideas. The symbols are too idiosyncratic. But he fails to go deeper on what makes these symbols generally understood in the first place. It’s not as if when human’s with linguistic capacity look at objects they immediately have word impressions of that object. Quite plainly, when you look at a dog in the real world, the brains initial impression doesn’t initially stimulate the cognitive impression of “dog!”. And if you were to pan over to a chair your brain doesn’t exclaim “chair!”. It just understands these objects as such. The word and the object here don’t seem to be directly linked to one another in terms of recognizing objects in our consciousness. But nonetheless these names exist and we have formulated them, so in that sense Locke is correct in saying words are ideas. But it’s wrong to say the inverse, that ideas are words. Mainly because objects in themselves don’t contain the property “word”. But rather, this cognitive property assignment comes from humans. He acknowledges the arbitrary nature of word denotation but still believes that the impressions of objects warrant an automatic denotation. But this isn’t an accurate conceptions of human cognitive thinking. We don’t get impressions from objects in the world and immediately think “this object is that”, rather the brain seems to conduct a process of pattern recognition. The brain’s process seems to fall under reasoning like this “this object is this object, which generally falls under this set of symbols/sound in the world”. This distinction, though small, opens up the scope of Locke’s inquiry into the human mind. Here, we can begin to understand the creatures we are. We aren’t creatures who cognitively just process objects and translate them to ideas, but rather we do that and then inquire about its relationship in the world. This process happens quickly, and most humans master this skill by around the age of 3. That’s how we are able to come closer to understanding each others intentions. Animals are generally good at understanding intentions. Humans obviously fall in that category too, but we are different in that we are able to connect patterns with certain sounds and symbols. Let’s imagine, I invite you over for dinner but I don’t speak your language. Now, I could be standing at a table with some spaghetti on a plate and I can point to it and say “fleeblah” and then have another family member come to it and say “fleeblah”, and a person who has never even heard “fleeblah” uttered can reason the sound “fleeblah” has something to do with that spaghetti. Now if I go even further and open up my phone and google many pictures of spaghetti. And then point and say “fleeblah” that person is inclined to understand that when I utter “fleeblah” I am intending to put the idea spaghetti into their head. This recognition of intention should warrant our attention when we speak about human cognition and language. It seems as if when humans utter/ write words we are intending to put ideas into other people’s cognition. This turns Locke’s assertion that words are used to bring ideas out in the social world, into a question of “what do humans intend with words when they try to bring ideas out in the social world?”. A question which may be tackled in a future post.
Full Disclosure: I am not advocating Marxism, Neoliberal capitalism, or Communism. I disagree with Marxist ideology but it has been influential on the political scene.
My understanding of Marxism was influenced by lectures taken by me at Rutgers by Professor Sam Carter, an analytic philosopher with degrees from Oxford &Edinburgh. His research at Rutgers is conducted in linguistics and higher order logic. His work can be found here: https://www.samjbcarter.com/
This article will discuss how one of the founding fathers of Singapore, Lee Kuan Yew, was influenced by Marxist notions of the relations of production have helped Singapore’s economy since the 1950’s. Pioneering leaders, such as Lee Kuan Yew have pushed towards reform specifically targeting the relations of production in order to create economic prosperity in the nation. Arguably, it’s Yew’s Marxist influence which allowed him to actualize a form of state capitalism never before seen in Singapore.
Yew was not an ardent communist as leader of Singapore but may have been influenced by his early encounters with the ideology as a youth. Lee was influenced by a Marxist organization called the Fabian Society in his youth. He asserted that “cooperation and competition between people” which he believed was a compromise between communism which relied too much on collectivism, and capitalism which he considered to rely too much on competition. This lead his focus on the plights of poor people in Singapore, allowing him to create favorably economic conditions for his constituents. This form of capitalism has allowed Singapore to outperform the USA in terms of Neoliberal economics used and popularized by the USA. This is the case because it’s clear that Singapore’s economic rise can be directly correlated to the enfranchisement of its working class and the use of various financial instruments popularized by Wall Street. And that was only possible via reforms that looked to reorganize certain relations of production. Specifically, reorganization was possible via the establishment of the Central Provident Fund. The reason why the Central Provident Fund was so important in changing the relations of production was that it enfranchised Singapore’s citizens in terms of healthcare, housing, and other financial means- enabling Singapore’s economy to grow at an exponential rate. But this enfranchisement didn’t come in the form of a “hand out”, rather it incentivized productivity and entrepreneurship.
This graph shows Singapore’s economic rise in terms of GDP over time compared to Cuba & The USA. Worthy to note Singapore achieved this growth with a lot less debt than the USA.
In order to understand Singapore’s exponential economic rise under a Marxist framework, a few Marxist terms Lee was likely familiar with must defined. These definitions will act as reference points which allow for a clear understanding on how Lee’s early exposure to Marxist ideology may have played a role in Singapore’s state capitalism. One of the fundamental Marxist notions that needs to be analyzed is the phrase “subsistence needs”. Arguably, it is nearly impossible to understand Karl Marx’s writings without defining this core phrase. Mainly, because Marx believes that without understanding that phrase, accurately conceptualizing how humans organize their material lives would be difficult. Marx emphasizes this point by saying that humans:
“…begin to distinguish themselves from animals as soon as they begin to produce their means of subsistence, a step which is conditioned by their physical organization. By producing their means of subsistence men are indirectly producing their actual material life.” (Marx German Ideology sec: A. Idealism and Materialism).
So clearly it’s an important definition because defining what a societies subsistence needs exactly are will give valuable insight on the physical organization of that society. Naturally, the next question ought to be: what are human subsistence needs? One could reason that human subsistence needs are reflective of natural human impulses. And it’s these impulses which drive humans to organize themselves the way they do. Furthermore, Marx seems to give insight on what these “human impulses” are, claiming that humans meet their subsistence needs via biological means (eating, drinking, delaying death etc) and cultivating individual gifts, and that is all done because humans have a natural tendency to do things for the community ( Marx German Ideology sec: D. Proletarians and Communism). This is important to the discussion regarding Singapore’s economic development because the way Singapore’s government institutions decided to improve their society was to make sure certain subsistence’s needs were facilitated and guaranteed to their citizenry. Under a Marxist framework, one can observe how Singapore addressed these subsistence needs of its populous by observing the societies relations of production.
The second and final term that needs to be properly analyzed is the phrase relations of production. For Marx, the relations of production seemed to serve as an important part of analysis in terms of understanding a particular society. The reason he thought this can be best explained by Marx:
“The totality of these relations of production constitutes the economic structure of society, the real foundation, on which arises a legal and political superstructure and to which correspond definite forms of social consciousness.” (Marx A Contribution to the Critique of Political Economy sec Preface).
So in essence the relations of productions for Marx are a reflection of a number of things such as: the economy, law, and political climate. The reason that Marx thinks the relation of production can provide an adequate description of society is due to the fact that it describes individuals’ relationship with productive forces. Mainly, he seems to pay close attention to who exactly owns these productive forces, because for Marx that determines how a particular society is organized. A brief excerpt from Marx’s magnus opus, Das Kapital allows for a more thorough explanation on the topic of relations of production:
“The latter is as much a production process of material conditions of human life as a process taking place under specific historical and economic production relations, producing and reproducing these production relations themselves, and thereby also the bearers of this process, their material conditions of existence and their mutual relations…their particular socio-economic form. For the aggregate of these relations, in which the agents of this production stand with respect to Nature and to one another, and in which they produce, is precisely society…”
The prose used by Marx gives insight on the importance of the relations of production if one is to fully grasp society via a Marxist framework. So, in order to understand Singapore’s economic rise under Marxist terms, we need to look at Singapore’s relations of production. But in order to do that a brief history of Singapore’s economic development must be discussed.
Singapore: A Brief Economic History.
Sago Street in the 1960’s
Though Singapore has a rich history stretching back to antiquity, this work will focus on modern developments. Specifically, the scope will be limited to Singapore’s development from the mid-20th century to our present day. The two main reasons for that are: the data from this period is extensive, and this is the period Singapore’s contemporary national identity comes to fruition. Singapore’s story beings in 1965, after Malaysia expelled them from their political union via parliamentary resolution, due to growing racial tension that was perceived as directly undermining the Malaysian economy. (US Library of Congress). After this forced independence, Singapore immediately found itself in a fiscally disadvantaged situation. The situation for the citizenry was dismal. Over 70 percent of households lived in overcrowded communities, a third squatted in shanty towns outside of the urban center, and over half the population was illiterate. (World Bank). Additionally, Singapore faced a heavy influx of immigration before they were kicked out of the Malay political union, further exacerbating the situation. This wave contributed to a high level of unemployment (roughly 15-20%) (World Bank). A visitor living in Singapore during this tumultuous time provides a firsthand account on what this society looked like to him:
“The undercover walkways are usually taken over by hawker stalls and junk. Laundry hangs from poles thrust out of windows above—just like in old Shanghai. This is Singapore, in the early 1970s. We were all devastated at the time—we who didn’t live here. From 1871 to 1931 the city’s Chinese population rose from 100,000 to 500,000. By 1960 it is estimated that more than 500,000 Chinese were living in slum-like conditions—indoors. Equipped with only one kitchen and one bathroom, the shophouses were designed for two extended families at most. After extensive partitioning many of them housed up to 50 individuals.” (Yeo)
It’s worthy to note this person wasn’t in the outskirts where the shanty towns were prevalent. But rather close to the Urban center highlighting the destitute situation a majority of Singaporeans faced. Now this was all going on in the 1960’s-70’s. But now let’s fast forward 50 years, and look at the state of Singapore now.
Contemporary Singapore is far removed from its impoverished past. Their progress is reminiscent and analogous to the Rocky Balboa series. Once a land where
Sago Street in the 21st century
over half the population was illiterate, Singapore now boasts a literacy rate of 96.8% (Knoema). Furthermore, Singapore can take pride in being number one worldwide in terms of educational prowess in math, science and reading (OECD.)Additionally, the unemployment rate has drastically fallen to a staggering 2%. Now comapare that to the world average which falls roughly around 6% (World Bank). And not only that, but roughly 90.7 % of Singaporeans are home owners (Singapore State Government). Comparatively the USA, which is perceived to have a reputable standard in terms of homeownership, has about a 64% rate (US Census). How has the populous of Singapore improved so exponentially? A lot of credit should be given to the population itself. The large majority of the people who immigrated to Singapore in the early days were impoverished and looked to work hard in order to change their circumstances. However, it would be remiss not to mention the contribution of an individual who started at the grassroots level and would end up at the highest office in Singapore’s government, Lee Kuan Yew.
Lee Kuan Yew
It would be disingenuous to talk about Singapore’s meteoric rise without mentioning the contributions of its first prime minister Lee Kuan Yew. He grew up during the Japanese colonial occupation of Singapore which would influence his politics in the coming future. But a specific event would have profound effect on Yew. On his way home from work Yew was randomly ordered by a Japanese guard to join a group of Chinese people who were being round up for a “routine” inspection. Luckily for Yew, he spoke Japanese and was able to convince an Imperial soldier to let him go get a better pair of cloths from home. That “routine” inspection group ended up being the victims of the Sook Ching Massacre, a Japanese atrocity that would cause the deaths of roughly 50,000- 100,000 ethnic Chinese. Yew’s close encounter with Japanese oppression inspired him to say “My colleagues and I are of that generation of young men who went through… the Japanese Occupation and emerged determined that no one…had the right to push and kick us around”(Yeo 87). That sentiment inspired him to enter politics, joining the Communist Party of Malaya, where one can assume he was exposed to terms such as the relations of production and subsistence needs. After a complicated series of events Yew would find himself at the helm of Singapore’s newly independent state, inheriting an economic and humanitarian crisis few would ever want to deal with. But his early Marxist influence may have given him an idea on where to start. That can be argued by analyzing some of the reforms he introduced which set up a solid economic base for Singapore’s population to prosper in the future. But it is worthy to note that Singapore is NOT a Marxist state but rather a state influenced by Marxism.
The Central Provident Fund
In order to tackle the economic crisis that plagued Singapore in the 1960’s sweeping reforms that addressed these economic woes needed to be established. Luckily for Yew he inherited the Central Provident Fund which was created under the old Malay regime in 1955. The CPF was the social security system used by the previous regime as a retirement plan, which was funded via taxes. This fund is owned and controlled by individuals but it allows for a bit more autonomy in terms of where the money from the fund is spent, in comparison to other social security systems. Essentially, it creates a bank account for all of it’s citizens. But at the same time allows citizens to use private banks in conjunction with the CPF. Additionally, the CPF can be seen as a government voucher which allows users to save or spend the capital within it whenever they want. Another difference in social security lies in who is qualified for social security services. That’s because all that’s needed to be eligible for the CPF is Singaporean citizenship (CPF).But when Yew came to power the CPF’s power was limited in scope. However, he must’ve realized the potential of the social security system because his regime greatly expanded it over the years, and in hindsight it paid dividends. That’s because the CPF covers 3 layers of subsistence needs which arguably allow Singapore’s population to focus on other things such as: self-fulfillment, community engagement, or social leisure. The 3 layers that allow that are: Shelter, Health, and Education. Each of these would be addressed via the CPF, but the first expansion of the CPF occurred in 1968 and it aimed to address one of the biggest problems challenging Singapore’s prosperity.
Public Housing Scheme
In 1968 Lee Kuan Yews government was tasked with handling an economic crisis, and one of the first things they decided to address was the housing problem. They did this by expanding the CPF social security apparatus in order to foster viable living conditions, the government also mass produced housing units, which eased the burden felt by the populous during this tumultuous time. (CPF History of CPF). In addition to this, the government made it it’s priority to insure that citizen’s private wages didn’t go into buying houses but rather housing was paid via the CPF (CPF History of CPF). Having said that, this isn’t traditional public housing where the state owns the houses, but rather it insures citizens with an opportunity to become homeowners. That’s possible because the CPF essentially was expanded to act as a state sponsored investment account and as a social security system. When taxes are taken out the funds, they are immediately redistributed to everyone’s CPF account. In addition to that, individuals can choose to contribute more funds to this account via private wages, and if that’s done the private employer is expected to match that amount, similar to 401k schemes in the USA except more full in scope. Moreover, citizens have the option to use their CPF funds as resources to invest in global markets, individuals can invest in low risk accounts or high risk accounts at their discretion. All of these benefits of the CPF enfranchise individuals to become homeowners. These developments explain the aforementioned high percentage of homeowners in Singapore.
Under Marxist terms we can argue that the productive forces in terms of housing were aimed to eventually belong to the people of Singapore. Because when the development first started the government owned the productive forces since they built everything, but over time that debt was paid and individuals owned their houses. Furthermore, they could later sell them to other individuals. In essence, ownership of a house is predicated mainly on citizenship and partly on labor power. The reason it’s partly labor power is because individuals can contribute their private wages to the fund, increasing its value compared to someone who didn’t want to. Reducing the anxiety of shelter must’ve been a much needed relief for the citizenry, allowing them to focus on their own personal endeavors. But that’s not all, the healthcare sector would also be targeted by the CPF leading to further reform in their society.
Medisave
After an economic expansion in the face of the recessions of the early 1980’s, Singapore was able to further improve upon the CPF, guaranteeing yet another subsistence need. They addressed one of the essential parts of subsistence- healthcare. In 1984, the Singaporean government passed legislation which would expand the CPF’s role in its citizens lives. The expansion would be called Medisave. The financial mechanisms used by the CPF to guarantee housing are also used to finance the healthcare sector. At first the funds could only be used for public hospitals but after ample amounts of private economic expansion Medisave was combined with a new model Medishield which allowed CPF funds to be used at private hospitals. Arguably, this new expansion further diminished the worries of the populous. That’s because once subsistence needs are taken care of, people can free up their resources towards other societal endeavors. And certain societal endeavors taken by individuals can also have tremendous effect on the overall economy. More minds can focus on developments in medicine rather than survival. Singapore’s government seems like it incentivizes these private endeavors, and the data can back it up. It ranks number 2 in the index of economic freedom which measure what countries best protect the liberty of individuals to pursue their own economic interests allowing for greater prosperity for society at large (Heritage Foundation). Compare that to the USA, often perceived as the ideal in terms individual economic freedom, who currently ranks 18th . So in Marxist terms it seems as if the government of Singapore wants workers to make and own the productive forces in Singapore. In nontechnical language they want to develop as many entrepreneurs as possible.
In the end, Singapore’s development was exponential. Arguably, one could reason this was influenced by addressing Marxist concepts to improve their economy. Specifically, by addressing subsistence needs Singapore could improve the nations relations of production, effecting greater economic society. They were able to do that with a government financial instrument called the Central Provident Fund, which enabled and incentivized home ownership, entrepreneurship, and other personal endeavors. Though not a communist state, Singapore seems to have tried to help their citizens realize their potential. Capitalism and Marxist techniques have been used hand in hand to increase efficiency in a Neoliberal capitalist system.
Works used:
“Adult Literacy Rate by Countries, 2017.” Knoema, Knoema, knoema.com/atlas/topics/Education/Literacy/Adult-literacy-rate?baseRegion=SG.
Huff, W.g. “The Developmental State, Government, and Singapore’s Economic Development since 1960.” World Development, vol. 23, no. 8, 1995, pp. 1421–1438., doi:10.1016/0305-750x(95)00043-c.
“OECD Data.” The OECD, data.oecd.org/.
Yeo, Kim Wah. Political Development in Singapore, 1945-1955. U.P., 1973.
“Das Kapital” “A Contribution to the Critique of Political Economy” & “German Ideology” by Karl Marx
Cyber law is often seen as a developing field in terms of international law. And rightly so, considering that the internet is a relatively new development in human history. However, that’s not to say that there isn’t development within the field of cyber law. The field encompasses a broad range of topics such as Intellectual property, data privacy, censorship etc, and some laws regarding cyber law are clearly defined. But despite that, this paper will narrow the scope in terms of where cyber law is the least developed, arguably that is within the context of data privacy and unauthorized access. These laws are often the least developed because they used to be enforced by legislation that covered traditional communication networks, such as mail and phone networks. But since data and unauthorized access is the least developed that means they are often the most abused by agents committing cybercrimes. Feasibly, this is mainly due to the fact that these sectors lack enforcement and detection methods. However, in regions where cyber law is most enforceable have decided to back enforcement and detection mechanisms that allow their cyber law to be practically enforced. But in order to understand how that’s possible a bit of background information on cybercrime and cyber law is necessary.
Background
Cybercrime has existed since the 1970’s in the form of network attacks on phone companies. Hackers would infiltrate telephone networks enabling them to create connection, reroute calls, and use payphones for free (The History of Phone Phreaking). This early era of hacking was a problem due to the lack of legislation that could act as a guide for law enforcement to accurately charge criminals. Arguably, it was the lack of legislation on hacking which allowed computer hackers to hone their techniques of network infiltration and data theft. The reason why that’s so can be observed in the late 1980s, where the intensity of large system attacks became more abundant and destructive. One of these major system hacks was perpetuated by a group known as 414. It may come as a surprise that this group wasn’t a group of hardened criminals, but rather 6 teenagers from Milwaukee, Wisconsin. These teenagers managed to hack high profile systems ranging from a nuclear power to banks (Stor). The intentions of the hackers didn’t seem maligned, since they didn’t steal any info from these systems. But the 414 hacks weren’t harmless either since they cost a research company $1,500 after the hackers deleted some billing records. But other major hacks weren’t as harmless. The notorious Morris worm is a prime example of the harmful effects of unwarranted network infiltration. The reason that’s the case is that it the Morris Worm was one of the first hacks that was distributed to the public internet (Sack). The worm was created by Robert Morris a Graduate student at Cornell in order to showcase the security problems of the internet, the worm would go on to cause in-between $100,000- $10,000,000 in damage by infiltrating networks and causing them to become non-operational (Newman). Clifford Stoll, one of the people responsible for purging the worm, described the Morris worm as such:
“I surveyed the network, and found that two thousand computers were infected within fifteen hours. These machines were dead in the water—useless until disinfected. And removing the virus often took two days.” (Sack)
Additionally, one of Stoll’s colleagues says that 6,000 computers were infected, which may not seem like much but only 60,000 computers were connected to the internet at that time. Meaning 10% of the internet was infected (Sack). Such attacks would force legislators to address the problems of cybercrime, specifically network infiltration. One of the first pieces of comprehensive cyber law to address these issues was the Computer Fraud and Abuse Act enacted by the United States congress.
Computer Fraud and Abuse Act
After a lieu of cyber-attacks plagued the world, the U.S Congress decided to specifically address cybercrime. Prior to the Computer Fraud and Abuse Act (CFAA) cybercrime was prosecuted under mail and fraud, however that proved uncomprehensive. The CFAA’s framework defined what cybercrime entailed. One of the pioneering things the legislation did was define what kinds of computers were off limits to data infiltration. According United States code, In Title 18, Section 1030 of CFAA a computer is unlawful to hack if that computer is:
“(A) exclusively for the use of a financial institution or the United States Government, or, in the case of a computer not exclusively for such use, used by or for a financial institution or the United States Government and the conduct constituting the offense affects that use by or for the financial institution or the Government; or
(B) which is used in interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States.” -18 U.S. Code § 1030 – Fraud and related activity in connection with computers (Cornell)
Basically, stealing information from a computer that effects the United States via interstate or foreign commerce/communication is forbidden. These specifications were enough to convict various individuals who committed cybercrimes in the late 1980s. Interestingly enough, Robert Morris was the first person to be convicted for violating the Computer Fraud and Abuse Act. Specifically, because he intended to infiltrate several computers without authorization which negatively affected economics and communication within the US (Newman). Arguably, the enforcement power of the CPAA may have been the essential precedent needed for the international community in terms of creating sufficient cyber laws.
Budapest Convention on Cybercrime
In November 2001, the first international convention on cybercrime took place. The scope of the Budapest Convention on Cyber Crime (BCC), unlike the CPA, had a wide range because it addressed: IP law, fraud, and child pornography. However, the convention also found it important to address what unlawful access to a computer constituted, defining it as:
“..A Party may require that the offence be committed by infringing security measures, with the intent of obtaining computer data or other dishonest intent, or in relation to a computer system that is connected to another computer system.” -Article 2 of BCC (Council Of Europe)
Here, arguably, the BCC is more specific then the CPAA in terms of defining unlawful access. The reason being is that it ignores the economic/ social effects and directly addresses what unlawful access is which would be:
“..the intent of obtaining computer data or other dishonest intent…to a computer system that is connected to another computer system”.
The BCC ignores the economic/ social effects because some hacks may not influence the economy or society, by keeping the CPAA definition, the scope of data infiltration would’ve been limited to social and economic consequences on specific nations. Furthermore, the BCC’s unlawful access clause has been a topic of discussion for legal entities and private corporations.
Modern Developments
EU v Facebook
The precedent set by the BCC on data infiltration remains relevant in contemporary times. Especially when considering the role private corporations have in data security. This is evident when taking Facebook’s recent big data breach into consideration. In order to understand why Facebook could potentially be an important catalyst to cybercrime we need to understand Facebook’s role on the internet. Simply put, Facebook is a social media website which connects private users via a public platform, but despite it being a public platform users’ can share data privately. However, controversy emerged after users’ data was allegedly being misdirected and sold to third parties without user’s complete consent(Guzenko). This is a clear violation of the BCC’s definition of unlawful system infiltration. The reason that could be so is that since Facebook is in charge of maintaining data security for their users, that would mean Facebook selling data without user’s consent would constitute unlawful data infiltration according to article 2 of the BCC. Additionally, Facebook was hacked by a third party and millions of users’ data was exposed without user consent. After this particular hack the European Union decided to step in and reprimand Facebook via a 1 billion euro fine (Schnechner). The EU argues Facebook didn’t do enough to protect users’ data from infiltration, but such accusations do little for cyberlaw. The reason for that is that the EU could always argue that an entity “didn’t do enough” to protect user data, and supplement that reasoning with a fine. Rather, since cyberlaw is a relatively new field, legal entities ought to cooperate with influential players within the cyber world in order to create viable solutions to cybercrimes. The EU accusations assume that Facebook is the entity which allows 3rd parties to access user’s data, but actually it’s the users themselves who allow it. Restricting one’s data is an option if a user changes their privacy settings. Additionally, It’s unrealistic to expect Facebook to curtail the behavior of its one billion users, some users may be more susceptible to data hackers due to their ignorance on data security. The reasoning the EU expels on to Facebook would be similar to this: If an EU citizen were to steal property from another citizen then the EU itself would be held accountable for allowing that to occur, and thus deserves to be fined. This is so because Facebook is similar to the EU, in that it’s a microcosm of different sets of people behaving in ways they can’t totally predict. So instead of focusing on how specific internet services operate, focus should be shifted to network self-enforcement. A prime example of that shift of focus would be China’s comprehensive self-regulating internet network.
China’s Internet Network
Modern cybercrime has evolved in terms of the magnitude of attacks. However, in the 21st century cyber attacks, particularly on infrastructure, are not only possible but prevalent (Schmitt). An example of such an attack is explained by Tomas Ball, a contributor to the Computer Business Review
“in December 2015 a massive power outage hit the Ukraine, and it was found to be the result of a supervisory control and data acquisition (SCADA) cyber-attack. This instance left around 230,000 people in the West of the country without power for hours…chaos was sewn using spear phishing emails, a low tech approach to launch such an attack; this trend is relevant today, with phishing still being used against critical infrastructure.” (Ball).
That’s only one case, but hacks on critical infrastructure can range from manipulating data which changes the chemical composition of drugs being manufactured, or to infiltrating a dam and redirecting electricity (Schmitt). Countries have implemented measures to mitigate and respond to this risk on critical infrastructure. A notable response to this problem has been from the Chinese government. China has been able to mitigate the risk of data infiltration by regulating its domestic network via legislation and technology. This may seem like a normal approach, but China is unique in the sense that it’s network is reinforced by technology which actively implements its cyber legislation. It’s difficult to understand the full scope of how China is able to do this (since the government isn’t transparent on how the network fully operates) but there are things that are clearly observable in terms of how data transfer is controlled. Firstly, data transfer in China is purposefully slowed. This is important because it allows the Chinese network to detect potential disturbances before they fully manifest, so infiltration could be detected much easier (Chew). Secondly, as mentioned before, the system self regulates. The Chinese government implements its own filters by creating comprehensive state tech that enforces Chinese law. However, China also puts heavy pressure on Chinese firms to self-regulate content, meaning that a firm that deals within the cyber world must follow the cyber laws or face a shutdown of business or a hefty fine. This is similar to how the EU went about dealing with Facebook, the only key difference being that the EU lacks its own data enforcement technology (Chew). And lastly, China’s network will respond to infringements of their cyber law by quickly “poisoning” unlawful data connections. An example of this would be if a hacker wanted to infiltrate some data network the connection would immediately be detected as a “poisonous connection” and thereby the hacker would be cut off from that connection (Chew). Arguably this is what sets China’s cyber network apart from everyone else, the ability to actively regulate data under their legal framework. Though it’s worthy to note that China’s network indeed does well in terms of enforcing its cyber law by regulating data, but that doesn’t mean the network is exempt from criticism.
China’s cyber network is rather effective in terms of enforcing its cyber law, however it has been used to disenfranchise its own civilian population. Qiang Xiao an internet researcher at UC Berkeley describes China’s internet network as such
“…it has consistently and tirelessly worked to improve and expand its ability to control online speech and to silence voices that are considered too provocative or challenging to the status quo.”(Xiao). But such things, unfortunately, should be expected. After all it makes sense for illiberal governments to manifest illiberal computer networks. But such realities shouldn’t deter liberal government from trying to conceptualize and develop internet networks which enforce cyber law. This is a lot easier said than done because it’s easier to enforce authoritarian cyber law than more liberal law (Schmitt).”
Mainly, due to the fact that the amount of computing power needed to create a liberal network would be immense. In conjunction with it being so massive, economic factors come into play when determining how effective cyber law is enforced in a region, leaving poorer liberal nations behind. Despite that, developments in quantum computing can allow for massive amounts of data to be processed and it’s getting cheaper as it develops (IBM). Not only that but quantum computing opens up the door for the network to self-learn, enabling better self-enforcement (IBM). Such features may intrigue governments who want to enforce a Common Law internet network since it can self-learn off of old legal precedents. So in the future enforceable cyber for liberal governments is definitely a possibility, and perhaps a necessity if strong cyber law is to be properly enforced.
In conclusion, since there are problems with enforcement and efficiency of cyber law, internet networks which actively enforce cyber law using the internet network itself are necessary to achieve practical cyber data enforcement. Different legal jurisdictions would naturally have different laws concerning their respective internet networks, therefore various network legal structures would need to exist to facilitate their cyber laws. Developments in quantum computing may pave the way for networks to regulate themselves.
Works Cited
“18 U.S. Code § 1030 – Fraud and Related Activity in Connection with Computers.” LII / Legal Information Institute, Legal Information Institute, http://www.law.cornell.edu/uscode/text/18/1030.
Chew, Wei Chun. “How It Works: Great Firewall of China – Wei Chun Chew – Medium.” Medium.com, Medium, 1 May 2018, medium.com/@chewweichun/how-it-works-great-firewall-of-china-c0ef16454475.
Guzenko, Ivan. “The Third-Party Data Crisis: How the Facebook Data Breach Affects the Ad Tech.” MarTechSeries, 5 July 2018, martechseries.com/mts-insights/guest-authors/the-third-party-data-crisis-how-the-facebook-data-breach-affects-the-ad-tech/.
Newman, Jon O. “UNITED STATES of America, Appellee, v. Robert Tappan MORRIS, Defendant–Appellant.” Stanford Law, stanford.edu/~jmayer/law696/week1/Unites%20States%20v.%20Morris.pdf.
Sack, Harald. “The Story of the Morris Worm – First Malware Hits the Internet.” SciHi Blog, 3 Nov. 2018, scihi.org/internet-morris-worm/.
Schmitt , Michael N. “Cyberspace and International Law: The Penumbral Mist of Uncertainty.” Harvard Law Review, harvardlawreview.org/2013/04/cyberspace-and-international-law-the-penumbral-mist-of-uncertainty/.
Xiao, Qiang. “Recent Mechanisms of State Control over the Chinese Internet – Xiao Qiang.” China Digital Times CDT, chinadigitaltimes.net/2007/07/recent-mechanisms-of-state-control-over-the-chinese-internet-xiao-qiang/.
Sermo Civilis 