Software developer at a big library, cyclist, photographer, hiker, reader. Email: chris@improbable.org
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Why Did US Buy Old Soviet Aircraft from Kazakhstan?

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Steve Brown

After a career as a British Army Ammunition Specialist and Bomb Disposal Officer, Steve later worked in the fields of ammunition destruction, demining and explosive ordnance disposal with the UN and NATO. In 2017, after taking early retirement, he moved to Ukraine with his Ukrainian wife and two sons where he became a full-time writer. He now works as a senior writer and English language editor with the Kyiv Post.

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Elon Musk loses at Supreme Court in case over “funding secured” tweets

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Elon Musk frowns while sitting on stage during a conference interview.

Enlarge / Elon Musk speaks at the Satellite Conference and Exhibition on March 9, 2020 in Washington, DC. (credit: Getty Images | Win McNamee )

The US Supreme Court today rejected Elon Musk's attempt to terminate his settlement with the Securities and Exchange Commission.

Musk appealed to the Supreme Court in December 2023, claiming the settlement he agreed to in 2018 forced him to "waive his First Amendment rights to speak on matters ranging far beyond the charged violations." The SEC settlement requires Musk to get pre-approval from a Tesla securities lawyer for tweets or other social media posts that may contain information material to the company or its shareholders.

The Supreme Court decided not to hear the case, leaving an appeals court ruling against Musk intact. The top court denied Musk's petition without comment Monday morning in a list of orders.

The SEC brought a securities fraud charge against Musk after his August 2018 tweets stating, "Am considering taking Tesla private at $420. Funding secured" and "Investor support is confirmed. Only reason why this is not certain is that it's contingent on a shareholder vote."

The SEC said the tweets were false and misleading because "Musk had not even discussed, much less confirmed, key deal terms, including price, with any potential funding source," and he "knew that he had not satisfied numerous additional contingencies." Musk's tweets caused Tesla's stock price to jump by over 6 percent and harmed investors by causing "significant confusion and disruption in the market for Tesla's stock," the SEC alleged.

Musk claimed “economic duress”

Musk claimed he was the victim of "economic duress" when he agreed to the settlement and that the SEC "weaponized" the deal in order to "muzzle and harass Mr. Musk and Tesla." In addition to the clause requiring pre-approval of tweets, the settlement required Musk and Tesla to each pay $20 million in penalties and forced Musk to step down from his board chairman post.

A US District Court judge rejected Musk's attempt to get out of the settlement in April 2022. A three-judge panel at the US Court of Appeals for the 2nd Circuit unanimously ruled against Musk in May 2023. The appeals court later denied Musk's request for an en banc rehearing in front of all the court's judges.

The 2nd Circuit panel ruling dismissed Musk's argument that the settlement is a "prior restraint" on his speech, writing, "Parties entering into consent decrees may voluntarily waive their First Amendment and other rights." The judges also saw "no evidence to support Musk's contention that the SEC has used the consent decree to conduct bad-faith, harassing investigations of his protected speech."

Musk's petition to the Supreme Court said the case presents the constitutional question of whether "a party's acceptance of a benefit prevents that party from contending that the government violated the unconstitutional conditions doctrine in requiring a waiver of constitutional rights in exchange for that benefit."

SEC: Settlement designed to prevent securities violations

The SEC urged the Supreme Court to reject Musk's petition in a March 2024 filing. The Supreme Court "has consistently held that, in resolving litigation, parties may choose to waive even fundamental constitutional rights," the SEC said.

The Musk settlement "was reasonably designed to minimize the likelihood that petitioner would make future false or misleading statements in violation of the securities laws," the SEC wrote. Musk's reply brief filed a few weeks ago claimed that the agency's "arguments highlight the need for review. In effect, the SEC argues that the Constitution imposes no limits on its authority to extract demands in its settlements."

Although Musk lost all attempts to terminate the settlement, he persuaded a jury in February 2023 to reject a class-action lawsuit filed by Tesla investors who claimed the tweets caused $12 billion in losses.

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Quoting Moxie Marlinspike

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It's very fast to build something that's 90% of a solution. The problem is that the last 10% of building something is usually the hard part which really matters, and with a black box at the center of the product, it feels much more difficult to me to nail that remaining 10%. With vibecheck, most of the time the results to my queries are great; some percentage of the time they aren't. Closing that gap with gen AI feels much more fickle to me than a normal engineering problem. It could be that I'm unfamiliar with it, but I also wonder if some classes of generative AI based products are just doomed to mediocrity as a result.

Moxie Marlinspike

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D.C. police rejected GWU’s plea to sweep out university protesters - The Washington Post

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D.C. police rejected pleas from George Washington University officials to clear pro-Palestinian demonstrators out of an on-campus encampment early Friday morning, saying they worried about the optics of moving against a small number of peaceful protesters, according to two officials familiar with the talks.

Officers had assembled around 3 a.m. Friday and were prepared to enter the encampment, but senior leaders in the police chief’s and mayor’s office ordered them to stand down, the officials said. The demonstrators were small in number and largely peaceful, and the city officials told their university counterparts they wanted to avoid images of violent altercations between police and protesters flashing on TV screens across the country. The George Washington campus in downtown Washington, five blocks from the White House.

As of Saturday afternoon, D.C. police had not sought to arrest anyone in the encampment, though university officials surrounded it with barricades and were not allowing new people to join. Some additional demonstrators erected tents along a portion of H Street that police had already closed.

The city officials, who spoke on the condition of anonymity to discuss sensitive police operations, said they had no immediate plans to clear the area known as University Yard along H Street between 20th and 21st streets NW. They noted that could change if the demonstrators began committing or advocating violence, or if radical groups joined the group’s ranks.

A spokeswoman for George Washington University did not answer questions about school officials’ discussions with law enforcement authorities. The school said in a statement, “After demonstrators refused multiple instructions to relocate, GWPD requested additional support from the DC Metropolitan Police to ensure the safety and security of all our community members through a measured and orderly approach.”

D.C. police also declined to comment on agency officials’ discussions with the university, and it was not immediately clear what tactics they considered using as officers prepared to enter the encampment Friday morning. D.C. police are accustomed to dealing with daily demonstrations over all manner of political issues in the nation’s capital, and they typically try to persuade demonstrators to voluntarily surrender. But they can also use more aggressive tactics, donning riot gear, forming lines and forcefully trying to move large groups.

A statement from a D.C. police spokesman said officers have been monitoring the demonstration. Thus far, D.C. police have kept up a low-key presence near the protest site.

“As always, we are continually assessing and evaluating the circumstances on the ground to inform our response,” the statement said. Lindsey Appiah, the city’s deputy major for public safety and justice, said Saturday that police “continue to monitor and work with GW to make sure things remain safe on their campus.”

Chuck Wexler, the executive director of the Police Executive Research Forum, which advises law enforcement agencies on best practices, said it is rare that an agency would turn down a request from a university to clear unwanted demonstrators from its campus, which is private property. At protests over the war in Gaza on other college campuses, police have sometimes sparred with demonstrators as they have sought to make arrests and break up encampments.

But Wexler said the university should demonstrate to police “a compelling reason” for officers to intervene, and D.C. police appeared to be taking a wait-and-see approach.

“If these are peaceful demonstrators and MPD says, ‘Look, we’ll stand by. We’re not leaving, we’re simply saying at this moment we don’t see a compelling need to come in,’ then that’s okay,” he said.

In Boston, law enforcement officers moved in on pro-Palestinian demonstrators attempting to form a human wall. The exchange was so tense that police reported at least four injured officers, and multiple students at Emerson College said they were shoved to the ground.

In Southern California, law enforcement officers looking to break up an on-campus tent encampment pushed through a growing crowd, struggled with protesters and ultimately arrested more than 90 of them.

Atlanta police said officers used chemical irritants when they faced off with demonstrators at an encampment at Emory University. And in Texas, state troopers dressed in riot gear took dozens of protesters into custody at the direction of Gov. Greg Abbott (R). Some troopers marched through campus on horseback. Others set up a barricade by pushing demonstrators with their bikes.

In D.C., the protesters are on private university property, and absent seeing a crime being committed, D.C. police said they need to be invited to take action on the campus. To do that, school officials would have to declare the demonstrators illegal trespassers who refuse to leave, or cite other possible crimes.

The D.C. officials who described the decision not to break up the George Washington University encampment said they had flashbacks to June 2020, when images of mostly peaceful protesters being forcefully shoved out of Lafayette Square by U.S. Park Police officers with batons and chemical irritants made national news. The officials said city leaders suggested alternatives to force an end to the demonstration at George Washington University, but they did not describe what those were.

By late afternoon Friday, the number of demonstrators in the encampment had dwindled to about three dozen. The university then warned students who remain in the encampment that they could face temporary suspension or be administratively barred from campus. Several students were suspended Friday.

In a statement, Arielle Geismar, the student government association president, said she urged the administration “not to use violence or actionable force by asking either [university police] or [D.C. police] to forcibly remove students.”

Geismar said that “students across the country have been brutalized and hurt during forced removals. I’m extremely worried about student safety.” She said school leaders have not briefed her on their plans.

Antonio Olivo and Emily Davies contributed to this report.

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The myth of the $600 hammer - Government Executive

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Ever since the Defense Department procurement scandals of the 1980s, the $600 hammer has been held up as an icon of Pentagon incompetence. Immortalized in the "Hammer Awards" that Vice President Al Gore's program to reinvent government gives out to waste-cutters, this absurdly overpriced piece of hardware has come to symbolize all that's wrong with the government's financial management.

One problem: "There never was a $600 hammer," said Steven Kelman, public policy professor at Harvard University's John F. Kennedy School of Government and a former administrator of the Office of Federal Procurement Policy. It was, he said, "an accounting artifact."

The military bought the hammer, Kelman explained, bundled into one bulk purchase of many different spare parts. But when the contractors allocated their engineering expenses among the individual spare parts on the list-a bookkeeping exercise that had no effect on the price the Pentagon paid overall-they simply treated every item the same. So the hammer, originally $15, picked up the same amount of research and development overhead-$420-as each of the highly technical components, recalled retired procurement official LeRoy Haugh. (Later news stories inflated the $435 figure to $600.)

"The hammer got as much overhead as an engine," Kelman continued, despite the fact that the hammer cost much less than $420 to develop, and the engine cost much more-"but nobody ever said, 'What a great deal the government got on the engine!' "

Thus retold, the legend of the $600 hammer becomes a different kind of cautionary tale. It is no longer about simple, obvious waste. The new moral is that numbers, taken as self-explanatory truths by the public and the press, can in fact be the woefully distorted products of a broken accounting system.

The root of the problem is as old as the Republic: Federal accounting has always been primarily concerned with making sure money was spent as Congress directed-not with making sure it was spent wisely. Historically, explained the Pentagon's deputy chief financial officer, Nelson Toye, DoD's bookkeeping systems were designed to "be able to satisfy the Congress that we were good stewards of the funds entrusted to us: We didn't overspend, we did spend it on what you asked us to, we didn't spend money to buy things you told us we couldn't buy." In the past, Toye said, "there has not been a requirement for DoD or any federal agency to routinely collect the costs of its assets and report those costs."

But a necessary change is under way, said Richard Eckhardt, deputy director of financial management for the Air Force Materiel Command, which does most of that service's shopping. "We've been very good at putting budgets together and writing budget justifications," he noted, "but in an era of declining budgets, we have to understand what our costs are." That means government must borrow business techniques to track the true costs of its activities.

The Air Force Materiel Command, for example, has broken its activities into eight "business areas"-from base upkeep to information systems to flight testing-and assigned to each a general as "chief operating officer." These generals, said Eckhardt, are "in different stages of developing cost-accounting systems"; of devising numerical measures for output (always difficult for the government, which doesn't sell anything); and of experimenting with "activity-based costing," a popular private-sector technique that pulls business processes apart to find the cost of every step.

Bookkeeping based on congressional appropriations makes such cost-finding immensely difficult. Functions that in practice are inextricably intertwined are often paid for by totally separate line items in the budget. New weapons are bought with one "color of money," existing weapons are maintained with another, and the personnel who operate them are paid with a third. In fact, to save administrative costs, military salaries and pensions are all paid from one central office. As a result, said Eckhardt, among commanders "there's a tendency to view military labor as free, because you're not making any expenditures from your installation [budget] to pay those people."

The National Reconnaissance Office, which runs satellites, has an even more confusing payroll: Some of its personnel belong to the CIA, some to various military services, some to the office itself-and each of these contingents is paid with a separate appropriation. The office used to use three incompatible accounting systems, too, but after 1995-96, when investigators found $4 billion languishing unspent in various accounts, it has introduced a unified system, using standard Momentum software from American Management Systems Inc. Vincent Dennis, deputy director for resource oversight and management, crowed that for the first time in the agency's history, "in March of '99, we will have an auditable financial statement." Even so, he admitted, with salaries coming out of three different congressional appropriations, "I'm not at the position where I can allocate those personnel costs."

Personnel is not the only cost arbitrarily broken up by the DoD's line-item budget. Many warships, planes, and other weapons systems depend on critical components-such as radars and anti-missile jammers-that were developed under separate programs financed by separate line items. Whether those subsystems are counted as part of the larger system's cost depends on what the meaning of cost is.

"There are all types of costs," said the Pentagon's Toye, "and people need to be specific when they ask." A Tomahawk cruise missile, the kind that occasionally lands on an Iraqi target, costs about $750,000--if bought new in 1998, now that years of manufacturing experience have driven down the price. Any missile actually fired today, however, was bought at a higher price earlier in the production run, and has been stored, serviced and shipped across the seas, making for a total cost, by some estimates, of nearly $2 million a missile.

Conversely, said defense analyst Loren B. Thompson of the Lexington Institute, a conservative Arlington, Va., think tank, the $2 billion-per-plane figure cited by opponents of the B-2 stealth bomber includes the program's high research and development expenses--which must be spread over only 21 planes--plus spare parts, maintenance and future inflation. Said Thompson: "What would it cost me to build one more bomber? . . . $700 million."

Interpretations, admitted Toye, compound the problem: "It is indeed possible to go into two different program offices, and use the same terminology, and come out with some components in, or some components out, that weren't treated that same way in a different office." In other words, different agencies may apply the same technical definition of cost to the same weapon and come up with different numbers.

Under whatever definition, a weapon's cost rarely reflects the expenses of the headquarters that supervised its development, since those administrative offices are funded under their own line items. And many administrative offices, in turn, depend on support services--such as legal counsel and computer support-that are themselves financed by separate appropriations and are therefore often ignored in computations of a given office's cost of doing business. Unlike the private sector, said the Kennedy School's Kelman, "the government, in its own internal cost accounting, . . . typically doesn't fully account for overhead; sometimes it doesn't account at all for overhead."

"How do you allocate the cost of carrying inventory, for example?" asked John W. Douglass, recently retired assistant Navy secretary for research, development and acquisition. "Generally speaking, the service only pays the price of [buying] the part in their cost models. They don't show the cost of carrying that inventory."

Such accounting arcana are bread-and-butter issues for Douglass now that he heads the Aerospace Industries Association of America Inc., whose members want more military service contracts-which they can win only by showing they can perform a given service at lower cost than the military could do it in-house. But when the public and private sectors compete, said Bert M. Concklin, president of the Professional Services Council, differing accounting standards mean that "the government's costs are elusive, at best."

The Air Force Materiel Command conducts many such competitions, said Eckhardt, and it uses Pentagon and Office of Management and Budget guidelines to "take all those sources of overhead [and] make sure all the costs are included." The OMB's competition guidelines, for instance, start by accepting most federal cost estimates and then add on an estimated overhead rate. But the Pentagon's true overhead "may be more or less than the government rate," fretted Lisa G. Jacobson, director of Defense audits in the accounting and information management division of the General Accounting Office. "DoD's business operation seems to be very inefficient, in general."

Jacobson felt so strongly about Defense's inefficiencies that she took the unusual step of testifying, not as a GAO representative but as a private citizen, before the Federal Accounting Standards Advisory Board. She was hoping--vainly--to have the board require the Defense Department to report the price it initially pays for any given piece of equipment, implementing a common private-sector standard called "historical cost."

"I don't pretend that we have precise historical costs," said Toye, who represents the Pentagon on the accounting advisory board. "After six years and three months, we are [free to discard] records [of particular purchases]. But in terms of meaningful cost information, reasonable cost information, I believe we have that."

"I don't know how Nelson Toye can give you that data [on cost information]," complained one Senate aide. In an investigation of military books, he said, "we couldn't find most of the records"--not just records of transactions more than six years and three months old, but "of things that were just paid, or of things that hadn't been paid yet." And if the basic records are in such disarray--if the Pentagon cannot even account for the true cost of a hammer--then, critics warn, any attempt to install sophisticated commercial accounting will be a castle built on sand.

"I would disagree," countered Toye, "with the statement that there isn't hard, actual, auditable data out there. I believe it's there [even if] the department may not be able to summarize that and report it in ways that individuals want us to." The problem for the Pentagon is that those "individuals" of Toye's are the citizens.

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ChatGPT provides false information about people, and OpenAI can’t correct it

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ChatGPT keeps hallucinating - and not even OpenAI can stop it. The launch of ChatGPT in November 2022 triggered an unprecedented AI hype. People started using the chatbot for all sorts of purposes, including research tasks. The problem is that, according to OpenAI itself, the application only generates “responses to user requests by predicting the next most likely words that might appear in response to each prompt”. In other words: While the company has extensive training data, there is currently no way to guarantee that ChatGPT is actually showing users factually correct information. On the contrary, generative AI tools are known to regularly “hallucinate”, meaning they simply make up answers.

Okay for homework, but not for data on individuals. While inaccurate information may be tolerable when a student uses ChatGPT to help him with their homework, it is unacceptable when it comes to information about individuals. Since 1995, EU law requires that personal data must be accurate. Currently, this is enshrined in Article 5 GDPR. Individuals also have a right to rectification under Article 16 GDPR if data is inaccurate, and can request that false information is deleted. In addition, under the “right to access” in Article 15, companies must be able to show which data they hold on individuals and what the sources are. 

Maartje de Graaf, data protection lawyer at noyb: “Making up false information is quite problematic in itself. But when it comes to false information about individuals, there can be serious consequences. It’s clear that companies are currently unable to make chatbots like ChatGPT comply with EU law, when processing data about individuals. If a system cannot produce accurate and transparent results, it cannot be used to generate data about individuals. The technology has to follow the legal requirements, not the other way around.”

Simply making up data about individuals is not an option. This is very much a structural problem. According to a recent New York Times report, “chatbots invent information at least 3 percent of the time – and as high as 27 percent”. To illustrate this issue, we can take a look at the complainant (a public figure) in our case against OpenAI. When asked about his birthday, ChatGPT repeatedly provided incorrect information instead of telling users that it doesn’t have the necessary data.

No GDPR rights for individuals captured by ChatGPT? Despite the fact that the complainant’s date of birth provided by ChatGPT is incorrect, OpenAI refused his request to rectify or erase the data, arguing that it wasn’t possible to correct data. OpenAI says it can filter or block data on certain prompts (such as the name of the complainant), but not without preventing ChatGPT from filtering all information about the complainant. OpenAI also failed to adequately respond to the complainant’s access request. Although the GDPR gives users the right to ask companies for a copy of all personal data that is processed about them, OpenAI failed to disclose any information about the data processed, its sources or recipients.

Maartje de Graaf, data protection lawyer at noyb: “The obligation to comply with access requests applies to all companies. It is clearly possible to keep records of training data that was used at least have an idea about the sources of information. It seems that with each ‘innovation’, another group of companies thinks that its products don’t have to comply with the law.”

So far fruitless efforts by the supervisory authorities. Since the sudden rise in popularity of ChatGPT, generative AI tools have quickly come under the scrutiny of European privacy watchdogs. Among others, the Italian DPA addressed the chatbot’s inaccuracy when it imposed a temporary restriction on data processing in March 2023. A few weeks later, the European Data Protection Board (EDPB) set up a task force on ChatGPT to coordinate national efforts. It remains to be seen where this will lead. For now, OpenAI seems to not even pretend that it can comply with the EU’s GDPR.

Complaint filed. noyb is now asking the Austrian data protection authority (DSB) to investigate OpenAI’s data processing and the measures taken to ensure the accuracy of personal data processed in the context of the company’s large language models. Furthermore, we ask the DSB to order OpenAI to comply with the complainant’s access request and to bring its processing in line with the GDPR. Last but not least, noyb requests the authority to impose a fine to ensure future compliance. It is likely that this case will be dealt with via EU cooperation.

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