Pluralistic

Cory Doctorow's blog

Doctorow is a science fiction author, activist and journalist

His latest book is ATTACK SURFACE, a standalone adult sequel to LITTLE BROTHER. He is also the author HOW TO DESTROY SURVEILLANCE CAPITALISM, nonfiction about conspiracies and monopolies; and of RADICALIZED and WALKAWAY, science fiction for adults, a YA graphic novel called IN REAL LIFE; and young adult novels like HOMELAND, PIRATE CINEMA and LITTLE BROTHER. His first picture book was POESY THE MONSTER SLAYER (Aug 2020). He maintains a daily blog at Pluralistic.net. He works for the Electronic Frontier Foundation, is a MIT Media Lab Research Affiliate, is a Visiting Professor of Computer Science at Open University, a Visiting Professor of Practice at the University of North Carolina’s School of Library and Information Science and co-founded the UK Open Rights Group. Born in Toronto, Canada, he now lives in Los Angeles.

Publié le 03.05.2024 à 11:31

Pluralistic: Google is (still) losing the spam wars to zombie news-brands (03 May 2024)


Today's links


A wall of Spam cans stacked many layers high and deep. Superimposed over it are UI elements from the Google 1998 homepage: a search box, a 'Google Search' button, and an 'I'm feeling lucky' button. The middle four rows of Spam cans have been colorized to match the Google four-color logo tones.

Google is (still) losing the spam wars to zombie news-brands (permalink)

Even Google admits – grudgingly – that it is losing the spam wars. The explosive proliferation of botshit has supercharged the sleazy "search engine optimization" business, such that results to common queries are 50% Google ads to spam sites, and 50% links to spam sites that tricked Google into a high rank (without paying for an ad):

https://developers.google.com/search/blog/2024/03/core-update-spam-policies#site-reputation

It's nice that Google has finally stopped gaslighting the rest of us with claims that its search was still the same bedrock utility that so many of us relied upon as a key piece of internet infrastructure. This not only feels wildly wrong, it is empirically, provably false:

https://downloads.webis.de/publications/papers/bevendorff_2024a.pdf

Not only that, but we know why Google search sucks. Memos released as part of the DOJ's antitrust case against Google reveal that the company deliberately chose to worsen search quality to increase the number of queries you'd have to make (and the number of ads you'd have to see) to find a decent result:

https://pluralistic.net/2024/04/24/naming-names/#prabhakar-raghavan

Google's antitrust case turns on the idea that the company bought its way to dominance, spending the some of the billions it extracted from advertisers and publishers to buy the default position on every platform, so that no one ever tried another search engine, which meant that no one would invest in another search engine, either.

Google's tacit defense is that its monopoly billions only incidentally fund these kind of anticompetitive deals. Mostly, Google says, it uses its billions to build the greatest search engine, ad platform, mobile OS, etc that the public could dream of. Only a company as big as Google (says Google) can afford to fund the R&D and security to keep its platform useful for the rest of us.

That's the "monopolistic bargain" – let the monopolist become a dictator, and they will be a benevolent dictator. Shriven of "wasteful competition," the monopolist can split their profits with the public by funding public goods and the public interest.

Google has clearly reneged on that bargain. A company experiencing the dramatic security failures and declining quality should be pouring everything it has to righting the ship. Instead, Google repeatedly blew tens of billions of dollars on stock buybacks while doing mass layoffs:

https://pluralistic.net/2024/02/21/im-feeling-unlucky/#not-up-to-the-task

Those layoffs have now reached the company's "core" teams, even as its core services continue to decay:

https://qz.com/google-is-laying-off-hundreds-as-it-moves-core-jobs-abr-1851449528

(Google's antitrust trial was shrouded in secrecy, thanks to the judge's deference to the company's insistence on confidentiality. The case is moving along though, and warrants your continued attention:)

https://www.thebignewsletter.com/p/the-2-trillion-secret-trial-against

Google wormed its way into so many corners of our lives that its enshittification keeps erupting in odd places, like ordering takeout food:

https://pluralistic.net/2023/02/24/passive-income/#swiss-cheese-security

Back in February, Housefresh – a rigorous review site for home air purifiers – published a viral, damning account of how Google had allowed itself to be overrun by spammers who purport to provide reviews of air purifiers, but who do little to no testing and often employ AI chatbots to write automated garbage:

https://housefresh.com/david-vs-digital-goliaths/

In the months since, Housefresh's Gisele Navarro has continued to fight for the survival of her high-quality air purifier review site, and has received many tips from insiders at the spam-farms and Google, all of which she recounts in a followup essay:

https://housefresh.com/how-google-decimated-housefresh/

One of the worst offenders in spam wars is Dotdash Meredith, a content-farm that "publishes" multiple websites that recycle parts of each others' content in order to climb to the top search slots for lucrative product review spots, which can be monetized via affiliate links.

A Dotdash Meredith insider told Navarro that the company uses a tactic called "keyword swarming" to push high-quality independent sites off the top of Google and replace them with its own garbage reviews. When Dotdash Meredith finds an independent site that occupies the top results for a lucrative Google result, they "swarm a smaller site’s foothold on one or two articles by essentially publishing 10 articles [on the topic] and beefing up [Dotdash Meredith sites’] authority."

Dotdash Meredith has keyword swarmed a large number of topics. from air purifiers to slow cookers to posture correctors for back-pain:

https://housefresh.com/wp-content/uploads/2024/05/keyword-swarming-dotdash.jpg

The company isn't shy about this. Its own shareholder communications boast about it. What's more, it has competition.

Take Forbes, an actual news-site, which has a whole shadow-empire of web-pages reviewing products for puppies, dogs, kittens and cats, all of which link to high affiliate-fee-generating pet insurance products. These reviews are not good, but they are treasured by Google's algorithm, which views them as a part of Forbes's legitimate news-publishing operation and lets them draft on Forbes's authority.

This side-hustle for Forbes comes at a cost for the rest of us, though. The reviewers who actually put in the hard work to figure out which pet products are worth your money (and which ones are bad, defective or dangerous) are crowded off the front page of Google and eventually disappear, leaving behind nothing but semi-automated SEO garbage from Forbes:

https://twitter.com/ichbinGisele/status/1642481590524583936

There's a name for this: "site reputation abuse." That's when a site perverts its current – or past – practice of publishing high-quality materials to trick Google into giving the site a high ranking. Think of how Deadspin's private equity grifter owners turned it into a site full of casino affiliate spam:

https://www.404media.co/who-owns-deadspin-now-lineup-publishing/

The same thing happened to the venerable Money magazine:

https://moneygroup.pr/

Money is one of the many sites whose air purifier reviews Google gives preference to, despite the fact that they do no testing. According to Google, Money is also a reliable source of information on reprogramming your garage-door opener, buying a paint-sprayer, etc:

https://money.com/best-paint-sprayer/

All of this is made ten million times worse by AI, which can spray out superficially plausible botshit in superhuman quantities, letting spammers produce thousands of variations on their shitty reviews, flooding the zone with bullshit in classic Steve Bannon style:

https://escapecollective.com/commerce-content-is-breaking-product-reviews/

As Gizmodo, Sports Illustrated and USA Today have learned the hard way, AI can't write factual news pieces. But it can pump out bullshit written for the express purpose of drafting on the good work human journalists have done and tricking Google – the search engine 90% of us rely on – into upranking bullshit at the expense of high-quality information.

A variety of AI service bureaux have popped up to provide AI botshit as a service to news brands. While Navarro doesn't say so, I'm willing to bet that for news bosses, outsourcing your botshit scams to a third party is considered an excellent way of avoiding your journalists' wrath. The biggest botshit-as-a-service company is ASR Group (which also uses the alias Advon Commerce).

Advon claims that its botshit is, in fact, written by humans. But Advon's employees' Linkedin profiles tell a different story, boasting of their mastery of AI tools in the industrial-scale production of botshit:

https://housefresh.com/wp-content/uploads/2024/05/Advon-AI-LinkedIn.jpg

Now, none of this is particularly sophisticated. It doesn't take much discernment to spot when a site is engaged in "site reputation abuse." Presumably, the 12,000 googlers the company fired last year could have been employed to check the top review keyword results manually every couple of days and permaban any site caught cheating this way.

Instead, Google is has announced a change in policy: starting May 5, the company will downrank any site caught engaged in site reputation abuse. However, the company takes a very narrow view of site reputation abuse, limiting punishments to sites that employ third parties to generate or uprank their botshit. Companies that produce their botshit in-house are seemingly not covered by this policy.

As Navarro writes, some sites – like Forbes – have prepared for May 5 by blocking their botshit sections from Google's crawler. This can't be their permanent strategy, though – either they'll have to kill the section or bring it in-house to comply with Google's rules. Bringing things in house isn't that hard: US News and World Report is advertising for an SEO editor who will publish 70-80 posts per month, doubtless each one a masterpiece of high-quality, carefully researched material of great value to Google's users:

https://twitter.com/dannyashton/status/1777408051357585425

As Navarro points out, Google is palpably reluctant to target the largest, best-funded spammers. Its March 2024 update kicked many garbage AI sites out of the index – but only small bottom-feeders, not large, once-respected publications that have been colonized by private equity spam-farmers.

All of this comes at a price, and it's only incidentally paid by legitimate sites like Housefresh. The real price is borne by all of us, who are funneled by the 90%-market-share search engine into "review" sites that push low quality, high-price products. Housefresh's top budget air purifier costs $79. That's hundreds of dollars cheaper than the "budget" pick at other sites, who largely perform no original research.

Google search has a problem. AI botshit is dominating Google's search results, and it's not just in product reviews. Searches for infrastructure code samples are dominated by botshit code generated by Pulumi AI, whose chatbot hallucinates nonexistence AWS features:

https://www.theregister.com/2024/05/01/pulumi_ai_pollution_of_search/

This is hugely consequential: when these "hallucinations" slip through into production code, they create huge vulnerabilities for widespread malicious exploitation:

https://www.theregister.com/2024/03/28/ai_bots_hallucinate_software_packages/

We've put all our eggs in Google's basket, and Google's dropped the basket – but it doesn't matter because they can spend $20b/year bribing Apple to make sure no one ever tries a rival search engine on Ios or Safari:

https://finance.yahoo.com/news/google-payments-apple-reached-20-220947331.html

Google's response – laying off core developers, outsourcing to low-waged territories with weak labor protections and spending billions on stock buybacks – presents a picture of a company that is too big to care:

https://pluralistic.net/2024/04/04/teach-me-how-to-shruggie/#kagi

Google promised us a quid-pro-quo: let them be the single, authoritative portal ("organize the world’s information and make it universally accessible and useful"), and they will earn that spot by being the best search there is:

https://www.ft.com/content/b9eb3180-2a6e-41eb-91fe-2ab5942d4150

But – like the spammers at the top of its search result pages – Google didn't earn its spot at the center of our digital lives.

It cheated.

(Image: freezelight, CC BY-SA 2.0, modified)

Hey look at this (permalink)


A Wayback Machine banner.

This day in history (permalink)

#20yrsago Senator Franken? https://www.salon.com/1996/02/10/franken/

#20yrsago Musicians don’t understand copyright, but they don’t like the RIAA suing their fans https://web.archive.org/web/20040502072815/http://www.pewinternet.org/reports/pdfs/PIP_Musicians_Prelim_Findings.pdf

#15yrsago Warner Music to Warner Music: You are pirates! https://memex.craphound.com/2009/05/03/warner-music-to-warner-music-you-are-pirates/

#15yrsago Britain’s secret spy-on-every-call-and-email plan already well underway https://web.archive.org/web/20100106082536/http://www.timesonline.co.uk/tol/news/politics/article6211101.ece

#10yrsago The business/markets case for limits to copyright https://www.rstreet.org/commentary/r-street-paper-calls-for-shortened-copyright-terms-and-examination-of-international-treaties/

#5yrsago AOC endorses Elizabeth Warren’s Big Tech breakup plan https://www.theverge.com/2019/5/3/18528234/alexandria-ocasio-cortez-big-tech-break-up-plan-elizabeth-warren-endorsement

#5yrsago Strange codes from the International Statistical Classification of Diseases and Related Health Problems https://www.johndcook.com/blog/2019/04/27/rare-and-strange-icd-10-codes/

#5yrsago In 2008 “synthetic CDOs” destroyed the global economy, and now they’re back https://www.ft.com/content/9c33cea0-6ceb-11e9-80c7-60ee53e6681d

#5yrsago Fentanyl execs found guilty of racketeering, face 20 year prison sentences https://www.cnn.com/2019/05/02/health/insys-trial-verdict-bn/index.html

#5yrsago “Smart” doorlocks have policies that let landlords and third parties spy on you https://onezero.medium.com/americas-favorite-door-locking-app-has-a-data-privacy-problem-f19169a8ab2e

#5yrsago Chinese urbanization has left 25 million vacant homes in rural villages https://web.archive.org/web/20190502215749/https://www.sixthtone.com/ht_news/1003928/25-million-homes-vacant-in-rural-china-due-to-migrant-workforce

#1yrago The Swivel-Eyed Loons Have A Point https://pluralistic.net/2023/05/03/paranoid-style/#eat-bugs

Upcoming appearances (permalink)

A photo of me onstage, giving a speech, holding a mic.


A screenshot of me at my desk, doing a livecast.

Recent appearances (permalink)


A grid of my books with Will Stahle covers..

Latest books (permalink)


A cardboard book box with the Macmillan logo.

Upcoming books (permalink)

  • Picks and Shovels: a sequel to "Red Team Blues," about the heroic era of the PC, Tor Books, February 2025

  • Unauthorized Bread: a graphic novel adapted from my novella about refugees, toasters and DRM, FirstSecond, 2025


Colophon (permalink)

Today's top sources:

Currently writing:

  • A Little Brother short story about DIY insulin PLANNING

  • Picks and Shovels, a Martin Hench noir thriller about the heroic era of the PC. FORTHCOMING TOR BOOKS JAN 2025

  • Vigilant, Little Brother short story about remote invigilation. FORTHCOMING ON TOR.COM

  • Spill, a Little Brother short story about pipeline protests. FORTHCOMING ON TOR.COM

Latest podcast: Precaratize Bosses https://craphound.com/news/2024/04/28/precaratize-bosses/

This work – excluding any serialized fiction – is licensed under a Creative Commons Attribution 4.0 license. That means you can use it any way you like, including commercially, provided that you attribute it to me, Cory Doctorow, and include a link to pluralistic.net.

https://creativecommons.org/licenses/by/4.0/

Quotations and images are not included in this license; they are included either under a limitation or exception to copyright, or on the basis of a separate license. Please exercise caution.

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"When life gives you SARS, you make sarsaparilla" -Joey "Accordion Guy" DeVilla

Publié le 02.05.2024 à 16:20

Pluralistic: CDA 230 bans Facebook from blocking interoperable tools (02 May 2024)


Today's links


Facebook HQ's iconic '1 Hacker Way' sign. The Facebook logo has been replaced with a giant USB C port.

CDA 230 bans Facebook from blocking interoperable tools (permalink)

Section 230 of the Communications Decency Act is the most widely misunderstood technology law in the world, which is wild, given that it's only 26 words long!

https://www.techdirt.com/2020/06/23/hello-youve-been-referred-here-because-youre-wrong-about-section-230-communications-decency-act/

CDA 230 isn't a gift to big tech. It's literally the only reason that tech companies don't censor on anything we write that might offend some litigious creep. Without CDA 230, there'd be no #MeToo. Hell, without CDA 230, just hosting a private message board where two friends get into serious beef could expose to you an avalanche of legal liability.

CDA 230 is the only part of a much broader, wildly unconstitutional law that survived a 1996 Supreme Court challenge. We don't spend a lot of time talking about all those other parts of the CDA, but there's actually some really cool stuff left in the bill that no one's really paid attention to:

https://www.aclu.org/legal-document/supreme-court-decision-striking-down-cda

One of those little-regarded sections of CDA 230 is part (c)(2)(b), which broadly immunizes anyone who makes a tool that helps internet users block content they don't want to see.

Enter the Knight First Amendment Institute at Columbia University and their client, Ethan Zuckerman, an internet pioneer turned academic at U Mass Amherst. Knight has filed a lawsuit on Zuckerman's behalf, seeking assurance that Zuckerman (and others) can use browser automation tools to block, unfollow, and otherwise modify the feeds Facebook delivers to its users:

https://knightcolumbia.org/documents/gu63ujqj8o

If Zuckerman is successful, he will set a precedent that allows toolsmiths to provide internet users with a wide variety of automation tools that customize the information they see online. That's something that Facebook bitterly opposes.

Facebook has a long history of attacking startups and individual developers who release tools that let users customize their feed. They shut down Friendly Browser, a third-party Facebook client that blocked trackers and customized your feed:

https://www.eff.org/deeplinks/2020/11/once-again-facebook-using-privacy-sword-kill-independent-innovation

Then in in 2021, Facebook's lawyers terrorized a software developer named Louis Barclay in retaliation for a tool called "Unfollow Everything," that autopiloted your browser to click through all the laborious steps needed to unfollow all the accounts you were subscribed to, and permanently banned Unfollow Everywhere's developer, Louis Barclay:

https://slate.com/technology/2021/10/facebook-unfollow-everything-cease-desist.html

Now, Zuckerman is developing "Unfollow Everything 2.0," an even richer version of Barclay's tool.

This rich record of legal bullying gives Zuckerman and his lawyers at Knight something important: "standing" – the right to bring a case. They argue that a browser automation tool that helps you control your feeds is covered by CDA(c)(2)(b), and that Facebook can't legally threaten the developer of such a tool with liability for violating the Computer Fraud and Abuse Act, the Digital Millennium Copyright Act, or the other legal weapons it wields against this kind of "adversarial interoperability."

Writing for Wired, Knight First Amendment Institute at Columbia University speaks to a variety of experts – including my EFF colleague Sophia Cope – who broadly endorse the very clever legal tactic Zuckerman and Knight are bringing to the court.

I'm very excited about this myself. "Adversarial interop" – modding a product or service without permission from its maker – is hugely important to disenshittifying the internet and forestalling future attempts to reenshittify it. From third-party ink cartridges to compatible replacement parts for mobile devices to alternative clients and firmware to ad- and tracker-blockers, adversarial interop is how internet users defend themselves against unilateral changes to services and products they rely on:

https://www.eff.org/deeplinks/2019/10/adversarial-interoperability

Now, all that said, a court victory here won't necessarily mean that Facebook can't block interoperability tools. Facebook still has the unilateral right to terminate its users' accounts. They could kick off Zuckerman. They could kick off his lawyers from the Knight Institute. They could permanently ban any user who uses Unfollow Everything 2.0.

Obviously, that kind of nuclear option could prove very unpopular for a company that is the very definition of "too big to care." But Unfollow Everything 2.0 and the lawsuit don't exist in a vacuum. The fight against Big Tech has a lot of tactical diversity: EU regulations, antitrust investigations, state laws, tinkerers and toolsmiths like Zuckerman, and impact litigation lawyers coming up with cool legal theories.

Together, they represent a multi-front war on the very idea that four billion people should have their digital lives controlled by an unaccountable billionaire man-child whose major technological achievement was making a website where he and his creepy friends could nonconsensually rate the fuckability of their fellow Harvard undergrads.

(Image: D-Kuru, Minette Lontsie, CC BY-SA 4.0, modified)

Hey look at this (permalink)


A Wayback Machine banner.

This day in history (permalink)

#15yrsago Merck and Elsevier publish fake peer-reviewed journal https://web.archive.org/web/20090504075453/http://blog.bioethics.net/2009/05/merck-makes-phony-peerreview-journal/

#15yrsago Apple’s censors remove NiN app and Anda’s Game from iPhone store, citing “objectionable content” https://apple.slashdot.org/story/09/05/03/029249/apple-rejects-nine-inch-nails-iphone-app

#10yrsago Political TV advertising in the USA: scofflaw broadcasters hide the dark money of political influence https://sunlightfoundation.com/2014/05/01/how-tv-stations-are-letting-advertisers-play-hide-and-seek/

#10yrsago Telcos gave spies unfettered, deep, warrantless access to Canadians’ digital lives https://www.michaelgeist.ca/2014/05/canadian-mirror-network-data/

#5yrsago Tumblr is for sale…again https://www.theverge.com/2019/5/2/18527177/verizon-seeking-tumblr-sale-rumor-blogging

#5yrsago Elizabeth Warren proposes debt relief for Puerto Rico https://medium.com/@teamwarren/my-plan-to-provide-comprehensive-debt-relief-to-puerto-rico-f8b575a81b06

#5yrsago Trump’s former UN Ambassador Nikki Haley has joined Boeing’s Board of Directors https://thehill.com/policy/transportation/aviation/441705-nikki-haley-joins-boeing-board/

#1yrago Oops! All linkdump! https://pluralistic.net/2023/05/02/wunderkammer/#jubillee

Upcoming appearances (permalink)

A photo of me onstage, giving a speech, holding a mic.


A screenshot of me at my desk, doing a livecast.

Recent appearances (permalink)


A grid of my books with Will Stahle covers..

Latest books (permalink)


A cardboard book box with the Macmillan logo.

Upcoming books (permalink)

  • Picks and Shovels: a sequel to "Red Team Blues," about the heroic era of the PC, Tor Books, February 2025

  • Unauthorized Bread: a graphic novel adapted from my novella about refugees, toasters and DRM, FirstSecond, 2025


Colophon (permalink)

Today's top sources:

Currently writing:

  • A Little Brother short story about DIY insulin PLANNING

  • Picks and Shovels, a Martin Hench noir thriller about the heroic era of the PC. FORTHCOMING TOR BOOKS JAN 2025

  • Vigilant, Little Brother short story about remote invigilation. FORTHCOMING ON TOR.COM

  • Spill, a Little Brother short story about pipeline protests. FORTHCOMING ON TOR.COM

Latest podcast: Precaratize Bosses https://craphound.com/news/2024/04/28/precaratize-bosses/

This work – excluding any serialized fiction – is licensed under a Creative Commons Attribution 4.0 license. That means you can use it any way you like, including commercially, provided that you attribute it to me, Cory Doctorow, and include a link to pluralistic.net.

https://creativecommons.org/licenses/by/4.0/

Quotations and images are not included in this license; they are included either under a limitation or exception to copyright, or on the basis of a separate license. Please exercise caution.

How to get Pluralistic:

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"When life gives you SARS, you make sarsaparilla" -Joey "Accordion Guy" DeVilla

Publié le 01.05.2024 à 19:16

Pluralistic: Boeing's deliberately defective fleet of flying sky-wreckage (01 May 2024)


Today's links


A Boeing 737 Max with Boeing livery, flying through a grey-blue sky. It has split in two. The tail section, which is falling out of the sky, has a large REJECTED stamp on it. A parachute sailing away from the wreckage suspends a '¯\_(ツ)_/¯' ASCII shrug emoji.

Boeing's deliberately defective fleet of flying sky-wreckage (permalink)

Boeing's 787 "Dreamliner" is manufactured far from the company's Seattle facility, in a non-union shop in Charleston, South Carolina. At that shop, there is a cage full of defective parts that have been pulled from production because they are not airworthy.

Hundreds of parts from that Material Review Segregation Area (MRSA) were secretly pulled from that cage and installed on aircraft that are currently plying the world's skies. Among them, sections 47/48 of a 787 – the last four rows of the plane, along with its galley and rear toilets. As Moe Tkacik writes in her excellent piece on Boeing's lethally corrupt culture of financialization and whistleblower intimidation, this is a big ass chunk of an airplane, and there's no way it could go missing from the MRSA cage without a lot of people knowing about it:

https://prospect.org/infrastructure/transportation/2024-04-30-whistleblower-laws-protect-lawbreakers/

More: MRSA parts are prominently emblazoned with red marks denoting them as defective and unsafe. For a plane to escape Boeing's production line and find its way to a civilian airport near you with these defective parts installed, many people will have to see and ignore this literal red flag.

The MRSA cage was a special concern of John "Swampy" Barnett, the Boeing whistleblower who is alleged to have killed himself in March. Tkacik's earlier profile of Swampy paints a picture of a fearless, stubborn engineer who refused to go along to get along, refused to allow himself to become inured to Boeing's growing culture of profits over safety:

https://prospect.org/infrastructure/transportation/2024-03-28-suicide-mission-boeing/

Boeing is America's last aviation company and its single largest exporter. After the company was allowed to merge with its rival McDonnell-Douglas in 1997, the combined company came under MDD's notoriously financially oriented management culture. MDD CEO Harry Stonecipher became Boeing's CEO in the early 2000s. Stonecipher was a protege of Jack Welch, the man who destroyed General Electric with cuts to quality and workforce and aggressive union-busting, a classic Mafia-style "bust-out" that devoured the company's seed corn and left it a barren wasteland:

https://qz.com/1776080/how-the-mcdonnell-douglas-boeing-merger-led-to-the-737-max-crisis

Post-merger, Boeing became increasingly infected with MDD's culture. The company chased cheap, less-skilled labor to other countries and to America's great onshore-offshore sacrifice zone, the "right-to-work" American south, where bosses can fire uppity workers who balked at criminal orders, without the hassle of a union grievance.

Stonecipher was succeeded by Jim "Prince Jim" McNerney, ex-3M CEO, another Jack Welch protege (Welch spawned a botnet of sociopath looters who seized control of the country's largest, most successful firms, and drove them into the ground). McNerney had a cute name for the company's senior engineers: "phenomenally talented assholes." He created a program to help his managers force these skilled workers – everyone at Boeing who knew how to build a plane – out of the company.

McNerney's big idea was to get rid of "phenomenally talented assholes" and outsource the Dreamliner's design to Boeing's suppliers, who were utterly dependent on the company and could easily be pushed around (McNerney didn't care that most of these companies lacked engineering departments). This resulted in a $80b cost overrun, and a last-minute scramble to save the 787 by shipping a "cleanup crew" from Seattle to South Carolina, in the hopes that those "phenomenally talented assholes" could save McNerney's ass.

Swampy was part of the cleanup crew. He was terrified by what he saw there. Boeing had convinced the FAA to let the company perform its own inspections, replacing independent government inspectors with Boeing employees. The company would mark its own homework, and it swore that it wouldn't cheat.

Boeing cheated. Swampy dutifully reported the legion of safety violations he witnessed and was banished to babysit the MRSA, an assignment his managers viewed as a punishment that would isolate Swampy from the criminality he refused to stop reporting. Instead, Swampy audited the MRSA, and discovered that at least 420 defective aviation components had gone missing from the cage, presumably to be installed in planes that were behind schedule. Swampy then audited the keys to the MRSA and learned that hundreds of keys were "floating around" the Charleston facility. Virtually anyone could liberate a defective part and install it into an airplane without any paper trail.

Swampy's bosses had a plan for dealing with this. They ordered Swampy to "pencil whip" the investigations of 420 missing defective components and close the cases without actually figuring out what happened to them. Swampy refused.

Instead, Swampy took his concerns to a departmental meeting where 12 managers were present and announced that "if we can’t find them, any that we can’t find, we need to report it to the FAA." The only response came from a supervisor, who said, "We’re not going to report anything to the FAA."

The thing is, Swampy wasn't just protecting the lives of the passengers in those defective aircraft – he was also protecting Boeing employees. Under Sec 38 of the US Criminal Code, it's a 15-year felony to make any "materially false writing, entry, certification, document, record, data plate, label, or electronic communication concerning any aircraft or space vehicle part."

(When Swampy told a meeting that he took this seriously because "the paperwork is just as important as the aircraft" the room erupted in laughter.)

Swampy sent his own inspectors to the factory floor, and they discovered "dozens of red-painted defective parts installed on planes."

Swampy blew the whistle. How did the 787 – and the rest of Boeing's defective flying turkeys – escape the hangar and find their way into commercial airlines' fleets? Tkacik blames a 2000 whistleblower law called AIR21 that:

creates such byzantine procedures, locates adjudication power in such an outgunned federal agency, and gives whistleblowers such a narrow chance of success that it effectively immunizes airplane manufacturers, of which there is one in the United States, from suffering any legal repercussions from the testimony of their own workers.

By his own estimation, Swampy was ordered to commit two felonies per week for six years. Tkacik explains that this kind of operation relies on a culture of ignorance – managers must not document their orders, and workers must not be made aware of the law. Whistleblowers like Swampy, who spoke the unspeakable, were sidelined (an assessment by one of Swampy's managers called him "one of the best" and finished that "leadership would give hugs and high fives all around at his departure").

Multiple whistleblowers were singled out for retaliation and forced departure. William Hobek, a quality manager who refused to "pencil whip" the missing, massive 47-48 assembly that had wandered away from the MRSA cage, was given a "weak" performance review and fired despite an HR manager admitting that it was bogus.

Another quality manager, Cynthia Kitchens, filed an ethics complaint against manager Elton Wright who responded to her persistent reporting of defects on the line by shoving her against a wall and shouting that Boeing was "a good ol’ boys’ club and you need to get on board." Kitchens was fired in 2016. She had cancer at the time.

John Woods, yet another quality engineer, was fired after he refused to sign off on a corner-cutting process to repair a fuselage – the FAA later backed up his judgment.

Then there's Sam Salehpour, the 787 quality engineer whose tearful Congressional testimony described more corner-cutting on fuselage repairs:

https://www.youtube.com/watch?v=PP0xhIe1LFE

Salehpour's boss followed the Boeing playbook to the letter: Salehpour was constantly harangued and bullied, and he was isolated from colleagues who might concur with his assessment. When Salehpour announced that he would give Congressional testimony, his car was sabotaged under mysterious circumstances.

It's a playbook. Salehpour's experience isn't unusual at Boeing. Two other engineers, working on the 787 Organization Designation Authorization, held up production by insisting that the company fix the planes' onboard navigation computers. Their boss gave them a terrible performance review, admitting that top management was furious at the delays and had ordered him to punish the engineers. The engineers' union grievance failed, with Boeing concluding that this conduct – which they admitted to – didn't rise to the level of retaliation.

As Tkacik points out, these engineers and managers that Boeing targeted for intimidation and retaliation are the very same staff who are supposed to be performing inspections of behalf of the FAA. In other words, Boeing has spent years attacking its own regulator, with total impunity.

But it's not just the FAA who've failed to take action – it's also the DOJ, who have consistently declined to bring prosecutions in most cases, and who settled the rare case they did bring with "deferred prosecution agreements." This pattern was true under Trump's DOJ and continued under Biden's tenure. Biden's prosecutors have been so lackluster that a federal judge "publicly rebuked the DOJ for failing to take seriously the reputational damage its conduct throughout the Boeing case was inflicting on the agency."

Meanwhile, there's the AIR21 rule, a "whistleblower" rule that actually protects Boeing from whistleblowers. Under AIR21, an aviation whistleblower who is retaliated against by their employer must first try to resolve their problem internally. If that fails, the whistleblower has only one course of action: file an OSHA complaint within 90 days (if HR takes more than 90 days to resolve your internal complaint, you no have no further recourse). If you manage to raise a complaint with OSHA, it is heard by a secret tribunal that has no subpoena power and routinely takes five years to rule on cases, and rules against whistleblowers 97% of the time.

Boeing whistleblowers who missed the 90-day cutoff have filled the South Carolina courts with last-ditch attempts to hold the company to account. When they lose these cases – as is routine, given Boeing's enormous legal muscle and AIR21's legal handcuffs – they are often ordered to pay Boeing's legal costs.

Tkacik cites Swampy's lawyer, Rob Turkewitz, who says Swampy was the only one of Boeing's whistleblowers who was "savvy, meticulous, and fast-moving enough to bring an AIR 21 case capable of jumping through all the hoops" to file an AIR21 case, which then took seven years. Turkewitz calls Boeing South Carolina "a criminal enterprise."

That's a conclusion that's hard to argue with. Take Boeing's excuse for not producing the documentation of its slapdash reinstallation of the Alaska Air door plug that fell off its plane in flight: the company says it's not criminally liable for failing to provide the paperwork, because it never documented the repair. Not documenting the repair is also a crime.

You might have heard that there's some accountability coming to the Boeing boardroom, with the ouster of CEO David Calhoun. Calhoun's likely successor is Patrick Shanahan, whom Tkacik describes as "the architect of the ethos that governed the 787 program" and whom her source called "a classic schoolyard bully."

If Shanahan's name rings a bell, it might be because he was almost Trump's Secretary of Defense, but that was derailed by the news that he had "emphatically defended" his 17 year old son after the boy nearly beat his mother to death with a baseball bat. Shanahan is presently CEO of Spirit Aerospace, who made the door-plug that fell out of the Alaska Airlines 737 Max.

Boeing is a company where senior managers only fail up and where whistleblowers are terrorized in and out of the workplace. One of Tkacik's sources noticed his car shimmying. The source, an ex-787 worker who'd been fired after raising safety complaints, had tried to bring an AIR21 complaint, but withdrew it out of fear of being bankrupted if he was ordered to pay Boeing's legal costs. When the whistleblower pulled over, he discovered that two of the lug-nuts had been removed from one of his wheels.

The whistleblower texted Tkcacik to say (not for the first time): "If anything happens, I'm not suicidal."

Boeing is a primary aerospace contractor to the US government. It's clear that its management – and investors – consider it too big to jail. It's also clear that they know it's too big to fail – after all, the company did a $43b stock buyback, then got billions in a publicly funded buyback.

Boeing is, effectively, a government agency that is run for the benefit of its investors. It performs its own safety inspections. It investigates its own criminal violations of safety rules. It loots its own coffers and then refills them at public expense.

Meanwhile, the company has filled our skies with at least 420 airplanes with defective, red-painted parts that were locked up in the MRSA cage, then snuck out and fitted to an airplane that you or someone you love could fly on the next time you take your family on vacation or fly somewhere for work.

(Image: Tom Axford 1, CC BY-SA 4.0; Clemens Vasters, CC BY 2.0; modified)

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#20yrsago MIT Tech Review makes a fool out of Jack Valenti https://web.archive.org/web/20040529210502/www-tech.mit.edu/V124/N20/ValentiIntervie.20f.html

#15yrsago Shatnerquake: bizarro novel about every Shatner character sucked into reality to hunt down William Shatner https://www.toplessrobot.com/2009/04/william_shatner_william_shatner_william_shatner.php

#15yrsago US Trade Rep lies about Canadian piracy https://web.archive.org/web/20090503075121/http://www.michaelgeist.ca/content/view/3912/125/

#15yrsago Why neutrality is more important than connection speeds https://isen.com/blog/2009/04/broadband-without-internet-ain-worth.html

#10yrsago Every 27 seconds, Canadian telcos hand over subscriber data to cops (mostly without a warrant) https://www.michaelgeist.ca/2014/04/telco-disclosures/

#10yrsago Smooth sales-patter from Union Square’s Gentleman Peeler https://www.youtube.com/watch?v=HCUct4NlxE0

#5yrsago Serpent profiteers: how a summer camp snakebite turned into a $142,938 medical bill https://www.npr.org/sections/health-shots/2019/04/29/717467217/summer-bummer-a-young-campers-142-938-snakebite

#5yrsago The platforms suck at content moderation and demanding they do more won’t make them better at it — but there ARE concrete ways to improve moderation https://www.eff.org/deeplinks/2019/04/content-moderation-broken-let-us-count-ways

#5yrsago Big Tech’s addiction to illegal, overreaching NDAs protects wage discrimination, sexual harassment, and other evils by “terrorizing” employees https://fortune.com/2019/04/29/silicon-valley-nda/

#5yrsago Chase’s stupid poverty-shaming “inspirational” tweet, and Twitter users’ magnificent responses thereto https://mashable.com/article/chase-bank-tweet-backlash

#5yrsago Duke University acquires the archives of Charles N Brown, founder of Locus Magazine https://blogs.library.duke.edu/rubenstein/2019/01/11/locus-archives-documents-the-history-of-sci-fi/

#5yrsago Securepairs.org will send debullshitifying security researchers to Right to Repair hearings to fight industry FUD https://www.wired.com/story/right-to-repair-security-experts-california/

#5yrsago Most US eighth graders have taken apart a gadget to fix it or see how it works https://www.nationsreportcard.gov/tel/student-questionnaires/

#1yrago Weak Institutions https://pluralistic.net/2023/04/30/weak-institutions/

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  • Spill, a Little Brother short story about pipeline protests. FORTHCOMING ON TOR.COM

Latest podcast: Precaratize Bosses https://craphound.com/news/2024/04/28/precaratize-bosses/

This work – excluding any serialized fiction – is licensed under a Creative Commons Attribution 4.0 license. That means you can use it any way you like, including commercially, provided that you attribute it to me, Cory Doctorow, and include a link to pluralistic.net.

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"When life gives you SARS, you make sarsaparilla" -Joey "Accordion Guy" DeVilla

Publié le 30.04.2024 à 18:47

Pluralistic: Live Nation/Ticketmaster is buying Congress (30 Apr 2024)


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The Capitol building. Before it sits a vast pile of hundred dollar bills in rubber-banded packets. Behind it is a set of stadium concert lights. Overhead hangs a crooked, dirty sign bearing the Live Nation wordmark. The Capitol building is a-crawl with vivid green tentacles.

Live Nation/Ticketmaster is buying Congress (permalink)

Anything that can't go on forever eventually stops. Monopolies are intrinsically destabilizing and inevitably implode…eventually. Guessing which of the loathsome monopolies that make us all miserable will be the first domino is a hard call, but Ticketmaster is definitely high on my list.

It's not that event tickets are the most consequential aspect of our lives. The monopolies over pharma, fuel, finance, tech, and even beer are all more important to our day-to-day. But while Ticketmaster – and its many ramified tentacles, like Live Nation – may not be the most destructive monopoly in our world, its monopoly pisses off people with giant megaphones and armies of rabid fans.

It's been a minute since Ticketmaster was last in the news, so let's recap. Ticketmaster bought out most of its ticketing rivals, then merged with Live Nation, the country's largest concert promoter, and bought out many of the country's largest music, stage, and sports venues. They used this iron grip on the entire supply chain for performances and events to pile innumerable junk fees on every ticket sold, while drastically eroding the wages of the creative workers they nominally represented. They created a secret secondary market for tickets and worked with ticket-touts to help them run bots that bought every ticket within an instant of the opening of ticket sales, then ran an auction marketplace that made them gigantic fees on every re-sold ticket – fees the performers were not entitled to share in.

The Ticketmaster/Live Nation/venue octopus is nearly impossible to escape. Independent venues can't book Live Nation acts unless they use Ticketmaster for their tickets. Acts can't get into the large venues owned by Ticketmaster unless they sign up to have Live Nation book their tour. And when Ticketmaster buys a venue, it creams off the most successful acts, starving competing venues of blockbuster shows. They also illegally colluded with their vendors to jack up the price of concerts across the board:

https://pascrell.house.gov/uploadedfiles/ful.pdf

When Rebecca Giblin and I were writing Chokepoint Capitalism, our book about how tech and entertainment monopolies impoverish all kinds of creative workers, we were able to get insiders to go on record about every kind of monopoly, from the labels to Spotify, Kindle to the Big Five publishers and the Google-Meta ad-tech duopoly. The only exception was Ticketmaster/Live Nation: everyone involved in live performance – performers, bookers, club owners – was palpably terrified about speaking out on the record about the conglomerate:

https://chokepointcapitalism.com/

No wonder. The company has a long and notorious history of using its market power to ruin anyone who challenges it. Remember Pearl Jam?

https://www.rollingstone.com/music/music-news/pearl-jam-taking-on-ticketmaster-67440/

But anything that can't go on forever eventually stops. Not only is Ticketmaster a rapacious, vindictive monopolist – it's also an incompetent monopolist, whose IT systems are optimized for rent-extraction first, with ticket sales as a distant afterthought. This is bad no matter which artist it affects, but when Ticketmaster totally, utterly fucked up Taylor Swift's first post-lockdown tour, they incurred the wrath of the Swifties:

https://www.vox.com/culture/2022/11/21/23471763/taylor-swift-ticketmaster-monopoly

All of which explains why I've always given good odds that Ticketmaster would be first up against the wall come the antitrust revolution. It may not be the most destructive monopolist, but it is absurdly evil, and the people who hate it most passionately are the most famous and beloved artists in the country.

For a while, it looked like I was right. Ticketmaster's colossal Taylor Swift fuckup prompted Senator Amy Klobuchar – a leading antitrust crusader – to hold hearings on the company's conduct, and led to the introduction of a raft of bills to rein in predatory ticketing practices. But as David Dayen writes for The American Prospect, Ticketmaster/Live Nation is spreading a fortune around on the Hill, hiring a deep bench of ex-Congressmen and ex-senior staffers (including Klobuchar's former chief of staff) and they've found a way to create the appearance of justice without having to suffer any consequences for their decades-long campaign of fraud and abuse:

https://prospect.org/power/2024-04-30-live-nation-strikes-up-band-washington/

Dayen opens his article with the White House Correspondents’ Dinner, which is always bracketed by a week's worth of lavish parties for Congress and hill staffers. One of the fanciest of these parties was thrown by Axios – and sponsored by Live Nation, with a performance by Jelly Roll (whose touring contract is owned by Live Nation). Attendees at the Axios/Live Nation event were bombarded with messages about the essential goodness of Live Nation (they were even printed on the cocktail napkins) and exhortations to support the Fans First Act, co-sponsored by Klobuchar and Sen John Cornyn (R-TX):

https://www.nytimes.com/2023/12/08/arts/music/fans-first-act-ticket-bill.html

Ticketmaster/Live Nation loves the Fans First Act, because – unlike other bills – it focuses primarily on the secondary market for tickets, and its main measure is a requirement for ticketing companies to disclose their junk fees upfront. Neither of these represents a major challenge to Ticketmaster/Live Nation's control over the market, which gives it the ability to slash performers' wages while jacking up prices for fans.

Fans First represents the triumph of Ticketmaster/Live Nation's media strategy, which is to blame the entire problem on bottom-feeding ticket-touts (who are mostly scum!) instead of on the single monopoly that controls the entire industry and can't stop committing financial crimes.

Axios isn't Live Nation's only partner in selling this distraction tactic. Over the past five years, the company has flushed gigantic sums of money through Washington. Its lobbying spend rose from $240k in 2018 to $1.1m in 2022, and $2.38m in 2023:

https://thehill.com/business/4431886-live-nation-doubled-lobbying-spending-to-2-4m-in-2023-amid-antitrust-threat/

The company has 37 paid lobbyists selling Congress on its behalf. 25 of them are former congressional staffers. Two are former Congressmen: Ed Whitfield (R-KY), a 21 year veteran of the House, and Mark Pryor (D-AR), a two-term senator:

https://www.bhfs.com/people/attorneys/p-s/mark-pryor

But perhaps the most galling celebrant in this lavish hymn to Citizen United is Jonathan Becker, Amy Klobuchar's former chief of staff. Becker jumped ship to lobby Congress on behalf of monopolists like Live Nation, who paid him $120k last year to sell their story to the Hill:

https://www.opensecrets.org/federal-lobbying/clients/lobbyists?cycle=2023&id=D000053134

Not everyone hates Fans First: it's been endorsed by the Nix the Tix coalition, largely on the strength of its regulation of secondary ticket sales. But the largest secondary seller in America by far is Live Nation itself, with a $4.5b market in reselling the tickets it sold in the first place. Fans First shifts focus from this sleazy self-dealing to competitors like Stubhub.

Fans First can be seen as an opening salvo in the long war against Ticketmaster/Live Nation. But compared to more muscular bills – like Klobuchar's stalled-out Unlock Ticketing Markets Act, it's pretty weaksauce. The Unlocking act will "prevent exclusive contracts between ticketing services and venues" – hitting Ticketmaster/Live Nation where it hurts, right in the bank-account:

https://www.klobuchar.senate.gov/public/index.cfm/2023/4/following-senate-judiciary-committee-hearing-klobuchar-blumenthal-introduce-legislation-to-increase-competition-in-live-event-ticketing-markets

It's not all gloom. Dayen reports that Ticketmaster's active lobbying in favor of Fans First has made many in Congress more skeptical of the bill, not less. And Congress isn't the only – or even the best – way to smash Ticketmaster's criminal empire. That's something the DoJ's antitrust division could power through with a lot less exposure to the legalized bribery that dominates Congress.

(Image: Matt Biddulph, CC BY-SA 2.0; Flying Logos, CC BY-SA 4.0; modified)

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#20yrsago Charlie Stross’s future-rant https://web.archive.org/web/20040515161445/http://www.antipope.org/charlie/blosxom.cgi/2004/Apr/29

#20yrsago Apple’s new DRM reneges on your purchase conditions, picks your pocket https://web.archive.org/web/20040624182851/http://lawgeek.typepad.com/lawgeek/2004/04/meet_the_new_it.html

#15yrsago Solitary confinement is torture: psych expert https://web.archive.org/web/20090501235955/https://www.wired.com/wiredscience/2009/04/solitaryconfinement/

#15yrsago The Doctor Will Sue You Now: the missing chapter of Ben Goldacre’s “Bad Science” about the selling of vitamin therapy instead of anti-virals to AIDS patients in South Africa https://www.badscience.net/2009/04/matthias-rath-steal-this-chapter/

#10yrsago Rob Ford’s mayoral career considered as a reality TV show – straining suspension of disbelief https://www.theglobeandmail.com/news/toronto/the-ford-show-is-riveting-but-soon-well-stop-believing-it/article18232290/

#10yrsago Email considered harmful https://www.motherjones.com/environment/2014/04/smartphone-addiction-research-work-email/

#10yrsago WIPO sends criminal prosecution threats over publication of internal docs about its Director General’s corruption https://www.techdirt.com/2014/04/28/shameful-wipo-threatens-blogger-with-criminal-charges-accurately-reporting-wipo-directors-alleged-misconduct/

#5yrsago Jimmy Fallon played a video game on air, meaning that streaming your own game gets you taken down as a pirate, thanks to NBC https://old.reddit.com/r/beatsaber/comments/bi9cp5/beat_saber_stream_blocked_by_jimmy_fallon_show/

#5yrsago Thanks to the 2008 foreclosure crisis, a Kuwaiti ponzi schemer was able to single-handedly blight cities across America https://buffalonews.com/news/local/how-a-kuwaitis-ponzi-scheme-left-a-trail-of-blight-in-buffalo/article_7d39e12a-495f-5bba-b7f4-87d07eefa496.html

#5yrsago Uber drivers across America are going on strike https://philly.curbed.com/2019/4/25/18516670/uber-drivers-shutdown-strike-protest-philly

#5yrsago Facebook never delivered its “Clear History” feature https://www.tomsguide.com/us/facebook-privacy-problems,news-29944.html

#1yrago The seductive, science fictional power of spreadsheets https://pluralistic.net/2023/04/29/gedankenexperimentwahn/#high-on-your-own-supply

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Upcoming books (permalink)

  • Picks and Shovels: a sequel to "Red Team Blues," about the heroic era of the PC, Tor Books, February 2025

  • Unauthorized Bread: a graphic novel adapted from my novella about refugees, toasters and DRM, FirstSecond, 2025


Colophon (permalink)

Today's top sources:

Currently writing:

  • A Little Brother short story about DIY insulin PLANNING

  • Picks and Shovels, a Martin Hench noir thriller about the heroic era of the PC. FORTHCOMING TOR BOOKS JAN 2025

  • Vigilant, Little Brother short story about remote invigilation. FORTHCOMING ON TOR.COM

  • Spill, a Little Brother short story about pipeline protests. FORTHCOMING ON TOR.COM

Latest podcast: Precaratize Bosses https://craphound.com/news/2024/04/28/precaratize-bosses/

This work – excluding any serialized fiction – is licensed under a Creative Commons Attribution 4.0 license. That means you can use it any way you like, including commercially, provided that you attribute it to me, Cory Doctorow, and include a link to pluralistic.net.

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"When life gives you SARS, you make sarsaparilla" -Joey "Accordion Guy" DeVilla

Publié le 29.04.2024 à 20:56

Pluralistic: Cigna's nopeinator (29 Apr 2024)


Today's links


An existential plane extending to an abstract background. Scattered through the scene are mainframes and control panels, being worked by faceless figure. In the center stands a downcast MD in old-fashioned scrubs. In the foreground to the right is an impatient older man in a business suit, staring at his watch and brandishing a sheaf of papers. In the background left is a grim reaper figure raising a glass of blood in a toast, the blood spattering his robes. In the center background in large magnetic 'computer font' lettering is the word 'NO.'

Cigna's nopeinator (permalink)

Cigna – like all private health insurers – has two contradictory imperatives:

I. To keep its customers healthy; and

II. To make as much money for its shareholders as is possible.

Now, there's a hypothetical way to resolve these contradictions, a story much beloved by advocates of America's wasteful, cruel, inefficient private health industry: "If health is a "market," then a health insurer that fails to keep its customers healthy will lose those customers and thus make less for its shareholders." In this thought-experiment, Cigna will "find an equilibrium" between spending money to keep its customers healthy, thus retaining their business, and also "seeking efficiencies" to create a standard of care that's cost-effective.

But health care isn't a market. Most of us get our health-care through our employers, who offer small handful of options that nevertheless manage to be so complex in their particulars that they're impossible to directly compare, and somehow all end up not covering the things we need them for. Oh, and you can only change insurers once or twice per year, and doing so incurs savage switching costs, like losing access to your family doctor and specialists providers.

Cigna – like other health insurers – is "too big to care." It doesn't have to worry about losing your business, so it grows progressively less interested in even pretending to keep you healthy.

The most important way for an insurer to protect its profits at the expense of your health is to deny care that your doctor believes you need. Cigna has transformed itself into a care-denying assembly line.

Dr Debby Day is a Cigna whistleblower. Dr Day was a Cigna medical director, charged with reviewing denied cases, a job she held for 20 years. In 2022, she was forced out by Cigna. Writing for Propublica and The Capitol Forum, Patrick Rucker and David Armstrong tell her story, revealing the true "equilibrium" that Cigna has found:

https://www.propublica.org/article/cigna-medical-director-doctor-patient-preapproval-denials-insurance

Dr Day took her job seriously. Early in her career, she discovered a pattern of claims from doctors for an expensive therapy called intravenous immunoglobulin in cases where this made no medical sense. Dr Day reviewed the scientific literature on IVIG and developed a Cigna-wide policy for its use that saved the company millions of dollars.

This is how it's supposed to work: insurers (whether private or public) should permit all the medically necessary interventions and deny interventions that aren't supported by evidence, and they should determine the difference through internal reviewers who are treated as independent experts.

But as the competitive landscape for US healthcare dwindled – and as Cigna bought out more parts of its supply chain and merged with more of its major rivals – the company became uniquely focused on denying claims, irrespective of their medical merit.

In Dr Day's story, the turning point came when Cigna outsourced pre-approvals to registered nurses in the Philippines. Legally, a nurse can approve a claim, but only an MD can deny a claim. So Dr Day and her colleagues would have to sign off when a nurse deemed a procedure, therapy or drug to be medically unnecessary.

This is a complex determination to make, even under ideal circumstances, but Cigna's Filipino outsource partners were far from ideal. Dr Day found that nurses were "sloppy" – they'd confuse a mother with her newborn baby and deny care on that grounds, or confuse an injured hip with an injured neck and deny permission for an ultrasound. Dr Day reviewed a claim for a test that was denied because STI tests weren't "medically necessary" – but the patient's doctor had applied for a test to diagnose a toenail fungus, not an STI.

Even if the nurses' evaluations had been careful, Dr Day wanted to conduct her own, thorough investigation before overriding another doctor's judgment about the care that doctor's patient warranted. When a nurse recommended denying care "for a cancer patient or a sick baby," Dr Day would research medical guidelines, read studies and review the patient's record before signing off on the recommendation.

This was how the claims denial process is said to work, but it's not how it was supposed to work. Dr Day was markedly slower than her peers, who would "click and close" claims by pasting the nurses' own rationale for denying the claim into the relevant form, acting as a rubber-stamp rather than a skilled reviewer.

Dr Day knew she was slower than her peers. Cigna made sure of that, producing a "productivity dashboard" that scored doctors based on "handle time," which Cigna describes as the average time its doctors spend on different kinds of claims. But Dr Day and other Cigna sources say that this was a maximum, not an average – a way of disciplining doctors.

These were not long times. If a doctor asked Cigna not to discharge their patient from hospital care and a nurse denied that claim, the doctor reviewing that claim was supposed to spend not more than 4.5 minutes on their review. Other timelines were even more aggressive: many denials of prescription drugs were meant to be resolved in fewer than two minutes.

Cigna told Propublica and The Capitol Forum that its productivity scores weren't based on a simple calculation about whether its MD reviewers were hitting these brutal processing time targets, describing the scores as a proprietary mix of factors that reflected a nuanced view of care. But when Propublica and The Capitol Forum created a crude algorithm to generate scores by comparing a doctor's performance relative to the company's targets, they found the results fit very neatly into the actual scores that Cigna assigned to its docs:

The newsrooms’ formula accurately reproduced the scores of 87% of the Cigna doctors listed; the scores of all but one of the rest fell within 1 to 2 percentage points of the number generated by this formula. When asked about this formula, Cigna said it may be inaccurate but didn’t elaborate.

As Dr Day slipped lower on the productivity chart, her bosses pressured her bring her score up (Day recorded her phone calls and saved her emails, and the reporters verified them). Among other things, Dr Day's boss made it clear that her annual bonus and stock options were contingent on her making quota.

Cigna denies all of this. They smeared Dr Day as a "disgruntled former employee" (as though that has any bearing on the truthfulness of her account), and declined to explain the discrepancies between Dr Day's accusations and Cigna's bland denials.

This isn't new for Cigna. Last year, Propublica and Capitol Forum revealed the existence of an algorithmic claims denial system that allowed its doctors to bulk-deny claims in as little as 1.2 seconds:

https://www.propublica.org/article/cigna-pxdx-medical-health-insurance-rejection-claims

Cigna insisted that this was a mischaracterization, saying the system existed to speed up the approval of claims, despite the first-hand accounts of Cigna's own doctors and the doctors whose care recommendations were blocked by the system. One Cigna doctor used this system to "review" and deny 60,000 claims in one month.

Beyond serving as an indictment of the US for-profit health industry, and of Cigna's business practices, this is also a cautionary tale about the idea that critical AI applications can be resolved with "humans in the loop."

AI pitchmen claim that even unreliable AI can be fixed by adding a "human in the loop" that reviews the AI's judgments:

https://pluralistic.net/2024/04/23/maximal-plausibility/#reverse-centaurs

In this world, the AI is an assistant to the human. For example, a radiologist might have an AI double-check their assessments of chest X-rays, and revisit those X-rays where the AI's assessment didn't match their own. This robot-assisted-human configuration is called a "centaur."

In reality, "human in the loop" is almost always a reverse-centaur. If the hospital buys an AI, fires half its radiologists and orders the remainder to review the AI's superhuman assessments of chest X-rays, that's not an AI assisted radiologist, that's a radiologist-assisted AI. Accuracy goes down, but so do costs. That's the bet that AI investors are making.

Many AI applications turn out not to even be "AI" – they're just low-waged workers in an overseas call-center pretending to be an algorithm (some Indian techies joke that AI stands for "absent Indians"). That was the case with Amazon's Grab and Go stores where, supposedly, AI-enabled cameras counted up all the things you put in your shopping basket and automatically billed you for them. In reality, the cameras were connected to Indian call-centers where low-waged workers made those assessments:

https://pluralistic.net/2024/01/29/pay-no-attention/#to-the-little-man-behind-the-curtain

This Potemkin AI represents an intermediate step between outsourcing and AI. Over the past three decades, the growth of cheap telecommunications and logistics systems let corporations outsource customer service to low-waged offshore workers. The corporations used the excuse that these subcontractors were far from the firm and its customers to deny them any agency, giving them rigid scripts and procedures to follow.

This was a very usefully dysfunctional system. As a customer with a complaint, you would call the customer service line, wait for a long time on hold, spend an interminable time working through a proscribed claims-handling process with a rep who was prohibited from diverging from that process. That process nearly always ended with you being told that nothing could be done.

At that point, a large number of customers would have given up on getting a refund, exchange or credit. The money paid out to the few customers who were stubborn or angry enough to karen their way to a supervisor and get something out of the company amounted to pennies, relative to the sums the company reaped by ripping off the rest.

The Amazon Grab and Go workers were humans in robot suits, but these customer service reps were robots in human suits. The software told them what to say, and they said it, and all they were allowed to say was what appeared on their screens. They were reverse centaurs, serving as the human faces of the intransigent robots programmed by monopolists that were too big to care.

AI is the final stage of this progression: robots without the human suits. The AI turns its "human in the loop" into a "moral crumple zone," which Madeleine Clare Elish describes as "a component that bears the brunt of the moral and legal responsibilities when the overall system malfunctions":

https://estsjournal.org/index.php/ests/article/view/260

The Filipino nurses in the Cigna system are an avoidable expense. As Cigna's own dabbling in algorithmic claim-denial shows, they can be jettisoned in favor of a system that uses productivity dashboards and other bossware to push doctors to robosign hundreds or thousands of denials per day, on the pretense that these denials were "reviewed" by a licensed physician.

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#20yrsago AdBusters new sneaker to compete toe-to-toe with Nikes https://web.archive.org/web/20040329070112/http://www.blackspotsneaker.org/

#15yrsago Warner Music claims Lessig is a pirate, has his presentation taken off YouTube https://twitter.com/lessig/status/1642654831

#15yrsago Real-Money Trades: turning gold-farming into a game company profit-center https://web.archive.org/web/20090430091051/http://www.mmogamer.com/04/24/2009/real-money-fake-property?page=all

#15yrsago Britain’s deportee detention system subjects small children to horrific abuse https://www.bbc.co.uk/blogs/thereporters/markeaston/2009/04/the_arrest_and_detention_of_ch.html

#15yrsago Transparency isn’t enough https://www.theguardian.com/technology/2009/apr/29/cory-doctorow-police-transparency

#10yrsago Mathematicians: refuse to work for the NSA! https://www.newscientist.com/article/mg22229660-200-maths-spying-the-quandary-of-working-for-the-spooks/#.U1yMqKYju1E

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"When life gives you SARS, you make sarsaparilla" -Joey "Accordion Guy" DeVilla

Publié le 27.04.2024 à 15:48

Pluralistic: The tax sharks are back and they're coming for your home (27 Apr 2024)


Today's links


A 19th century photo of bailiffs using a battering ram to evict debtors from a thatched cottage in Ireland. The photo has been hand-tinted and the logo for Alden Capital has been added to the tip of the battering ram. A vulture in a top hat overlooks the scene.

The tax sharks are back and they're coming for your home (permalink)

One of my weirder and more rewarding hobbies is collecting definitions of "conservativism," and one of the jewels of that collection comes from Corey Robin's must-read book The Reactionary Mind:

https://en.wikipedia.org/wiki/The_Reactionary_Mind

Robin's definition of conservativism has enormous explanatory power and I'm always finding fresh ways in which it clarifies my understand of events in the world: a conservative is someone who believes that a minority of people were born to rule, and that everyone else was born to follow their rules, and that the world is in harmony when the born rulers are in charge.

This definition unifies the otherwise very odd grab-bag of ideologies that we identify with conservativism: a Christian Dominionist believes in the rule of Christians over others; a "men's rights advocate" thinks men should rule over women; a US imperialist thinks America should rule over the world; a white nationalist thinks white people should rule over racialized people; a libertarian believes in bosses dominating workers and a Hindu nationalist believes in Hindu domination over Muslims.

These people all disagree about who should be in charge, but they all agree that some people are ordained to rule, and that any "artificial" attempt to overturn the "natural" order throws society into chaos. This is the entire basis of the panic over DEI, and the brainless reflex to blame the Francis Scott Key bridge disaster on the possibility that someone had been unjustly promoted to ship's captain due to their membership in a disfavored racial group or gender.

This definition is also useful because it cleanly cleaves progressives from conservatives. If conservatives think there's a natural order in which the few dominate the many, progressivism is a belief in pluralism and inclusion, the idea that disparate perspectives and experiences all have something to contribute to society. Progressives see a world in which only a small number of people rise to public life, rarified professions, and cultural prominence and assume that this is terrible waste of the talents and contributions of people whose accidents of birth keep them from participating in the same way.

This is why progressives are committed to class mobility, broad access to education, and active programs to bring traditionally underrepresented groups into arenas that once excluded them. The "some are born to rule, and most to be ruled over" conservative credo rejects this as not just wrong, but dangerous, the kind of thing that leads to bridges being demolished by cargo ships.

The progressive reforms from the New Deal until the Reagan revolution were a series of efforts to broaden participation in every part of society by successively broader groups of people. A movement that started with inclusive housing and education for white men and votes for white women grew to encompass universal suffrage, racial struggles for equality, workplace protections for a widening group of people, rights for people with disabilities, truth and reconciliation with indigenous people and so on.

The conservative project of the past 40 years has been to reverse this: to return the great majority of us to the status of desperate, forelock-tugging plebs who know our places. Hence the return of child labor, the tradwife movement, and of course the attacks on labor unions and voting rights:

https://pluralistic.net/2022/11/06/the-end-of-the-road-to-serfdom/

Arguably the most potent symbol of this struggle is the fight over homes. The New Deal offered (some) working people a twofold path to prosperity: subsidized home-ownership and strong labor protections. This insulated (mostly white) workers from the two most potent threats to working peoples' lives and wellbeing: the cruel boss and the greedy landlord.

But the neoliberal era dispensed with labor rights, leaving the descendants of those lucky workers with just one tool for securing their American dream: home-ownership. As wages stagnated, your home – so essential to your ability to simply live – became your most important asset first, and a home second. So long as property values rose – and property taxes didn't – your home could be the backstop for debt-fueled consumption that filled the gap left by stagnating wages. Liquidating your family home might someday provide for your retirement, your kids' college loans and your emergency medical bills.

For conservatives who want to restore Gilded Age class rule, this was a very canny move. It pitted lucky workers with homes against their unlucky brethren – the more housing supply there was, the less your house was worth. The more protections tenants had, the less your house was worth. The more equitably municipal services (like schools) were distributed, the less your house was worth:

https://pluralistic.net/2021/06/06/the-rents-too-damned-high/

And now that the long game is over, they're coming for your house. It started with the foreclosure epidemic after the 2008 financial crisis, first under GW Bush, but then in earnest under Obama, who accepted the advice of his Treasury Secretary Timothy Geithner, who insisted that homeowners should be liquidated to "foam the runways" for the crashing banks:

https://pluralistic.net/2023/03/06/personnel-are-policy/#janice-eberly

Then there are scams like "We Buy Ugly Houses," a nationwide mass-fraud outfit that steals houses out from under elderly, vulnerable and desperate people:

https://pluralistic.net/2023/05/11/ugly-houses-ugly-truth/#homevestor

The more we lose our houses, the more single-family homes Wall Street gets to snap up and convert into slum properties, aslosh with a toxic stew of black mold, junk fees and eviction threats:

https://pluralistic.net/2022/02/08/wall-street-landlords/#the-new-slumlords

Now there's a new way for finance barons the steal our houses out from under us – or rather, a very old way that had lain dormant since the last time child labor was legal – "tax lien investing."

Across the country, counties and cities have programs that allow investment funds to buy up overdue tax-bills from homeowners in financial hardship. These "investors" are entitled to be paid the missing property taxes, and if the homeowner can't afford to make that payment, the "investor" gets to kick them out of their homes and take possession of them, for a tiny fraction of their value.

As Andrew Kahrl writes for The American Prospect, tax lien investing was common in the 19th century, until the fundamental ugliness of the business made it unattractive even to the robber barons of the day:

https://prospect.org/economy/2024-04-26-investing-in-distress-tax-liens/

The "tax sharks" of Chicago and New York were deemed "too merciless" by their peers. One exec who got out of the business compared it to "picking pennies off a dead man’s eyes." The very idea of outsourcing municipal tax collection to merciless debt-hounds aroused public ire.

Today – as the conservative project to restore the "natural" order of the ruled and the ruled-over builds momentum – tax lien investing is attracting some of America's most rapacious investors – and they're making a killing. In Chicago, Alden Capital just spent a measly $1.75m to acquire the tax liens on 600 family homes in Cook County. They now get to charge escalating fees and penalties and usurious interest to those unlucky homeowners. Any homeowner that can't pay loses their home.

The first targets for tax-lien investing are the people who were the last people to benefit from the New Deal and its successors: Black and Latino families, elderly and disabled people and others who got the smallest share of America's experiment in shared prosperity are the first to lose the small slice of the American dream that they were grudgingly given.

This is the very definition of "structural racism." Redlining meant that families of color were shut out of the federal loan guarantees that benefited white workers. Rather than building intergenerational wealth, these families were forced to rent (building some other family's intergenerational wealth), and had a harder time saving for downpayments. That meant that they went into homeownership with "nontraditional" or "nonconforming" mortgages with higher interest rates and penalties, which made them more vulnerable to economic volatility, and thus more likely to fall behind on their taxes. Now that they're delinquent on their property taxes, they're in hock to a private equity fund that's charging them even more to live in their family home, and the second they fail to pay, they'll be evicted, rendered homeless and dispossessed of all the equity they built in their (former) home.

It's very on-brand for Alden Capital to be destroying the lives of Chicagoans. Alden is most notorious for buying up and destroying America's most beloved newspapers. It was Alden who bought up the Chicago Tribune, gutted its workforce, sold off its iconic downtown tower, and moved its few remaining reporters to an outer suburban, windowless, brick building "the size of a Chipotle":

https://pluralistic.net/2021/10/16/sociopathic-monsters/#all-the-news-thats-fit-to-print

Before the ghastly hotel baroness Leona Helmsley went to prison for tax evasion, she famously said, "We don't pay taxes; only the little people pay taxes." Helmsley wasn't wrong – she was just a little ahead of schedule. As Propublica's IRS Files taught us, America's 400 richest people pay less tax than you do:

https://pluralistic.net/2022/04/13/taxes-are-for-the-little-people/#leona-helmsley-2022

When billionaires don't pay their taxes, they get to buy sports franchises. When poor people don't pay their taxes, billionaires get to steal their houses after paying the local government an insultingly small amount of money.

It's all going according to plan. We weren't meant to have houses, or job security, or retirement funds. We weren't meant to go to university, or even high school, and our kids were always supposed to be in harness at a local meat-packer or fast food kitchen, not wasting time with their high school chess club or sports team. They don't need high school: that's for the people who were born to rule. They – we – were meant to be ruled over.

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#15yrsago Home Office official offered advice and “comfort” to Phorm spyware vendor https://news.bbc.co.uk/2/hi/technology/8021661.stm

#15yrsago Geoengineering wishful thinking is the new climate denialism https://web.archive.org/web/20090430135547/www.worldchanging.com/archives/009784.html

#15yrsago Bruce Sterling explains swine flu https://web.archive.org/web/20090512004141/https://www.wired.com/sterling/2009/04/practical-tips.html

#10yrsago Unboxing a Makie doll https://www.youtube.com/watch?v=vnT9lMR3ATg

#15yrsago Vernor Vinge predicts singularity by 2030 https://web.archive.org/web/20090701065309/http://hplusmagazine.com/articles/ai/singularity-101-vernor-vinge

#15yrsago US refuses to let jet into its airspace because it is carrying a journalist who criticizes US foreign policy https://gadling.com/2009/04/26/air-france-jet-diverts-after-being-told-to-stay-clear-of-us-airs/

#15yrsago Canadian music pirates of 1897 https://web.archive.org/web/20090426193240/http://www.bestactever.com/2009/04/26/the-long-war-music-piracy-in-1897-nytimes/

#15yrsago Economy will get a lot worse — The Economist https://web.archive.org/web/20090426052838/http://www.economist.com/printedition/displayStory.cfm?Story_ID=13527685

#10yrsago RIAA to blame for impoverishment of artists it’s using as human shield in anti-streaming lobbying https://www.techdirt.com/2014/04/25/riaa-claims-that-it-is-standing-up-older-musicians-that-it-actually-left-to-rot/

#10yrsago Haunted Mansion castmembers built a shrine to “Grandma Joyce,” whose urn was found in the gardens https://web.archive.org/web/20140430022606/https://disneylandguru.tumblr.com/post/73135614034

#10yrsago Hacking the hospital: medical devices have terrible default security https://www.wired.com/2014/04/hospital-equipment-vulnerable/

#10yrsago UKIP candidate tells Lenny Henry to move to a “Black country”; party says reporting this is a “smear campaign” https://www.bbc.com/news/uk-politics-27176803

#5yrsago The DCCC is sabotaging Marie Newman’s primary challenge to Dan Lipiniski, a hereditary, anti-choice, anti-minimum-wage, homophobic “Democrat” https://theintercept.com/2019/04/26/dccc-blacklist-marie-newman-dan-lipinski/

#5yrsago Lawyer for kid whose parents paid $1.2m bribe to get into Yale says the high price shows grifters’ anti-Chinese bias https://www.nytimes.com/2019/04/26/us/college-admissions-scandal.html
#5yrsago Pepsi is suing four Indian farmers for growing a proprietary “Lays” potato, seeking $150,000 each in damages https://www.cnn.com/2019/04/25/business/pepsico-india-potato-farmer-lawsuit/index.html

#1yrsago Private equity finally delivered Sarah Palin's death panels https://pluralistic.net/2023/04/26/death-panels/#what-the-heck-is-going-on-with-CMS

#1yrago Convicted monopolist prevented from re-offending https://pluralistic.net/2023/04/27/convicted-monopolist/#microsquish

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Upcoming books (permalink)

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Today's top sources:

Currently writing:

  • A Little Brother short story about DIY insulin PLANNING

  • Picks and Shovels, a Martin Hench noir thriller about the heroic era of the PC. FORTHCOMING TOR BOOKS JAN 2025

  • Vigilant, Little Brother short story about remote invigilation. FORTHCOMING ON TOR.COM

  • Spill, a Little Brother short story about pipeline protests. FORTHCOMING ON TOR.COM

Latest podcast: Capitalists Hate Capitalism https://craphound.com/news/2024/04/14/capitalists-hate-capitalism/

This work – excluding any serialized fiction – is licensed under a Creative Commons Attribution 4.0 license. That means you can use it any way you like, including commercially, provided that you attribute it to me, Cory Doctorow, and include a link to pluralistic.net.

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"When life gives you SARS, you make sarsaparilla" -Joey "Accordion Guy" DeVilla

Publié le 25.04.2024 à 15:13

Pluralistic: Antitrust is a labor issue (25 Apr 2024)


Today's links


An ominous long institutional corridor. At the far end of it is a collection of workers with their upraised fists merging into a single giant fist. In the foreground is a guillotine manned by a pair of revolutionary French executioners who labor over a prone, doomed aristocrat.

Antitrust is a labor issue (permalink)

This is huge: yesterday, the FTC finalized a rule banning noncompete agreements for every American worker. That means that the person working the register at a Wendy's can switch to the fry-trap at McD's for an extra $0.25/hour, without their boss suing them:

https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes

The median worker laboring under a noncompete is a fast-food worker making close to minimum wage. You know who doesn't have to worry about noncompetes? High tech workers in Silicon Valley, because California already banned noncompetes, as did Colorado, Illinois, Maine, Maryland, New Hampshire, North Dakota, Oklahoma, Oregon, Rhode Island, Virginia and Washington.

The fact that the country's largest economies, encompassing the most "knowledge-intensive" industries, could operate without shitty bosses being able to shackle their best workers to their stupid workplaces for years after those workers told them to shove it shows you what a goddamned lie noncompetes are based on. The idea that companies can't raise capital or thrive if their know-how can walk out the door, secreted away in the skulls of their ungrateful workers, is bullshit:

https://pluralistic.net/2022/02/02/its-the-economy-stupid/#neofeudal

Remember when OpenAI's board briefly fired founder Sam Altman and Microsoft offered to hire him and 700 of his techies? If "noncompetes block investments" was true, you'd think they'd have a hard time raising money, but no, they're still pulling in billions in investor capital (primarily from Microsoft itself!). This is likewise true of Anthropic, the company's major rival, which was founded by (wait for it), two former OpenAI employees.

Indeed, Silicon Valley couldn't have come into existence without California's ban on noncompetes – the first silicon company, Shockley Semiconductors, was founded by a malignant, delusional eugenicist who also couldn't manage a lemonade stand. His eight most senior employees (the "Traitorous Eight") quit his shitty company to found Fairchild Semiconductor, a rather successful chip shop – but not nearly so successful as the company that two of Fairchild's top employees founded after they quit: Intel:

https://pluralistic.net/2021/10/24/the-traitorous-eight-and-the-battle-of-germanium-valley/

Likewise a lie: the tale that noncompetes raise wages. This theory – beloved of people whose skulls are so filled with Efficient Market Hypothesis Brain-Worms that they've got worms dangling out of their nostrils and eye-sockets – holds that the right to sign a noncompete is an asset that workers can trade to their employers in exchange for better pay. This is absolutely true, provided you ignore reality.

Remember: the median noncompete-bound worker is a fast food employee making near minimum wage. The major application of noncompetes is preventing that worker from getting a raise from a rival fast-food franchisee. Those workers are losing wages due to noncompetes. Meanwhile, the highest paid workers in the country are all clustered in a a couple of cities in northern California, pulling down sky-high salaries in a state where noncompetes have been illegal since the gold rush.

If a capitalist wants to retain their workers, they can compete. Offer your workers better treatment and better wages. That's how capitalism's alchemy is supposed to work: competition transmogrifies the base metal of a capitalist's greed into the noble gold of public benefit by making success contingent on offering better products to your customers than your rivals – and better jobs to your workers than those rivals are willing to pay. However, capitalists hate capitalism:

https://pluralistic.net/2024/04/18/in-extremis-veritas/#the-winnah

Capitalists hate capitalism so much that they're suing the FTC, in MAGA's beloved Fifth Circuit, before a Trump-appointed judge. The case was brought by Trump's financial advisors, Ryan LLC, who are using it to drum up business from corporations that hate Biden's new taxes on the wealthy and stepped up IRS enforcement on rich tax-cheats.

Will they win? It's hard to say. Despite what you may have heard, the case against the FTC order is very weak, as Matt Stoller explains here:

https://www.thebignewsletter.com/p/ftc-enrages-corporate-america-by

The FTC's statutory authority to block noncompetes comes from Section 5 of the FTC Act, which bans "unfair methods of competition" (hard to imagine a less fair method than indenturing your workers). Section 6(g) of the Act lets the FTC make rules to enforce Section 5's ban on unfairness. Both are good law – 6(g) has been used many times (26 times in the five years from 1968-1973 alone!).

The DC Circuit court upheld the FTC's right to "promulgate rules defining the meaning of the statutory standards of the illegality the Commission is empowered to prevent" in 1973, and in 1974, Congress changed the FTC Act, but left this rulemaking power intact.

The lawyer suing the FTC – Antonin Scalia's larvum, a pismire named Eugene Scalia – has some wild theories as to why none of this matters. He says that because the law hasn't been enforced since the ancient days of the (checks notes) 1970s, it no longer applies. He says that the mountain of precedent supporting the FTC's authority "hasn't aged well." He says that other antitrust statutes don't work the same as the FTC Act. Finally, he says that this rule is a big economic move and that it should be up to Congress to make it.

Stoller makes short work of these arguments. The thing that tells you whether a law is good is its text and precedent, "not whether a lawyer thinks a precedent is old and bad." Likewise, the fact that other antitrust laws differ is irrelevant "because, well, they are other antitrust laws, not this antitrust law." And as to whether this is Congress's job because it's economically significant, "so what?" Congress gave the FTC this power.

Now, none of this matters if the Supreme Court strikes down the rule, and what's more, if they do, they might also neuter the FTC's rulemaking power in the bargain. But again: so what? How is it better for the FTC to do nothing, and preserve a power that it never uses, than it is for the Commission to free the 35-40 million American workers whose bosses get to use the US court system to force them to do a job they hate?

The FTC's rule doesn't just ban noncompetes – it also bans TRAPs ("training repayment agreement provisions"), which require employees to pay their bosses thousands of dollars if they quit, get laid off, or are fired:

https://pluralistic.net/2022/08/04/its-a-trap/#a-little-on-the-nose

The FTC's job is to protect Americans from businesses that cheat. This is them, doing their job. If the Supreme Court strikes this down, it further delegitimizes the court, and spells out exactly who the GOP works for.

This is part of the long history of antitrust and labor. From its earliest days, antitrust law was "aimed at dollars, not men" – in other words, antitrust law was always designed to smash corporate power in order to protect workers. But over and over again, the courts refused to believe that Congress truly wanted American workers to get legal protection from the wealthy predators who had fastened their mouth-parts on those workers' throats. So over and over – and over and over – Congress passed new antitrust laws that clarified the purpose of antitrust, using words so small that even federal judges could understand them:

https://pluralistic.net/2023/04/14/aiming-at-dollars/#not-men

After decades of comatose inaction, Biden's FTC has restored its role as a protector of labor, explicitly tackling competition through a worker protection lens. This week, the Commission blocked the merger of Capri Holdings and Tapestry Inc, a pair of giant conglomerates that have, between them, bought up nearly every "affordable luxury" brand (Versace, Jimmy Choo, Michael Kors, Kate Spade, Coach, Stuart Weitzman, etc).

You may not care about "affordable luxury" handbags, but you should care about the basis on which the FTC blocked this merger. As David Dayen explains for The American Prospect: 33,000 workers employed by these two companies would lose the wage-competition that drives them to pay skilled sales-clerks more to cross the mall floor and switch stores:

https://prospect.org/economy/2024-04-24-challenge-fashion-merger-new-antitrust-philosophy/

In other words, the FTC is blocking a $8.5b merger that would turn an oligopoly into a monopoly explicitly to protect workers from the power of bosses to suppress their wages. What's more, the vote was unanimous, include the Commission's freshly appointed (and frankly, pretty terrible) Republican commissioners:

https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-moves-block-tapestrys-acquisition-capri

A lot of people are (understandably) worried that if Biden doesn't survive the coming election that the raft of excellent rules enacted by his agencies will die along with his presidency. Here we have evidence that the Biden administration's anti-corporate agenda has become institutionalized, acquiring a bipartisan durability.

And while there hasn't been a lot of press about that anti-corporate agenda, it's pretty goddamned huge. Back in 2020, Tim Wu (then working in the White wrote an executive order on competition that identified 72 actions the agencies could take to blunt the power of corporations to harm everyday Americans:

https://www.eff.org/deeplinks/2021/08/party-its-1979-og-antitrust-back-baby

Biden's agency heads took that plan and ran with it, demonstrating the revolutionary power of technical administrative competence and proving that being good at your job is praxis:

https://pluralistic.net/2022/10/18/administrative-competence/#i-know-stuff

In just the past week, there's been a storm of astoundingly good new rules finalized by the agencies:

  • A minimum staffing ratio for nursing homes;

  • The founding of the American Climate Corps;

  • A guarantee of overtime benefits;

  • A ban on financial advisors cheating retirement savers;

  • Medical privacy rules that protect out-of-state abortions;

  • A ban on junk fees in mortgage servicing;

  • Conservation for 13m Arctic acres in Alaska;

  • Classifying "forever chemicals" as hazardous substances;

  • A requirement for federal agencies to buy sustainable products;

  • Closing the gun-show loophole.

That's just a partial list, and it's only Thursday.

Why the rush? As Gerard Edic writes for The American Prospect, finalizing these rules now protects them from the Congressional Review Act, a gimmick created by Newt Gingrich in 1996 that lets the next Senate wipe out administrative rules created in the months before a federal election:

https://prospect.org/politics/2024-04-23-biden-administration-regulations-congressional-review-act/

In other words, this is more dazzling administrative competence from the technically brilliant agencies that have labored quietly and effectively since 2021. Even laggards like Pete Buttigieg have gotten in on the act, despite a very poor showing in the early years of the Biden administration:

https://pluralistic.net/2023/02/11/dinah-wont-you-blow/#ecp

Despite those unpromising beginnings, the DOT has gotten onboard the trains it regulates, and passed a great rule that forces airlines to refund your money if they charge you for services they don't deliver:

https://www.whitehouse.gov/briefing-room/statements-releases/2024/04/24/fact-sheet-biden-harris-administration-announces-rules-to-deliver-automatic-refunds-and-protect-consumers-from-surprise-junk-fees-in-air-travel/

The rule also bans junk fees and forces airlines to compensate you for late flights, finally giving American travelers the same rights their European cousins have enjoyed for two decades.

It's the latest in a string of muscular actions taken by the DOT, a period that coincides with the transfer of Jen Howard from her role as chief of staff to FTC chair Lina Khan to a new gig as the DOT's chief of competition enforcement:

https://prospect.org/infrastructure/transportation/2024-04-25-transportation-departments-new-path/

Under Howard's stewardship, the DOT blocked the merger of Spirit and Jetblue, and presided over the lowest flight cancellation rate in more than decade:

https://www.transportation.gov/briefing-room/2023-numbers-more-flights-fewer-cancellations-more-consumer-protections

All that, along with a suite of protections for fliers, mark a huge turning point in the US aviation industry's long and worsening abusive relationship with the American public. There's more in the offing, too, including a ban on charging families extra for adjacent seats, rules to make flying with wheelchairs easier, and a ban on airlines selling passenger's private information to data brokers.

There's plenty going on in the world – and in the Biden administration – that you have every right to be furious and/or depressed about. But these expert agencies, staffed by experts, have brought on a tsunami of rules that will make every working American better off in a myriad of ways. Those material improvements in our lives will, in turn, free us up to fight the bigger, existential fights for a livable planet, free from genocide.

It may not be a good time to be alive, but it's a much better time than it was just last week.

And it's only Thursday.

Hey look at this (permalink)


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This day in history (permalink)

#15yrsago The Pirate Google: making the point that Google’s as guilty of linking to torrents as The Pirate Bay https://web.archive.org/web/20090425044739/http://www.thepirategoogle.com/

#10yrsago Radical press demands copyright takedown of Marx-Engels Collected Works https://crookedtimber.org/2014/04/24/karlo-marx-and-fredrich-engels-came-to-the-checkout-at-the-7-11/

#10yrsago Band releases album as Linux kernel module https://github.com/usrbinnc/netcat-cpi-kernel-module

#5yrsago Joe Biden kicks off his presidential bid with a fundraiser hosted by Comcast’s chief lobbyist https://www.cbsnews.com/news/comcast-executive-to-host-joe-biden-fundraiser/

#5yrsago “Black hat” companies sell services to get products featured and upranked on Amazon https://www.buzzfeednews.com/article/leticiamiranda/amazon-marketplace-sellers-black-hat-scams-search-rankings

#5yrsago Vulnerabilities in GPS fleet-tracking tools let attackers track and immobilize cars en masse https://www.vice.com/en/article/zmpx4x/hacker-monitor-cars-kill-engine-gps-tracking-apps

#5yrsago Court case seeks to clarify that photographers don’t need permission to publish pictures that incidentally capture public works of art https://www.techdirt.com/2019/04/24/mercedes-goes-to-court-to-get-background-use-public-murals-promotional-pics-deemed-fair-use/

#5yrsago A 40cm-square patch that renders you invisible to person-detecting AIs https://arxiv.org/abs/1904.08653

#5yrsago Telcoms lobbyists oppose ban on throttling firefighters’ internet during wildfires https://arstechnica.com/tech-policy/2019/04/verizon-backed-lobby-group-opposes-ban-on-throttling-of-firefighters/

#5yrsago Angered by the No-More-AOCs rule, 31 colleges’ Young Democrats boycott the DCCC https://theintercept.com/2019/04/25/dccc-blacklist-college-democrats/

#5yrsago Older Americans are working beyond retirement age at levels not seen since 1962 https://web.archive.org/web/20201107235540/https://www.investmentnews.com/older-americans-are-twice-as-likely-to-work-now-as-in-1985-79176

#1yrago How Amazon makes everything you buy more expensive, no matter where you buy it https://pluralistic.net/2023/04/25/greedflation/#commissar-bezos

Upcoming appearances (permalink)

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Recent appearances (permalink)


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Latest books (permalink)


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Upcoming books (permalink)

  • Picks and Shovels: a sequel to "Red Team Blues," about the heroic era of the PC, Tor Books, February 2025

  • Unauthorized Bread: a graphic novel adapted from my novella about refugees, toasters and DRM, FirstSecond, 2025


Colophon (permalink)

Today's top sources:

Currently writing:

  • A Little Brother short story about DIY insulin PLANNING

  • Picks and Shovels, a Martin Hench noir thriller about the heroic era of the PC. FORTHCOMING TOR BOOKS JAN 2025

  • Vigilant, Little Brother short story about remote invigilation. FORTHCOMING ON TOR.COM

  • Spill, a Little Brother short story about pipeline protests. FORTHCOMING ON TOR.COM

Latest podcast: Capitalists Hate Capitalism https://craphound.com/news/2024/04/14/capitalists-hate-capitalism/

This work – excluding any serialized fiction – is licensed under a Creative Commons Attribution 4.0 license. That means you can use it any way you like, including commercially, provided that you attribute it to me, Cory Doctorow, and include a link to pluralistic.net.

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