Zuckerberg’s increasingly bizarre war on whistleblowers
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
More than a decade ago, a group of young, internet-connected Belarusian dissidents launched a series of increasingly high-stakes, increasingly surreal confrontations with the corrupt, authoritarian government of Alexander Lukashenka, a man who is often called "the last Soviet dictator."
Lukashenka's secret police – still called the KGB – routinely terrorize and kidnap pro-democracy activists, and all forms of protest are banned. It was against the backdrop of this unrelenting oppression that the activists launched a series of whimsical "flash mobs" that challenged the Lukashenka regime's willingness to crack down on even the most innocuous behavior.
One of these flash mobs was an ice cream social: activists converged on a public square to eat ice cream cones. Lukashenka's thugs beat them and dragged them away:
The protestors thought that by daring Lukashenka to arrest people for eating ice cream, they could create a win-win situation: either Lukashenka would be revealed as the kind of asshole who thinks it should be illegal to eat ice cream, or he'd be revealed as the kind of weakling who couldn't keep a lid on dissent.
Lukashenka took the bait. And took it. And took it. In the years that followed, protesters would be arrested for smiling, clapping, and just standing silently:
The world learned that Lukashenka was a buffoon, and Belarusians affirmed their view that this buffoon would not hesitate to mete out the most vicious punishments for the most innocuous actions:
https://sci-hub.st/10.1080/25739638.2021.1928880
Speaking of thin-skinned, paranoid, wildly corrupt buffoons who will stop at nothing to silence their enemies, how about that Mark Zuckerberg, huh? Sure, all the headlines these days are about Zuck's intention to transform Facebook into a sports betting site:
But in the UK, Zuckerberg's war on whistleblowers keeps finding new, ice cream grade depths of absurdity to plumb. The whistleblower in question is, of course, Sarah Wynn-Williams, author of the internationally bestselling memoir Careless People, which details the criminality she witnesses during her years as the head of Facebook's international relations team:
Careless People is full of revelations about the gross institutional misconduct of Facebook, including its knowing encouragement of a genocide in Myanmar. But it's also full of stories about the severe personal failings of Facebook's executive team, especially Sheryl Sandberg, Joel Kaplan and Mark Zuckerberg.
These three come off as the most colossal of assholes, cruel, petty and predatory. Sandberg comes across as a sexual abuser who dreams of trafficking in poor people's organs. Kaplan is an oaf whose plan to provide paid internet access to refugee camps falls apart once he learns that refugees in camps don't have any money (he also takes points off of Wynn-Williams' workplace evaluation for being "unresponsive" over a period when she was in a near-death coma). Worst of all, though, is Zuckerberg, whose sins range from cheating at Settlers of Catan to endangering the Colombian peace process after a 50-year civil war because he refused to get out of bed before noon. Zuck is also revealed to have given the Chinese state access to all of Facebook and the power to censor content they disliked, as part of a failed bid to get permission to offer a Facebook service in China.
It's a terrible company, with awful products, run by the worst people. Wynn-Williams' conditions of employment required her to sign a contract that bound her to silence (nondisclosure), forbade her from speaking ill of the company (nondisparagement), and denied her access to the legal system in all her dealings with Meta (binding arbitration).
Together, these three clauses – routinely used by Meta to silence would-be whistleblowers – meant that after Wynn-Williams's book was published, Meta got its arbitrator – a lawyer who is paid by Meta to adjudicate contractual disputes instead of an actual judge – to order her to never promote or even speak about her book.
The arbitrator awarded Meta $50,000 for each criticism that Wynn-Williams levied, quickly coming to a total of over $11,000,000. This vastly exceeds the assets and lifetime earning potential of Wynn-Williams and her husband (a reporter with the Financial Times). If this bill ever truly comes due, they will be wiped out.
Which raises an interesting question: what else can they do to her? Once they've secured civil damages that exceeds her net worth several times over, why shouldn't she just flout her agreement? "Freedom's just another word for nothing left to lose," and all that.
Nevertheless, Wynn-Williams has scrupulously hewed to the arbitrator's rules, steadfastly remaining silent about her book, its contents, and her experiences at Facebook/Meta. When she and I appeared onstage together in London for the launch for my book Enshittification last year, she fell silent and assumed a blank expression any time the subject of Meta came up, and she didn't sign or sell books afterward:
When she won the British Book Award, she did not speak to accept it, and the cover of her book was blurred out on the overhead screen (she gave an acceptance speech on behalf of her co-winner, the late Virginia Giuffre, who was abused by Jeffrey Epstein and who accused Prince Andrew of sexual assault):
Nevertheless, when she was booked to speak – about a subject other than her book – at the Hay Festival on a stage with Tim Wu and Carole Cadwalladr, Meta sent a legal threat to the festival and Wynn-Williams, claiming that if by speaking about anything in public, she would violate the arbitrator's order. Accordingly, Wynn-Williams maintained total silence and a blank facial expression for an hour on stage, saying not one word, while Wu and Cadwalladr carried on a discussion. Careless People was withdrawn from the festival bookshop on the days she appeared there:
Nevertheless, Meta has informed Wynn-Williams that her silent, motionless appearance on a stage constitutes a further breach of her "agreement" and that they are going to seek even more damages from her. This act of anti-ice cream thuggery has pushed Wynn-Williams over the edge and now she's sued to invalidate her contract:
Her lawyers have posted their documents related to the suit, including a 285-page declaration by Wynn-Williams explaining the great lengths she's gone to in order to comply with Meta's demands, and the company's absolute intransigence and arbitrary menace:
Why would Meta be so intent on destroying this one high-profile whistleblower? Surely they've heard of the Streisand Effect. There is no better way to ensure that Wynn-Williams' book (already a NYT #1 bestseller) continues to attract readers than to continue to escalate these threats.
I think they're perfectly aware that they are convincing more people to read Careless People (you should read it, it's genuinely excellent):
But I think they've decided that this is a price worth paying, because:
a) They've done even worse things since Wynn-Williams parted ways with the company; and
b) They're laying off thousands of workers because their giant bet on AI has been a flop, leaving them with a massive cash crunch; and
c) By destroying Sarah Wynn-Williams, they can terrorize all those thousands of bitter ex-employees into silence about the even graver sins the company has committed.
Lukashenka knew that arresting children for eating ice cream would make him a laughingstock abroad. Zuckerberg knows that threatening Wynn-Williams for standing in wooden silence on a stage makes him look like history's most guillotineable billionaire. But both Lukashenka and Zuckerberg are willing to be thought a thin-skinned bully, so long as that means the people they oppress the most are too terrified to ever challenge their authority.
Hi. Remember when Disney tried to insist someone couldn't sue over wrongful death in the parks because someone had signed an arbitration clause for Disney+?
Indeed may have set up the turbo version of that. While this is a very "I am not a lawyer" post, I am someone who watches consumer rights (in the US) with great interest. I'd like to be told I'm very wrong, but...
"arising out of or relating in any way to the Site or your interactions with it, any communications you send or receive, any programs or services used, provided, sold, or distributed through the Site, the Terms or prior versions of the Terms, or any aspect of your relationship with Indeed (each, an “Arbitration Dispute”), between you and Indeed or between you and any other User, will be resolved by binding arbitration"
"As set out in the prior paragraph, this Arbitration Agreement requires you to arbitrate not only Arbitration Disputes between you and Indeed but also Arbitration Disputes between you and any other User. Additionally, this Arbitration Agreement is expressly intended to bind any third-party beneficiary of this Arbitration Agreement to the greatest extent possible under applicable law."
Ideally (not good but not atypical) this would prevent lawsuits between job seekers and companies but minimal context is involved. Rather, the agreement specifies itself to be as broadly as it can possibly be applied.
Would it stand up in court for a company to say you can't sue them because they're also Indeed users? Hopefully not. Will an unethical company attempt it? You better believe it.
You can opt out and should do so immediately.
"you may opt out of this Arbitration Agreement for your Job Seeker account(s) by sending a written opt-out notice (“Opt-Out Notice”) to Indeed. To be effective, you must send your Opt-Out Notice within 30 days after first accepting Terms that contain this Arbitration Agreement and you must use one of the following two methods: (1) complete the Opt-Out Notice form by providing all information required on the form and email it to [email protected]; or (2) send an email to [email protected] that includes, in the following order, (a) a statement that “I am writing to provide notice that I’m opting out of the Arbitration Agreement in Indeed’s Terms of Service”, (b) your full name, (c) your mailing address, (d) your phone number, (e) all email address(es) associated with the Job Seeker account(s) for which you are opting out, and (f) the date of your Opt-Out Notice. You must send your Opt-Out Notice from an email address associated with a Job Seeker account that belongs to you and for which you are opting out."
I believe it's also very telling to note that they have a job-seeker opt-out, but not employer. One side benefits tremendously from this (as is always the case with binding arbitration), so much so that they don't see any need to provide the option at all, and it's not the individual.
Post updated 9/22 with the context found but still do not trust companies to not say "You applied to a position with us on Indeed in 2012 and therefore can't sue"
For all my fellow Tumblrites out there (second verse, same as the first):
The first thing you should do when you read any contract is look for language that specifies arbitration of any disputes between you and the company.
The second thing you should immediately do is look for the opt-out language in the same section of the contract.
The third thing is follow those processes to opt-out and keep a record of you notifying the company that you are opting out of the arbitration language per the agreement as agreed to on (date). And keep a copy of that agreement as well! Companies like to try and sneak unilateral changes past people and state that continued use of the product or service constitutes acceptance.
Protect your legal rights!
(And while you're at it, vote for anyone who advocates taking up the limitation of arbitration abuse at the legislative level!)
The most ENSHITTIFICATION-PROOF way to get the Enshittification audiobook, ebook and hardcover is to pre-order them on my Kickstarter! Help me do AN END RUN around the AMAZON/AUDIBLE AUDIOBOOK MONOPOLY and DISENSHITTIFY your audiobook experience in the process.
Just as Martin Niemöller's "First They Came" has become our framework for understanding the rise of fascism in Nazi Germany, so, too is Wilhoit's Law the best way to understand America's decline into fascism:
https://en.wikipedia.org/wiki/First_They_Came
In case you're not familiar with Frank Wilhoit's amazing law, here it is:
Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.
The thing that makes Wilhoit's Law so apt to this moment – and to our understanding of the recent history that produced this moment – is how it connects the petty with the terrifying, the trivial with the radical, the micro with the macro. It's a way to join the dots between fascists' business dealings, their interpersonal relationships, and their political views. It describes a continuum that ranges from minor commercial grifts to martial law, and shows how tolerance for the former creates the conditions for the latter.
The gross ways in which Wilhoit's Law applies are easy to understand. The dollar value of corporate wage-theft far outstrips the total dollars lost to all other forms of property crime, and yet there is virtually no enforcement against bosses who steal their workers' paychecks, while petty property crimes can result in long prison sentences (depending on your skin color and/or bank balance):
Elon Musk values "free speech" and insists on his right to brand innocent people as "pedos," but he also wants the courts to destroy organizations that publish their opinions about his shitty business practices:
https://www.mediamatters.org/elon-musk
Fascists turn crybaby when they're imprisoned for attempting a murderous coup, but buy merch celebrating the construction of domestic concentration camps where people are locked up without trial:
https://officialalligatoralcatraz.com/shop
That stuff is all easy to see, but I want to draw a line between these gross violations of Wilhoit's Law and pettier practices that have been creating the conditions for the present day Wilhoit Dystopia.
Take terms of service. The Federalist Society – whose law library could save a lot of space by throwing away all its books and replacing them with a framed copy of Wilhoit's Law – has long held that merely glancing at a web-page or traversing the doorway of a shop is all it takes for you to enter into a "contract" by which you surrender all of your rights. Every major corporation – and many smaller ones – now routinely seek to bind both workers and customers to garbage-novellas of onerous, unreadable legal conditions.
If we accept that this is how contracts work, then this should be perfectly valid, right?
By reading these words, you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer. This indemnity will survive the termination of your relationship with your employer.
I mean, why not? What principle – other than "in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect" – makes terms of service valid, and this invalid?
Then there's binding arbitration. Corporations routinely bind their workers and customers to terms that force them to surrender their right to sue, no matter how badly they are injured through malice or gross negligence. This practice used to be illegal, until Antonin Scalia opened the hellmouth and unleashed binding arbitration on the world:
There's a pretty clever hack around binding arbitration: mass arbitration, whereby lots of wronged people coordinate to file claims, which can cost a dirty corporation more than a plain old class-action suit:
Of course, Wilhoit's Law provides corporations with a way around this: they can reserve the right not to arbitrate and to force you into a class action suit if that's advantageous to them:
Or take the nature of property rights themselves. Conservatives say they revere property rights above all else, claiming that every other human right stems from the vigorous enforcement of property relations. What is private property? For that, we turn to the key grifter thinkfluencer Sir William Blackstone, and his 1768 "Commentaries on the Laws of England":
That sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.
Corporations love the idea of their property rights, but they're not so keen on your property rights. Think of the practice of locking down digital devices – from phones to cars to tractors – so that they can't be repaired by third parties, use generic ink or parts, or load third-party apps except via an "app store":
A device you own, but can only use in ways that its manufacturer approves of, sure doesn't sound like "sole and despotic dominion" to me.
Some corporations (and their weird apologists) like to claim that, by buying their product, you've agreed not to use it except in ways that benefit their shareholders, even when that is to your own detriment:
Apple will say, "We've been selling iPhones for nearly 20 years now. It can't possibly come as a surprise to you that you're not allowed to install apps that we haven't approved. If that's important to you, you shouldn't have bought an iPhone."
But the obvious rejoinder to this is, "People have been given sole and despotic dominion over the things they purchased since time immemorial. If the thought of your customers using their property in ways that displease you causes you to become emotionally disregulated, perhaps you shouldn't have gotten into the manufacturing business."
But as indefensibly wilhoitian as Apple's behavior might be, Google has just achieved new depths of wilhoitian depravity, with a rule that says that starting soon, you will no longer be able to install apps of your choosing on your Android device unless Google first approves of them:
Like Apple, Google says that this is to prevent you from accidentally installing malicious software. Like Apple, Google does put a lot of effort into preventing its customers from being remotely attacked. And, like Apple, Google will not protect you from itself:
When it comes to vetoing your decisions about which programs your Android device can run, Google has an irreconcilable conflict of interest. Google, after all, is a thrice-convicted monopolist who have an interest in blocking you from installing programs that interfere with its profits, under the pretense of preventing you from coming to harm.
And – like Apple – Google has a track record of selling its users out to oppressive governments. Apple blocked all working privacy tools for its Chinese users at the behest of the Chinese government, while Google secretly planned to release a version of its search engine that would enforce Chinese censorship edicts and help the Chinese government spy on its people:
Google's CEO Sundar Pichai, personally gave one million dollars to Donald Trump for a seat on the dais at this year's inauguration (so did Apple CEO Tim Cook). Both men are in a position to help the self-described dictator make good on his promise to spy on and arrest Americans who disagree with his totalitarian edicts.
All of this makes Google's announcement extraordinarily reckless, but also very, very wilhoitian. After all, Google jealously guards its property rights from you, but insists that your property rights need to be subordinated to its corporate priorities: "in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect."
We can see this at work in the way that Google treats open source software and free software. Google's software is "open source" – for us. We have the right to look at the code and do free work for Google to identify and fix bugs in the code. But only Google gets a say in how that code is deployed on its cloud servers. They have software freedom, while we merely have software transparency:
Big companies love to both assert their own property rights while denying you yours. Take the music industry: they are required to pay different royalties to musicians depending on whether they're "selling" music, or "licensing" music. Sales pay a fraction of the royalties of a licensing deal, so it's far better for musicians when their label licenses their music than when they sell it.
When you or I click the "buy" button in an online music store, we are confronted with a "licensing agreement," that limits what we may do with our digital purchase. Things that you get automatically when you buy music in physical form – on a CD, say – are withheld through these agreements. You can't re-sell your digital purchases as used goods. You can't give them away. You can't lend them out. You can't divide them up in a divorce. You can't leave them to your kids in your will. It's not a sale, so the file isn't your property.
But when the label accounts for that licensing deal to a musician, the transaction is booked as a sale, which entitles the creative worker to a fraction of the royalties that they'd get from a license. Somehow, digital media exists in quantum superposition: it is a licensing deal when we click the buy button, but it is a sale when it shows up on a royalty statement. It's Schroedinger's download:
The plaintiffs insist that because Amazon showed them a button that said, "Buy this video" but then slapped it with licensing conditions that take away all kinds of rights (Amazon can even remotely delete your videos after you "buy" them) that they have been ripped off in a bait-and-switch.
Amazon's defense is amazing. They've done what any ill-prepared fifth grader would do when called on the carpet; they quoted Webster's:
Quoting Webster’s Dictionary, it said that the term means “rights to the use or services of payment” rather than perpetual ownership and that its disclosures properly warn people that they may lose access.
People are increasingly pissed off with this bullshit, whereby things that you "buy" are not yours, and your access to them can be terminated at any time. The Stop Killing Games campaign is pushing for the rights of gamers to own the games they buy forever, even if the company decides to shut down its servers:
https://www.stopkillinggames.com/
I've been pissed off about this bullshit since forever. It's one of the main reasons I convinced my publishers to let me sell my own ebooks and audiobooks, out of my own digital storefront. All of those books are sold, not licensed, and come without any terms or conditions:
https://craphound.com/shop/
The ability to change the terms after the sale is a major source of enshittification. I call it the "Darth Vader MBA," as in "I am altering the deal. Pray I do not alter it any further":
Look, I don't think that personal consumption choices can fix systemic problems. You're not going to fix enshittification – let alone tyranny – by shopping, even if you're very careful:
But that doesn't mean that there isn't a connection between the unfair bullshit that monopolies cram down our throat and the rise of fascism. It's not just that the worst enshittifiers also the biggest Trump donors, it's that Wilhoit's Law powers enshittification.
Wiloitism is shot through the Maga movement. The Flu Klux Klan wants to ban you from wearing a mask for health reasons, but they will defend to the death the right of ICE brownshirts to run around in gaiters and Oakleys as they kidnap our neighbors off the streets.
Conservative bedwetters will donate six figures to a Givesendgo set up by some crybaby with a viral Rumble video about getting 86'ed from a restaurant for wearing a Maga hat, but they literally want to imprison trans people for wearing clothes that don't conform to their assigned-at-birth genders.
They'll piss and moan about being "canceled" because of hecklers at the speeches they give for the campus chapter of the Hitler Youth, but they experience life-threatening priapism when students who object to the Israeli genocide of Palestinians are expelled, arrested and deported.
Then there's their abortion policies, which hold that personhood begins at conception, but ends at birth, and can only be re-established by forming an LLC.
It's "in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect" all the way down.
I'm not saying that bullshit terms of service, wage theft, binding arbitration gotchas, or victim complexes about your kids going no-contact because you won't shut the fuck up about "the illegals" at Thanksgiving are the same as the actual fascist dictatorship being born around us right now or the genocide taking place in Gaza.
But I am saying that they come from the same place. The ideology of "in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect" underpins the whole ugly mess.
After we defeat these fucking fascists, after the next installment of the Nuremburg trials, after these eichmenn and eichwomenn get their turns in the dock, we're going to have to figure out how to keep them firmly stuck to the scrapheap of history.
For this, I propose a form of broken windows policing; zero-tolerance for any activity or conduct that implies that there are "in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect."
We should treat every attempt to pull any of these scams as an inch (or a yard, or a mile) down the road to fascist collapse.
We shouldn't suffer practitioners of this ideology to be in our company, to run our institutions, or to work alongside of us. We should recognize them for the monsters they are.
Click here to pre-order my next book, ENSHITTIFICATION: WHY EVERYTHING SUDDENLY GOT WORSE AND WHAT TO DO ABOUT IT
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
I’m coming to GUELPH, ONTARIO THIS FRIDAY (May 8) to deliver the Musagetes Lecture.
One of my bedrock beliefs is that capitalists really hate capitalism. They may name their beloved institutes after the likes of Adam Smith, but they ignore everything Smith had to say about the necessity of competition to keep markets from turning into monopolies:
The theory of capitalism holds that markets are a kind of distributed computer that aggregates trillions of decisions from billions of market participants in order to optimize production and distribution of goods and services, creating a "Pareto-optimal" world where no one can be made better off without making someone else worse off.
Whether or not you believe that this computer exists and functions as predicted, one indisputable fact about it is that it requires the freedom to choose in order to work. The point of market-as-computer is that it aggregates decisions, so it can only work if everyone is as free as possible to decide.
But that's not the world capitalists want. For capitalists, the point is to restrict other people's choices in order to maximize your own freedom. That's how we get economic doctrines like "revealed preferences": the idea that if a person says they want one thing, but does another thing, then you can tell what they really prefer by looking at the latter and disregarding the former. This is the kind of doctrine you can only fully embrace after sustaining the kind of highly specific neurological injury that is induced by taking an economics degree, an injury that makes you incapable of perceiving or reasoning about power. Under the doctrine of revealed preferences, someone who sells their kidney to make the rent has a revealed preference for only having one kidney:
Capitalism is supposed to run on risk: the risk of being overtaken by a competitor drives businesses to deliver better services more efficiently, thus producing a bounty for all. But capitalists really hate risk, hence the drive to monopoly: Mark Zuckerberg admitted, in writing, that he only bought Instagram so that he wouldn't have to compete with it ("It is better to buy than to compete" -M. Zuckerberg):
Capitalists hate capitalism, but they love feudalism. Feudalism is like capitalism, in that you have a ruling class that creams off the surplus generated by labor; but under feudalism, society is organized to protect rents (money you get from owning stuff) over profits (money you get from doing stuff). The beauty of rents is that they are insulated from risk: if you own a coffee shop, you're in constant danger of being put out of business by a better coffee shop. But if you own the building and your coffee shop tenant goes under, well, you've still got the building, and hey, now it's on the same hot block as the amazing new cafe that's driving its competitors out of business:
Douglas Rushkoff calls this "going meta": don't drive a taxi, rent a medallion to a taxi driver. Don't rent a medallion, start a ride-hailing app company. Don't start a ride-hailing company, invest in the company. Don't invest in the company, but options on the company's shares. Each layer of indirection takes you further from the delivery of a useful service – and insulates you further from risk:
Monopoly is to capitalism as gerrymandering is to democracy, a way to strip out any meaningful choice. Think of the two giant packaged goods companies that fill your grocery aisles: Procter & Gamble and Unilever. Practically everything on your grocer's shelves is made by a division of one of these two massive conglomerates. If you try to "vote with your wallet" by buying a low-packaging version of a product, it's going to be sold to you by the same company that sells the high-packaging version. If you switch to an artisanal brand of cookies made by a local family business, Unilever or P&G will buy that company and issue a press release declaring that they made the acquisition because they know "their customers value choice":
Gerrymandering strips your vote of any impact on political outcomes. Monopoly strips your purchases of any ability to influence economic outcomes. Wrap both of them in "revealed preferences" and you get a system that endlessly narrates its ability to deliver choice, and then blames your misery on your having chosen badly.
This is the method of the entire conservative project. As Dan Savage says: the thing that unites conservative assaults on voting, birth control, abortion and no-fault divorce is the stripping away of choice. Conservatives are trying to create a world populated by husbands you can't divorce, pregnancies you can't prevent or terminate, and politicians you can't vote out of office. Add to that Trump's assault on the National Labor Relations Board, his reversal of the FTC's ban on noncompetes, and his protection of "TRAP" agreements that force employees to pay thousands of dollars if they quit their jobs, and you get "jobs you can't quit":
Conservative strongmen like Trump and Musk exalt the value of self-determination – for themselves, at everyone else's expense. Trump's ability to stiff the contractors that built his hotels and Musk's ability to rain flaming rocket debris down on the people who live near his company town require that everyone else be stripped of protections. They get to determine their own course in life by taking away your ability to determine your own. Their right to swing their fists ends two inches past your nose:
Cheaters and bullies hate the rule of law, hence Trump's endless repetition of Nixon's mantra: "When the president does it, that means it is not illegal." But not everyone can be president, and the world is full of would-be Trumps in positions of power who would like to be able to commit crimes without fear of legal repercussions. For these people, we have something called "binding arbitration."
"Binding arbitration" is a widely used contractual term that forces you to surrender your right to sue a company that wrongs you. Instead of suing, binding arbitration forces you to take your case to an "arbitrator"; that is, a lawyer who is paid by the company that cheated you or maimed you or killed your loved one. The arbitrator decides whether their client is guilty, and, if so, how much that client owes you. The entire process is confidential and it is non-precedential, meaning that if a company rips off millions of people in the same way, each of them has to arbitrate their claims separately, and people who are successful can't share their tactical notes with the people who are next in line to plead for justice.
That makes binding arbitration another key weapon in the conservative movement's war on choice: not just jobs you can't quit and politicians you can't vote out of office, but also companies you can't sue. Binding arbitration is a creation of the Federalist Society and their champion Antonin Scalia, who authored a series of Supreme Court dissents and (ultimately) decisions that opened the door for binding arbitration everywhere:
Given the Fedsoc's role in shoving binding arbitration down every worker and shopper's throat, it's decidedly odd that they invited Ashley Keller to be their keynote debater in 2021, where he argued that "concentrated corporate power is a greater threat than government power":
https://www.youtube.com/watch?v=aY5MrHGjVT8
Keller is a powerhouse lawyer, and an avowed conservative, who has pioneered many tactics for overcoming binding arbitration clauses. He helped create "mass arbitration," bringing thousands of arbitration cases on behalf of Uber drivers who'd had their wages stolen by the company. Since Uber has to pay the arbitrators in each of those cases, they faced a much larger bill than they would face in any possible class action suit:
Mass arbitration cases spread to all kinds of large firms that used petty grifts to steal from thousands or even millions of people, like Intuit, who deceive – and rip off – millions of Americans every year with their fake Turbotax "free file" system:
Mass arbitration worked so well that Amazon actually revised its terms of service to remove binding arbitration from their terms of service, because they realized that they'd be better off facing class action suits:
Of course, the point of binding arbitration was never to create a streamlined system of justice – it was to bring about a world of no justice, where you have no right to sue. It's part of the decades-old "tort reform" movement that the business lobby has used to take away your right to sue altogether. Any time you hear about a seemingly crazy lawsuit (like the urban legends about the McDonald's "hot coffee" case), you're being propagandized for a world without legal consequences for companies that defraud you, steal from you, injure you, or kill you:
That's why companies (like Bluesky) are now trying terms of service that also ban you from mass arbitration, while retaining the right to consolidate claims into a mass arbitration case if that's advantageous to them:
But Keller keeps finding creative ways around binding arbitration. He's currently bringing thousands of arbitration claims against Google, on behalf of advertisers whom Google stole from (Google is a thrice-convicted monopolist, and they lost a case last year over their monopolization of ad-tech, where they were found to have defrauded advertisers).
He also just argued before the Supreme Court in a case against Monsanto over the company's attempt to escape liability for causing cancer in farmworkers with their Roundup pesticide:
Keller appears in the latest episode of the Organized Money podcast, for a fascinating interview about his work and outlook, and how he reconciles his work fighting corporate power with his identity as a movement conservative:
Keller's first big, important point is that (basically), capitalists hate capitalism (see above). He cites Milton Friedman, who "always said that the tort system is the best way to ensure that companies behave and follow the rules." For Keller (and Friedman) the alternative to private litigation against bad businesses is "government regulation and the alphabet soup of Washington, DC agencies [that] try and police these companies."
But, of course, the businesses that want binding arbitration and tort reform (so they can't be sued) also want to "dismantle the administrative state" (so they can't be regulated). They're the impunity movement, the "when the president does it, that means it is not illegal" movement, the "heads I win, tails you lose" movement. They're the caveat emptor movement, the "that makes me smart" movement:
They don't want efficient markets, with the ever-present threat of a better competitor putting them out of business. They want feudalism. They want to go meta. They want to have the kind of self-determination you can only achieve by taking away everyone else's self-determination.
I was very struck by Keller's claim to be engaged in an exercise that Milton Friedman identified as the best one for making markets work. One of Keller's most forceful points is that class action suits are especially important for reining in petty, recurrent grifts, the junk fees that are the hallmark of enshittification.
He quotes his old boss, the archconservative judge Richard Posner, who said "Only a lunatic or a fanatic sues for $20." But if you multiply a $20 junk fee by ten million purchases, a company can use that fact to make hundreds of millions of dollars. That's real folding money, which is why every company has figured out a way to whack you for a $20 junk fee.
There are two ways to end this racket: one is litigation, the other is regulation, and the capitalism-hating-capitalists who run the world want to kill both. That's why the business lobby smears lawyers like Keller as being "vultures." But as Matt Stoller says, "vultures look aggressive and whatnot, but when you actually get rid of vultures out of an ecosystem, all sorts of things go haywire."
I love this point. Vultures live off the disgusting, rotting crap that would otherwise pile up around us, breeding disease and emitting an unbearable stench. If plaintiff-side, no-win/no-fee lawyers are vultures, then junk fees, wage theft, and the million petty frauds they fight are the disgusting, rotting crap that vultures feed off of – and the harder we make it for our noble vulture lawyers, the more disgusting, rotting crap we have to live with, hence the unbearable stench that is all around us.
Listening to Keller was a fascinating exercise. I thoroughly disagree with him about many things – the way he characterized Section 230 of the Communications Decency Act couldn't have been more wrong – but it's quite bracing to hear a capitalist who doesn't hate capitalism defend it against the vast majority of capitalists, who hate capitalism more than any socialist ever did.
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
Bluesky creates the world’s weirdest, hardest-to-understand binding arbitration clause
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
I can't wait to use Bluesky, but I will not be joining Bluesky. As much as I trust and respect the Bluesky executives and board members I am acquainted with, I believe the service itself is insufficiently enshittification-resistant to trust:
I've met Bluesky's CEO Jay Graber on a few occasions and heard her speak several times and I'm hugely impressed with her documented commitment to make "enshittification-resistant" social media:
Some of Bluesky's most innovative and well-developed features are extremely enshittification-resistant, like "composable moderation," which gives users an extraordinary degree of control over their feeds, which means that the service's owners can't readily dial down the amount of desirable information in those feeds in order to create space for ads or posts that someone has paid to boost (or, as is the case with Twitter, the personal maunderings of the service's boss and whichever esoteric fascist crony talked to him last):
What's more, this composable moderation, along with an open API for clients, allows Bluesky (the company) to adhere to its legal obligations to block content, while allowing Bluesky users to sidestep those blocks. For example, Bluesky has a labeling service that flags content that has to be blocked under Turkey's system of authoritarian censorship, and, by default, the Bluesky client blocks anything with that flag for Turkish users. But users can turn off that block, and/or use an alternative Bluesky client that doesn't pay attention to the blocked-in-Turkey flag.
Same goes for the new British system of mass censorship under the Online Safety Act: Bluesky the company will do an age-verification process with users of its official client (like all age verification, this system is janky and it sucks), but UK users who choose a different client (one that isn't worried about being sanctioned by the UK government) can access all of Bluesky without any age verification.
But the key anti-enshittification measure – federation – has lagged on Bluesky. For most of Bluesky's history, it's been impossible to participate in the Bluesky service without being a Bluesky user, because the most critical parts of the Bluesky network were incredibly expensive to operate (tens of millions of dollars per year), and lacked any tooling to make it easy to create independent, federated servers.
Without the ability to participate on the Bluesky network without having to create an account with Bluesky (the company), users would have to subject themselves to Bluesky's terms of service, and could have their access to the Bluesky network unilaterally terminated by Bluesky (the company).
Now, I happen to think pretty highly of the management of Bluesky (the company) at the moment. But Bluesky has outside investors – the distressingly stupid- and sinister-sounding Blockchain Capital – and if these people get it into their heads to enshittify Bluesky, then can force good actors off the board of directors, fire the management, and replace them with standard-issue corporate sociopaths.
What's more, the fact that users are hostage to Bluesky – that they have no way to part ways with the company without parting ways with the people they value on the service – means that new management can torment Bluesky users with impunity, so long as these torments are kept to a level such that Bluesky users hate the company less than they love one another.
By contrast, with federation – the ability to part ways with the Bluesky company without losing access to the service – investors might understand that if they turn the screws on users, those users will find it trivial to leave the company's servers, because doing so won't cost them access to the service. And if the investors don't understand this, well, users can leave – without enduring any switching costs.
The good news here is that Bluesky has made enormous progress in true federation. The cost of operating a full Bluesky stack has fallen from tens of millions of dollars per year to tens of dollars per month:
https://whtwnd.com/bnewbold.net/3lo7a2a4qxg2l
This is an extremely welcome development and it goes a long way toward enshittification-proofing the Bluesky service, and some way to enshittification-proofing Bluesky, the company.
But Bluesky, the company, still needs serious work.
As things stand, Bluesky has very bad terms of service that every user who creates an account has to subject themselves to. In particular, Bluesky's ToS contain a "binding arbitration" waiver that forces users to surrender the right to sue Bluesky no matter how the company harms them. This is so pro-enshittificatory, it's like a landing strip for the sole use of Enshittification Airlines, which can land a 747 full of enshittfying nonsense on Bluesky's users every 10 minutes, around the clock, without worrying about any legal repercussions.
Binding arbitration used to be illegal. Sure, two entities of similar size and power could elect to streamline their disputes by seeing an arbitrator instead of going to court, but you couldn't take away people's right to sue just by cramming 40,000 words of legalese down their throat as they passed over your threshold. It took the absolute fuckery of an Antonin Scalia to unleash the plague of binding arbitration waivers on the world, with the result that these days, everyone from dentists to solar installers to ride-hailing companies force you to permanently waive your right to sue, even if they are so negligent or malicious that you are permanently maimed or killed:
These days, binding arbitration is everywhere, allowing corporations to proceed with total legal impunity. When a woman died of allergens in her Disney World meal (after being told it was allergen-free), Disney told her widower that he couldn't sue because he'd clicked through a binding arbitration waiver when he signed up for a free trial of the Disney Plus streaming service:
Binding arbitration has been creeping into every corner of the internet, to the extent that lawyers will tell you that you must put it in your ToS "just to be safe." Those lawyers are either ignorant, or assholes (or, you know, ignorant assholes), but they're everywhere. Earlier this summer, Mastodon almost launched a new ToS (which would have been the default for every Masto instance) with binding arbitration, because their lawyers told them they needed it:
https://en.chuso.net/mastodon-tos-july-2025.html
Bluesky has just announced a new ToS, through which they claim they are improving on the binding arbitration waiver:
But what they've come up with is utterly baffling and nonsensical. I have re-read it at least a dozen times, and – despite having followed and written about binding arbitration for more than a decade – I have no idea what it means.
The new waiver says that you don't have to arbitrate for "claims that fraud, criminal misconduct, or gross negligence by Bluesky caused death or personal injury." That sounds good! It also sounds like everything that someone might sue Bluesky for, leaving me to wonder what Bluesky will make you arbitrate for.
What's more, if the point of a binding arbitration waiver is to reduce nuisance suits and threats, this completely nullifies that tactic, because all a nuisance litigant has to do is claim that they are suing because of "fraud, criminal misconduct, or gross negligence," and Bluesky is back in court.
All I can assume is that the point of this clause is to intimidate people with grievances against Bluesky out of seeking legal redress because they can't figure out if their claim is covered by this baffling, nonsensical clause.
There are other, gigantic red flags in the arbitration waiver, like a prohibition on class actions. Here's why that's especially bad in an arbitration waiver.
By default, arbitration is a) confidential and b) nonprecedential. That means that if a corporation injures a ton of people through negligence, fraud or malice, each victim of the company has to individually go before an arbitrator and prove their case, but they're not allowed to know how other victims argued their case, and the arbitrator is not required to judge two identical cases in the same way (earlier cases are not a precedent).
One way around this is mass arbitration, like the Uber drivers engaged in when Uber stole tens of millions of dollars worth of tips from them, a tactic successfully deployed by other corporate victims:
Class actions are the only way that corporations can be held to account for actions that victimize vast numbers of people in relatively small ways. If you've been injured to the tune of less than, say, $500, you probably won't hire a lawyer to get it back. Bluesky has 36 million users, meaning – thanks to the ban on class actions – it could steal about $18 billion from them all without having to worry about a gigantic, business-destroying lawsuit.
This is not how you enshittification-proof your service.
To be fair, the carve-out in the arbitration clause might help keep the company from committing this kind of fraud, but only if anyone could figure out what the hell it means. And also to be fair, the new arbitration clause provides for three arbitrators, one chosen by Bluesky, one by you, and a third, mutually agreed upon one.
This does inject more fairness into an unacceptably unfair process, and also does not make it acceptably unfair. Especially since Bluesky retains the right to consolidate arbitration claims into a mass arbitration, but does not let potential victims form a class if such a move would be disadvantageous to Bluesky.
If Bluesky wants to protect itself from legal liability, let it do what every company did until just a couple years ago: a) don't break the law on purpose, and; b) buy insurance
These new ToS are an absolute dog's breakfast. I wouldn't click through them.
And luckily, I don't have to! Because, to Bluesky's eternal credit, they have shipped the technical components needed to create a Bluesky server that is a full, first-class participant in the Bluesky service, without its users having to sign up to these Terms of Service (unfortunately, if you're already a Bluesky user, it's too late, because its ToS says you're still bound to mandatory arbitration even if you delete your account).
Legacy social media is in trouble. Facebook and Twitter are thrashing around, using AI finance-theater in a bid to convince investors not to panic-sell their stock because they no longer have any growth left.
A new, federated, independent, web is being born before our eyes, running on Activitypub (Mastodon) and Atproto (Bluesky). This web does not have to fall prey to the enshittifying norms of the zuckermuskian web. If the people building this new web are wise, they will take irrevocable action that will limit their ability (and the ability of their successors) to fall prey to the siren song of enshittification in the future. This is called a "Ulysses pact" – when you tie yourself to the mast so that you don't yield to future temptation.
Putting binding arbitration in your ToS is the opposite of a Ulysses pact: it's ensuring that you – and whoever you are replaced with when your investors decide it's time for a service-level heel turn – always retain the ability to enshittify, should the mood take you.
We can demand something better – and, if you run your own Bluesky server, you can.
My sysadmin, Ken, just took delivery of some new server hardware at his colo, and he's gonna be setting me up my own Mastodon and Bluesky servers in the coming weeks. I'm really looking forward to using the Bluesky service, especially since I can do so without clicking through the Bluesky terms of service or making myself vulnerable to the enshittificatory gambits that future management might assay, because those terms have given them the leeway to do so.
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
By which I mean, the bedrock consensus of political science appears to have been disproved. Broadly speaking, political scientists believe that lawmakers and regulators only respond to the policy preferences of powerful people. If economic elites want a policy, that's the policy we get – no matter how unpopular it is with everyone else. Likewise, even if something is very, very popular with all of us, we won't get it if the super-rich hate it.
Just take a look at the gap between public opinion and policy outcomes: most people think "capitalism does more harm than good"; most Canadians, Britons and Australians aged 18-34 think "socialism will improve the economy and well-being of citizens"; 72% of Brits support a national job guarantee; the majority of Californians support permanent rent-controls; and most people in 40 countries want CEO salaries capped at 4X that of their lowest-paid employees:
The inability of the public to get its way isn't just an impressionistic view – it's an empirical finding, based on a representative sample of 1,779 policy outcomes, that politicians ignore the will of the people in favor of the will of billionaires:
economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while average citizens and mass-based interest groups have little or no independent influence.
It's a mystery. There's no policy that would be harder on billionaire wealth and power than vigorous antitrust enforcement (not least because preventing corporate concentration is key to preventing regulatory capture):
Certainly, there are a lot of merely obscenely rich people who are angry that the farcically rich people are screwing them over, and this class division between the 0.01% and the 1% has opened up some political space:
But that wouldn't be enough, not without the massive supermajorities of everyday people who are sick to the back teeth of being abused by corporations, and who are desperate for any outlet to strike back.
Take juries. Orrick is a big corporate law firm that represents the kinds of companies that might find their future in the hands of a jury in a state or federal courthouse. Orrick periodically surveys representative samples of people who show up for jury service to get a picture of their attitude towards the kinds of companies that can afford to hire a firm like theirs:
Their latest report contrasts the results of a pre-pandemic 2019 survey with a 2025 survey of 1,011 jurors in California, Florida, Kansas, Illinois, Indiana, Louisiana, Minnesota, Missouri, Texas, New Jersey, and New York.
They found that jurors' trust in the court system has plummeted since 2019 (67% in 2019, 48% in 2025); hostility to cops has tripled (11% to 33%); anti-corporate sentiment is way up (27% then, 45% now). The percentage of jurors who believe that they should use the courts to "send messages to companies to improve their behavior" has risen from 58% to 62%; and 77% want to award punitive damages to "punish a corporation" (up from 69%).
And jurors are notably hostile to pharma companies, energy companies and large banks, but they especially hate social media companies.
It's no wonder that corporations are so desperate to take away our right to sue them, and why "binding arbitration" clauses that permanently confiscate your legal rights are now part of every corner of modern life:
The business lobby has been trying to take away workers' and customers' and citizens' right to seek justice in court for decades, ginning up urban legends like "A lady's coffee was too hot so McDonald's had to give her $2.7 million":
Don't believe it. The courts are rarely on our side, but the fact that sometimes, every now and again, a jury will seize an opportunity to deliver a smidgen of justice just drives plutocrats nuts. Billionaireism is the belief that you don't owe anything to anyone else, that morality is whatever you can get away with. You don't have to be a billionaire to contract a wicked case of billionaireism – but you do have to be stinking rich to benefit from it:
Set up an appointment with a new pain therapist. At the end of our intake call, I asked, "Hey, just to be clear, there's no binding arbitration waiver in your paperwork, right?"
That was 3 days ago. I was just getting ready to drive over and he texted me this, then called me and told me he wouldn't treat me because being asked about his paperwork "made him uncomfortable."
I guess from now on I just go to the first appointment, read the paperwork and if it's objectionable, cancel and walk out?
