I'm coming to BURNING MAN! On TUESDAY (Aug 27) at 1PM, I'm giving a talk called "DISENSHITTIFY OR DIE!" at PALENQUE NORTE (7&E). On WEDNESDAY (Aug 28) at NOON, I'm doing a "Talking Caterpillar" Q&A at LIMINAL LABS (830&C).
Once you learn about the "collective action problem," you start seeing it everywhere. Democrats – including elected officials – all wanted Biden to step down, but none of them wanted to be the first one to take a firm stand, so for months, his campaign limped on: a collective action problem.
Patent trolls use bullshit patents to shake down small businesses, demanding "license fees" that are high, but much lower than the cost of challenging the patent and getting it revoked. Collectively, it would be much cheaper for all the victims to band together and hire a fancy law firm to invalidate the patent, but individually, it makes sense for them all to pay. A collective action problem:
Musicians get royally screwed by Spotify. Collectively, it would make sense for all of them to boycott the platform, which would bring it to its knees and either make it pay more or put it out of business. Individually, any musician who pulls out of Spotify disappears from the horizon of most music fans, so they all hang in – a collective action problem:
Same goes for the businesses that get fucked out of 30% of their app revenues by Apple and Google's mobile business. Without all those apps, Apple and Google wouldn't have a business, but any single app that pulls out commits commercial suicide, so they all hang in there, paying a 30% vig:
That's also the case with Amazon sellers, who get rooked for 45-51 cents out of every dollar in platform junk fees, and whose prize for succeeding despite this is to have their product cloned by Amazon, which underprices them because it doesn't have to pay a 51% rake on every sale. Without third-party sellers there'd be no Amazon, but it's impossible to get millions of sellers to all pull out at once, so the Bezos crime family scoops up half of the ecommerce economy in bullshit fees:
This is why one definition of "corruption" is a system with "concentrated gains and diffuse losses." The company that dumps toxic waste in your water supply reaps all the profits of externalizing its waste disposal costs. The people it poisons each bear a fraction of the cost of being poisoned. The environmental criminal has a fat warchest of ill-gotten gains to use to bribe officials and pay fancy lawyers to defend it in court. Its victims are each struggling with the health effects of the crimes, and even without that, they can't possibly match the polluter's resources. Eventually, the polluter spends enough money to convince the Supreme Court to overturn "Chevron deference" and makes it effectively impossible to win the right to clean water and air (or a planet that's not on fire):
Any time you encounter a shitty, outrageous racket that's stable over long timescales, chances are you're looking at a collective action problem. Certainly, that's the underlying pathology that preserves the scholarly publishing scam, which is one of the most grotesque, wasteful, disgusting frauds in our modern world (and that's saying something, because the field is crowded with many contenders).
Here's how the scholarly publishing scam works: academics do original scholarly research, funded by a mix of private grants, public funding, funding from their universities and other institutions, and private funds. These academics write up their funding and send it to a scholarly journal, usually one that's owned by a small number of firms that formed a scholarly publishing cartel by buying all the smaller publishers in a string of anticompetitive acquisitions. Then, other scholars review the submission, for free. More unpaid scholars do the work of editing the paper. The paper's author is sent a non-negotiable contract that requires them to permanently assign their copyright to the journal, again, for free. Finally, the paper is published, and the institution that paid the researcher to do the original research has to pay again – sometimes tens of thousands of dollars per year! – for the journal in which it appears.
The academic publishing cartel insists that the millions it extracts from academic institutions and the billions it reaps in profit are all in service to serving as neutral, rigorous gatekeepers who ensure that only the best scholarship makes it into print. This is flatly untrue. The "editorial process" the academic publishers take credit for is virtually nonexistent: almost everything they publish is virtually unchanged from the final submission format. They're not even typesetting the paper:
The vetting process for peer-review is a joke. Literally: an Australian academic managed to get his dog appointed to the editorial boards of seven journals:
Far from guarding scientific publishing from scams and nonsense, the major journal publishers have stood up entire divisions devoted to pay-to-publish junk science. Elsevier – the largest scholarly publisher – operated a business unit that offered to publish fake journals full of unreveiwed "advertorial" papers written by pharma companies, packaged to look like a real journal:
Naturally, academics and their institutions hate this system. Not only is it purely parasitic on their labor, it also serves as a massive brake on scholarly progress, by excluding independent researchers, academics at small institutions, and scholars living in the global south from accessing the work of their peers. The publishers enforce this exclusion without mercy or proportion. Take Diego Gomez, a Colombian Masters candidate who faced eight years in prison for accessing a single paywalled academic paper:
And of course, there's Aaron Swartz, the young activist and Harvard-affiliated computer scientist who was hounded to death after he accessed – but did not publish – papers from MIT's JSTOR library. Aaron had permission to access these papers, but JSTOR, MIT, and the prosecutors Stephen Heymann and Carmen Ortiz argued that because he used a small computer program to access the papers (rather than clicking on each link by hand) he had committed 13 felonies. They threatened him with more than 30 years in prison, and drew out the proceedings until Aaron was out of funds. Aaron hanged himself in 2013:
https://en.wikipedia.org/wiki/Aaron_Swartz
Academics know all this terrible stuff is going on, but they are trapped in a collective action problem. For an academic to advance in their field, they have to publish, and they have to get their work cited. Academics all try to publish in the big prestige journals – which also come with the highest price-tag for their institutions – because those are the journals other academics read, which means that getting published is top journal increases the likelihood that another academic will find and cite your work.
If academics could all agree to prioritize other journals for reading, then they could also prioritize other journals for submissions. If they could all prioritize other journals for submissions, they could all prioritize other journals for reading. Instead, they all hold one another hostage, through a wicked collective action problem that holds back science, starves their institutions of funding, and puts their colleagues at risk of imprisonment.
Despite this structural barrier, academics have fought tirelessly to escape the event horizon of scholarly publishing's monopoly black hole. They avidly supported "open access" publishers (most notably PLoS), and while these publishers carved out pockets for free-to-access, high quality work, the scholarly publishing cartel struck back with package deals that bundled their predatory "open access" journals in with their traditional journals. Academics had to pay twice for these journals: first, their institutions paid for the package that included them, then the scholars had to pay open access submission fees meant to cover the costs of editing, formatting, etc – all that stuff that basically doesn't exist.
Academics started putting "preprints" of their work on the web, and for a while, it looked like the big preprint archive sites could mount a credible challenge to the scholarly publishing cartel. So the cartel members bought the preprint sites, as when Elsevier bought out SSRN:
Academics were elated in 2011, when Alexandra Elbakyan founded Sci-Hub, a shadow library that aims to make the entire corpus of scholarly work available without barrier, fear or favor:
https://sci-hub.ru/alexandra
Sci-Hub neutralized much of the collective action trap: once an article was available on Sci-Hub, it became much easier for other scholars to locate and cite, which reduced the case for paying for, or publishing in, the cartel's journals:
https://arxiv.org/pdf/2006.14979
The scholarly publishing cartel fought back viciously, suing Elbakyan and Sci-Hub for tens of millions of dollars. Elsevier targeted prepress sites like academia.edu with copyright threats, ordering them to remove scholarly papers that linked to Sci-Hub:
Meanwhile, scholars kept the pressure up. Tens of thousands of scholars pledged to stop submitting their work to Elsevier:
http://thecostofknowledge.com/
Academics at the very tops of their fields publicly resigned from the editorial board of leading Elsevier journals, and published editorials calling the Elsevier model unethical:
And the New Scientist called the racket "indefensible," decrying the it as an industry that made restricting access to knowledge "more profitable than oil":
But the real progress came when academics convinced their institutions, rather than one another, to do something about these predator publishers. First came funders, private and public, who announced that they would only fund open access work:
Winning over major funders cleared the way for open access advocates worked both the supply-side and the buy-side. In 2019, the entire University of California system announced it would be cutting all of its Elsevier subscriptions:
It's been four years since MIT's decision to boycott Elsevier, and things are going great. The open access consortium SPARC just published a stocktaking of MIT libraries without Elsevier:
How are MIT's academics getting by without Elsevier in the stacks? Just fine. If someone at MIT needs access to an Elsevier paper, they can usually access it by asking the researchers to email it to them, or by downloading it from the researcher's site or a prepress archive. When that fails, there's interlibrary loan, whereby other libraries will send articles to MIT's libraries within a day or two. For more pressing needs, the library buys access to individual papers through an on-demand service.
This is how things were predicted to go. The libraries used their own circulation data and the webservice Unsub to figure out what they were likely to lose by dropping Elsevier – it wasn't much!
https://unsub.org/
The MIT story shows how to break a collective action problem – through collective action! Individual scholarly boycotts did little to hurt Elsevier. Large-scale organized boycotts raised awareness, but Elsevier trundled on. Sci-Hub scared the shit out of Elsevier and raised awareness even further, but Elsevier had untold millions to spend on a campaign of legal terror against Sci-Hub and Elbakyan. But all of that, combined with high-profile defections, made it impossible for the big institutions to ignore the issue, and the funders joined the fight. Once the funders were on-side, the academic institutions could be dragged into the fight, too.
Now, Elsevier – and the cartel – is in serious danger. Automated tools – like the Authors Alliance termination of transfer tool – lets academics get the copyright to their papers back from the big journals so they can make them open access:
https://pluralistic.net/2021/09/26/take-it-back/
Unimaginably vast indices of all scholarly publishing serve as important adjuncts to direct access shadow libraries like Sci-Hub:
Collective action problems are never easy to solve, but they're impossible to address through atomized, individual action. It's only when we act as a collective that we can defeat the corruption – the concentrated gains and diffuse losses – that allow greedy, unscrupulous corporations to steal from us, wreck our lives and even imprison us.
Community voting for SXSW is live! If you wanna hear RIDA QADRI and me talk about how GIG WORKERS can DISENSHITTIFY their jobs with INTEROPERABILITY, VOTE FOR THIS ONE!
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:
Picks and Shovels is a new, standalone technothriller starring Marty Hench, my two-fisted, hard-fighting, tech-scam-busting forensic accountant. You can pre-order it on my latest Kickstarter, which features a brilliant audiobook read by Wil Wheaton.
Many of us have left the big social media platforms; far more of us wish we could leave them; and even those of us who've escaped from Facebook/Insta and Twitter still spend a lot of time trying to figure out how to get the people we care about off of them, too.
It's lazy and easy to think that our friends who are stuck on legacy platforms run by Zuckerberg and Musk lack the self-discipline to wean themselves off of these services, or lack the perspective to understand why it's so urgent to get away from them, or that their "hacked dopamine loops" have addicted them to the zuckermusk algorithms. But if you actually listen to the people who've stayed behind, you'll learn that the main reason our friends stay on legacy platforms is that they care about the other people there more than they hate Zuck or Musk.
They rely on them because they're in a rare-disease support group; or they all coordinate their kids' little league carpools there; or that's where they stay in touch with family and friends they left behind when they emigrated; or they're customers or the audience for creative labor.
All those people might want to leave, too, but it's really hard to agree on where to go, when to go, and how to re-establish your groups when you get somewhere else. Economists call this the "collective action problem." This problem creates "switching costs" – a lot of stuff you'll have to live without if you switch from legacy platforms to new ones. The collective action problem is hard to solve and the switching costs are very high:
That's why people stay behind – not because they lack perspective, or self-discipline, or because their dopamine loops have been hacked by evil techbro sorcerers who used Big Data to fashion history's first functional mind-control ray. They are locked in by real, material things.
Big Tech critics who attribute users' moral failings or platforms' technical prowess to the legacy platforms' "stickiness" are their own worst enemies. These critics have correctly identified that legacy platforms are a serious problem, but have totally failed to understand the nature of that problem or how to fix it. Thankfully, more and more critics are coming to understand that lock-in is the root of the problem, and that anti-lock-in measures like interoperability can address it.
But there's another major gap in the mainstream critique of social media. Critics of zuckermuskian media claim those services are so terrible because they're for-profit entities, capitalist enterprises hitched to the logic of extraction and profit above all else. The problem with this claim is that it doesn't explain the changes to these services. After all, the reason so many of us got on Twitter and Facebook and Instagram is because they used to be a lot of fun. They were useful. They were even great at times.
When tech critics fail to ask why good services turn bad, that failure is just as severe as the failure to ask why people stay when the services rot.
Now, the guy who ran Facebook when it was a great way to form communities and make friends and find old friends is the same guy who who has turned Facebook into a hellscape. There's very good reason to believe that Mark Zuckerberg was always a creep, and he took investment capital very early on, long before he started fucking up the service. So what gives? Did Zuck get a brain parasite that turned him evil? Did his investors get more demanding in their clamor for dividends?
If that's what you think, you need to show your working. Again, by all accounts, Zuck was a monster from day one. Zuck's investors – both the VCs who backed him early and the gigantic institutional funds whose portfolios are stuffed with Meta stock today – are not patient sorts with a reputation for going easy on entrepreneurs who leave money on the table. They've demanded every nickel since the start.
What changed? What caused Zuck to enshittify his service? And, even more importantly for those of us who care about the people locked into Facebook's walled gardens: what stopped him from enshittifying his services in the "good old days?"
At its root, enshittification is a theory about constraints. Companies pursue profit at all costs, but while you may be tempted to focus on the "at all costs" part of that formulation, you musn't neglect the "profits" part. Companies don't pursue unprofitable actions at all costs – they only pursue the plans that they judge are likely to yield profits.
When companies face real competitors, then some enshittificatory gambits are unprofitable, because they'll drive your users to competing platforms. That's why Zuckerberg bought Instagram: he had been turning the screws on Facebook users, and when Instagram came along, millions of those users decided that they hated Zuck more than they loved their friends and so they swallowed the switching costs and defected to Instagram. In an ill-advised middle-of-the-night memo to his CFO, Zuck defended spending $1b on Instagram on the grounds that it would recapture those Facebook escapees:
A company that neutralizes, buys or destroys its competitors can treat its users far worse – invade their privacy, cheap out on moderation and anti-spam, etc – without losing their business. That's why Zuck's motto is "it is better to buy than to compete":
Of course, as a leftist, I know better than to count on markets as a reliable source of corporate discipline. Even more important than market discipline is government discipline, in the form of regulation. If Zuckerberg feared fines for privacy violations, or moderation failures, or illegal anticompetitive mergers, or fraudulent advertising systems that rip off publishers and advertisers, or other forms of fraud (like the "pivot to video"), he would treat his users better. But Facebook's rise to power took place during the second half of the neoliberal era, when the last shreds of regulatory muscle that survived the Reagan revolution were being devoured by GW Bush and Obama (and then Trump).
As cartels and monopolies took over our economy, most government regulators were neutered and captured. Public agencies were stripped of their powers or put in harness to attack small companies, customers, and suppliers who got in the way of monopolists' rent-extraction. That meant that as Facebook grew, Zuckerberg had less and less to fear from government enforcers who might punish him for enshittification where the markets failed to do so.
But it's worse than that, because Zuckerberg and other tech monopolists figured out how to harness "IP" law to get the government to shut down third-party technology that might help users resist enshittification. IP law is why you can't make a privacy-protecting ad-blocker for an app (and why companies are so desperate to get you to use their apps rather than the open web, and why apps are so dismally enshittified). IP law is why you can't make an alternative client that blocks algorithmic recommendations. IP law is why you can't leave Facebook for a new service and run a scraper that imports your waiting Facebook messages into a different inbox. IP law is why you can't scrape Facebook to catalog the paid political disinformation the company allows on the platform:
https://locusmag.com/2020/09/cory-doctorow-ip/
IP law's growth has coincided with Facebook's ascendancy – the bigger Facebook got, the more tempting it was to interoperators who might want to plug new code into it to protect Facebook users, and the more powers Facebook had to block even the most modest improvements to its service. That meant that Facebook could enshittify even more, without worrying that it would drive users to take unilateral, permanent action that would deprive it of revenue, like blocking ads. Once ad-blocking is illegal (as it is on apps), there's no reason not to make ads as obnoxious as you want.
Of course, many Facebook employees cared about their users, and for most of the 21st century, those workers were a key asset for Facebook. Tech workers were in short supply until just a couple years ago, when the platforms started round after round of brutal layoffs – 260,000 in 2023, another 150,000+ in 2024. Facebook workers may be furious about Zuckerberg killing content moderation, but he's not worried about them quitting – not with a half-million skilled tech workers out there, hunting for jobs. Fuck 'em. Let 'em quit:
This is what changed: the collapse of market, government, and labor constraints, and IP law's criminalization of disenshittifying, interoperable add-ons. This is why Zuck, an eternal creep, is now letting his creep flag fly so proudly today. Not because he's a worse person, but because he understands that he can hurt his users and workers to benefit his shareholders without facing any consequences. Zuckerberg 2025 isn't the most evil Zuck, he's the most unconstrained Zuck.
Same goes for Twitter. I mean, obviously, there's been a change in management at Twitter – the guy who's enshittifying it today isn't the guy who enshittified it prior to last year. Musk is speedrunning the enshittification curve, and yet Twitter isn't collapsing. Why not? Because Musk is insulated from consequences for fucking up – he's got a huge cushion of wealth, he's got advertisers who are desperate to reach his users, he's got users who can't afford to leave the service, he's got IP law that he can use to block interoperators who might make it easier to migrate to a better service. He was always a greedy, sadistic asshole. Now he's an unconstrained greedy, sadistic asshole. Musk 2025 isn't a worse person than Musk 2020. He's just more free to act on his evil impulses than he was in years gone by.
These are the two factors that make services terrible: captive users, and no constraints. If your users can't leave, and if you face no consequences for making them miserable (not solely their departure to a competitor, but also fines, criminal charges, worker revolts, and guerrilla warfare with interoperators), then you have the means, motive and opportunity to turn your service into a giant pile of shit.
That's why we got Jack Welch and his acolytes when we did. There were always evil fuckers just like them hanging around, but they didn't get to run GM until Ronald Reagan took away the constraints that would have punished them for turning GE into a giant pile of shit. Every economy is forever a-crawl with parasites and monsters like these, but they don't get to burrow into the system and colonize it until policymakers create rips they can pass through.
In other words, the profit motive itself is not sufficient to cause enshittification – not even when a for-profit firm has to answer to VCs who would shut down the company or fire its leadership in the face of unsatisfactory returns. For-profit companies chase profit. The enshittifying changes to Facebook and Twitter are cruel, but the cruelty isn't the point: the point is profits. If the fines – or criminal charges – Facebook faced for invading our privacy exceeded the ad-targeting revenue it makes by doing so, it would stop spying on us. Facebook wouldn't like it. Zuck would hate it. But he'd do it, because he spies on us to make money, not because he's a voyeur.
To stop enshittification, it is not necessary to eliminate the profit motive – it is only necessary to make enshittification unprofitable.
This is not to defend capitalism. I'm not saying there's a "real capitalism" that's good, and a "crony capitalism" or "monopoly capitalism" that's bad. All flavors of capitalism harm working people and seek to shift wealth and power from the public and democratic institutions to private interests. But that doesn't change the fact that there are, indeed, different flavors of capitalism, and they have different winners and losers. Capitalists who want to sell apps on the App Store or reach customers through Facebook are technofeudalism's losers, while Apple, Facebook, Google, and other Big Tech companies are technofeudalism's great winners.
Smart leftism pays attention to these differences, because they represent the potential fault lines in capitalism's coalition. These people all call themselves capitalists, they all give money and support to political movements that seek to crush worker power and human rights – but when the platforms win, the platforms' business customers lose. They are irreconcilably on different sides of a capitalism-v-capitalism fight that is every bit as important to them as the capitalism-v-socialism fight.
I'm saying that it's good praxis to understand these divisions in capitalism, because then we can exploit those differences to make real, material gains for human thriving and worker rights. Lumping all for-profit businesses together as identical and irredeemable is bad tactics.
Legacy social media is at a turning point. Two new systems built on open standards have emerged as a credible threat to the zuckermuskian model: Mastodon (built on Activitypub) and Bluesky (built on Atproto). The former is far more mature, with a huge network of federated servers run by all different kinds of institutions, from hobbyists to corporations, and it's overseen by a nonprofit. The latter has far more users, and is a VC-backed corporate entity, and while it is hypothetically federatable, there are no Bluesky services apart from the main one that you can leave for if Bluesky starts to enshittify.
That means that Bluesky has a ton of captive users, and has the lack of constraint that characterizes the enshittified legacy platforms it has tempted tens of millions of users away from. This is not a good place to be in, because it means that if the current management choose to enshittify Bluesky, they can, and it will be profitable. It also means that the company's VCs understand that they could replace the current management and replace them with willing enshittifiers and make more money.
This is why Bluesky is in a dangerous place: not because it is backed by VCs, not because it is a for-profit entity, but because it has captive users and no constraints. It's a great party in a sealed building with no fire exits:
Last week, I endorsed a project called Free Our Feeds, whose goals include hacking some fire exits into Bluesky by force majeure – that is, independently standing up an alternative Bluesky server that people can retreat to if Bluesky management changes, or has a change of heart:
For some Mastodon users, Free Our Feeds is dead on arrival – why bother trying to make a for-profit project safer for its users when Mastodon is a perfectly good nonprofit alternative? Why waste millions developing a standalone Bluesky server rather than spending that money improving things in the Fediverse.
I believe strongly in improving the Fediverse, and I believe in adding the long-overdue federation to Bluesky. That's because my goal isn't the success of the Fediverse – it's the defeat of enshtitification. My answer to "why spend money fixing Bluesky?" is "why leave 20 million people at risk of enshittification when we could not only make them safe, but also create the toolchain to allow many, many organizations to operate a whole federation of Bluesky servers?" If you care about a better internet – and not just the Fediverse – then you should share this goal, too.
Many of the Fediverse's servers are operated by for-profit entities, after all. One of the Fediverse's largest servers (Threads) is owned by Meta. Threads users who feel the bite of Zuckerberg's decision to encourage homophobic, xenophobic and transphobic hate speech will find it easy to escape from Threads: they can set up on any Fediverse server that is federated with Threads and they'll be able to maintain their connections with everyone who stays behind.
The existence of for-profit servers in the Fediverse does not ruin the Fediverse (though I wouldn't personally use one of them). The fact that multiple neo-Nazi groups run their own Mastodon servers does not ruin the Fediverse (though I certainly won't use their servers). Not even the fact that Donald Trump's Truth Social is a Mastodon server does anything to ruin the Fediverse (not using that one, either).
This is the strength of federated, federatable social media – it disciplines enshittifiers by lowering switching costs, and if enshittifiers persist, it makes it easy for users to escape unshitted, because they don't have to solve the collective action problem. Any user can go to any server at any time and stay in touch with everyone else.
Mastodon was born free: free code, with free federation as a priority. Bluesky was not: it was born within a for-profit public benefit corporation whose charter offers some defenses against enshittification, but lacks the most decisive one: the federation that would let users escape should escape become necessary.
The fact that Mastodon was born free is quite unusual in the annals of the fight for a free internet. Most of the internet was born proprietary and had freedom foisted upon it. Unix was born within Bell Labs, property of the convicted monopolist AT&T. The GNU/Linux project set it free.
SMB was born proprietary within corporate walls of Microsoft, another corporate monopolist. SAMBA set it free.
The Office file formats were also born proprietary within Microsoft's walled garden: they were set free by hacker-activists who fought through a thick bureaucratic morass and Microsoft fuckery (including literally refusing to allow chairs to be set for advocates for Open Document Format) to give us formats that underlie everything from LibreOffice to Google Docs, Office365 to your web browser.
There is nothing unusual, in other words, about hacking freedom into something that is proprietary or just insufficiently free. That's totally normal. It's how we got almost everything great about computers.
Mastodon's progenitors should be praised for ensuring their creation was born free – but the fact that Bluesky isn't free enough is no reason to turn our back on it. Our response to anything that locks in the people we care about must be to shatter those locks, not abandon the people bound by the locks because they didn't heed to our warnings.
Audre Lorde is far smarter than me, but when she wrote that "the master's tools will never dismantle the master's house," she was wrong. There is no toolset better suited to conduct an orderly dismantling of a structure than the tools that built it. You can be sure it'll have all the right screwdriver bits, wrenches, hexkeys and sockets.
Bluesky is fine. It has features I significantly prefer to Mastodon's equivalent. Composable moderation is amazing, both a technical triumph and a triumph of human-centered design:
I hope Mastodon adopts those features. If someone starts a project to copy all of Bluesky's best features over to Mastodon, I'll put my name to the crowdfunding campaign in a second.
But Mastodon has one feature that Bluesky sorely lacks – the federation that imposes antienshittificatory discipline on companies and offers an enshittification fire-exit for users if the discipline fails. It's long past time that someone copied that feature over to Bluesky.
Check out my Kickstarter to pre-order copies of my next novel, Picks and Shovels!
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:
If you want to know which industries have the most influence in DC, study the trade deals struck by the US Trade Representative, whose activities are the most obvious manifestation of American corporate power over state. Take the Indo-Pacific Economic Framework (IPEF). As David Dayen notes, this treaty is a kind of Big Tech wishlist:
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:
The USTR’s playbook has changed over the years, reflecting the degree of control over the US government exerted by different sectors of the US economy. Today, with Big Tech in the driver’s seat, US trade deals embody something called the “digital trade agenda,” a mix of policies ranging from limiting liability, privacy protection, competition law, and data locatization.
The Digital Trade Agenda is a relatively new phenomenon. A decade ago, when the USTR went abroad to twist the arms of America’s trading partners, the only “digital” part of the agenda was obligations to spy on users and to swiftly remove materials claimed to have violated US media monopolies’ copyright. But as the tech sector grew more concentrated, they were able to seize a greater share America’s trade priorities.
One person who had a front-row seat for this transformation was Wendy Li, a PhD candidate in sociology at the University of Wisconsin, who served in the USTR’s office from 2015–17, and who leveraged her contacts among officials and lobbyists (and ex-lobbyists turned officials and vice-versa) to produce a fascinating, ethnographic account of a very specific form of regulatory capture. That account appears in “Regulatory Capture’s Third Face of Power,” in Socio-Economic Review. The article is paywalled, but if you access it via this link, you can bypass the paywall:
https://pluralistic.net/wendi-li-reg-capture
Li’s paper starts with a taxonomy of types of regulatory capture, drawn from the literature. The first kind — the “first face of power” — is when an industry wins some battle over a given policy, triumphing over the public interest. Li notes that defining “public interest” is sometimes tricky, which is true, but still, there are some obvious examples of this kind of capture.
My “favorite” example of horrible regulatory capture is from 2019, when Dow Chemical — working through the West Virginia Manufacturers Association — convinced the state of West Virginia to relax the limits on how much toxic runoff from chemical processing could be present in the state’s drinking water. Dow argued that the national safe levels reflected a different kind of person from the typical West Virginian. Specifically, Dow argued, the people of West Virginia were much fatter than other Americans, so their bodies could absorb more poison without sickening. And besides, Dow concluded, West Virginians drink beer, not water, so poisoning their drinking water wouldn’t affect them:
This isn’t even a little ambiguous. Dow’s pleading wasn’t just absurd on its face — it was also scientifically bankrupt — there’s no evidence that being overweight makes you less susceptible to carcinogens. And yet, the state regulator bought it. Why? Well, maybe because chemical processing is WV’s largest industry, and Dow is the largest chemical company in the state. Regulatory capture, in other words.
The second kind of regulatory capture is the “revolving door”: when an executive from industry rotates into a role in government, where they are expected to guard the public interest from their former employers. There’s some of this in every presidential administration — think of Obama’s ex-Morganstanley and ex-Goldmansachs finance officials.
But while Obama and other “normal” pols sketched their corruption with a fine-tipped pen, making the overall shape hard to discern, Trump scrawled large, crude, unmissable figures with a fisted Sharpie. Remember Scott Pruitt, the disgraced Trump EPA who wanted to abolish the EPA? Pruitt was was such a colossal asshole that even the lobbyists who’d been bribing him with free housing actually evicted him:
That’s the “second face of power.” What’s the third? It’s taking over the shape of the debate, getting to define its axioms. Think of the reflexive idea that government projects are “wasteful” and “inefficient.” Once all players internalize this idea, the debate shifts from “what should the public sector do?” to “which private-sector entity should the government pay to do this?” Anyone who says, “Wait, why doesn’t the government just do this?” just gets blank stares.
We can see this in the cramped and inadequate debate over the SVB bailout; apologists for the bailout insist that it was necessary because if SVB’s depositors had been forced to take a haircut, every large depositor in America would pile into Morganstanley, making it so “too big to fail” that it could tank the nation.
This is probably true — but only if you discount the possibility of establishing a public bank. Public banks are hardly a radical idea: America had nationwide public banking through the postal service until 1966:
Li summarizes: “the first face of power is measured through the winner of the game, and the second face of power can be understood as the referee. The third face of power is the field, the rulebook, and agreement that there is even a game at all.”
It’s the creation of this third face that Li’s paper dissects — the creation of “Type I” ideas that form the unquestioned assumptions for all other debate. Sociologist call these ideas “schemas.” Li describes two ways that the tech industry changed the schemas used in trade negotiations. First, schemas are changed through “knowledge production” — creating reports and data.
Second, schemas are embedded through “recursive institutional reproduction” — a bit of unfortunately opaque academic jargon that is roughly equivalent to what activists call “policy laundering.” That’s when an industry can’t get its way in its home country, so it leans on trade reps to include that policy in a treaty or trade deal, which transforms it into an obligation at home.
In tech policy, the Ur-example of this is the DMCA, a 1998 digital copyright law that has profoundly changed the way we relate to everything from online services to our coffee makers. The origins of the DMCA are wild. In 1991, Al Gore kicked off the National Information Infrastructure hearings — AKA the “Information Superhighway” project. One of the most prominent proposals for the future of the internet came from Bruce Lehman, Bill Clinton’s Copyrigh tCzar. Lehman had been the head of IP enforcement for Microsoft, and he had some genuinely batshit ideas for the internet, like requiring a separate, negotiated copyright license for every transitory copy made by RAM, or a network buffer, or drive cache:
https://www.wired.com/1996/01/white-paper/
Gore laughed Lehman out of the room and told him to hit the road. So Lehman did, scurrying over to Geneva, where he turned his batshit ideas into the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). Then he raced back to DC where he told Congress that they had to get on board with those UN treaties. In 1998, Congress passed the DMCA, turning a failed regulatory policy into a federal law that endures to this day.
That’s “policy laundering.” Lehman couldn’t get his ideas though the US government, so he rammed them through a UN agency, converting his proposal into an obligation, which Congress duly assumed.
The Digital Trade Agenda triumphed by both knowledge production and recursive institutional reproduction (AKA policy laundering). Under Obama, trade officials created the Digital Trade Working Group in consultation with industry, through the US Chamber of Commerce. This group worked with the US International Trade Commission (USITC) — a quasi-governmental research body — to produce copious reports, testimony and data in support of a focus on “digital trade.”
In particular, they inflated the value of digital trade to US officials, convincing them that getting wins for the digital industry would have an outsized impact on the US economy. This is reflected in the terms of the Trans-Pacific Partnership, a trade deal that was negotiated in the utmost secrecy, in hotels all over the world surrounded by armed guards, where neither the press nor activists were welcome.
TPP represented a kind of farcical wishlist for America’s corporate giants, including the tech sector, and it looked like a done deal — until Trump. Trump unilaterally withdrew from TPP, so the tech industry’s reps simply tacked around TPP. They took everything they’d wanted to get out of TPP and crammed it into the USMCA, Trump’s rewrite of NAFTA. This makes perfect sense — corporate America’s priority was TPP’s policies, not TPP itself.
Li’s paper doesn’t just document this shift, she also gives us interviews with (anonymized) officials and lobbyists who speak frankly about how this happened behind the scenes. For example, a former Commerce official turned tech lobbyist describes how he lobbies his former coworkers: “Sometimes, [meetings are like] hey, let’s grab lunch, let’s grab coffee, and catch up. And half of it is about our kids, and half of it is about this [work related issue]. We’ll have a formal meeting [with government officials], but obviously we chitchat before and after. Because we’re human. So, a lot of it is just normal human interaction, right?”
This social coziness lets lobbyists position themselves as “stakeholders,” which legitimizes — and even requires — their participation in policymaking. As a trade negotiator says, “So to get your handle on a problem, you’ve got to pull the right people together, and you’ve got
to sift through all the various ideas, so we obviously have a lot of regular interaction with companies [. . .] I spend a lot of time with the companies trying to understand their business model, try ing to understand how they interact with the governments in different countries, and then of course, socializing it within the building.”
Once lobbyists are “stakeholders,” they get to define not just what position the US takes — they get to define which positions can even be considered. As a trade negotiator says, “[Lobbyists aren’t] coming in and spouting talking points. They’re not giving us draft text because
we haven’t gotten to the text phase yet. The way these meetings go is, generally we provide an update on what is happening and what approach we’re taking. The remainder is usually devoted to companies talking about their particular interests, and inquiring as to whether and how their issues are being addressed in that forum.”
That’s not just winning the game — it’s defining the rules.
Li’s paper is a fascinating tour of the sausage-factory and a close examination of the gunk that litters the factory floor. That said, I think there are areas where she drops policies and fights into neat categories that are much messier. For example, Li contrasts the rules in TPP with the rules in ACTA, the Anti-Counterfeiting Trade Agreement, a failed international treaty from 2010.
Li characterizes ACTA as being an anti-tech proposal because it imposed copyright liability on tech companies, which would have raised their costs by forcing them to police their users’ speech, items for sale and uploads for copyright infringement. But that’s not quite right: ACTA was much broader. First, because “counterfeiting” doesn’t mean what you think it does: in an international trade agreement, counterfeiting concerns itself with all kinds of totally legitimate activities.
For example, Apple engraves microscopic Apple logos on every part in an iPhone; no user ever sees these parts. But Apple uses the presence of an Apple trademark on these tiny components to lodge trademark claims with US border officials in order to block the importation of parts harvested from dead iPhones, as part of the company’s war on repair:
Likewise, companies like Rolex and Cartier have national subsidiaries in countries all over the world with the exclusive license to sell their goods in each country. These companies then claim that, say, an official Mexican Rolex watch becomes a counterfeit Rolex the minute it crosses the US border, because Rolex Mexico doesn’t have the right to use Rolex International’s trademarks outside of Mexico.
Asking tech companies to police “counterfeits” isn’t just about stopping knockoffs — it’s about letting multinational corporations control all secondary markets for their goods, giving them total control over repair and used goods.
Beyond that: creating an affirmative duty for platforms to police their users’ uploads and speech for copyright infringement is one of those things that not only won’t prevent copyright infringement (beating filters is easy for dedicated copyright infringers), but it will also compromise users’ speech (because filters are rife with false positives) — and it will hand eternal dominance to the largest tech firms (both Youtube and Facebook support mandatory filters, because they’ve spent hundreds of millions on them, and know that their small rivals can’t).
ACTA wasn’t a way to “punish” tech to make life better for media companies — it was a way to shift some of the oligarchic control of both tech and media around, while shoring up its dominance. Yes, parts of the tech sector hated ACTA, but it died because millions of people campaigned against it.
And of course, ACTA got policy-laundered into law in 2019, when the EU adopted the Digital Single Market Directive and created a filtering mandate, ignoring the largest petition in EU history and the people who marched in 50 cities. That was recursive institutional reproduction in action all right.
Likewise, TPP can’t be understood as the tech sector sidelining the entertainment companies — because both of them rallied for the parts of TPP that feathered all their nests. For example, the entertainment sector and the tech sector both love rules against reverse-engineers (like Section 1201 of the DMCA), which make it a felony to unlock your books, music, games and videos from the store that sold them to you and take them with you to another player.
Tech loves this because it gets them lock-in — if you break up with Amazon, you have to kiss your Kindle and Audible books goodbye. Media loves it because it gives them control — DRM stops you from recording Christmas movies between Feb and Dec, when they come free with your streaming service, and that means you have to pay-per-view them in December, when you want to watch them.
In other words, the Big Tech and Big Content’s policy fights aren’t so much about which policies we get — they’re about who gets to profit from them. They both want the same stuff — no taxes, no unions, no minimum wage, no consumer rights, no privacy — but they each want to hoard the benefits from that stuff.
Both tech and media love “IP” — not in the sense of “copyright” or “trademark,” but in the sense of “any law that lets me control the conduct of my competitors, critics and customers”:
https://locusmag.com/2020/09/cory-doctorow-ip/
In USMCA, it wasn’t just the “Digital Trade Agenda” that made it into the final agreement — it was mandatory DRM laws, massive copyright extensions, and the evisceration of fair use and its equivalents in Mexico and Canada:
There’s another important factor missing from Li’s analysis of the rise of the Digital Trade Agenda: monopoly. Tech used to be composed of hundreds of competing firms that hated each other’s guts and were incapable of working together. The entertainment industry, by contrast, was already hugely consolidated and able to lobby effectively as a body.
That was hugely important in the Napster Wars, when international copyright proposals like the Database Right and the Broadcast Treaty were popping up at the UN and in country-to-country trade deals. While the tech industry was competing to give users a better deal, Big Content was able to solve the collective action problem and come up with a common lobbying position, getting nearly identical (and absolutely ghastly) tech bills introduced in dozens of state legislatures at once:
The rise of the Digital Trade Agenda is downstream of tech industry consolidation, the orgy of mergers that saw the internet transformed into “five giant websites, each filled with screenshots of text from the other four”:
Li’s taxonomy of regulatory capture is useful and important, and it’s complimented by an analysis of failures in antitrust enforcement. Market consolidation has produced firms that are more powerful than the governments that are supposed to keep them honest. When the teams have more power than the ref, the game will never be fair:
The tech industry aren’t really adverse to the entertainment industry, at least not where it counts. They are all part of the business lobby, whose regulatory priorities are broadly shared, even if they disagree at the margins. Dayen describes how the Digital Trade Agenda is playing out in IPEF, the treaty with more than a dozen Pacific Rim countries: “It would prohibit governments from reviewing or prescreening algorithms for violations of labor law, competition policy, or nondiscrimination statutes. It would bar limitations on data flows or storage. And it would treat policies that have greater impacts on the large tech firms as illegal trade barriers. These terms could block signatory countries from writing laws that take on any of these issues.”
Those aren’t tech priorities — those are corporate priorities. The success of the “Digital Trade Agenda” isn’t just because tech grew up and started lobbying — it’s because the things they lobby for are the things every business wants: no labor protection, no antitrust, no privacy.
That’s the “schema” that matters: the bedrock assumption that job of US trade policy is to make sure that workers and residents abroad have no rights, with the obligation on America to dismantle the few rights that remain intact in its borders to satisfy the “obligation” it actually insisted on.
Later this week (Apr 20/21), I’m speaking in Chicago at the Stigler Center’s Antitrust and Competition Conference.
This weekend (Apr 22/23), I’m at the LA Times Festival of Books.
[Image ID: The Milky Way. Standing to the left of the frame is a giant ogrish figure, a top-hatted, cigar-chomping caricature of a capitalist. He emerges from behind a silhouetted tree, towering over it. With one white-gloved hand, he is yanking a golden, dollar-sign-shaped lever at a control box. With the other hand, he disdainfully dangles a 'big blue marble' image of Earth from space. The starry sky is partially blended with a green-on-black 'code waterfall' effect in the style of the Matrix movie open credits. The ogre's eyes have been replaced with the glaring red eyes of HAL9000 from Stanley Kubrick's '2001: A Space Odyssey.']
Global Government: A Remedy to Collective Action Problems
Global Government: A Remedy to Collective Action Problems
All the states and all the individuals on the earth share one planet, with one finite pool of resources that everyone depends upon, yet there is no ultimate authority which has the jurisdiction and enforcement power to manage that finite pool of resources. Currently the world is composed of sovereign states that claim to have jurisdiction and enforcement power over their citizens and their…
