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.
Truth is provisional! Sometimes, the things we understand to be true about the world change, and stuff we've "always done" has to change, too. There comes a day when the evidence against using radium suppositories is overwhelming, and then you really must dig that radium out of your colon and safely dispose of it:
So it's natural and right that in the world, there will be people who want to revisit the received wisdom and best practices for how we live our lives, regulate our economy, and organize our society. But not a license to simply throw out the systems we rely on. Sure, maybe they're outdated or unnecessary, but maybe not. That's where "Chesterton's Fence" comes in:
Let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, "I don't see the use of this; let us clear it away." To which the more intelligent type of reformer will do well to answer: "If you don't see the use of it, I certainly won't let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it."
In other words, it's not enough to say, "This principle gets in the way of something I want to do, so let's throw it out because I'm pretty sure the inconvenience I'm experiencing is worse than the consequences of doing away with this principle." You need to have a theory of how you will prevent the harms the principle protects us from once you tear it down. That theory can be "the harms are imaginary" so it doesn't matter. Like, if you get rid of all the measures that defend us from hexes placed by evil witches, it's OK to say, "This is safe because evil witches aren't real and neither are hexes."
But you'd better be sure! After all, some preventative measures work so well that no living person has experienced the harms they guard us against. It's easy to mistake these for imaginary or exaggerated. Think of the antivaxers who are ideologically committed to a world in which human beings do not have a shared destiny, meaning that no one has a moral claim over the choices you make. Motivated reasoning lets those people rationalize their way into imagining that measles – a deadly and ferociously contagious disease that was a scourge for millennia until we all but extinguished it – was no big deal:
There's nothing wrong with asking whether longstanding health measures need to be carried on, or whether they can be sunset. But antivaxers' sloppy, reckless reasoning about contagious disease is inexcusable. They were warned, repeatedly, about the mass death and widespread lifelong disability that would follow from their pursuit of an ideological commitment to living as though their decisions have no effect on others. They pressed ahead anyway, inventing ever-more fanciful reasons why health is a purely private matter, and why "public health" was either a myth or a Communist conspiracy:
When RFK Jr kills your kids with measles or permanently disables them with polio, he doesn't get to say "I was just inquiring as to the efficacy of a longstanding measure, as is right and proper." He was told why the vaccine fence was there, and he came up with objectively very stupid reasons why that didn't matter, and then he killed your kids. He was warned.
Fuck that guy.
Or take Bill Clinton. From 1933 until 1999, American banks were regulated under the Glass-Steagall Act, which "structurally separated" them. Under structural separation, a "retail bank" – the bank that holds your savings and mortgage and provides you with a checkbook – could not be "investment bank." That meant it couldn't own or invest in businesses that competed with the businesses its depositors and borrowers ran. It couldn't get into other lines of business, either, like insurance underwriting.
Glass-Steagall was a fence that stood between retail banks and the casino economy. It was there for a fucking great reason: the failure to structurally separate banks allowed them to act like casinos, inflating a giant market bubble that popped on Black Friday in October 1929, kicking off the Great Depression. Congress built the structural separation fence to keep banks from doing it again.
In the 1990s, Bill Clinton agitated for getting rid of Glass-Steagall. He argued that new economic controls would allow the government to prevent another giant bubble and crash. This time, the banks would behave themselves. After all, hadn't they demonstrated their prudence for seven decades?
In fact, they hadn't. Every time banks figured out how to slip out of regulatory constraints they inflated another huge bubble, leading to another massive crash that made the rich obscenely richer and destroyed ordinary savers' lives. Clinton took office just as one of these finance-sector bombs – the S&L Crisis – was detonating. Clinton had no basis – apart from wishful thinking – to believe that deregulating banks would lead to anything but another gigantic crash.
But Clinton let his self interest – in presiding over a sugar-high economic expansion driven by deregulation – overrule his prudence (about the crash that would follow). Sure enough, in the last months of Clinton's presidency, the stock market imploded with the March 2000 dot-bomb. And because Congress learned nothing from the dot-com crash and declined to restore the Glass-Steagall fence, the crash led to another bubble, this time in subprime mortgages, and then, inevitably, we suffered the Great Financial Crisis.
Look: there's no virtue in having bank regulations for the sake of having them. It is conceptually possible for bank regulations to be useless or even harmful. There's nothing wrong with investigating whether the 70-year old Glass-Steagall Act was still needed in 1999. But Clinton was provided with a mountain of evidence about why Glass-Steagall was the only thing standing between Americans and economic chaos, including the evidence of the S&L Crisis, which was still underway when he took office, and he ignored all of them. If you lost everything – your home, your savings, your pension – in the dot-bomb or the Great Financial Crisis, Bill Clinton is to blame. He was warned. he ignored the warnings.
Fuck that guy.
No, seriously, fuck Bill Clinton. Deregulating banks wasn't Clinton's only passion. He also wanted to ban working cryptography. The cornerstone of Clinton's tech policy was the "Clipper Chip," a backdoored encryption chip that, by law, every technology was supposed to use. If Clipper had gone into effect, then cops, spooks, and anyone who could suborn, bribe, or trick a cop or a spook could break into any computer, server, mobile device, or embedded system in America.
When Clinton was told – over and over, in small, easy-to-understand words – that there was no way to make a security system that only worked when "bad guys" tried to break into it, but collapsed immediately if a "good guy" wanted to bypass it. We explained to him – oh, how we explained to him! – that working encryption would be all that stood between your pacemaker's firmware and a malicious update that killed you where you stood; all that stood between your antilock brakes' firmware and a malicious update that sent you careening off a cliff; all that stood between businesses and corporate espionage, all that stood between America and foreign state adversaries wanting to learn its secrets.
In response, Clinton said the same thing that all of his successors in the Crypto Wars have said: NERD HARDER! Just figure it out. Cops need to look at bad guys' phones, so you need to figure out how to make encryption that keeps teenagers safe from sextortionists, but melts away the second a cop tries to unlock a suspect's phone. Take Malcolm Turnbull, the former Australian Prime Minister. When he was told that the laws of mathematics dictated that it was impossible to build selectively effective encryption of the sort he was demanding, he replied, "The laws of mathematics are very commendable but the only law that applies in Australia is the law of Australia":
Fuck that guy. Fuck Bill Clinton. Fuck a succession of UK Prime Ministers who have repeatedly attempted to ban working encryption. Fuck 'em all. The stakes here are obscenely high. They have been warned, and all they say in response is "NERD HARDER!"
Now, of course, "crypto means cryptography," but the other crypto – cryptocurrency – deserves a look-in here. Cryptocurrency proponents advocate for a system of deregulated money creation, AKA "wildcat currencies." They say, variously, that central banks are no longer needed; or that we never needed central banks to regulate the money supply. Let's take away that fence. Why not? It's not fit for purpose today, and maybe it never was.
Why do we have central banks? The Fed – which is far from a perfect institution and could use substantial reform or even replacement – was created because the age of wildcat currencies was a nightmare. Wildcat currencies created wild economic swings, massive booms and even bigger busts. Wildcat currencies are the reason that abandoned haunted mansions feature so heavily in the American imagination: American towns and cities were dotted with giant mansions built by financiers who'd grown rich as bubbles expanded, then lost it all after the crash.
Prudent management of the money supply didn't end those booms and busts, but it substantially dampened them, ending the so-called "business cycle" that once terrorized Americans, destroying their towns and livelihoods and wiping out their savings.
It shouldn't surprise us that a new wildcat money sector, flogging "decentralized" cryptocurrencies (that they are nevertheless weirdly anxious to swap for your gross, boring old "fiat" money) has created a series of massive booms and busts, with insiders getting richer and richer, and retail investors losing everything.
If there was ever any doubt about whether wildcat currencies could be made safe by putting them on a blockchain, it is gone. Wildcat currencies are as dangerous today as they were in the 18th and 19th century – only moreso, since this new bad paper relies on the endless consumption of whole rainforests' worth of carbon, endangering not just our economy, but also the habitability of the planet Earth.
And nevertheless, the Trump administration is promising a new crypto golden age (or, ahem, a Gilded Age). And there are plenty of Democrats who continue to throw in with the rotten, corrupt crypto industry, which flushed billions into the 2024 election to bring Trump to office. The result is absolutely going to be more massive bubbles and life-destroying implosions. Fuck those guys. They were warned, and they did it anyway.
Speaking of the climate emergency: greetings from smoky Los Angeles! My city's on fire. This was not an unforeseeable disaster. Malibu is the most on-fire place in the world:
Since 1919, the region has been managed on the basis of "total fire suppression." This policy continued long after science showed that this creates "fire debt" in the form of accumulated fuel. The longer you go between fires, the hotter and more destructive those fires become, and the relationship is nonlinear. A 50-year fire isn't 250% more intense than a 20-year fire: it's 50,000% more intense.
Despite this, California has invested peanuts in regular controlled burns, which has created biennial uncontrolled burns – wildfires that cost thousands of times more than any controlled burn.
Speaking of underinvestment: PG&E has spent decades extracting dividends for its investors and bonuses for its execs, while engaging in near-total neglect of maintenance of its high-voltage transmission lines. Even with normal winds, these lines routinely fall down and start blazes.
But we don't have normal winds. The climate emergency has been steadily worsening for decades. LA is just the latest place to be on fire, or under water, or under ice, or baking in wet bulb temperatures. Last week in southern California, we were warned to expect gusts of 120mph.
They were warned. #ExxonKnew: in the early 1970s, Exxon's own scientists warned them that fossil fuel consumption would kick off climate change so drastic that it would endanger human civilzation. Exxon responded by burying the reports and investing in climate denial:
https://exxonknew.org/
They were warned! Warned about fire debt. Warned about transmission lines. Warned about climate change. And specific, named people, who individually had the power to heed these warnings and stave off disaster, ignored the warnings. They didn't make honest mistakes, either: they ignored the warnings because doing so made them extraordinarily, disgustingly rich. They used this money to create dynastic fortunes, and have created entire lineages of ultra-wealthy princelings in $900,000 watches who owe it all to our suffering and impending dooml
Fuck those guys. Fuck 'em all.
We've had so many missed opportunities, chances to make good policy or at least not make bad policy. The enshitternet didn't happen on its own. It was the foreseeable result of choices – again, choices made by named individuals who became very wealthy by ignoring the warnings all around them.
Let's go back to Bill Clinton, because more than anyone else, Clinton presided over some terrible technology regulations. In 1998, Clinton signed the Digital Millennium Copyright Act, a bill championed by Barney Frank (fuck that guy, too). Under Section 1201 of the Digital Millennium Copyright Act, it's a felony, punishable by a five year prison sentence, and a $500,000 fine, to tamper with a "digital lock."
That means that if HP uses a digital lock to prevent you from using third-party ink, it's a literal crime to bypass that lock. Which is why HP ink now costs $10,000/gallon, and why you print your shopping lists with colored water that costs more, ounce for ounce, than the sperm of a Kentucky Derby winner:
Clinton was warned that DMCA 1201 would soon metastasize into every kind of device – not just the games consoles and DVD players where it was first used, but medical implants, tractors, cars, home appliances – anything you could put a microchip into (Jay Freeman calls this "felony contempt of business-model"):
He ignored those warnings and signed the DMCA anyway (fuck that guy). Then, under Bush (fuck that guy), the US Trade Representative went all around the world demanding that America's trading partners adopt versions of this law (fuck that guy). In 2001, the European Parliament capitulated, enacting the EU Copyright Directive, whose Article 6 is a copy-paste of DMCA 1201 (fuck all those people).
Fast forward 20 years, and boy is there a lot of shit with microchips that can be boobytrapped with rent-extracting logic bombs that are illegal to research, describe, or disable.
Like choo-choo trains.
Last year, the Polish hacking group Dragon Sector was contacted by a public sector train company whose Newag trains kept going out of service. The operator suspected that Newag had boobytrapped the trains to punish the train company for getting its maintenance from a third-party contractor. When Dragon Sector investigated, they discovered that Newag had indeed riddled the trains' firmware with boobytraps. Trains that were taken to locations known to have third-party maintenance workshops were immediately bricked (hilariously, this bomb would detonate if trains just passed through stations near to these workshops, which is why another train company had to remove all the GPSes from its trains – they kept slamming to a halt when they approached a station near a third-party workshop). But Newag's logic bombs would brick trains for all kinds of reasons – merely keeping a train stationary for too many days would result in its being bricked. Installing a third-party component in a locomotive would also trigger a bomb, bricking the train.
In their talk at last year's Chaos Communications Congress, the Dragon Sector folks describe how they have been legally terrorized by Newag, which has repeatedly sued them for violating its "intellectual property" by revealing its sleazy, corrupt business practices. They also note that Newag continues to sell lots of trains in Poland, despite the widespread knowledge of its dirty business model, because public train operators are bound by procurement rules, and as long as Newag is the cheapest bidder, they get the contract:
The laws that let Newag make millions off a nakedly corrupt enterprise – and put the individuals who blew the whistle on it at risk of losing everything – were passed by Members of the European Parliament who were warned that this would happen, and they ignored those warnings, and now it's happening. Fuck those people, every one of 'em.
It's not just European parliamentarians who ignored warnings and did the bidding of the US Trade Representative, enacting laws that banned tampering with digital locks. In 2010, two Canadian Conservative Party ministers in the Stephen Harper government brought forward similar legislation. These ministers, Tony Clement (now a disgraced sex-pest and PPE grifter) and James Moore (today, a sleazeball white-shoe corporate lawyer), held a consultation on this proposal.
6, 138 people wrote in to say, "Don't do this, it will be hugely destructive." 54 respondents wrote in support of it. Clement and Moore threw out the 6,138 opposing comments. Moore explained why: these were the "babyish" responses of "radical extremists." The law passed in 2012.
Last year, the Canadian Parliament passed bills guaranteeing Canadians the Right to Repair and the right to interoperability. But Canadians can't act on either of these laws, because they would have to tamper with a digital lock to do so, and that's illegal, thanks to Tony Clement and James Moore. Who were warned. And who ignored those warnings. Fuck those guys:
Back in the 1990s, Bill Clinton had a ton of proposals for regulating the internet, but nowhere among those proposals will you find a consumer privacy law. The last time an American president signed a consumer privacy law was 1988, when Reagan signed the Video Privacy Protection Act and ensured that Americans would never have to worry that video-store clerks where telling the newspapers what VHS cassettes they took home.
In the years since, Congress has enacted exactly zero consumer privacy laws. None. This has allowed the out-of-control, unregulated data broker sector to metastasize into a cancer on the American people. This is an industry that fuels stalkers, discriminatory financial and hiring algorithms, and an ad-tech sector that lets advertisers target categories like "teenagers with depression," "seniors with dementia" and "armed service personnel with gambling addictions."
When the people cry out for privacy protections, Congress – and the surveillance industry shills that fund them – say we don't need a privacy law. The market will solve this problem. People are selling their privacy willingly, and it would be an "undue interference in the market" if we took away your "freedom to contract" by barring companies from spying on you after you clicked the "I agree" button.
These people have been repeatedly warned about the severe dangers to the American public – as workers, as citizens, as community members, and as consumers – from the national privacy free-for-all, and have done nothing. Fuck them, every one:
Now, even a stopped clock is right twice a day, and not every one of Bill Clinton's internet policies was terrible. He had exactly one great policy, and, ironically, that's the one there's the most energy for dismantling. That policy is Section 230 of the Communications Decency Act (a law that was otherwise such a dumpster fire that the courts struck it down). Chances are, you have been systematically misled about the history, use, and language of Section 230, which is wild, because it's exactly 26 words long and fits in a single tweet:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Section 230 was passed because when companies were held liable for their users' speech, they "solved" this problem by just blocking every controversial thing a user said. Without Section 230, there would be no Black Lives Matter, no #MeToo – no online spaces where the powerful were held to account. Meanwhile, rich and powerful people would continue to enjoy online platforms where they and their bootlickers could pump out the most grotesque nonsense imaginable, either because they owned those platforms (ahem, Twitter and Truth Social) or because rich and powerful people can afford the professional advice needed to navigate the content-moderation bureaucracies of large systems.
We know exactly what the internet looks like when platforms are civilly liable for their users' speech: it's an internet where marginalized and powerless people are silenced, and where the people who've got a boot on their throats are the only voices you can hear:
The evidence for this isn't limited to the era of AOL and Prodigy. In 2018, Trump signed SESTA/FOSTA, a law that held platforms liable for "sex trafficking." Advocates for this law – like Ashton Kutcher, who campaigns against sexual assault unless it involves one of his friends, in which case he petitions the judge for leniency – were warned that it would be used to shut down all consensual sex work online, making sex workers's lives much more dangerous. This warnings were immediately borne out, and they have been repeatedly borne out every month since. Killing CDA 230 for sex work brought back pimping, exposed sex workers to grave threats to their personal safety, and made them much poorer:
It also pushed sex trafficking and other nonconsensual sex into privateforums that are much harder for law enforcement to monitor and intervene in, making it that much harder to catch sex traffickers:
This is exactly what SESTA/FOSTA's advocates were warned of. They were warned. They did it anyway. Fuck those people.
Maybe you have a theory about how platforms can be held civilly liable for their users' speech without harming marginalized people in exactly the way that SESTA/FOSTA, it had better amount to more than "platforms are evil monopolists and CDA 230 makes their lives easier." Yes, they're evil monopolists. Yes, 230 makes their lives easier. But without 230, small forums – private message boards, Mastodon servers, Bluesky, etc – couldn't possibly operate.
There's a reason Mark Zuckerberg wants to kill CDA 230, and it's not because he wants to send Facebook to the digital graveyard. Zuck knows that FB can operate in a post-230 world by automating the deletion of all controversial speech, and he knows that small services that might "disrupt" Facebook's hegemony would be immediately extinguished by eliminating 230:
It's depressing to see so many comrades in the fight against Big Tech getting suckered into carrying water for Zuck, demanding the eradication of CDA 230. Please, I beg you: look at the evidence for what happens when you remove that fence. Heed the warnings. Don't be like Bill Clinton, or California fire suppression officials, or James Moore and Tony Clement, or the European Parliament, or the US Trade Rep, or cryptocurrency freaks, or Malcolm Turnbull.
Or Ashton fucking Kutcher.
Because, you know, fuck those guys.
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:
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.
This month, I'm serializing the first chapter of my next novel, Picks and Shovels, a standalone Martin Hench novel that drops on Feb 17:
The book is up for presale on a Kickstarter that features the whole series as print books (with the option of personalized inscriptions), DRM-free ebooks, and a DRM-free audiobook read by Wil Wheaton:
The San Antonio girl—the daughter of a local real-estate broker—had no idea what floppy disks the president was talking about, so he showed her the catalog and she immediately called the rep in Colma. The receptionist was on the ball and passed the call on to Shlomo, who immediately grasped the catalog’s significance and approved an expensive Federal Express courier.
“Our general counsel advised us to seek an injunction and file a suit,” Bishop Clarke said.
“It would have been better to talk, of course,” the rabbi said. “Nobody wanted to drag those three little girls into court. They’re like family, even though they left.”
Up until then, they’d all been telling the same story, but something about what Rabbi Finkel said stopped its momentum. I’d been practicing my listening, trying to be like Lucille, listening with my eyes and my ears. The rabbi’s statement jolted the other two. Now we’re coming to the crux, I thought. This is the part where I come in.
“They were good at their jobs,” Bishop Clarke said, almost wistful.
“They surprised us,” Father Marek said.
“Perhaps we could find an accommodation,” the rabbi said. The three men looked at each other. How long had they been in business together, in each other’s pockets, maybe at each other’s throats? The story of interfaith harmony was such a juicy one, the stuff of magazine cover stories. Was it true, though?
“They just need convincing,” Bishop Clarke said. His smile flickered on and off. He must have had dental work. The standard-issue teeth just didn’t come that way: shining, white, perfect symmetry. On, off. Maybe he practiced it in front of a mirror.
Discovery is the part of a lawsuit where the parties can demand relevant documents from one another: memos, contracts, correspondence.
Tortious interference is the legal offense of stepping between two contracting parties in a way that induces one of them to violate their contractual obligations. Suing for tortious interference is the commercial version of a jilted wife confronting her erstwhile husband’s lover, as though his infidelity was her fault.
Fidelity’s lawyers—an outside firm with a reputation for aggression and a roster of blue-chip clients and high-profile cases, including IBM’s ongoing troubles with the Department of Justice over its alleged antitrust violations—had drawn up a complaint asserting that CF had induced Fidelity’s suppliers to violate their confidentiality and exclusivity agreements, while simultaneously inducing the company’s best customers to forgo their contractual obligations (and semireligious duty) to buy their supplies from Fidelity and its sales agents in their congregations.
These sweeping allegations gave Fidelity’s lawyers sweeping discovery powers: all documents and accounts related to CF’s manufacturing, promotion, and sales, right down to the printers who supplied their catalogs.
CF wasn’t powerless in the face of this onslaught. Their lawyers—a much cheaper and hungrier firm of lawyers, without the pedigree or track record of their opposing counsel—had secured the right to redact irrelevant, sensitive material from the documents they turned over, and, more crucially, they had convinced the judge to let them do something novel.
The bishop hoisted a banker’s box onto the table and set it down with a thud. He lifted the lid like a conjurer’s trick and brought out two thick binders of paperwork, bristling with dividers. “This is the hardcopy,” he said. “It’s almost nothing. Photocopies of handwritten memos, mostly.”
He reached back in and produced a mauve box of floppy disks, the five – and – a – quarter – inch kind that already seemed slightly quaint, compared to the small, rigid three – and – a – half – inch floppies that all the new computers were using. He produced a second box. A third. A fourth. A fifth. The pile grew.
“Ten boxes of floppy disks,” the bishop said. “No one had ever asked such a thing of our judge, but he said that two computer companies should be able to accept electronic submissions from one another. He said it was obvious that this was the future of discovery, and that we were the perfect litigants to start with, since our dispute was about their piracy of our formats and disks, so of course we’d have compatible systems.
“Somewhere in here is the evidence that they are going to fail in court, the evidence that will force them to come back to the table and negotiate, to talk, the way they should have in the first place. They’ve found some good ways of doing things, and we’re interested in that. We want to work with them, not ruin them. We could arrange a sale of their little company to Fidelity, on preferable terms, but with something in there to recognize their clever little inventions and innovations. They’d get something, rather than nothing.” The bishop spread his hands, patted the air. It’s only reasonable, his hands said.
“Better they get the money than the lawyers,” the rabbi said.
“Something is always better than nothing,” Father Marek said. “Even an idiot should be able to see that.” The other two shot him looks. He scowled at them.
“We need someone who can make sense of all this.” The bishop pointed at his precarious tower of floppy disks. “They thought that they’d overwhelm us with electronic records. That our lawyers were so conservative that they wouldn’t be able to sort through them. It’s true, they’re not set up for this. No one is, but someone could be. We think that for the right kind of person, someone who understands accounting and computers, these records will be easier to handle.”
There it was. They looked at me, three worried sets of eyes. This wasn’t how they normally operated. They were taking a risk. I wondered whose idea this was. Not Father Marek: he wanted vengeance. He’d be happy to smash CF, make an example of them. Rabbi Finkel? Perhaps. I could see that he was a thinker, someone who looked around corners. The bishop? He’d done most of the talking. But I got the impression he always did most of the talking: a Mormon bishop, after all, didn’t wear a dog collar or a beard and yarmulke. Mormon bishops are laypeople, after all. They look secular.
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:
