It’s common for right-libertarians to attack — with some justification — the stupidity of those who equate opposing a law or government agency with opposing some value or goal in its name. Wanting to abolish the Department of Education, for example, doesn’t mean you’re against education. But right libertarians are guilty of a somewhat related fallacy themselves, as we will see shortly.
Another, similar fallacy, of which pro-capitalist apologists are disproportionately guilty, is exemplified by the social media retort “anti-capitalists with iPhones LOL.” Matt Bors mocked this fallacy with the widely circulated cartoon in which a peasant says “We should improve society somewhat” — to which a right-wing troll in a well replies “Yet you participate in society. Curious! I am very intelligent.”
Implicit in the troll’s reply is the assumption that if we will the range of benefits which are currently available, we necessarily also will the current institutional arrangements by which they are delivered. But this argument would rule out any critique of social structures or institutions in any society, since the only way to receive benefits in any society is through the social mechanisms which deliver them. A defender of the Soviet planned economy might have challenged a free market advocate in identical terms: “And yet you live in a house, wear clothes, have furniture and appliances, etc., all of which were produced in state factories responsible to the industrial ministries, in accordance with a Five-Year Plan. Curious!”
Elizabeth Nolan Brown, in two articles at Reason a few days apart, demonstrates both fallacies in spades. In “Democrats Hate Facebook. Republicans Want To Ban TikTok. The Bipartisan Backlash Against Big Tech Is Here and It’s a Disaster” (August 13), she writes:
Ordinary people have begun to treat the internet, and the opportunities it has created, as a nuisance. Even as their products have transformed nearly every aspect of everyday life, large tech companies have been subject to increasingly negative public perception and attendant political attacks.
She contrasts this mood to a brief period in the spring when Americans appeared to appreciate what the industry had done for them.
…as the U.S. shut down and stayed home in response to the coronavirus, it looked like American tech companies might be making a reputational comeback. With everyone trapped at home and indoors, Big Tech provided a lifeline, connecting Americans to food, entertainment, work, and each other. But America’s temporary truce with Big Tech wasn’t to last. Nearly five months into the pandemic, it appears any newfound goodwill earned by Silicon Valley has already been burned.
“There was a small window of time where everyone was grateful that technology was allowing us to continue to function as a society despite our inability to gather in physical spaces,” Santa Clara University law professor Eric Goldman tells Reason. “And yet that gratitude wore off so quickly. Everyone just went right back to hating on internet companies and forgetting all the great things we’re benefiting from today.”…
…Even as Big Tech has benefited ordinary people in countless ways, political backlash to the size and power of America’s largest technology companies — what some insiders call “techlash” — is coming stronger than ever….
Think about all the ways digital tools and tech companies have ensured access to up-to-date and diverse information during the pandemic. Think about all the online streaming services, interactive video games, e-book purveyors, podcast makers, and apps that have been keeping us entertained. The many kinds of free chat services letting us keep in touch with friends, family, and colleagues. The online educational tools helping to make homeschooling at least somewhat tenable. All the crowdfunding donation platforms, people-powered marketplaces like Etsy and eBay, and gig economy apps from Uber to Patreon that are helping people make ends meet.
It’s fair to say this is far from ideal. But without today’s technology, it would be so much worse….
Think about how much of [the pushback against law enforcement abuses] would still have happened without not just smartphones and digital video but also quick, accessible, and gatekeeper-free ways to share and spread that video.
Notice how, over and over, both she and Eric Goldman treat one group of things — “the internet, and the opportunities it has created,” “a lifeline, connecting Americans to food, etc.,” “technology,” “streaming video, video games, etc.,” “smartphones and digital video,” “today’s technology” — as interchangeable with a different group of things — “large tech companies,” “Big Tech,” “Silicon Valley,” “internet companies,” and “America’s largest technology companies.”
It’s a slick maneuver, if you don’t pay attention. But they’re not interchangeable, any more than housing, clothing, and appliances were interchangeable with state industry in the USSR. Any number of different institutional arrangements are feasible ways of delivering the same basic technical functions. And in every class society, some particular set of institutional arrangements is selected for. The choice of arrangements reflects the interests of the dominant class. As Paul Goodman wrote, “A system destroys its competitors by preempting the means and channels, and then proves that it is the only conceivable mode of operating.”
The fact that the goods and services we consume come from the particular set of institutional arrangements selected by our power structure — and where else could they come from? — does not legitimize those arrangements.
In “Anti-Tech Warriors Are Coming For Your Food Delivery Apps” (August 17) Brown applies the same line of argument to food delivery apps.
Tons of consumers and businesses across the U.S. use and enjoy food delivery apps. They allow individuals to patronize restaurants that might not otherwise offer delivery services; they allow businesses to expand their audience; they provide flexible gig work for delivery drivers….
Unsurprisingly, entrenched food businesses with established audiences tend not to like delivery apps. They don’t like giving app companies a cut of their profits, and they don’t like giving customers new options for places to eat. They’re competition. And they’ve been gaining use since the pandemic started, with people stuck at home and restaurants often closed for in-person dining.
The people who want to quash food delivery apps don’t say that, of course. They say apps are “exploiting restaurants, workers, and consumers” and taking “money out of the local economy.”
But their “Protect Our Restaurants” campaign is basically cronyist lobbying, asking the government to intervene so a favored class of businesses can make more money without improving services. We’ve seen similar crusades from newspapers, hotels, and other industries whose old business models have been undercut by the internet….
…Their solutions usually revolve around greater government regulation.
Throughout this passage, all the positive and liberatory language — the benefits that the apps “allow,” “provide,” etc. — is ascribed to the all-beneficent apps. And all the negative phrases — “entrenched food businesses,” “don’t like” (repeatedly), “quash,” “cronyist lobbying,” “favored class of businesses,” “old business models” — are attributed, on the other hand, to their opponents. If you feel like you’ve been played like a fiddle, I don’t blame you.
Her framing of the regulatory debate is similarly one-sided. It is consistently the apps that offer “freedom” and “choice,” and the bad guys — the “entrenched food businesses” that hate “competition” — who call for more regulation.
But let’s get a few things straight. First of all, the profit model of those apps — which, Brown never once mentions, are all proprietary walled-gardens owned by corporations — depends entirely on intellectual property monopolies. And somewhat inconveniently for Brown’s little morality play, intellectual property is a government regulation that suppresses competition.
And despite all that liberatory rhetoric — “allow,” “provide,” “disruption,” “choice,” “flexible” — the same hand that has the power to loosen also has the power to bind. Food delivery, taxi, and other apps’ monopoly control over proprietary platforms enables them to unilaterally set the fees which they charge restaurants, drivers, or customers. Food delivery apps are notorious for gouging restaurants and stealing tips from drivers, as are “ride-sharing” apps for reducing driver pay. No doubt Brown would say the market limits their power to do this because customers, drivers, or restaurants can decide it’s not worth the cost; but the power to set prices at profit-maximizing levels based on utility to the consumer, and set the price at the level where it’s just barely worth the cost to the majority of people, is the definition of monopoly pricing.
And the pretense that workers are “independent contractors” is thin enough to read a newspaper through. As Cory Doctorow comments in the case of Amazon Flex, it’s
a “gig economy” delivery system that maintains the pretence that drivers are independent contractors, even as their motions are scripted to a fine degree by an app whose control over them exceeds that of any boss in history.
As with all gig economy work, the “independent contractor” wheeze is just a ruse to shift the risks and costs of being an employer onto the workforce, without any of the independence that real freelancers enjoy.
Amazon Flex drivers are a “chickenized” workforce, whose pay is determined by a black-box algorithm tuned to keep them on the brink of financial ruin (which is why Flex drivers have started HIDING THEIR PHONES IN TREES):
To put it bluntly, if a corporation owns the app you “contract” your labor to, and has the power to unilaterally set your pay or fire you, it’s your employer. Period. Anyone who says otherwise is a god damned shill.
Despite Brown’s manipulative framing of “cronyist” “incumbents” vs. “disruptors,” the fact is that the new proprietary apps — what genuine sharing economy advocates call “Death Star platforms” — themselves need to be disrupted. Their IP-based monopolies are every bit as much a form of government-enforced protectionism as any cab medallion system ever dreamed of being.
Treating the benefits we receive from technology as reason to be grateful to tech companies is comparable to saying that because medieval peasants needed land to grow food and benefited from access to land, they should be grateful to feudal landlords. You can almost see Brown popping out of a well and snarking, “And yet you use the products of tech companies. Curious!”
Consumers have to pay tribute to Big Tech to get the benefits of technology for the same reason peasants had to deal with landlords to access the benefits of land: tech companies possess a legal monopoly which allows them to control access to the benefits of technology, thanks to artificial property rights granted by the state. Tech companies don’t need to be reined in by “government regulation,” any more than did feudal landlords. The basis of their power is government regulation.
We can break their power, then, by either repealing or evading the intellectual property laws — government regulations — that are the basis of that power. One way to do this is through what Doctorow calls “adversarial interoperability.” Simply put, adversarial interoperability means removing intellectual property protections from proprietary apps’ codes and protocols, and business secret protections for source code, along with all other legal barriers to open-source apps plugging into them without permission.
One exciting possibility is to create an absolute legal defence for companies that make “interoperable” products that plug into the dominant companies’ offerings, from third-party printer ink to unauthorised Facebook readers that slurp up all the messages waiting for you there and filter them to your specifications, not Mark Zuckerberg’s. This interoperability defence would have to shield digital toolsmiths from all manner of claims: tortious interference, bypassing copyright locks, patent infringement and, of course, violating terms of service.
In the case of unaccountable social media platforms like Twitter and Facebook, that would mean allowing any open-source, user-governed instance to piggyback on the Twitter and/or Facebook platform, import contact lists, and make cross-platform posts, without any need for permission from Jack Dorsey or Mark Zuckerberg.
Facebook alternatives like Diaspora could use their users’ logins and passwords to fetch the Facebook messages the service had queued up for them and allow those users to reply to them from Diaspora, without being spied on by Facebook. Mastodon users could read and post to Twitter without touching Twitter’s servers. Hundreds or thousands of services could spring up that allowed users different options to block harassment and bubble up interesting contributions from other users — both those on the incumbent social media services, and the users of these new upstarts.
So instead of disgruntled folks having to go to a Mastodon instance in a Fediverse with less than 1% as many users as Twitter, they could effectively turn Twitter itself into an open platform like the Fediverse, and retain all the network effects of access to Twitter’s user base.
Facebook’s advantage is in “network effects”: the idea that Facebook increases in value with every user who joins it (because more users increase the likelihood that the person you’re looking for is on Facebook). But adversarial interoperability could allow new market entrants to arrogate those network effects to themselves, by allowing their users to remain in contact with Facebook friends even after they’ve left Facebook.
In the specific case of what are falsely called “ride-sharing” apps, Doctorow explains how adversarial interoperability would facilitate genuine ride-sharing, for real:
But imagine a disruptive app that disrupted the disrupters.
Imagine if I could install a version of Ride (call it Meta-Uber) that knew about all the driver co-ops in the world. When I landed, I’d page a car with Uber or Lyft, but once a driver accepted the hail, my Meta-Uber app would signal the driver’s phone and ask, “Do you have a driver co-op app on your phone?” If the driver and I both had the co-op app, our apps would cancel the Uber reservation and re-book the trip with Meta-Uber.
That way, we could piggyback on the installed base of Uber and Lyft cars, the billions they’ve poured into getting rideshare services legalized in cities around the world, the marketing billions they’ve spent making us all accustomed to the idea of rideshare services.
This Meta-Uber service would allow for a graceful transition from the shareholder-owned rideshares to worker co-ops. When you needed a car, you’d get one, without having to solve the chicken-and-egg problem of no drivers because there are no passengers because there are no drivers. One fare at a time, we could cannibalize Lyft and Uber into the poorhouse.
The billions they’ve spent to establish “first-mover advantages” wouldn’t be unscalable stone walls around their business: they’d be immovable stone weights around their necks. Lyft and Uber would have multi-billion-dollar capital overhangs that their investors would expect to recoup, while the co-ops that nimbly leapt over Uber and Lyft would not have any such burden.
Could we do this?
Yes. Technically, this isn’t all that challenging. Create a service where drivers and passengers’ devices all register unique, per-ride codes, have the Meta-Uber check to see if the driver’s device has just posted a unique code that matches yours, and then use the built-in ride-cancelation tool that’s already incorporated into Uber and Lyft to tear down the old reservation and re-create it with Meta-Uber….
There are a hundred other Metas we can imagine: a Meta-Amazon that places your order with the nearest indy bookstore instead; a Meta-OpenTable that redirects your booking to a co-op booking tool.
Every single one of these co-ops would disrupt a digital monopolist who came to power preaching the gospel of disruption [i.e. the digital monopolists Brown and others at Reason devote so much interest to defending — K.C.]. Every single one of those digital monopolists would switch to the aggrieved bleats of a bewildered incumbent apex predator snarling and twisted impotently as its flesh was rent by a thousand tiny bites from swarms of fast-moving, highly evolved successors.
The real barrier isn’t technical; it’s legal, as he goes on to describe:
Tech law is a minefield of overly broad, superannuated rules that have been systematically distorted by companies that used “disruption” to batter their way into old industries, but now use these laws to shield themselves from any pressure from upstarts to seek to disrupt them.
First is the Computer Fraud and Abuse Act…. CFAA is nominally an anti-computer-intrusion statute, which criminalizes “exceeding your authorization” on a computer that doesn’t belong to you. Even when it passed, more than 40 years ago, technologically clued-in scholars and practicioners [sic] warned that this was way too broadly defined, and that someday we might see this rule used to felonize normal activities involving computers we owned, because the computers would have to talk to a server to accomplish part of their work, and the server’s owner could use onerous “user agreements” and “terms of service” to define our authorization. If this became widespread, then these licenses could take on the force of criminal law, and violating them could become a jailable offense.
40 years later, those fears are vindicated: CFAA is used to threaten, intimidate, sue, and even jail people engaged in otherwise perfectly lawful activity, merely because they have violated some term of service on the way. The metastasis of terms of service into sprawling novellas of impenetrable legalese has created a world where anything you do to frustrate the commercial ambitions of digital monopolists is a potential criminal offense.
Then there’s Section 1201 of the Digital Millennium Copyright Act of 1998, a Bill Clinton bill that creates a felony for “bypassing an effective means of access control” (AKA Digital Rights Management or DRM) for copyrighted works….
Together, the CFAA and DMCA have given digital businesses access to a shadowy legal doctrine that was never written by Congress but is nevertheless routinely enforced by the courts: Felony Contempt of Business-Model.
The CFAA and DMCA 1201 have been carefully distorted into defensive, anti-disruption shields that are only available to digital businesses. Taxi medallion owners can’t use the CFAA and DMCA 1201 to keep Uber and Lyft out of their cities.
But Uber and Lyft could use these legal tools to keep Meta-Uber out of their bottom lines. Uber and Lyft have lengthy terms-of-service that set out the rules under which you are authorized to communicate with Uber and Lyft’s servers. These terms of service prohibit using their servers to locate drivers for any purpose other than booking a ride. They certainly don’t permit you to locate a driver and then cancel the booking and re-book with a co-op app.
And Uber and Lyft’s apps are encrypted on your phone, so to reverse-engineer them, you’d have to decrypt them (probably by capturing an image of their decrypted code while it was running in a virtual phone simulated on a desktop computer). Decrypting an app without permission is “bypassing an effective means of access control” for a copyrighted work (the app is made up of copyrighted code).
Uber and Lyft can use DMCA 1201 to stop you from figuring out how to use them to locate co-op drivers, and they can use the CFAA to stop you from flipping your booking from Uber to Meta-Uber.
And these same legal barriers — again, protectionist government regulations — are at the heart of proprietary apps’ business model, not just for “ride-sharing” but in general.
So, to sum up, virtually every single component of Brown’s manipulative David vs. Goliath framing is false. Big Tech is entrenched and cronyist, and uses government regulations to suppress disruption. Restaurants, drivers, customers, and other users of Death Star platforms of all kinds need to expropriate their intellectual property, break their monopolies, and tell their defenders to go to hell.