[Plura-list] Facebook vs Robert Bork; Why we can't have nice things

[Cory Doctorow]

Today's links

* Facebook vs Robert Bork: The FTC finally found a casus belli for
killing off borkism.

* Why we can't have nice things: "Lobbying Expenditures and Campaign
Contributions by the Pharmaceutical and Health Product Industry in the
United States, 1999-2018."

* This day in history: 2005, 2010, 2015, 2109

* Colophon: Recent publications, upcoming/recent appearances, current
writing projects, current reading

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🩰 Facebook vs Robert Bork

Unless you're a certain kind of conservative, you probably haven't heard
of Robert Bork, but he's one of the most important people you've never
heard of. The best way to understand Bork is that he was Ronald Reagan's
court sorcerer.

Reagan was an empty vessel with the hands of ruthless plutocrats shoved
up his asshole*, operating him like a hand puppet for their collective
will to power.

He served as a kind of dowsing rod for policies that would transfer
wealth from the 99% to the 1%.

*Hence the polyps

That dowsing rod pointed straight at Bork. Bork was an alternate history
writer, a fabulist with a unique and wildly improbable theory of
antitrust statutes: that if you studied the Sherman Act and the Clayton
Act with Qanon-style fervor, you'd find hidden messages in them.

Specifically, you would discover that the lawmakers who drafted,
debated, amended and passed these laws thought monopolies were good,
actually. They were only concerned with a small and possibly mythical
minority of monopolies that were "harmful."

Not just any harms: Bork said that these ancient sages were worried
about *consumer* harms, which, practically speaking, means monopolies
that use their power to raise prices. This, he said, was the only thing
that the government should step in to prevent.

Since it is nearly impossible to prove that a given merger or tactic
would result in higher prices before the fact, and *also* it's nearly
impossible to prove that a price rise after the fact was attributable to
monopolism we should probably just forget about antitrust.

Reagan loved this. By shifting antitrust's focus from *democratic* harms
(like reducing choice, distorting regulation, hurting workers, etc) to
*consumer* harms, he could demote "citizens" (who have a role in shaping
policies) to "consumers" - mere ambulatory wallets.

Reagan tried to get Bork a seat on the Supreme Court, but there was a
little problem. Bork had committed a string of disgusting crimes while
serving as Nixon's Solicitor General, and the Senate refused to confirm
him for a seat.

(Conservatives were outraged that committing crimes at the highest level
of government disqualified you from the Supreme Court and coined the
term "Borked" to describe rich, powerful people who had to face the
unfair prospect of being held accountable for their actions)

But Bork - along with the Chicago School economists - went on to
completely revolutionize the world's conception of anti-monopoly
enforcement, as neoliberal leaders all over the world (Thatcher,
Mulroney, Pinochet, Kohl, etc) took up his theories and tuned them into
policy.

Bork was a fringe figure, but he was preaching a gospel that stood to
make the richest people on Earth *so much richer*, and they bankrolled
the hell out of his theories.

For example, 40% of US federal judges have attended "continuing
education" seminars at an annual lush Florida junket where they are
initiated into the bizarre world of "consumer harm" theory.

https://crookedtimber.org/2018/10/18/law-and-economics/

40 years later, monopolism has surged in every industry, from bottlecaps
to pharma, from poultry to pro wrestling, from eyeglasses to emergency
rooms, from oil to car parts, from music to publishing to movies to
online services to telecoms.

All driven by mergers, all resulting in higher prices (so much for
"consumer harm") all wildly distorting of public policy (the decision to
let Boeing self-certify the 737 Max is repeated in thousands of ways
across hundreds of industries), all brutal news for workers.

It's a disaster, but it's one that we have been powerless to avert or
address for so long as "consumer harm" ruled antitrust enforcement.

Finally, that's changing.

In 2019, Dina Srinivasan published a landmark paper: "The Antitrust Case
Against Facebook," which made *incredibly* clever arguments showing that
FB's democratic harms were also consumer harms, meaning FB could be sued
without first undoing Borkism.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3247362

But the magic of this work was in revealing the poverty of the consumer
harm standard: she laid out the innumerable ways in which FB is bad for
society and showed how a sliver of these harms were technically illegal,
raising the question: why isn't *all* this stuff illegal?

Today, Facebook was hit with *two* antitrust suits, one from the FTC and
the other from almost every US state (including California!).

The complaints say that FB's acquisitions of Instagram and Whatsapp were
anticompetitive.

https://www.theverge.com/2020/12/9/22158483/facebook-antitrust-lawsuit-anti-competition-behavior-attorneys-general

Of course, they *were* anticompetitive. We know, because Zuck - who
specializes in tripping over his own dick - sent out memos extolling the
acquisitions' anticompetitive advantages, proving he hasn't learned a
thing since he traded incriminating IMs about founding FB.

https://www.esquire.com/uk/latest-news/a19490586/mark-zuckerberg-called-people-who-handed-over-their-data-dumb-f/

The complaints build on Srinivasan's work and they carry the same
flavor: claiming "consumer harms" in the acquisitions, but winking and
nodding toward a broader, more democracy-focused (and less
consumer-focused) critique of monopoly.

It's a weird tightrope act: they want to win, so their argument is
designed to balance on the single, fragile hair that borkism stretches
across the chasm of monopoly enforcement, but they wanna make sure we
see that big sturdy bridge of nonbork antitrust right there.

If there was any doubt, it was erased by the remedies demanded in the
complaints. The prosecutors aren't asking for money damages - a fine is
a price, after all - instead, they want FB to sell off the companies it
bought for illegal purposes.

And they want FB to get regulatory approval for future acquisitions
(though the states will let it buy companies for less than $10m without
approval). These are not "consumer harm" remedies - they're "democracy"
remedies, aimed at removing the company's source of power.

Facebook has stood up a website explaining why it's a cuddly mom-and-pop
business that's being bullied by mean government meanies:

https://about.fb.com/building-to-compete/

The argument's pretty similar to the one laid out in a leaked memo in
October:

https://pluralistic.net/2020/10/05/florida-man/#dnr

Basically: it would be really hard for us to unwind these illegal,
anticompetitive mergers. Seriously, it would cost a bundle and take so
much work!

This is an unserious argument, and it shows how badly FB has misgauged
the mood.

All of FB's arguments are garbage, really. Take the line that
ex-British-Deputy-PM-turned-FB-salesdroid Nick Clegg has been peddling:
"STOP TRYING TO BREAK UP FACEBOOK OR THE CHINESE WILL WIN!"

https://www.cnet.com/news/facebooks-nick-clegiden-must-unite-global-powers-to-shape-internet-amid-china-threat

The company's best arguments are about "market definition" - to claim
that they don't have a monopoly because of all the competitors they
face, provided you define FB's market broadly enough.

Like, "Here at Facebook, we are in the 'using computers' business. Now,
just think of how much time you spend using a computer without
interacting with FB! Your car has a computer and it's not on FB! How can
you say we have a monopoly?!"

If you want to see someone making this argument as well as it can
possibly be made and literally getting laughed at by a University of
Chicago (!) audience, check out this debate from 2019:

https://www.youtube.com/watch?v=Y_Jp-GJ9LM0

Forcing FB to divest itself of Whatsapp and Instagram is a no-brainer.
The company lied to secure those mergers, broke the promises it made to
get permission to make them, and the penalty for that should be
unwinding those mergers.

https://www.eff.org/deeplinks/2020/07/dont-believe-proven-liars-absolute-minimum-standard-prudence-merger-scrutiny

And if FB fights this for a decade the way IBM fought its antitrust
action, fine - IBM outspent the entire DoJ antitrust division every year
for 12 years (Bork called it "antitrust's Vietnam"), but even though Big
Blue wasn't broken up, they had their spirit broken.

It was fear of another tangle with antitrust regulators that caused IBM
to sit idly by while Phoenix cloned the PC ROMs and created the PC clone
industry, which became the US computing industry.

https://www.eff.org/deeplinks/2019/08/ibm-pc-compatible-how-adversarial-interoperability-saved-pcs-monopolization

And it was the same fear that caused IBM to hire an outside company to
make the OS for its PCs, getting a couple of nerds named Paul Allen and
Bill Gates to supply one for them.

IBM's 12 years of antitrust hell focused the attention of every tech
giant of the age, letting them know what was on their horizon if they
acted like IBM had. It created the US tech industry.

Today, VCs call the businesses that Big Tech dominates "the kill zones"
because they know that monopolists have the market power to destroy any
startup that tries to compete with them.

There is an entire - better, more pluralistic - tech industry that's
been suppressed by Big Tech. If FB and Goog and Apple and the other tech
giants spend the next decades throwing billions at the FTC and the
states attorneys general, it will be money well-spent.

Because it will be money that these companies don't get to spend
destroying the next wave of tech companies, co-ops, and platforms.

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🩰 Why we can't have nice things

America's health-care outcomes are the worst in the world: no one spends
more to get less than Americans, and that situation grows worse by the
day - and covid makes it all the worse.

It's not as if we don't know how to fix it. Every other wealthy country
just provides universal health care, free at the point of delivery,
either by owning and operating the entire system or by setting prices
that the industry can charge. They spend less and get more.

All of the exceptionalist stories about why America can't do what
everyone else has done have been completely hollowed out.

Take the story about "rationing" under universal health care.

People who spend thousands of dollars a year with companies like Cigna,
Kaiser or Blue Shield are routinely told they simply can't have
therapies or drugs their doctors have recommended. Life-extending cancer
therapies are routinely refused by insurers as "experimental."

America has death panels, and they issue stock and quarterly reports.
Killing the people you love best in the world is good business.

It creates fortunes so vast a tiny sliver can distort our public policy
so that we continue to murder people rather than treating them.

This can be quantified. JAMA Internal Medicine's May issue contained an
important observational study: "Lobbying Expenditures and Campaign
Contributions by the Pharmaceutical and Health Product Industry in the
United States, 1999-2018" by Olivier J. Wouters.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7054854/

In 2018, the US spent $3.7T on health care - 17.6% of national GDP. In
the preceding 20 years, the industry spent $4.7B on lobbying - a giant
number, but also a stellar ROI. That's a $233M/year spend to generate a
$3.7T return.

The recipients of this spending represent a rare example of bipartisan
cooperation, with Dems and Repubs alike staggering away from the trough,
showing the telltale hectic flush of chronic overconsumption.

It explains a lot about how the Democratic establishment destroyed any
candidate who breathed the words "Medicare For All" despite the
incredible, bipartisan popularity of taking Wall Street out of our
health-care.

And it explains why the current Democratic Congressional Congress,
cabinet and party bigwigs are making ready to destroy the "public
option" - an anemic alternative to universal health care that will still
murder Americans by neglect.

https://jacobinmag.com/2020/12/health-care-policy-joe-biden-xavier-becerra-m4a-pahcf

Health care is an essential, not a discretionary item. It's literally a
matter of life or death. People must procure health care or they will
sicken and die. That means that whatever system exists for health-care
is the system we will use.

That makes the money Americans spend on their health-care a form of tax,
and in the case of the US, it's a tax we pay to giant, highly profitable
corporations who divert part of their winnings to bribe politicians so
we are forced to continue paying the tax.

It's a regressive tax. The richer you are, the less of your income is
raked off: "Factoring in private insurance the average tax rate rises
from 30% at the bottom to 40% for the middle class, before collapsing to
23% for billionaires."

https://www.theguardian.com/commentisfree/2019/oct/25/medicare-for-all-taxes-saez-zucman


"Take a secretary earning $50k/year, who has employer-sponsored health
insurance at $15K. Her compensation is $65k (what her employer pays in
exchange of her work), but she gets $50k. The executive earning $1m also
pays the same $15k for healthcare."

"Funding universal health insurance would lead to a large tax cut for
the vast majority of workers, and the data show that for most workers,
it would lead to the biggest take-home pay raise in a generation."
-Gabriel Zucman and Emmanuel Saez.

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🩰 This day in history

#15yrsago Dykes on Bikes gives the Trademark Office a linguistics lesson
https://www.sfgate.com/news/article/Trademark-office-OKs-Dykes-on-Bikes-2557831.php

#15yrsago Only 2% of music-store downloaders care about legality of
their music
https://web.archive.org/web/20051217115202/http://www.mp3newswire.net/stories/5002/tempo2005.html

#10yrsago Rogue Archivist beer
https://web.archive.org/web/20101214060929/http://livingproofbrewcast.com/2010/12/giving-the-rogue-archivist-to-its-namesake/

#10yrsago Student protesters in London use Google Maps to outwit police
“kettling”
https://web.archive.org/web/20101212042006/http://bengoldacre.posterous.com/student-protestors-using-live-tech-to-outwit

#10yrsago Theory and practice of queue design
https://passport2dreams.blogspot.com/2010/12/third-queue.html

#5yrsago Robert Silverberg’s government-funded guide to the psychoactive
drugs of sf
https://www.vice.com/en/article/3dand9/the-us-government-funded-an-investigation-into-sci-fi-drug-use-in-the-70s

#5yrsago In case you were wondering, there’s no reason to squirt coffee
up your ass
https://scienceblogs.com/insolence/2015/12/10/starbutts-or-how-is-it-still-a-thing-that-people-are-shooting-coffee-up-their-nether-regions

#5yrsago The moral character of cryptographic work
https://web.cs.ucdavis.edu/~rogaway/papers/moral-fn.pdf

#5yrsago European Commission resurrects an unkillable stupid: the link
tax
https://openmedia.org/article/item/bad-idea-just-got-worse-how-todays-european-copyright-plans-will-damage-internet

#5yrsago UK National Crime Agency: if your kids like computers, they’re
probably criminals
https://web.archive.org/web/20151209031403/http://www.nationalcrimeagency.gov.uk/crime-threats/cyber-crime/cyber-crime-preventing-young-people-from-getting-involved

#5yrsago China’s top Internet censor: “There’s no Internet censorship in
China”
https://hongkongfp.com/2015/12/09/there-is-no-internet-censorship-in-china-says-chinas-top-censor/

#5yrsago Marriott removing desks from its hotel rooms “because
Millennials”
https://web.archive.org/web/20151210034312/https://danwetzelsports.tumblr.com/post/134754150507/who-stole-the-desk-from-my-hotel-room

#1yrago Amazon’s Ring surveillance doorbell leaks its customers’ home
addresses, linked to their doorbell videos
https://gizmodo.com/ring-s-hidden-data-let-us-map-amazons-sprawling-home-su-1840312279

#1yrago Pete Buttigieg’s prizewinning high-school essay praising Bernie
Sanders: “the power to win back the faith of a voting public weary and
wary of political opportunism”
https://jacobinmag.com/2019/12/pete-buttigieg-essay-contest-bernie-sanders/

#1yrago Distinguishing between “platforms” and “aggregators” in
competition law
https://stratechery.com/2019/a-framework-for-regulating-competition-on-the-internet/

#1yrago NYC paid McKinsey $27.5m to reduce violence at Riker’s,
producing useless recommendations backed by junk evidence
https://www.propublica.org/article/new-york-city-paid-mckinsey-millions-to-stem-jail-violence-instead-violence-soared

#1yrago Church nativity scene puts the holy family in cages, because
that’s how America deals with asylum-seekers like Christ
https://twitter.com/mattrindge/status/1203556607033929729

#1yrago As the end nears for Yahoo Groups, Verizon pulls out all the
stops to keep archivists from preserving them
https://modsandmembersblog.wordpress.com/2019/12/08/verizon-yahoo-bad-form/

#1yrago US pharma and biotech lobbyists’ documents reveal their plan to
gouge Britons in any post-Brexit trade-deal
https://theintercept.com/2019/12/09/brexit-american-trade-deal-boris-johnson/

#1yrago In any other industry, emergency medical billing would be
considered fraudulent
https://www.nytimes.com/2019/12/07/opinion/sunday/medical-billing-fraud.html

#1yrago Podcast: Party Discipline, a Walkaway story (Part 2)
https://ia803102.us.archive.org/28/items/Cory_Doctorow_Podcast_318/Cory_Doctorow_Podcast_318_-_Party_Discipline_2.mp3

#1yrago The student movements at the vanguard of Chile’s protests are
allied with former student leaders now serving in Congress
https://apnews.com/article/819108269b65dc2dd4dffcfd7712d53a

#1yrago The blood of poor Americans is now a leading export, bigger than
corn or soy
https://www.mintpressnews.com/harvesting-blood-americas-poor-late-stage-capitalism/263175/

#1yrago Model stealing, rewarding hacking and poisoning attacks: a
taxonomy of machine learning’s failure modes
https://docs.microsoft.com/en-us/security/engineering/failure-modes-in-machine-learning

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🩰 Colophon

Today's top sources: Naked Capitalism (https://www.nakedcapitalism.com/).

Currently writing: My next novel, "The Lost Cause," a post-GND novel
about truth and reconciliation. Tuesday's progress: 501 words;
Wednesday's progress: 500 words (92044 total).

Currently reading: The City We Became, NK Jemisin

Latest podcast: Someone Comes to Town, Someone Leaves Town (part 25)
https://craphound.com/podcast/2020/12/07/someone-comes-to-town-someone-leaves-town-part-25/

Upcoming appearances:

* Colloquium on Information Security, Dec 14
https://www.eventbrite.co.uk/e/the-31st-hphpe-virtual-colloquium-on-information-security-tickets-128859336745

* Keynote, NISO Plus, Feb 22-25,
https://niso.plus/cory-doctorow-to-keynote-at-niso-plus-2021/

Recent appearances:

* Worldshapers
https://theworldshapers.com/2020/12/06/episode-72-cory-doctorow/

* A More Competitive Web (Techdirt Podcast):
https://www.techdirt.com/articles/20201201/10183045801/techdirt-podcast-episode-264-more-competitive-web-with-cory-doctorow-daphne-keller.shtml

* Big Tech Podcast:
https://www.cigionline.org/big-tech/cory-doctorow-true-dangers-surveillance-capitalism

Latest book:

* "Attack Surface": The third Little Brother novel, a standalone
technothriller for adults. The *Washington Post* called it "a political
cyberthriller, vigorous, bold and savvy about the limits of revolution
and resistance." Order signed, personalized copies from Dark Delicacies
https://www.darkdel.com/store/p1840/Available_Now%3A_Attack_Surface.html

* "How to Destroy Surveillance Capitalism": an anti-monopoly pamphlet
analyzing the true harms of surveillance capitalism and proposing a
solution.
https://onezero.medium.com/how-to-destroy-surveillance-capitalism-8135e6744d59

* "Little Brother/Homeland": A reissue omnibus edition with a new
introduction by Edward Snowden:
https://us.macmillan.com/books/9781250774583; personalized/signed copies
here:
https://www.darkdel.com/store/p1750/July%3A__Little_Brother_%26_Homeland.html

* "Poesy the Monster Slayer" a picture book about monsters, bedtime,
gender, and kicking ass. Order here:
https://us.macmillan.com/books/9781626723627. Get a personalized, signed
copy here:
https://www.darkdel.com/store/p1562/_Poesy_the_Monster_Slayer.html.

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provided that you attribute it to me, Cory Doctorow, and include a link
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