[Plura-list] Boy, gig companies sure hire disastrously sloppy lawyers

[Cory Doctorow]

Read today's issue online at: https://pluralistic.net/2022/06/15/simple-as-abc/

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This week (Jun 15/16) I'm speaking in London at the UK Competition and Markets Authority Data Technology and Analytics conference

https://www.eventbrite.co.uk/e/cma-data-technology-and-analytics-conference-2022-registration-308678625077

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Today's links

* Boy, gig companies sure hire disastrously sloppy lawyers: $100m flushed down the drain in Massachusetts.

* Hey look at this: Delights to delectate.

* This day in history: 2002, 2007, 2012, 2017, 2021

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

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©️ Boy, gig companies sure hire disastrously sloppy lawyers

In the run-up to the 2020 election, "gig work" companies, led by Uber and Lyft, firehosed $225m to back the passage of Proposition 22, a law that would permanently allow them to misclassify employees as contractors, not entitled to benefits or workplace protections.

More than a decade after *Citizens United* - the Supreme Court ruling that paved the way for unlimited dark money in US election spending - it's sometimes hard to get a sense of scale. Is $225m a lot of money to spend on a California ballot initiative?

Uh, yeah. Uber and Lyft's spending on that *single* question exceeded nearly all the spending on all the 2020 state *electoral* campaigns, *combined*. It was a big flex, and it paid off. After the passage of Prop 22, companies like Pavilions mass-fired their union staff and replaced them with gig workers:

https://pluralistic.net/2021/01/05/manorialism-feudalism-cycle/#prop22

Given both the high stakes *and* the high pricetag for Prop 22, you'd think that the lawyers who drafted it would have been *very* careful to ensure that the law itself was valid. I mean, it'd be hilarious if the companies spent $225m bigfooting their way to a custom-wrought California law only to have it invalidated because it violated the state constitution, you know?

Here's something hilarious: Prop 22 *was* unconstitutional. It took so much power away from the legislature that a state court found that it required a constitutional amendment to be valid. The California Superior court voided Prop 22 in its entirety and $225m in dark money went up in smoke. You love to see it.

https://www.latimes.com/business/story/2021-08-20/prop-22-unconstitutional

It wasn't supposed to be that way. Prop 22 was supposed to be model legislation, like the laws banning municipal broadband that ALEC pushed through statehouses across the country. In fact, Lyft, Uber and their allies had already committed $100m to dark-money campaign spending for a similar provision in Massachusetts for the 2022 elections.

You'll never guess what happened next. With just months to go until the election, the Massachusetts surpreme court unanimously ruled that the worker misclassification initiative is so badly drafted that it can't appear on the ballot.

https://www.bloomberg.com/news/articles/2022-06-14/massachusetts-justices-strike-down-gig-backed-ballot-initiative

The ballot initiative included a provision that let the gig companies off the hook for car wrecks, no matter how culpable they were, but the summary provided to voters failed to mention this. The court found the summary so misleading that they tore the whole thing up.

This is a baffling error. Look, I'm as gaffe-prone as anyone, but *I'm not a lawyer*. In 20 years of advocacy work, I've always worked in teams with lawyers who serve as the red team for my weird ideas, gaming out all the ways that they can go wrong.

Like, one time when I beat a giant corporation that tried sued me on idiotic grounds and lost big, I wanted to use the phrase "not even wrong" to describe their outlandish legal theory. The lawyer involved made me take that out: "You don't want anything that anyone can interpret as your admission that they're right, even if you mean the opposite." She was right. I was wrong. I took it out.

When the stakes are higher - for example, in legislative work, or high stake litigation, or treaty drafting - whole teams of lawyers go over every word, getting into fierce arguments about whether or how it could be adversely interpreted. The idea is to make something drum-tight, because it would *suck* to get through all of this and then lose due to an unforced error in the drafting.

I can't even *imagine* how you go ahead with a $100m ballot initiative campaign without gaming out the way it'll play in court. I mean, sure, your boss is going to freak out if you fairly describe the ballot initiative's lopsided language in the voter guide summary, but the lawyer's job is to explain that failing to do so could wreck the whole thing.

It's possible - likely, even - that the leadership in gig work companies are so high on their own supply that they can't conceive of losing, and ignore their legal advice. It's also possible that these lawyers have caught the profession's most debilitating disease: compulsive bullying, which manifests in competitive sadism:

https://pluralistic.net/2021/02/10/duke-sucks/#devils

Seen in this light, lawyers' addiction to sadistic overreach when representing massive, bullying clients is a feature, not a bug. Time and again, it produces operatic comeuppances that save us all from giant companies' nefarious plans.

Remember "Free Basics?" This was Facebook's bid to make "Facebook" synonymous with "internet" for people living in poor countries in the Global South. The idea was that Facebook would bribe the local ISPs and wireless companies to impose data-caps, but exempt Facebook and the internet services it favored.

The company claimed that this was just an act of charity, a bid to make the internet universally accessible to poor people. Critics claimed that it was "poor internet for poor people." The evidence backed the critics - zero-rating programs like Internet Basics didn't (and don't) improve internet access:

https://www.eff.org/deeplinks/2019/02/countries-zero-rating-have-more-expensive-wireless-broadband-countries-without-it

Facebook fought an especially vicious campaign in India, where local activists with deep technological backgrounds led a nationwide uprising against Free Basics, prompting the national telecoms regulator to put out a consultation paper seeking public comment on whether to allow the program.

Facebook cooked up a seemingly unbeatable plan: whenever people in India opened Facebook on their devices, they were prompted to send a form-letter to the telecoms regulator supporting Facebook's position. It worked: Facebook got millions of comments in its favor.

But it failed. Due to sloppy drafting, Facebook's boilerplate didn't actually address any of the points raised in the consultation paper. The regulator threw them all out, saying "Consultation papers are not opinion polls. We expect the stakeholders who participate to provide meaningful input."

https://web.archive.org/web/20160102182135/https://www.thehindu.com/business/Industry/consultation-paper-is-not-an-opinion-poll-trai-chairman/article8050019.ece

Facebook *could* have drafted comments that were responsive to the consultation paper, but it didn't. Instead, it astroturfed millions of people into sending puffed-up, nonresponsive nonsense to the regulator. Somehow, amidst all the comma-fucking that characterizes a normal legal drafting process, Facebook managed to blow it.

It's been six years since the Facebook Free Basics debacle, and I still don't know how it is that they managed to squander such a giant advantage. I mean, I'm glad they did, but just as with Prop 22 and the Massachusetts ballot question, I can't figure out how the world's most powerful companies keep slipping on their own banana-peels.

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©️ Hey look at this

* EFF's analysis of the Data Privacy and Protection Act (tdlr: needs work) https://www.eff.org/deeplinks/2022/06/eff-urges-congress-strengthen-american-data-privacy-and-protection-act

* Email client K-9 Mail will become Thunderbird for Android https://arstechnica.com/gadgets/2022/06/email-client-k-9-mail-will-become-thunderbird-for-android/ (h/t Slashdot) (I'm utterly dependent on both and I think this is probably great news)

* "Like all successful fascist narratives, [Top Gun Maverick] portrays our enemies as simultaneously all-powerful and extremely weak" https://letterboxd.com/bretterbox/film/top-gun-maverick/ (h/t JWZ)

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©️ This day in history

#20yrsago Colorado homeowners’ associations demand green lawns as the state burns https://web.archive.org/web/20020629032842/https://www.uswaternews.com/archives/arcsupply/2somhom6.html

#15yrsago HOWTO make ice-straws https://web.archive.org/web/20070717172641/http://www.instructables.com/id/SQDLVXYF2L4FTZ7/

#10yrsago Woman legislator in Michigan barred from future debates for using the word “vagina” in abortion debate https://www.npr.org/sections/thetwo-way/2012/06/14/155059849/michigan-state-rep-barred-from-speaking-after-vagina-comments

#5yrsago What’s worse than shitty, hacked voting machines? Unauditable, shitty voting machines https://www.wired.com/story/georgia-runoff-election-hack-audit-vote/

#5yrsago Not just savers! Wells Fargo also defrauded bankrupt mortgage borrowers https://www.nytimes.com/2017/06/14/business/wells-fargo-loan-mortgage.html

#5yrsago American regions with high immigration enjoy persistent, long-term higher incomes and lower unemployment https://www.nber.org/digest/jun17/long-run-effects-immigration-during-age-mass-migration

#1yrago Taxes are for the little people: If your eyes glaze over at "carried interest loophole," wait'll you hear about "fee waivers" https://pluralistic.net/2021/06/15/guillotines-and-taxes/#carried-interest

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©️ Colophon

Today's top sources: Gizmodo (https://gizmodo.com).

Currently writing:

* Some Men Rob You With a Fountain Pen, a Martin Hench noir thriller novel about the prison-tech industry. Yesterday's progress: 528 words (15262 words total)

* The Internet Con: How to Seize the Means of Computation, a nonfiction book about interoperability for Verso. Yesterday's progress: 502 words (11996 words total)

* Picks and Shovels, a Martin Hench noir thriller about the heroic era of the PC. (92849 words total) - ON PAUSE

* A Little Brother short story about DIY insulin PLANNING

* Vigilant, Little Brother short story about remote invigilation. FIRST DRAFT COMPLETE, WAITING FOR EXPERT REVIEW

* Moral Hazard, a short story for MIT Tech Review's 12 Tomorrows. FIRST DRAFT COMPLETE, ACCEPTED FOR PUBLICATION

* Spill, a Little Brother short story about pipeline protests. FINAL DRAFT COMPLETE

* A post-GND utopian novel, "The Lost Cause."  FINISHED

* A cyberpunk noir thriller novel, "Red Team Blues."  FINISHED

Currently reading: Analogia by George Dyson.

Latest podcast: Regulatory Capture: Beyond Revolving Doors and Against Regulatory Nihilism https://craphound.com/news/2022/06/12/regulatory-capture-beyond-revolving-doors-and-against-regulatory-nihilism/

Upcoming appearances:

* UK Competition and Markets Authority Data Technology and Analytics conference (London), Jun 15-16
https://www.eventbrite.co.uk/e/cma-data-technology-and-analytics-conference-2022-registration-308678625077

* A New HOPE (NYC), Jul 24
https://www.hope.net/

Recent appearances:

* Supp-Lie Demand (Bad Faith podcast with Briahna Joy Gray):
https://www.patreon.com/posts/67550669

* The Sci-Fi Feedback Loop: Mapping Fiction’s Influence on Real-World Tech
https://csi.asu.edu/calendar/events/the-sci-fi-feedback-loop-mapping-fictions-influence-on-real-world-tech/

* Privacy is the New Celebrity
https://www.buzzsprout.com/1806101/10643084

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 (print edition: https://bookshop.org/books/how-to-destroy-surveillance-capitalism/9781736205907) (signed copies: https://www.darkdel.com/store/p2024/Available_Now%3A__How_to_Destroy_Surveillance_Capitalism.html)

* "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.

Upcoming books:

* Chokepoint Capitalism: How to Beat Big Tech, Tame Big Content, and Get Artists Paid, with Rebecca Giblin, nonfiction/business/politics, Beacon Press, September 2022

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