Feb 23
Fighting the privacy wars, state by state
Treating Congress as damage and routing around it.
In 2021, Apple updated its mobile OS so that users could opt out of app tracking with one click. More than 96% opted out, costing Facebook $10b in one year. The kicker? Even if you opted out, Apple continued to spy on you, just as invasively as Facebook had, as part of its competing targeted ad product:
https://pluralistic.net/2022/11/14/luxury-surveillance/#liar-liar
The fact that Apple — a company that has blanketed the world with anti-surveillance billboards — engaged in deceptive, pervasive surveillance reveals the bankruptcy of “letting the market decide” what privacy protections you should have.
When you walk into a grocery store, you know that the FDA is on the job, making sure that the food you buy doesn’t kill you — but no one stops the grocery store from tracking literally every step you take, every eye movement you make (no, really!) and selling that to all comers:
America’s decision to let the private sector self-regulate commercial surveillance is a grotesque failure of duty on the part of Congress, which has consistently failed to pass comprehensive privacy legislation. There are lots of reasons for this, but the most important is that American cops and spies are totally reliant on commercial surveillance brokers, and they fight like hell against any privacy legislation:
https://pluralistic.net/2021/04/13/public-interest-pharma/#axciom
The private sector’s unregulated privacy free-for-all means that cops don’t need to get warrants to spy on you — they can just buy the data on the open market for pennies:
https://pluralistic.net/2020/08/18/fifth-pig/#ppp
The last Congressional session almost passed a halfway decent (but still deeply flawed) federal privacy law, but then they didn’t. Basically, Congress only passes laws that can be sandwiched into 1,000-page must-pass bills and most of the good stuff that gets through only does so because some bought-and-paid-for Congressjerks are too busy complaining about “woke librarians” to read the bills before they come up for a vote.
The catastrophic failure to protect Americans’ privacy has sent human rights groups hunting for other means to accomplish the same end. On the federal level, there’s the newly reinvigorated FTC, under the visionary, muscular leadership of Lina Khan, the best Commission chair in a generation. She’s hard at work on rules to limit commercial surveillance:
https://pluralistic.net/2022/08/12/regulatory-uncapture/#conscious-uncoupling
But FTC regs take time to pass, and it can be hard for ordinary individuals to trigger their enforcement, which might leave you at the mercy of your local officials when your privacy is invaded. What we really need is a privacy law with a “private right of action” — the right to go to court on your own:
https://www.eff.org/deeplinks/2019/01/you-should-have-right-sue-companies-violate-your-privacy
The business lobby hates private right of action, and they trick low-information voters into opposing them with lies about “ambulance chasers” who sue innocent fast-food outlets for millions because they serve coffee that’s too hot:
https://pluralistic.net/2022/06/12/hot-coffee/#mcgeico
With Congress deadlocked and privacy harms spiraling, pro-privacy groups have turned to the states, as Alfred Ng writes for Politico:
https://www.politico.com/news/2023/02/22/statehouses-privacy-law-cybersecurity-00083775
The best provisions of the failed federal privacy law have been introduced as state legislation in Massachusetts and Illinois, and there are amendments to Indiana’s existing state privacy law — 16 states in all are working on or have some kind of privacy law. This means businesses must live with the dread “patchwork of laws,” which serves the business lobby right: they must do business in potentially radically different ways in different states, and small missteps could cost them millions, in true fuck-around-and-find-out fashion.
As Ng writes, these laws don’t have to pass in every state. America’s historically contingent, lopsided state lines mean that some states are so populous that whatever rules they pass end up going nationwide (the ACLU’s Kade Crockford uses the example of California Prop 65 warnings showing up on canned goods in NY).
As Congress descends further into self-parody, the temptation to treat the federal government as damage and route around it only mounts. It’s a powerful, but imperfect strategy. On the negative side, it takes a lot of resources to introduce legislation into multiple states, and to win legislative fights in each.
Think of the incredible fuckery that the coalition of Apple, John Deere, Wahl, and other monopolists got up to defeat dozens of state Right to Repair laws, even snatching victory from the jaws of defeat in New York state, neutering the incredible state electronics repair law before it reached the governor’s desk:
Indeed, the business lobby loves lobbying statehouses, treating them as the Feds’ farm-leagues, filled with naive, easily hoodwinked rubes. Organizations like ALEC use their endless corporate funding to get state legislation that piles farce upon tragedy, like the laws banning municipal fiber networks:
https://pluralistic.net/2022/12/15/useful-idiotsuseful-idiots/#unrequited-love
The right has always had hooks in state legislatures, but they really opened up the sluice gates in the runup to the 2010 census, when a GOP strategist called Thomas Hofeller started pitching Republican operatives on a plan called REDMAP, to capture state legislatures in time for a post-2010 census mass-redistricting that would neutralize the votes of Black and brown people and deliver permanent rule by an openly white nationalist Republican party that could lose every popular vote and still hold power.
Of course, that’s not how they talked about it in public. Though the racial dimension of GOP gerrymandering were visible to anyone on the ground, Hofeller maintained a veneer of plausible deniability on the new REDMAP districts, leaving the racist intent of GOP redistricting as a he-said/she-said matter of conjecture:
https://www.klfy.com/national/late-gop-redistricting-gurus-files-hint-at-partisan-motives/
That is, until 2018, when Satan summoned Hofeller back to hell, leaving his personal effects in the hands of his estranged anarchist daughter, Stephanie, who dumped all her old man’s files online, including the powerpoint slides he delivered to his GOP colleagues where he basically said, “Hey kids, let’s do an illegal racism!”
Sometimes, laws that turn on intent are difficult to enforce because they require knowledge of the accused’s state of mind. But there are so many would-be supervillains who just can’t stop themselves from monologing, and worse, putting it in writing.
As bad as state politics can be, they’re still winnable battlefields. Last year saw a profound win on Right to Repair in Colorado, where a wheelchair repair bill, HB22–1031, made history:
https://www.eff.org/deeplinks/2022/06/when-drm-comes-your-wheelchair
That win helped inspire Rebecca Giblin and I when we were writing Chokepoint Capitalism, our book about how Big Tech and Big Content rip off creative workers, and what to do about it.
https://chokepointcapitalism.com
Many readers have noted that the first half of the book — where were unpack the scams of streaming, news advertising, ebooks and audiobooks, and other creative fields — is incredibly enraging.
But if you find yourself struggling to concentrate on the book because of a persistent, high-pitched whining noise that you suspect might be a rage-induced incipient aneurysm, keep reading! The second half of the book is full of detailed, shovel-ready policy proposals to get artists paid, including a state legislative proposal that works from the same playbook as these state privacy laws.
If your creative work entitles you to receive royalties, your contract will typically include the right to audit your royalty statements. If you do audit your royalties, you will often find “discrepancies.” We cite one LA firm that has performed tens of thousands of record contract audits over decades, and in every instance except one, the errors they discovered were in the labels’ favor.
This is a hell of a head-scratcher. I can only assume that some kind of extremely vexing, highly localized probability storm has taken up permanent residence over the Big Three labels’ accounting departments, making life hell for their CPAs, and my heart goes out to them.
Anyway: if you find one of these errors and you tell your label or publisher or studio, “Hey, you stole my money, cough up!” they will pat you on the head and say, “Oh, you artists are adorable but you can’t do math. You’re mistaken, we don’t owe you anything. But because we’re good natured slobs, we’ll offer you, say, half of what you think we owe you, which is good, because you can’t afford to sue us. And all you need to do to get that money is to sign this non-disclosure agreement, meaning you can’t tell anyone else about the money we’re stealing from them.
“Oh, and one more thing: your accountant has to promise never to audit us again.” As Caldwell-Kelly said when we talked about this on Trashfuture, this is like the accused murderer telling the forensics team, “Dig anywhere you’d like in my garden, just not in that corner, I’m very sentimental about it.”
Now, contracts are a matter of state law, and nearly every entertainment industry contract is signed in one of four jurisdictions: NY, CA, TN (Nashville), and WA (games companies and Amazon). If we amended the state laws in one or more of these to say, “NDAs can’t be enforced when they pertain to wage theft arising from omissions or misstatements on royalties,” we could pour money into the pockets of creative workers all over the world.
Yes, the entertainment giants will fight like hell against this, and yes, they have a lot of juice in their state legislatures. But they’re also incredibly greedy and reckless, and prone to such breathtaking and brazen acts of wage theft that they lurch from crisis to crisis, and at each of these crises, there is a space to pass a law to address these very public failings.
For example, in 2022, the Writers Guild of America — one of the best, most principled, most solidaristic and unified unions in Hollywood — wrested $42 million from Netflix, which the company had stolen from its writers:
https://variety.com/2022/film/news/wga-wins-42-million-arbitration-netflix-1235333822/
Netflix isn’t alone in these massive acts of wage theft, and this is certainly not the only way Netflix is stealing from creative workers. There’s never just one ant: if Netflix cooked the books for writers, they’re definitely cooking it for other workers. That means there will be more scandals, and when they break, we can demand more than a bandaid fix for one crime — we can demand modest-but-critical legislative action to fix contracts and prevent this kind of wage-theft in the future.
The state legislatures aren’t an intrinsically better battlefield for just fights, but they are an alternative to Congress, and there is space to make things happen in just some of the 50 state houses that can ripple out over the whole country — for good and bad.
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:
Cory Doctorow (craphound.com) is a science fiction author, activist, and blogger. He has a podcast, a newsletter, a Twitter feed, a Mastodon feed, and a Tumblr feed. He was born in Canada, became a British citizen and now lives in Burbank, California. His latest nonfiction book is Chokepoint Capitalism (with Rebecca Giblin), a book about artistic labor market and excessive buyer power. His latest novel for adults is Attack Surface. His latest short story collection is Radicalized. His latest picture book is Poesy the Monster Slayer. His latest YA novel is Pirate Cinema. His latest graphic novel is In Real Life. His forthcoming books include Red Team Blues, a noir thriller about cryptocurrency, corruption and money-laundering (Tor, 2023); and The Lost Cause, a utopian post-GND novel about truth and reconciliation with white nationalist militias (Tor, 2023).
