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:
The most important part of any law, rule or policy isn't what it permits or prohibits – it's whether you can enforce the law at all.
After all, as odious as a law that forbids people from thinking mean thoughts about Trump would be, it would also be completely unenforceable, and would ultimately just not be very important, except as a symbol of Trump's evil.
This property is called "administrability," meaning, "the degree to which an authority can administer the policy." There are many dimensions to administrability, including "Is it even possible to detect whether this policy has been violated?" In that same vein, there're questions like, "If you discover someone has violated this policy, will you be able to stop them from continuing to do so?" For example, the US routinely indicts North Korean hackers, but unless those hackers visit a place that the US can inveigle into arresting and extraditing them, it's a mostly symbolic gesture:
One undertheorized aspect of administrability is "fact-intensivity"; that is, are there difficult, fact-intensive questions that need to be answered in order to determine whether someone has violated this policy?
Think of probate law: probate is often a lengthy and expensive process, especially if the deceased is "intestate" (has no will). To probate an estate, all the deceased's assets have to be cataloged and assessed, claims of heirs and inheritors have to be evaluated, etc, etc.
People spend a lot of time and money creating wills and family trusts largely to answer these questions when they're easiest to resolve (when you're still alive and can clearly express your preferences), because it's even more expensive and time-consuming to answer these questions when you're not around anymore to weigh in on them.
As complex and time-consuming as managing your estate can be, there's nothing wrong in theory with having a complicated, careful process in place for dealing with it. Taking care of your loved ones and disposing of your assets is something that's worth getting right, and people have all kinds of highly individual preferences for this that requires a lot of flexibility in the system. Making a system that's very customizable but also robust against fraud (or even honest mistakes) requires a lot of administrative superstructure to hold it all together.
And besides, probate isn't something we have to do very often. After all, most of us will only die one or fewer times. It's not like we have to figure this stuff out every day. It's the kind of thing you can do every couple of decades, over several hours, spread out over weeks.
Frequency, then, is the enemy of fact-intensivity. If you had to do probate-level form-filling to buy a cup of coffee or pay your electricity bill, that would be nuts. For one thing, it would be full employment for lawyers – and it would cost so much that by the time you got to the cafe or the gas-pump, you'd be too broke to actually complete the transaction.
This comes up a lot in discussions of tech policy, because once you computerize something, you can start to do it very quickly, which means that policies that added, say, a 1% admin overhead to a task before it was digitized can add up to a 1,000% overhead once it's digitized.
The best example of this is copyright: copyright is the most fact-intensive doctrine you deal with on a day to day basis. Technically, conclusively determining whether you have the right to forward an email could take a lawyer a whole day. Sure, most email forwarding is "fair use" (that is, it fits into one of copyright's "limitations and exceptions"), but any decent IP law prof could come up with ten email forwarding hypotheticals in ten minutes that could occupy a whole fourth-year IP law class for an entire semester.
One of the reasons copyright is so fact-intensive is that it was designed to be invoked infrequently. We're talking about a legal regime that was designed to answer questions about book and music publishing (and then adapted for other kinds of media), and even the most prolific publisher or label is going to deal with double-digits' worth of new works per season.
Meanwhile, the people working at that same publisher are likely forwarding hundreds, if not thousands of emails per day. If the publisher's copyright lawyers had to review every one of those forwards, they would never publish another book. They would go bankrupt.
Obviously, that's not how things work.
Why not, though?
Well, mostly because we just pretend copyright law isn't there. To the extent that we do acknowledge the potential for copyright liability from everyday activities that no one ever asks a lawyer to sign off on, we manage that liability through shitty, one-sided contracts. You have undoubtably clicked on dozens of agreements this year wherein you warranted that nothing you were doing violated copyright law (a neat trick, given that you probably have no idea whether any of the activities you routinely engage in could violate copyright) and further, you indemnified someone else for "all costs arising from any claims" associated with your activity.
That's an unbelievably shitty, one-sided clause for you to have "agreed" to, since "any claims" includes claims with no merit and "all costs" includes "money we paid someone who brought a bullshit claim to just go away."
In other words, you routinely click through these nonsense "agreements" where you promise to give every cent you have to anyone who wants it, if the company that made you click through that bullshit decides to promise some deranged rando a million bucks to settle their wild accusation that you violated their copyrights.
For complicated reasons, we're not all drowning in copyright lawsuits all the time, but if someone really wanted to fuck you up and they had deep enough pockets, they could use the fact that you're a giant, routine copyright infringer (just like everyone else) to wreck your life for years.
So obviously, it would have been better if we'd done some major refactoring of copyright law once the internet came along. My preferred fix? Carve out activities unrelated to the media industry's supply chain from copyright altogether:
Copyright isn't the only fact-intensive doctrine that's challenged by the cadence of digital life. The internet lets us do a lot of things, very quickly, meaning that even small factual questions pile up beyond any reasonable capacity to resolve them.
Take the debate over content moderation and hate speech. Hate speech and harassment online are serious problems and they disproportionately affect people who are getting the shitty end of the stick in the offline world, too. The legacy platforms obviously don't give a damn about these people, either.
So it's tempting to attempt to use policy to solve this real problem. Even if the US wasn't being run by a trollocracy, this would probably be a nonstarter in America, because hate speech is protected by the First Amendment, and purely speech-based harassment is hard to punish without falling afoul of 1A.
But other countries – notably the EU – are having a go at it. I think this is a doomed effort – but not because hate speech isn't a serious problem! Rather, because hate speech regulations are very fact intensive, and hate speech is very common. Frequency is the enemy of fact-intensivity.
Say the EU creates a rule requiring platforms to take reasonable measures to prevent hate speech. This requires
arriving at a common definition of hate speech;
adjudicating whether a given user's speech rises to that definition; and
determining whether the platform's technical measures were "reasonable."
This is the work of months, if not years. And hate speech happens hundreds of times per minute on the big platforms. It's just not an administrable policy.
Now, just because policy isn't administrable, it doesn't follow that there's nothing to be done. There's other ways to give relief to the targets of harassment and hate speech. To get to those ways, we have to ask ourselves why people who are tormented by trolls stay on the platforms that expose them to abuse.
There are plenty of extremely wrong explanations for this floating around. One is that Mark Zuckerberg and Elon Musk are Cyber-Rasputins who can hypnotize us into using their platforms even if we don't like them, by "hacking our dopamine loops." This is a very silly explanation: everyone who's ever claimed to have perfected mind-control was a liar and/or deluded:
Another is that people are lying (possibly to themselves) when they say they don't like being harassed on legacy social media platforms. This theory – from neoclassical econ – is called "revealed preferences," and it holds that people whose actions go against their stated preferences are "revealing a preference" for the thing they're doing.
This is the sort of thing you end up believing in if you incur the kind of neurological injury that arises from pursuing an economics degree, which causes you to be incapable of reasoning about (or even perceiving) power. "Revealed preferences" tells you that if someone sells their kidney to pay the rent, they have a "revealed preference" for having one kidney.
Thankfully, there's a much simpler explanation for people's continued use of platforms where they are subject to abuse and harassment. It's this: the only thing worse than being a member of a disfavored minority who is subject to abuse and harassment is being a member of a disfavored minority who is subject to abuse and harassment who is also isolated from your community.
Leaving Facebook or Twitter means leaving behind the people who comfort and support you when you are subject to abuse. The more abuse and discrimination you face, the more that support matters, and the harder it is to leave that community behind. You love your community more than you hate Zuck or Musk, so you stay, because as much as you love them, it's transcendentally difficult to coordinate a mass departure for somewhere else. This is called the "collective action problem" and it's a regressive tax on the most abused platform users and communities.
This is a problem we can solve with policy! We can mandate that platforms support interoperability, so that when you leave a legacy platform like Twitter or Facebook for a modern platform like Mastodon or Bluesky, the messages addressed to you on the legacy platform are forwarded to your new home. That way you can have the people you love without the platform you hate.
This is a very administrable policy. The main lift is figuring out the nuts and bolts of interoperability, and while that's a big technical project, it's the kind of thing you only have to do once or twice. Then, if a platform fails in its duty to forward your messages after you leave, it's very easy for a regulator to determine whether it's violating the rules – they just have to send a message to your old account and see if it shows up for your new account:
A hate speech policy is hard to administer because it requires resolving a bunch of fact-intensive questions. A "right to exit" policy replaces all those fact-intensive questions with a bright line policy ("if you don't forward your former users' messages, you are guilty"), which can be administered at high speed.
Whenever a fact-intensive policy that regulates an infrequent activity fails because the activity becomes more frequent, you have two choices: you can either slow down the activity, or you can replace the fact-intensive questions with bright-line tests that can be resolved much more quickly.
But more often, we fail to do either, and everything goes very badly indeed.
That's more or less what's happened with "merger scrutiny," the part of antitrust law that lets competition regulators (or competitors) block or put conditions on mergers that involve large firms.
In these merger scrutiny cases, plaintiffs who challenge a merger are expected to resolve a bunch of extremely fact-intensive questions. Fail to resolve any of these questions and the merger goes ahead.
The most pernicious fact-intensive question that arises in antitrust cases is "market definition." That's pretty much what it sounds like: "What market is this company doing business in?" If you can prove that the companies in a proposed merger are in the same market, then it's a lot easier to prove that allowing the merger would reduce competition.
The problem is that "market" is a very slippery concept. As Tim Wu describes in his excellent book The Age of Extraction, "market definition" creates a near-infinite amount of wiggle-room:
When Wu was serving in the Obama FTC, he had a front-row seat for Google's acquisition of Waze. Now, obviously these companies are direct competitors, but the Obama administration wanted the merger to go through (it was dominated by people who thought monopolies are efficient and didn't want to do their jobs). So these officials decided that Google Maps' market was "finding out where you are" and that Waze's market was "getting you somewhere." It was really that stupid.
Writing for the Law and Political Economy project, Hal Singer explains how the fact-intensive nature of the "market definition" question makes it virtually impossible to prevent market concentration and abuse of dominance:
From Livenation/Ticketmaster to Paramount/Warner Brothers, the "market definition trap" leaves the public virtually defenseless before efforts to reorganize the economy into extractive, rapacious cartels.
In a recent interview with the Do Not Pass Go podcast, Paul Crampton (Canada's recently retired top competition judge) talks about the tsunami of mergers that Canada's Competition Bureau is expected to oversee:
Fact-intensive market definition questions can't possibly be resolved at the pace of mergers. That's because companies' preferred growth strategy is combining, rather than competing. There's plenty of political problems with merging Paramount and Warner, but there's also a huge economic problem, because these companies are direct competitors who will soon operate as a single firm.
The M&A industry has staged a denial of service attack on its regulators, accelerating the pace of mergers involving large firms far beyond the ability of a regulator to resolve the fact-intensive questions these mergers raise. They've flooded the zone, and after the mergers go through and the companies start abusing their customers, workers and competitors, these same market definition questions bedevil any attempt to rein in this abuse of dominance.
Singer makes some excellent suggestions for legal reforms to resolve this, moving some of the fact-intensive questions to bright-line ones, such as "whether the challenged conduct injured workers, consumers, or some other counterparty."
This is the right approach. As we plan for a future in which legislatures recognize the enormous harms that monopolization inflicted on our societies, we need to come up with more bright-line rules for antimonopoly rules. These will lack some of the subtlety that fact-intensive treatment affords, but you can't do fact-intensive adjudication for high frequency activities. So maybe we say that no company can acquire or merge with another company more than once in 18 months, or that companies that share more than 10% of their customers can't merge.
Some "good" mergers will fail these tests, but that's the price we pay. If you want to move mergers from a rare occurrence to an everyday, you're going to have to accept a loss of nuance in the rules for these mergers. The alternative is the ugly, self-destructive mess we have today.
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California can stop Larry Ellison from buying Warners
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:
For months, the hottest will-they/won't-they drama in Hollywood concerned the suitors for Warners, up for sale again after being bought, merged, looted and wrecked by the eminently guillotineable David Zaslav:
https://www.youtube.com/watch?v=izC9o3LhnVk
From the start, it was clear that Warners would be sucked dry and discarded, but the Trump 2024 election turned the looting of Warners' corpse into a high-stakes political drama.
On the one hand, you had Netflix, who wanted to buy Warners and use them to make good movies, but also to kill off movie theaters forever by blocking theatrical distribution of Warners' products.
On the other hand, you had Paramount, owned by the spray-tan cured tech billionaire jerky Larry Ellison, though everyone is supposed to pretend that Ellison's do-nothing/know-nothing/amounts-to-nothing son Billy (or whatever who cares) Ellison is running the show.
Ellison's plan was to buy Warners and fold it into the oligarchic media capture project that's seen Ellison replace the head of CBS with the tedious mediocrity Bari Weiss:
This is a multi-pronged media takeover that includes Jeff Bezos neutering the Washington Post, Elon Musk turning Twitter into a Nazi bar, and Trump stealing Tiktok and giving it to Larry Ellison. If Ellison gains control over Warners, you can add CNN to the nonsense factory.
But for a while there, it looked like the Ellisons would lose the bidding. Little Timmy (or whatever who cares) Ellison only has whatever money his dad parks in his bank account for tax purposes, and Larry Ellison is so mired in debt that one margin call could cost him his company, his fighter jet, and his Hawaiian version of Little St James Island.
Warners' board may not give a shit about making good media or telling the truth or staving off fascism, but they do want to get paid, and Netflix has money in the bank, whereas Ellison only has the bank's money (for now).
But last week, the dam broke: Warners' board indicated they'd take Paramount's offer, and Netflix withdrew their offer, and so that's that, right? It's not like Trump's FTC is going to actually block this radioactively illegal merger, despite the catastrophic corporate consolidation that would result, with terrible consequences for workers, audiences, theaters, cable operators and the entire supply chain.
Not so fast! The Clayton Act – which bars this kind of merger – is designed to be enforced by the feds, state governments, and private parties. That means that California AG Rob Bonta can step in to block this merger, which he's getting ready to do:
As David Dayen writes in The American Prospect, state AGs block mergers all the time, even when the feds decline to step in – just a couple years ago, Washington state killed the Kroger/Albertsons merger.
The fact that antitrust laws can be enforced at the state level is a genius piece of policy design. As the old joke goes, "AG" stands for "aspiring governor," and the fact that state AGs can step in to rescue their voters from do-nothing political hacks in Washington is catnip for our nation's attorneys general.
Bonta is definitely feeling his oats: he's also going after Amazon for price-fixing, picking up a cause that Trump dropped after Jeff Bezos ordered the Washington Post to cancel its endorsement of Kamala Harris, paid a million bucks to sit on the inaugural dais, millions more to fund the White House Epstein Memorial Ballroom and $40m more to make an unwatchable turkey of a movie about Melania Trump.
Can you imagine how stupid Bezos is going to feel when all of his bribes to Trump cash out to nothing after Rob Bonta publishes Amazon's damning internal memos and then fines the company a gazillion dollars?
It's a testament to the power of designing laws so they can be enforced by multiple parties. And as cool as it is to have a law that state AGs can enforce, it's way cooler to have a law that can be enforced by members of the public.
This is called a "private right of action" – the thing that lets impact litigation shops like Planned Parenthood, EFF, and the ACLU sue over violations of the public's rights. The business lobby hates the private right of action, because they think (correctly) that they can buy off enough regulators and enforcers to let them get away with murder (often literally), but they know they can't buy off every impact litigation shop and every member of the no-win/no-fee bar.
For decades, corporate America has tried to abolish the public's right to sue companies under any circumstances. That's why so many terms of service now feature "binding arbitration waivers" that deny you access to the courts, no matter how badly you are injured:
But long before Antonin Scalia made it legal to cram binding arbitration down your throat, corporate America was pumping out propaganda for "tort reform," spreading the story that greedy lawyers were ginning up baseless legal threats to extort settlements from hardworking entrepreneurs. These stories are 99.9% bullshit, including urban legends like the "McDonald's hot coffee" lawsuit:
Ever since Reagan, corporate America has been on a 45-year winning streak. Nothing epitomizes the arrogance of these monsters more than the GW Bush administration's sneering references to "the reality-based community":
We're an empire now, and when we act, we create our own reality. And while you're studying that reality – judiciously, as you will – we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors…and you, all of you, will be left to just study what we do.
Giving Ellison, Bezos and Musk control over our media seems like the triumph of billionaires' efforts to "create their own reality," and indeed, for years, they've been able to gin up national panics over nothingburgers like "trans ideology," "woke" and "the immigration crisis."
But just lately, that reality-creation machine has started to break down. Despite taking over the press, locking every reality-based reporter out of the White House, and getting Musk, Zuck and Ellison to paint their algorithms spray-tan orange, people just fucking hate Trump. He is underwater on every single issue:
Despite the full-court press – from both the Dem and the GOP establishment – to deny the genocide in Gaza and paint anyone (especially Jews like me) who condemn the slaughter as "antisemites," Americans condemn Israel and are fully in the tank for Palestinians:
Despite throwing massive subsidies at coal and tying every available millstone around renewables' ankles before throwing all the solar panels and windmills into the sea, renewables are growing and – to Trump's great chagrin – oil companies can't find anyone to loan them the money they need to steal Venezuela's oil:
Reality turns out to be surprisingly stubborn, and what's more, it has a pronounced left-wing bias. Putting little Huey (or whatever who cares) Ellison in charge of Warners will be bad news for the news, for media, for movies and TV, and for my neighbors in Burbank. But when it comes to shaping the media, Freddy (or whatever who cares) Ellison will continue to eat shit.
TONIGHT (June 20) I'm live onstage in LOS ANGELES for a recording of the GO FACT YOURSELF podcast. TOMORROW (June 21) I'm doing an ONLINE READING for the LOCUS AWARDS at 16hPT. On SATURDAY (June 22) I'll be in OAKLAND, CA for a panel (13hPT) and a keynote (18hPT) at the LOCUS AWARDS.
It's not your imagination: tech really is underregulated. There are plenty of avoidable harms that tech visits upon the world, and while some of these harms are mere negligence, others are self-serving, creating shareholder value and widespread public destruction.
Making good tech policy is hard, but not because "tech moves too fast for regulation to keep up with," nor because "lawmakers are clueless about tech." There are plenty of fast-moving areas that lawmakers manage to stay abreast of (think of the rapid, global adoption of masking and social distancing rules in mid-2020). Likewise we generally manage to make good policy in areas that require highly specific technical knowledge (that's why it's noteworthy and awful when, say, people sicken from badly treated tapwater, even though water safety, toxicology and microbiology are highly technical areas outside the background of most elected officials).
That doesn't mean that technical rigor is irrelevant to making good policy. Well-run "expert agencies" include skilled practitioners on their payrolls – think here of large technical staff at the FTC, or the UK Competition and Markets Authority's best-in-the-world Digital Markets Unit:
The job of government experts isn't just to research the correct answers. Even more important is experts' role in evaluating conflicting claims from interested parties. When administrative agencies make new rules, they have to collect public comments and counter-comments. The best agencies also hold hearings, and the very best go on "listening tours" where they invite the broad public to weigh in (the FTC has done an awful lot of these during Lina Khan's tenure, to its benefit, and it shows):
But when an industry dwindles to a handful of companies, the resulting cartel finds it easy to converge on a single talking point and to maintain strict message discipline. This means that the evidentiary record is starved for disconfirming evidence that would give the agencies contrasting perspectives and context for making good policy.
Tech industry shills have a favorite tactic: whenever there's any proposal that would erode the industry's profits, self-serving experts shout that the rule is technically impossible and deride the proposer as "clueless."
This tactic works so well because the proposers sometimes are clueless. Take Europe's on-again/off-again "chat control" proposal to mandate spyware on every digital device that will screen everything you upload for child sex abuse material (CSAM, better known as "child pornography"). This proposal is profoundly dangerous, as it will weaken end-to-end encryption, the key to all secure and private digital communication:
It's also an impossible-to-administer mess that incorrectly assumes that killing working encryption in the two mobile app stores run by the mobile duopoly will actually prevent bad actors from accessing private tools:
When technologists correctly point out the lack of rigor and catastrophic spillover effects from this kind of crackpot proposal, lawmakers stick their fingers in their ears and shout "NERD HARDER!"
But this is only half the story. The other half is what happens when tech industry shills want to kill good policy proposals, which is the exact same thing that advocates say about bad ones. When lawmakers demand that tech companies respect our privacy rights – for example, by splitting social media or search off from commercial surveillance, the same people shout that this, too, is technologically impossible.
That's a lie, though. Facebook started out as the anti-surveillance alternative to Myspace. We know it's possible to operate Facebook without surveillance, because Facebook used to operate without surveillance:
Likewise, Brin and Page's original Pagerank paper, which described Google's architecture, insisted that search was incompatible with surveillance advertising, and Google established itself as a non-spying search tool:
http://infolab.stanford.edu/pub/papers/google.pdf
Even weirder is what happens when there's a proposal to limit a tech company's power to invoke the government's powers to shut down competitors. Take Ethan Zuckerman's lawsuit to strip Facebook of the legal power to sue people who automate their browsers to uncheck the millions of boxes that Facebook requires you to click by hand in order to unfollow everyone:
Facebook's apologists have lost their minds over this, insisting that no one can possibly understand the potential harms of taking away Facebook's legal right to decide how your browser works. They take the position that only Facebook can understand when it's safe and proportional to use Facebook in ways the company didn't explicitly design for, and that they should be able to ask the government to fine or even imprison people who fail to defer to Facebook's decisions about how its users configure their computers.
This is an incredibly convenient position, since it arrogates to Facebook the right to order the rest of us to use our computers in the ways that are most beneficial to its shareholders. But Facebook's apologists insist that they are not motivated by parochial concerns over the value of their stock portfolios; rather, they have objective, technical concerns, that no one except them is qualified to understand or comment on.
There's a great name for this: "scalesplaining." As in "well, actually the platforms are doing an amazing job, but you can't possibly understand that because you don't work for them." It's weird enough when scalesplaining is used to condemn sensible regulation of the platforms; it's even weirder when it's weaponized to defend a system of regulatory protection for the platforms against would-be competitors.
Just as there are no atheists in foxholes, there are no libertarians in government-protected monopolies. Somehow, scalesplaining can be used to condemn governments as incapable of making any tech regulations and to insist that regulations that protect tech monopolies are just perfect and shouldn't ever be weakened. Truly, it's impossible to get someone to understand something when the value of their employee stock options depends on them not understanding it.
None of this is to say that every tech regulation is a good one. Governments often propose bad tech regulations (like chat control), or ones that are technologically impossible (like Article 17 of the EU's 2019 Digital Single Markets Directive, which requires tech companies to detect and block copyright infringements in their users' uploads).
But the fact that scalesplainers use the same argument to criticize both good and bad regulations makes the waters very muddy indeed. Policymakers are rightfully suspicious when they hear "that's not technically possible" because they hear that both for technically impossible proposals and for proposals that scalesplainers just don't like.
After decades of regulations aimed at making platforms behave better, we're finally moving into a new era, where we just make the platforms less important. That is, rather than simply ordering Facebook to block harassment and other bad conduct by its users, laws like the EU's Digital Markets Act will order Facebook and other VLOPs (Very Large Online Platforms, my favorite EU-ism ever) to operate gateways so that users can move to rival services and still communicate with the people who stay behind.
Think of this like number portability, but for digital platforms. Just as you can switch phone companies and keep your number and hear from all the people you spoke to on your old plan, the DMA will make it possible for you to change online services but still exchange messages and data with all the people you're already in touch with.
I love this idea, because it finally grapples with the question we should have been asking all along: why do people stay on platforms where they face harassment and bullying? The answer is simple: because the people – customers, family members, communities – we connect with on the platform are so important to us that we'll tolerate almost anything to avoid losing contact with them:
Platforms deliberately rig the game so that we take each other hostage, locking each other into their badly moderated cesspits by using the love we have for one another as a weapon against us. Interoperability – making platforms connect to each other – shatters those locks and frees the hostages:
But there's another reason to love interoperability (making moderation less important) over rules that require platforms to stamp out bad behavior (making moderation better). Interop rules are much easier to administer than content moderation rules, and when it comes to regulation, administratability is everything.
The DMA isn't the EU's only new rule. They've also passed the Digital Services Act, which is a decidedly mixed bag. Among its provisions are a suite of rules requiring companies to monitor their users for harmful behavior and to intervene to block it. Whether or not you think platforms should do this, there's a much more important question: how can we enforce this rule?
Enforcing a rule requiring platforms to prevent harassment is very "fact intensive." First, we have to agree on a definition of "harassment." Then we have to figure out whether something one user did to another satisfies that definition. Finally, we have to determine whether the platform took reasonable steps to detect and prevent the harassment.
Each step of this is a huge lift, especially that last one, since to a first approximation, everyone who understands a given VLOP's server infrastructure is a partisan, scalesplaining engineer on the VLOP's payroll. By the time we find out whether the company broke the rule, years will have gone by, and millions more users will be in line to get justice for themselves.
So allowing users to leave is a much more practical step than making it so that they've got no reason to want to leave. Figuring out whether a platform will continue to forward your messages to and from the people you left there is a much simpler technical matter than agreeing on what harassment is, whether something is harassment by that definition, and whether the company was negligent in permitting harassment.
But as much as I like the DMA's interop rule, I think it is badly incomplete. Given that the tech industry is so concentrated, it's going to be very hard for us to define standard interop interfaces that don't end up advantaging the tech companies. Standards bodies are extremely easy for big industry players to capture:
If tech giants refuse to offer access to their gateways to certain rivals because they seem "suspicious," it will be hard to tell whether the companies are just engaged in self-serving smears against a credible rival, or legitimately trying to protect their users from a predator trying to plug into their infrastructure. These fact-intensive questions are the enemy of speedy, responsive, effective policy administration.
But there's more than one way to attain interoperability. Interop doesn't have to come from mandates, interfaces designed and overseen by government agencies. There's a whole other form of interop that's far nimbler than mandates: adversarial interoperability:
"Adversarial interoperability" is a catch-all term for all the guerrilla warfare tactics deployed in service to unilaterally changing a technology: reverse engineering, bots, scraping and so on. These tactics have a long and honorable history, but they have been slowly choked out of existence with a thicket of IP rights, like the IP rights that allow Facebook to shut down browser automation tools, which Ethan Zuckerman is suing to nullify:
https://locusmag.com/2020/09/cory-doctorow-ip/
Adversarial interop is very flexible. No matter what technological moves a company makes to interfere with interop, there's always a countermove the guerrilla fighter can make – tweak the scraper, decompile the new binary, change the bot's behavior. That's why tech companies use IP rights and courts, not firewall rules, to block adversarial interoperators.
At the same time, adversarial interop is unreliable. The solution that works today can break tomorrow if the company changes its back-end, and it will stay broken until the adversarial interoperator can respond.
But when companies are faced with the prospect of extended asymmetrical war against adversarial interop in the technological trenches, they often surrender. If companies can't sue adversarial interoperators out of existence, they often sue for peace instead. That's because high-tech guerrilla warfare presents unquantifiable risks and resource demands, and, as the scalesplainers never tire of telling us, this can create real operational problems for tech giants.
In other words, if Facebook can't shut down Ethan Zuckerman's browser automation tool in the courts, and if they're sincerely worried that a browser automation tool will uncheck its user interface buttons so quickly that it crashes the server, all it has to do is offer an official "unsubscribe all" button and no one will use Zuckerman's browser automation tool.
We don't have to choose between adversarial interop and interop mandates. The two are better together than they are apart. If companies building and operating DMA-compliant, mandatory gateways know that a failure to make them useful to rivals seeking to help users escape their authority is getting mired in endless hand-to-hand combat with trench-fighting adversarial interoperators, they'll have good reason to cooperate.
And if lawmakers charged with administering the DMA notice that companies are engaging in adversarial interop rather than using the official, reliable gateway they're overseeing, that's a good indicator that the official gateways aren't suitable.
It would be very on-brand for the EU to create the DMA and tell tech companies how they must operate, and for the USA to simply withdraw the state's protection from the Big Tech companies and let smaller companies try their luck at hacking new features into the big companies' servers without the government getting involved.
Indeed, we're seeing some of that today. Oregon just passed the first ever Right to Repair law banning "parts pairing" – basically a way of using IP law to make it illegal to reverse-engineer a device so you can fix it.
Taken together, the two approaches – mandates and reverse engineering – are stronger than either on their own. Mandates are sturdy and reliable, but slow-moving. Adversarial interop is flexible and nimble, but unreliable. Put 'em together and you get a two-part epoxy, strong and flexible.
Governments can regulate well, with well-funded expert agencies and smart, adminstratable remedies. It's for that reason that the administrative state is under such sustained attack from the GOP and right-wing Dems. The illegitimate Supreme Court is on the verge of gutting expert agencies' power:
It's never been more important to craft regulations that go beyond mere good intentions and take account of adminsitratability. The easier we can make our rules to enforce, the less our beleaguered agencies will need to do to protect us from corporate predators.
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:
