I'm on a 20+ city book tour for my new novel PICKS AND SHOVELS. Catch me at NEW ZEALAND'S UNITY BOOKS in AUCKLAND on May 2, and in WELLINGTON on May 3. More tour dates (Pittsburgh, PDX, London, Manchester) here.
Walk down any street in California for more than a couple minutes and you will come upon a sign warning you that a product or just an area "contains chemicals known to the state of California to cause cancer."
These warnings are posted to comply with Prop 65, a 1986 law that requires firms to notify you if they're exposing you to cancer risk. The hope was that a legal requirement to warn people about potential carcinogens would lead to a reduction in the use of carcinogens in commonly used products. But the joke's on us: since nearly everything has chemicals that trigger Prop 65 warnings, the warnings become a kind of background hiss. I've lived in California five times now, and I've never once seen a shred of evidence that a Prop 65 warning deters anyone from buying, consuming, using, or approaching anything. I mean, Disneyland is plastered in these warnings.
The idea behind Prop 65 was to "inform consumers" so they could "vote with their wallets." But "is this carcinogenic?" isn't a simple question. Many chemicals are carcinogenic if they come into contact with bare skin, or mucus membranes, but not if they are – for example – underfoot, in contact with the soles of your shoes. Other chemicals are dangerous when they're fresh and offgassing, but become safe once all the volatiles and aromatics have boiled off of them.
Prop 65 is often presented as a story of overregulation, but I think it's a matter of underregulation. Rather than simply telling you that there's a potential carcinogen nearby and leaving you to figure out whether you've exceeded your risk threshold, a useful regulatory framework would require firms to use their products in ways that minimize cancer risk. For example, if a product ships with a chemical that is potentially carcinogenic for a couple weeks after it is manufactured, then the law could require the manufacturer to air out the product for 14 days before shipping it to the wholesaler.
"Caveat emptor" has its place – say, at a yard-sale, or when buying lemonade from a kid raising money for a school trip – but routine shopping shouldn't be a life-or-death matter than you can only survive if you are willing and able to review extensive, peer-reviewed, paywalled toxicology literature. When a product poses a serious threat to our health, it should either be prohibited, or have its use proscribed, so that a reasonable, prudent person doing normal things doesn't have to worry that they've missed a potentially lethal gotcha.
In other words, transparency is nice, but it's not enough.
Think of the "privacy policies" you're asked to click through a thousand times a day. No one reads these. No one has ever read these. For the first six months that Twitter was in business, its privacy policy was full of mentions to Flickr, because that's where they ganked the policy from, and they missed a bunch of search/replace operations. That's funny – but far funnier is that no one at Twitter read the privacy policy, because if they had, they would have noticed this.
You know what would be better than a privacy policy? A privacy law. The last time Congress passed a consumer privacy law was in 1988, when they banned video store clerks from disclosing which VHS cassettes you took home. The fact is that virtually any privacy violation, no matter how ghastly or harmful to you, is legal, provided that you are "notified" through a privacy policy.
Which is why privacy policies are actually privacy invasion policies. No one reads these things because we all know we disagree with every word in them, including "and" and "the." They all boil down to, "By being stupid enough to use this service, you agree that I'm allowed to come to your house, punch your grandmother, wear your underwear, make long distance calls, and eat all the food in your fridge."
And like Prop 65 warnings, these privacy policies are everywhere, and – like Prop 65 warnings – they have proven useless. Companies don't craft better privacy policies because so long as everyone has a terrible bullshit privacy policy, there's no reason to.
My blog, pluralistic.net has two privacy policies. One sits across the top of every page:
Privacy policy: we don't collect or retain any data at all ever period.
The other one appears in the sidebar:
By reading this website, you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.
The second one is a joke, obviously (it sits above a sidebar element that proclaims "Optimized for Netscape Navigator."). But what's most funny is that when I used to run it at the bottom of all my emails, I totally freaked out a bunch of reps from Big Tech companies on a standards committee that was trying to standardizes abusive, controlling browser technology and cram it down two billion peoples' throats. These guys kvetched endlessly that it was unfair for me to simply declare that they'd agreed that they would do a bunch of stuff for me on behalf of their bosses.
My first response was, of course, "Lighten up, Francis." But the more I thought about it, the more I realized that these guys actually believed that showering someone in endless volleys of fine print actually created legal contracts and consent, and that I might someday sue their employers because I had cleverly released myself from their BOGUS AGREEMENTS.
Of course, that would be very stupid. I can't just wave a piece of paper in your face, shout "YOU AGREED" and steal your bike. But substitute "bike" for "private data" and that's exactly the system we have with privacy policies. Rather than providing notice of odious and unconscionable behavior and hoping that "market forces" sort it out, we should just update privacy law so that doing certain things with your private data is illegal, without your ongoing, continuous, revocable consent.
Obviously, this would come as a severe shock to the tech economy, which is totally structured around commercial surveillance. But the fact that an extremely harmful practice is also extremely widespread is not a reason to keep on doing it – it's a reason to stop. There was a time when we let companies sell radium suppositories, and then, one day, we just banned companies from telling you to put nuclear waste up your asshole:
We didn't fall back on the "freedom to contract" or "bodily autonomy." Sure, what you do with your body is your own business, but that doesn't imply that quacks should have free rein to trick you into using their murderous products.
And just as there are legitimate, therapeutic uses of radioisotopes (I'm having a PT scan on Monday!), there are legitimate reasons to share your private data. We don't need to resort to outright bans – we can just regulate things. For example, in 2022 Stanford Law's Mark Lemley proposed an absolutely ingenious answer to abusive Terms of Service:
Lemley proposes constructing a set of "default rules" for routine agreements, made up of the "explicit and implicit" rules of contracts, including common law, the Uniform Commercial Code, and the Restatement of Contracts. Any time you're presented with a license agreement, you can turn it down in favor of the "default rules" that everyone knows and understands. Anyone who accepts a EULA instead must truly be consenting to a special set of rules. If you want your EULA to get chosen over the default rules, you need to make it short, clear and reasonable.
If we're gonna replace "caveat emptor" with rules that let you go about your business without reading 10,000,000 words of bullshit legalese every time you leave your house (or pick up your phone), we need smart policymakers to create those rules.
Since 2010, America has had an agency that was charged with creating and policing those rules, so you could do normal stuff without worrying that you were accidentally signing your life away. That agency is called the the Consumer Finance Protection Bureau, and though it did good work for its first decade of existence, it wasn't until the Biden era, when Rohit Chopra took over the agency, that it came into its own.
Under Chopra, the CFPB became a powerhouse, going after one scam after another, racking up a series of impressive wins:
The CFPB didn't just react, either. They staffed up with smart technologists and created innovative, smart, effective initiatives to keep you from getting ripped off:
Under Chopra, the CFPB was in the news all the time, as they scored victory after victory. These days, the CFPB is in the news again, but for much uglier reasons. For billionaire scammers like Elon Musk, CFPB is the most hated of all the federal agencies. Musk's Doge has been trying to "delete the CFPB" since they arrived on the scene, but their hatred has made them so frenzied that they keep screwing up and losing in court. They just lost again:
Trumpland is full of the people on the other side of those EULAs, the people who think that if they can trick you out of your money, "that makes me smart":
If Musk can trick you into buying a Tesla after lying about full self driving, that doesn't make him a scammer, "that makes him smart." If Trump can stiff his contractors, that doesn't make him a crook, "that makes him smart."
It's not a coincidence that these guys went after the CFPB. It's no mystery why they've gone after every watchdog that keeps you from getting scammed, poisoned or maimed, from the FDA to the EPA to the NLRB. They are the kind of people who say, "So long as it was in the fine print, and so long I could foist that fine-print on you, that's a fair deal." For them, caveat emptor is a Latin phrase that means, "Surprise, you're dead."
It's bad enough when companies do this to us, be they Big Tech, health insurers or airlines. But when the government takes these grifters' side over yours – when grifters take over the government – hold onto your wallets:
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:
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Briefs and articles cited in SCOTUS opinions this term. Look out for the #appellatetweeps
Attorneys before the Supreme Court have multiple goals. Whether the ultimate goal is winning a case, affecting public policy, or testing the constitutionality of a piece of legislation, good counsel get the justices’ attention. How they get the justices’ attention varies. Some engender attention through their regular experience before the Court while others through the firms or groups they…
The Top Internet of Things Patent Holders: Qualcomm and Intel
The Top Internet of Things Patent Holders: Qualcomm and Intel
Joon Ian Wong reports in Quartz, “Most of the innovation on the so-called Internet of Things is locked up in patents held by the companies that make the innards of sensors, routers, and other devices, according to a study by LexInnova, a consultancy. The study finds that the companies with the greatest number of IoT patents globally are the chip-makers Qualcomm and Intel, followed by Chinese…
MLB Gets Late-Inning Relief With Oakland A’s Lease Deal
MLB Gets Late-Inning Relief With Oakland A’s Lease Deal
By: Joel Rosenblatt
Major League Baseball’s odds of blocking the Oakland Athletics proposed move to San Jose may have improved thanks to the team’s new 10-year lease, a deal that may render a court battle irrelevant.
But battle they will. City officials in San Jose are seeking to overturn a court decision in favor of retiring baseball Commissioner Bud Selig. A federal judge held that Selig…
Will 3d printing remain legal? ~ diy3dprinting.blogspot.com
personalfactory: Very interesting discussion. I agree especially with CEO of Shapeways. Copyright issue is not a big problem nowadays because cost of 3d prints or 3d printer is still relatively high and in most cases it is still cheaper to buy original/copyrighted (luxury) products. But it will change in the future and it means really disruptive change in mass manufacturing.
Other speakers aroused very interesting questions and rather few very uncertain answers.
Brook Drumm (Printrbot) described hilarious story of flying around inside US borders and abroad with his compact 3d printers... a lot of cables, small box it is definitely a bomb...
Erick Wolf (Airwolf3D) talked about inefficient maturity of current scanners. The complex postproduction of scans is really an issue if we think of rapid copying physical objects in order to 3d print it.Â
Mark Lemley (Professor of Law at Stanford Law School) discussed in my opinion the most important issue - IP or specifically design patents and how 3d printing is going to create a lot of questions in terms of copying or/and modifying protected products.
Q&A Session started with very funny joke :) I really appreciate the question about creating something like Creative Commons for 3d models designed for 3d printing. It is so urge issue when we will almost for sure see in the near future attempts to regulate current situation called by Brook Drumm: Wild Wild West. :)
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Obama says patent trolls “hijack” and “extort;” So do something, Mr. President
#SuryaRay #Surya GigaOM’s regular readers are familiar with the plague of patent trolls. These are shell companies that don’t make anything but instead amass old patents in order to demand licensing fees from those that do. Startups are frequent targets for the trolls and those who resist are dragged into multimillion dollar litigation they can’t afford. The patent troll problem, widely exposed by NPR in 2011, has long infuriated real companies and the tech sector. And now people in high places are starting to notice. This week, a young woman told President Obama in a Google Hangout that she and other entrepreneurs live in fear of patent trolls and asked if he planned to continue patent reform. In response, the president made his boldest statement to date on the issue: “The folks that you’re talking about are a classic example; they don’t actually produce anything themselves. They’re just trying to essentially leverage and hijack somebody else’s idea and see if they can extort some money out of them.” It looks like common sense has come even to the highest halls of power (see interview and transcript here via Patent Progress). The question now is whether President Obama will actually take charge and do something about the patent plague that is sucking money out of the most innovative sector of the economy. In the past, the president has proved adept at throwing sops to his fans and fundraisers in the tech sector without doing much to help them. In 2011, for instance, he signed the America Invents Act, which was a milquetoast measure to fix the worst elements of the patent system. While the law made it easier to challenge bad patents, it didn’t reign in absurd jury verdicts or overly broad patents that enable the trolls in the first place. It’s time for the president to try again. To do so, he will first need to get around the specific concerns of the pharmaceutical industry, which has blocked previous patent reform efforts; as Judge Richard Posner has noted, drug makers are among the few who may need the monopoly power of a patent in order to recoup their investments. This is not the case for software and tech where a first-mover advantage provides an adequate head start and technology rapidly becomes obsolete. As for addressing the trolls, law professor Brian Love has proposed a very sensible solution. Love, a protege of IP godfather Mark Lemley, suggests changing the patent fee structure to create disincentives for hoarding the obsolete patents that trolls typically use to torment their targets. The advantage here is that this is something Obama can do directly. Meanwhile, in Congress, the president can push for legislation to eliminate billion dollar jury verdicts. Finally, the president can also tap his executive power to increase antitrust scrutiny of giant patent trolls like Intellectual Ventures for imposing what is, essentially, a startup tax across the tech sector. If the Obama administration even attempted to impose such a tax, the political cost would be enormous; there’s no reason the private sector should get away with the same thing. Enough talk. It’s time to act, Mr. President. Related research and analysis from GigaOM Pro: Subscriber content. Sign up for a free trial. * The 2013 task management tools market * How consumer media will change in 2013 * Social 2013: The enterprise strikes back http://dlvr.it/2yKHnC @suryaray
