#secrecy

The scale of corporate crime is directly proportional to the scale of corporations themselves. Big companies aren't (necessarily) led by worse people, but even small sins committed by the very largest companies can affect millions of lives.

That's why antitrust is so key to fighting corporate crime. To make corporate crimes less harmful, we must keep companies from attaining harmful scale. Big companies aren't just too big to fail and too big to jail – they're also too big for peaceful coexistence with a society of laws.

The revival of antitrust enforcement is such a breath of fresh air, but it's also fighting headwinds. For one thing, there's 40 years of bad precedent from the nightmare years of pro-monopoly Reaganomics to overturn:

https://pluralistic.net/ApexPredator

It's not just precedents in the outcomes of trials, either. Trial procedure has also been remade to favor corporations, with judges helping companies stack the deck in their own favor. The biggest factor here is secrecy: blocking recording devices from courts, refusing to livestream the proceedings, allowing accused corporate criminals to clear the courtroom when their executives take the stand, and redacting or suppressing the exhibits:

https://prospect.org/power/2023-09-27-redacted-case-against-amazon/

When a corporation can hide evidence and testimony from the public and the press, it gains broad latitude to dispute critics, including government enforcers, based on evidence that no one is allowed to see, or, in many cases, even describe. Take Project Nessie, the program that the FTC claims Amazon used to compel third-party sellers to hike prices across many categories of goods:

https://www.wsj.com/business/retail/amazon-used-secret-project-nessie-algorithm-to-raise-prices-6c593706

Amazon told the press that the FTC has "grossly mischaracterize[d]" Project Nessie. The DoJ disagrees, but it can't say why, because the Project Nessie files it based its accusations on have been redacted, at Amazon's insistence. Rather than rebutting Amazon's claim, FTC spokesman Douglas Farrar could only say "We once again call on Amazon to move swiftly to remove the redactions and allow the American public to see the full scope of what we allege are their illegal monopolistic practices."

It's quite a devastating gambit: when critics and prosecutors make specific allegations about corporate crimes, the corporation gets to tell journalists, "No, that's wrong, but you're not allowed to see the reason we say it's wrong."

It's a way to work the refs, to get journalists – or their editors – to wreathe bold claims in endless hedging language, or to avoid reporting on the most shocking allegations altogether. This, in turn, keeps corporate trials out of the public eye, which reassures judges that they can defer to further corporate demands for opacity without facing an outcry.

That's a tactic that serves Google well. When the company was dragged into court by the DoJ Antitrust Division, it demanded – and received – a veil of secrecy that is especially ironic given the company's promise "to organize the world's information and make it universally accessible and useful":

https://usvgoogle.org/trial-update-9-22

While this veil has parted somewhat, it is still intact enough to allow the company to work the refs and kill disfavorable reporting from the trial. Last week, Megan Gray – ex-FTC, ex-DuckDuckGo – published an editorial in Wired reporting on her impression of an explosive moment in the Google trial:

https://pluralistic.net/2023/10/03/not-feeling-lucky/#fundamental-laws-of-economics

According to Gray, Google had run a program to mess with the "semantic matching" on queries, silently appending terms to users' searches that caused them to return more ads – and worse results. This generated more revenue for Google, at the expense of advertisers who got billed to serve ads that didn't even match user queries.

Google forcefully disputed this claim:

https://twitter.com/searchliaison/status/1709726778170786297

They contacted Gray's editors at Wired, but declined to release all the exhibits and testimony that Gray used to form her conclusions about Google's conduct; instead, they provided a subset of the relevant materials, which cast doubt on Gray's accusations.

Wired removed Gray's piece, with an unsigned notice that "WIRED editorial leadership has determined that the story does not meet our editorial standards. It has been removed":

https://www.wired.com/story/google-antitrust-lawsuit-search-results/

But Gray stands by her piece. She admits that she might have gotten some of the fine details wrong, but that these were not material to the overall point of her story, that Google manipulated search queries to serve more ads at the expense of the quality of the results:

https://twitter.com/megangrA/status/1711035354134794529

She says that the piece could and should have been amended to reflect these fine-grained corrections, but that in the absence of a full record of the testimony and exhibits, it was impossible for her to prove to her editors that her piece was substantively correct.

I reviewed the limited evidence that Google permitted to be released and I find her defense compelling. Perhaps you don't. But the only way we can factually resolve this dispute is for Google to release the materials that they claim will exonerate them. And they won't, though this is fully within their power.

I've seen this playbook before. During the early months of the pandemic, a billionaire who owned a notorious cyberwarfare company used UK libel threats to erase this fact from the internet – including my own reporting – on the grounds that the underlying research made small, non-material errors in characterizing a hellishly complex financial Rube Goldberg machine that was, in my opinion, deliberately designed to confuse investigators.

Like the corporate crimes revealed in the Panama Papers and Paradise Papers, the gambit is complicated, but it's not sophisticated:

Make everything as complicated as possible;

Make everything as secret as possible;

Dismiss any accusations by claiming errors in the account of the deliberately complex arrangements, which can't be rectified because the relevant materials are a secret.

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:

https://pluralistic.net/2023/10/09/working-the-refs/#but-id-have-to-kill-you

My next novel is The Lost Cause, a hopeful novel of the climate emergency. Amazon won't sell the audiobook, so I made my own and I'm pre-selling it on Kickstarter!

Image: Jason Rosenberg (modified) https://www.flickr.com/photos/underpants/12069086054/

CC BY https://creativecommons.org/licenses/by/2.0/

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Japanexperterna.se (modified) https://www.flickr.com/photos/japanexperterna/15251188384/