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mostlysignssomeportents · 1 year

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Fighting the privacy wars, state by state

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

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/2023/02/23/state-of-play/#patchwork

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:

https://themarkup.org/privacy/2023/02/16/forget-milk-and-eggs-supermarkets-are-having-a-fire-sale-on-data-about-you

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:

https://www.techdirt.com/2023/02/17/more-details-on-how-tech-lobbyists-lobotomized-nys-right-to-repair-law-with-governor-kathy-hochuls-help/

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!”

https://www.vice.com/en/article/pked4v/the-anarchist-daughter-of-the-gops-gerrymandering-mastermind-just-dumped-all-his-maps-and-files-on-google-drive

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.”

https://trashfuturepodcast.podbean.com/e/amazon-billing-amazon-for-amazon-feat-cory-doctorow-and-rebecca-giblin/

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.

[Image ID: Blind justice, holding aloft a set of unbalanced scales; in the lower scale is a map of the USA showing the state lines; in the higher scale rests the capitol building.]

#pluralistic #states rights #laboratories of democracy #privacy #gdpr #federalism #contract law #chokepoint capitalism #wage theft #redmap

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dreaminginthedeepsouth · 9 days

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LETTERS FROM AN AMERICAN

April 9, 2024

HEATHER COX RICHARDSON

APR 10, 2024

Yesterday, former president Trump released a video celebrating state control over abortion; today, a judicial decision in Arizona illuminated just what such state control means. With the federal recognition of the constitutional right to abortion gone since the Supreme Court overturned Roe v. Wade, old laws left on state books once again are becoming the law of the land.

In a 4��2 decision, the all-Republican Arizona Supreme Court today said it would not interfere with the authority of the state legislature to write abortion policy, letting the state revert to an 1864 law that bans abortion unless the mother’s life is in danger. “[P]hysicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal,” the decision read.

The court explained: “A policy matter of this gravity must ultimately be resolved by our citizens through the legislature or the initiative process…. We defer, as we are constitutionally obligated to do, to the legislature’s judgment, which is accountable to, and thus reflects, the mutable will of our citizens.”

The idea that abortion law must be controlled by state legislatures is in keeping with the 2022 Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade. But it’s an interesting spin to say that the new policy is protecting the will of the citizens.

The Arizona law that will begin to be enforced in 14 days was written by a single man in 1864.

In 1864, Arizona was not a state, women and minorities could not vote, and doctors were still sewing up wounds with horsehair and storing their unwashed medical instruments in velvet-lined cases.

And, of course, the United States was in the midst of the Civil War.

In fact, the 1864 law soon to be in force again in Arizona to control women’s reproductive rights in the twenty-first century does not appear particularly concerned with women handling their own reproductive care in the nineteenth—it actually seems to ignore that practice entirely. The laws for Arizona Territory, chaotic and still at war in 1864, appear to reflect the need to rein in a lawless population of men.

The 1864 Arizona criminal code talks about “miscarriage” in the context of other male misbehavior. It focuses at great length on dueling, for example—making illegal not only the act of dueling (punishable by three years in jail) but also having anything to do with a duel. And then, in the section that became the law now resurrected in Arizona, the law takes on the issue of poisoning.

In that context, the context of punishing those who secretly administer poison to kill someone, it says that anyone who uses poison or instruments “with the intention to procure the miscarriage of any woman then being with child” would face two to five years in jail, “Provided, that no physician shall be affected by the last clause of this section, who in the discharge of his professional duties deems it necessary to produce the miscarriage of any woman in order to save her life.”

The next section warns against cutting out tongues or eyes, slitting noses or lips, or “rendering…useless” someone’s arm or leg.

The law that Arizona will use to outlaw abortion care seemed designed to keep men in the chaos of the Civil War from inflicting damage on others—including pregnant women—rather than to police women’s reproductive care, which women largely handled on their own or through the help of doctors who used drugs and instruments to remove what they called dangerous blockages of women’s natural cycles in the four to five months before fetal movement became obvious.

Written to police the behavior of men, the code tells a larger story about power and control.

The Arizona Territorial Legislature in 1864 had 18 men in the lower House of Representatives and 9 men in the upper house, the Council, for a total of 27 men. They met on September 26, 1864, in Prescott. The session ended about six weeks later, on November 10.

The very first thing the legislators did was to authorize the governor to appoint a commissioner to prepare a code of laws for the territory. But William T. Howell, a judge who had arrived in the territory the previous December, had already written one, which the legislature promptly accepted as a blueprint.

Although they did discuss his laws, the members later thanked Judge Howell for “preparing his excellent and able Code of Laws” and, as a mark of their appreciation, provided that the laws would officially be called “The Howell Code.” (They also paid him a handsome $2,500, which was equivalent to at least three years’ salary for a workingman in that era.) Judge Howell wrote the territory’s criminal code essentially single-handedly.

The second thing the legislature did was to give a member of the House of Representatives a divorce from his wife.

Then they established a county road near Prescott.

Then they gave a local army surgeon a divorce from his wife.

In a total of 40 laws, the legislature incorporated a number of road companies, railway companies, ferry companies, and mining companies. They appropriated money for schools and incorporated the Arizona Historical Society.

These 27 men constructed a body of laws to bring order to the territory and to jump-start development. But their vision for the territory was a very particular one.

The legislature provided that “[n]o black or mulatto, or Indian, Mongolian, or Asiatic, shall be permitted to [testify in court] against any white person,” thus making it impossible for them to protect their property, their families, or themselves from their white neighbors. It declared that “all marriages between a white person and a [Black person], shall…be absolutely void.”

And it defined the age of consent for sexual intercourse to be just ten years old (even if a younger child had “consented”).

So, in 1864, a legislature of 27 white men created a body of laws that discriminated against Black people and people of color and considered girls as young as ten able to consent to sex, and they adopted a body of criminal laws written by one single man.

And in 2024, one of those laws is back in force in Arizona.

Now, though, women can vote.

Before the midterm elections, 61% of Arizona voters told AP VoteCast they believed abortion should be legal in most or all cases, while only 6% said it should be illegal in all cases. A campaign underway to place a constitutional amendment protecting abortion rights on November’s ballot needs to gather 383,923 verified signatures by July; a week ago the campaign announced it already had 500,000 signatures.

It seems likely that voters will turn out in November to elect lawmakers who will represent the actual will of the people in the twenty-first century.

LETTERS FROM AN AMERICAN

HEATHER COX RICHARDSON

#Letters From An American #Heather Cox Richardson #women's rights #reproductive health #reproductive rights #MAGA authoritarianism #religious fundamentalism #Arizona #States rights #anti-woman

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