Pluralistic: 30 Mar 2020

Today's links

  1. Lax antitrust killed ventilator stockpiles : The USG procured <$3k ventilators from a startup, so an incumbent bought them and shuttered them.
  2. Koch network demands an end to lockdown: While sending its staff home for their safety.
  3. Private equity firms scooping up pandemic bargains: It's not the wound that gets ya, it's the opportunistic parasitic infections.
  4. Digital rights are human rights: Why broadband should be a public utility.
  5. ACLU vanquishes the Computer Fraud and Abuse Act: Terms of Service violations are not felonies.
  6. Munching Squares and Munching Tunes: The music and visuals of slow-decay phosphors.
  7. This day in history: 2010, 2015, 2019
  8. Colophon: Recent publications, upcoming appearances, current writing projects, current reading

Lax antitrust killed ventilator stockpiles (permalink)

40 years ago, a fabulist named Robert Bork dreamed up an imaginary history of US antitrust law in order to justify dismantling it.

This Nixon co-conspirator – beloved of Ronald Reagan – cooked up a doctrine that said that monopolies are only a problem when they raise prices in the short/medium term.

Plutes loved this idea, and 40 years later, mergers, acquisitions, vertical monopolies and other anticompetitive activities are the norm, and most major industries are dominated by as few as one, and rarely more than five firms.

The problem is that monopolies aren't just bad because they raise prices, they're bad because they are monopolies. Monopolization allows firms to attack workers, suppliers and customers, and to extract monopoly rents that can be diverted to corrupt our political process.

Which is why we don't have any ventilators.

13 years ago, the US Dept of HHS awarded a contract to design low-cost, reliable ventilators to Newport Medical Instrument of Costa Mesa, CA. The ventilators would cost <$3k, allowing the US to procure a shit-ton of them against future pandemics.

This was a problem for existing med-tech giants, who charged >$10K for competing ventilators, but under Robert Bork's antitrust theory, there was a simple solution.

In 2012, Covidien, a giant in the field, simply plunked down $100m (chump change, given its revenues of $12b that year) and bought Newport.

Then they killed the ventilator project.

I mean, not right away. First they delayed it and demanded an additional $1.4M from the US government. Then they killed it.

Covidien is now a division of Medtronic (because Bork). Medtronic is a ghastly shitshow of a company.

They're a lead villain in the fight to kill off open artificial pancreases, which free people with diabetes from being turned into ambulatory inkjet printers, dependent on manufacturers for overpriced consumables to keep their fucking organs working.

Their pacemakers and defibrillators can be wirelessly hacked to kill you where you stand.

Their stuff is so insecure, it can be hacked even before it leaves the factory.

Naturally, they're also part of the supervillain team that assembled to kill a wave of state Right to Repair bills.

(The lack of Right to Repair legislation is a big reason that hospitals are struggling to keep livesaving equipment online during the pandemic. Thanks, Medtronic!)

The dirty trick that killed off the US's attempt to procure a stockpile of ventilators set the project back by years that, it turned out, we didn't have. Philips now has a contract to deliver what Newport couldn't. They haven't shipped.

Koch network demands an end to lockdown (permalink)

The Charles Koch network is one of the most successful dark money/influence operations in the world, an example of how a single, ultra-wealthy individual can project his will over millions of people by funding dozens of front orgs.

Koch orgs like Americans for Prosperity were critical to the weakening of the CDC, pushing for a $1B cut to the agency in 2018, characterizing it as emblematic of "the burden overspending is placing on all taxpayers."

AFP also served as a funnel for money spent to block state Medicaid expansions, rollbacks of environmental regulations, and the $1.5T Trump tax cuts.

They sure do get shit done. Terrible, terrible shit.

Their new project? Re-opening businesses and ending covid lockdown and social distancing, asserting that firms will "adapt and innovate" to maintain safety without the need for government regulation.

In a way, I feel bad for them. It's gotta be tough to have reality's well-known left-wing bias tossed in your face with nothing but a slurry of high-grade petrodollars to soothe the wounds.

There clearly are libertarians in a pandemic. Very, very unhappy ones, experiencing scorching cognitive dissonance and engaged in heroic feats of motivated reasoning.

The kicker? AFP is on lockdown. It sent its workers home: "to ensure the health and safety of our activists, staff, and voters, our staff are working from home and are utilizing digital organizing as one way to continue their grassroots engagement."

Yeah, this is a sick burn, but also, totally normal. As Yochai Benkler points out in this lecture, even the most selfish, Rand-worshipping PE manager can be seen in playgrounds, shouting "Timmy, you share that toy!" at his toddler.

Sociopathy may be pareto-optimal, but no one wants to live with a child who has been raised to live in Galt Gulch, and it's hard to doom your office staff to die for want of a ventilator in good conscience.

It's not really any different from the Young Earth Creationist oil barons who direct their geoengineers to look for oil where it would be if the Earth was 4B years old, rather than 5K.

Just as every (surviving) Breatharian was found to be secretly sneaking out to 7-11 for Doritos at 2AM while claiming to survive on nothing but nutrients siphoned up through deep-breathing.

(Image: Gavin Peters, CC BY, modified)

Private equity firms scooping up pandemic bargains (permalink)

This is the crisis that private equity has been waiting for. With $1.5T in cash reserves and crippled businesses, the pandemic is a dream come true for vulture capitalists like Carlyle, Blackstone and KKR.

They're chasing "PIPEs" (private investments in public equity – discount shares in public businesses) like crazy, looking for weak businesses to buy, debt-load, asset-strip and leave to die.

Shouldn't surprise anyone: opportunistic, parasitic infections are always a present when an animal is wounded.

But this is an election year, and the Democratic candidacy has not been determined. There's only one of the final two who calls for real limits on finance.

It'll be interesting to see which impulse wins out in the PE boardrooms: greedy desire to devour good companies and shit out useless husks, or self-preserving forbearance in the face of a looming plebiscite on our regulatory future.

Digital rights are human rights (permalink)

I've been working on digital human rights for nearly 20 years now, and I remember how the idea was once widely mocked as a distraction.

Back in 2009, Finland was derided for declaring broadband a human right.

And even by Malcolm Gladwell standards, this 2010 take on the uselessness of online activism has not aged well.

The GOP and Ajit Pai's attacks on the Lifeline fund to bring broadband to rural and disadvantaged Americans are modern versions of the infection that says that the digital divide is a frivolity.

But pandemics have a well-known left-wing bias, and as the world struggles to replace f2f with digital-only, the foolishness of allowing rapacious, lazy, financialized, incompetent telcos to maintain the nervous system of the 21st Century is increasingly obvious.

Hence calls like this one, to treat broadband as a public utility:

As I've mentioned, my city, Burbank, has a 100GB publicly owned fiber network that runs right under my foundation slab, but residents can't access it, thanks to a franchise deal with Charter, a genuinely terrible company.

As it happens, I was discussing something else with one of my city councillors yesterday and this subject came up and he asked me to send him a briefing on the subject that he could circulate to other city officials. Here's what I wrote him:

It would be a dream come true for Burbank to make its fiber network available to residential customers. Our taxpayer-purchased 100GB loop is 300X+ faster than the fastest speeds offered by our broadband monopolist, Charter.

Municipal fiber networks are beloved wherever they are found.

The only Americans who love their ISPs are customers of city-owned/operated fiber:

Municipal fiber is the fastest, cheapest broadband in America:

(It's 50% cheaper!

More than 750 cities in the US operate municipal broadband networks:

Despite Trump admin warnings, it's totally untrue that municipal networks are liable to commit censorship (indeed, muni networks are constrained by the First Amendment in ways that private networks are not):

The poorest predominately white community in the US – in rural Appalachia – installed a fiber network (they used a mule named "Ole Bub" to reach their most isolated homesteads!) and underwent an economic miracle:

The best book on this is Susan Crawford's "Fiber: The Coming Tech Revolution―and Why America Might Miss It":

Instead of muni fiber, Burbankers are using Charter service, which is rated some of the worst in the USA. They're the company that is forcing back-office employees to come into work even if they can work from home:

and in lieu of hazard pay (or PPE, or hand sanitizer), the company is providing its field techs (who enter our homes and risk us and them!) with $25 gift certificates…to restaurants that are not open and may not survive the crisis (these are also a taxable benefit for those workers):

(Charter got billions in the tax bill and blew it all on buybacks while dropping maintenance and capex to historic, industry-trailing lows).

ACLU vanquishes the Computer Fraud and Abuse Act (permalink)

The ACLU has prevailed in a crucial lawsuit, where they argued that journalists and security researchers should be able to violate websites' terms of service without risking criminal liability under a Reagan-era anti-hacking law.

The Computer Fraud and Abuse Act (CFAA) was passed (literally) in a panic over the movie Wargames, delivering broad powers to US prosecutors to criminally charge anyone who "exceeds authorization" on a computer.

Over time, companies like Facebook (in its Power Ventures suit) converted this overly broad doctrine into a "Criminal Contempt of Business Model" statute, arguing that violating its terms of service constituted a CFAA breach.

They were assisted by prosecutors like Steven Heymann and Carmen Ortiz, who used CFAA to charge Aaron Swartz with 13 felonies and threaten him with 35 years in prison after he ignored JSTOR's terms of service and bulk downloaded articles he was allowed one-at-a-time access to.

In the years since, there have been multiple attempts to reform CFAA, but these have been repeatedly killed by Big Tech companies, notably Oracle, whose CSO has a history of threatening customers who audit its products before trusting them.

The result has been a deep chilling effect on researchers, from security researchers who tell us whether we can trust online products, to investigative journalists who test algorithms for bias, including bias that violates federal antidiscrimination statutes.

And this is where the ACLU has prevailed! In Sandvig v Barr, a federal judge in DC ruled that there is no criminal CFAA liability for terms-of-service violations, though he left the door open for civil liability.

But that civil liability is also being eroded: LinkedIn recently had their asses handed to them in a CFAA suit against a competitor, setting a precedent that dramatically narrows civil liability for ToS violations.

This is a really important moment for online freedom. It says that companies can't conjure up new jailable offenses merely by asserting that you have agreed that you are a criminal if you displease their shareholders.

There are still some really ghastly Contempt of Business Model laws hanging around out there, like Section 1201 of the DMCA, which makes it a felony to bypass a copyright "access control" even if you don't infringe copyright.

It's a rule that's used to felonize everything from refilling printer cartridges to accessing your own medical implant data, and (especially) getting your devices repaired by independent technicians.

At EFF, we have a longrunning lawsuit, on behalf of Bunnie Huang and Matthew Green, to overturn this law. It's slow going, but we took a huge step forward last spring.

(Image: Daniel J. Sieradski, CC BY-SA)

Munching Squares and Munching Tunes (permalink)

Old PDP7 systems used Type 340 XY displays whose P7 phosphors had a slow decay process that MIT AI lab hackers used to create "Munching Squares" displays.

These were pretty cool! But even cooler was the weird "Munching Tunes" that you could listen to if you placed a small AM receiver near the display and picked up the prodigious RFI it gave off.

Munching Squares has been an option in JWZ's Xscreensaver since 1997!

This day in history (permalink)

#10yrsago EFF, AT&T and Google all on the same side of this privacy fight

#10yrsago NZ MPs reject software patents

#10yrago Recaptioning New Yorker cartoons with "Christ, what an asshole!"

#5yrsago Clean Reader is a free speech issue

#5yrsago Utilitarianism versus psychopathy

#1yrago Facebook owns Netscape

#1yrago Researchers find mountains of sensitive data on totalled Teslas in junkyards

#1yrago Animated David Byrne/Big Suit enamel pin

Colophon (permalink)

Today's top sources: Naked Capitalism (, JWZ (

Currently writing: I'm getting geared up to start work my next novel, "The Lost Cause," a post-GND novel about truth and reconciliation.

Currently reading: Just started Lauren Beukes's forthcoming Afterland: it's Y the Last Man plus plus, and two chapters in, it's amazeballs. Last month, I finished Andrea Bernstein's "American Oligarchs"; it's a magnificent history of the Kushner and Trump families, showing how they cheated, stole and lied their way into power. I'm getting really into Anna Weiner's memoir about tech, "Uncanny Valley." I just loaded Matt Stoller's "Goliath" onto my underwater MP3 player and I'm listening to it as I swim laps.

Latest podcast: Data – the new oil, or potential for a toxic oil spill?

Upcoming appearances:

Upcoming books: "Poesy the Monster Slayer" (Jul 2020), a picture book about monsters, bedtime, gender, and kicking ass. Pre-order here:

(we're having a launch for it in Burbank on July 11 at Dark Delicacies and you can get me AND Poesy to sign it and Dark Del will ship it to the monster kids in your life in time for the release date).

"Attack Surface": The third Little Brother book, Oct 20, 2020.

"Little Brother/Homeland": A reissue omnibus edition with a new introduction by Edward Snowden:

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When live gives you SARS, you make sarsaparilla -Joey "Accordion Guy" DeVilla

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