Pluralistic: 19 Mar 2021


Today's links


Corrected: Chevron bought the US justice system (permalink)

Please see the end of this article for an important correction.

You know that free-floating sense that multinational corporations are above the law, able to buy their way out of consequences for even the most blatant, heinous crimes?

There's a (nearly) unbelievable, highly concrete example of it underway right at this moment.

It's the story of Steven Donziger, a campaigning lawyer who sued Chevron for its ecocide in Ecuador, a genocide against indigenous people, committed with cooperation from a brutal military dictatorship.

https://pluralistic.net/2020/09/02/free-steven-donziger/#free-donziger

Donziger managed the impossible. He secured a conviction against Chevron, and a $9.8 billion judgment against the company, owed to the indigenous people they poisoned, whose lands and bodies remain poisoned and sick to this day.

Now, if you're an exec at Chevron and you value money more than life, the rational move that proceeds from this judgment is straightforward: any legal maneuver that costs less than $9.8b is your fiduciary duty to your shareholders.

Give it to Chevron: buying your way out of red-handed genocidal environmental racism is an art form, and they are masters.

First, Chevron paid $2m relocating Ecuadoran judge Albert Guerra to the US, where he testified that the the Ecuadoran fine was the result of a bribe.

Chevron paid for Guerra and his family to move to the USA, paid for his immigration process, paid his income tax, and coached him for 53 days before he appeared in the Southern District of New York Court of Judge Lewis A Kaplan.

Kaplan believed Guerra, and continued to believe him even after Guerra recanted his testimony and admitted that he'd lied at Chevron's behest.

Six other courts, including the Supreme Courts of Ecuadoran and Canada, have upheld the fine against Chevron.

Why would Kaplan believe Guerra after Guerra said he was lying? Maybe it has something to do with Kaplan's own legal background: before he was a judge, he was a corporate lawyer working for a firm that represented tobacco companies in cancer liability lawsuits.

Kaplan used Guerra's testimony to convict Donziger on civil racketeering charges. Chevron brought the charges, and cannily, they dropped their demand for monetary compensation, which meant Donziger couldn't get a jury trial.

But the fact that Chevron didn't seek monetary damages doesn't mean what you'd expect: after Kaplan ruled against Donziger, the judge hit him with an order to pay Chevron millions in court fees.

Worse still, he ordered Donziger to turn over his laptop and phone – not to the court, but to Chevron, who would then get access to his privileged attorney-client communications with the victims of Chevron's ecocide, opening those people to violent retaliation.

Donziger appealed the order. Kaplan then charged him with a misdemeanor for having the temerity to appeal. This was so chickenshit that the District Attorney refused to take up the case, so Kaplan appointed a corporate lawfirm that fronts for Big Oil to prosecute Donziger.

This firm, Seward & Kissel, has a blue-chip roster of climate criminals for clients, including Chevron itself. They are prosecuting Donziger in front of Judge Loretta Preska, whom Kaplan hand-picked to hear the case (he had to violate SDNY procedures to make this happen).

Preska is a member of the Federalist Society, a corporate-backed law organization whose major donors include Chevron.

Donziger is fighting this with his hands tied behind his back. Not only did Kaplan get him disbarred (there's a pending appeal), but he had him arrested.

Donziger is the only person in the entire USA who is in pre-trial detention for a misdemeanor. The only one. He's been under house arrest for more than 580 days. The maximum sentence for the misdemeanor is 180 days. He still hasn't had a trial..

Please see the end of this article for an important correction.

Donziger spoke to Esquire's Jack Holmes about his case, describing how Kaplan has barred him and his Ecuadoran clients from seeking enforcement of the judgement anywhere in the USA.

https://www.esquire.com/news-politics/a35812573/steven-donziger-chevron-house-arrest/

Preska, the Federalist Society judge whom Kaplan picked to hear the contempt charge, has denied his request for a jury trial.

Donziger calls it "corporate political prosecution" and calls himself "a corporate political prisoner."

This is bigger than the judgment against Chevron. As Donziger says, "if you can't do this kind of legal work to hold these polluters accountable, the destruction of the earth will happen at a faster pace."

The corporate takeover of the justice system isn't an abstract conspiracy theory. It is very specific, and it is playing out before our eyes, in a courtroom in New York City.

Correction: Above, I wrote, "Donziger is the only person in the entire USA who is in pre-trial detention for a misdemeanor." I was quoting Jack Holmes's Esquire interview with Donziger: "I'm the only person in the entire country held on a misdemeanor pre-trial."

https://www.esquire.com/news-politics/a35812573/steven-donziger-chevron-house-arrest/

This is incorrect. Many, many people in America are in pre-trial detention over a misdemeanor. I don't know if Donziger misspoke (perhaps he meant he's had the longest pre-trial misdemeanor detention, at ~600 days, or maybe he was misquoted).

I regret the error and am grateful to the readers who brought it to my attention.


Chickenized reverse-centaurs (permalink)

AI researchers talk about "centaurs" – machine-human collaborative teams that outperform either computers or people. The greatest chess players in the world are collaborations between chess-masters and chess software.

But not all centaurs are created equal. A "reverse centaur" is what happens when a human is made to assist a machine, rather than the other way around. Amazon may not have invented the reverse centaur, but they perfected it.

https://pluralistic.net/2021/02/17/reverse-centaur/#reverse-centaur

Take the "Mechanical Turk," a massive cohort of precarious, sub-minimum-wage pieceworkers who do human decision support for automated processes. There's a reason that South Asian labor activists say "AI" stands for "absent Indians."

Or Amazon warehouse automation: Amazon warehouse robots can't pick-and-pack the items they locate, so they shuttle them to human pickers at a dangerous tempo. The more automated an Amazon warehouse becomes, the more injuries it reports.

https://www.ft.com/content/087fce16-3924-4348-8390-235b435c53b2?shareType=nongift

Reverse-centaurism isn't the only human-life-destroying area where Amazon leads. It's also a leader in "chickenization," a labor economics term that comes from the US poultry industry, where workers are misclassified as independent contractors.

The poultry packers have divided the country into noncompeting territories, so "independent" farmers only have one vendor who'll take their birds. The farmers have to buy their chicks from that monopolist, who also specs their feed, medicine and housing.

The farmers are told everything – except what they'll be paid. When the farmers bring their birds to market, the monopolist exploits its information asymmetry advantage to offer just enough for the farmer to start over again, but not enough to get ahead or out of debt.

Chickenization is like avian flu: prone to jumping its niche and spreading virulently to every corner of the world. Chickenization is now rampant across all labor markets, from call-centers:

https://pluralistic.net/2020/10/02/chickenized-by-arise/#arise

to medical care:

https://pluralistic.net/2020/11/18/always-get-their-rationalisation/#telehealth

Amazon loves chickenization, too. Its Flex delivery program uses employees misclassified as independent contractors, paying sub-minimum wage. The company subjects these drivers to constant overt and covert surveillance.

https://pluralistic.net/2020/09/02/free-steven-donziger/#chickenized-flex

But as bad as Flex is, it's not the end-state of Amazon's innovative workplace terrors. For that, you need to look at Delivery Service Partners (DSP), a workforce of chickenized reverse-centaurs. This is some peak innovation right here.

Writing for Wired, Caitlin Harrington describes the suffocating horror of chickenized reverse-centaurs.

Amazon claims that DSP drivers don't work for them. Instead, they work for "entrepreneurs" who buy Amazon delivery vans and pay drivers to operate them.

https://www.wired.com/story/some-amazon-drivers-have-had-enough-can-they-unionize/

There are 158,000 DSP drivers, working for 2,500 DSPs. They wear Amazon uniforms and drive Amazon vans. Amazon packs those vans with reverse-centaur gear: Rabbit (realtime tracking), Mentor (automatic driver-scoring) and Netradyne (a mesh of always-on AI spy cameras).

Amazon DSP vans have Netradyne cameras inside and out, including one that is always trained on drivers' faces, performing digital phrenology on them, scoring them based on junk-science microexpression detection and other imaginary metrics.

Now DSP drivers aren't just expected to match an impossible machine pace by limiting water intake so bathroom breaks won't derail the 300 packages they deliver during a 10-hour shift.

Netradyne cameras are next-level reverse-centaurism. They make sure you're not yawning while you deliver 300 packages during a 10-hour shift – and if you do, they deduct points and notify your manager.

And because they're both chickenized and reverse-centaured, DSP drivers are left with little recourse. Amazon doesn't allow any individual DSP to 40 vans. That means that if a DSP's drivers unionize, Amazon can just cut its contract with the DSP and put them all out of work.

Unions are (maybe) finally coming to Amazon's US ops. The union drive at the Bessemer, AB warehouse could be the start of a new era for Amazon and its workers: fair wages and safe working conditions for the workforce that we've all come to depend on.

https://pluralistic.net/2021/01/19/deastroturfing/#real-power

But that won't help DSP drivers win wage- and condition-parity with other drivers in the industry (UPS's unionized drivers make $38/h plus benefits and pensions). DSP doesn't work for Amazon, they work for an Amazon contractor.

But as Harrington points out, there is precedent for this kind of fragmented workforce attaining labor justice. In the 1980s, large firms fired their custodial staff and replaced them with subcontractors working for staffing firms.

The Justice For Janitors movement targeted the companies where these workers showed up for work, not the companies that sent them a paycheck. This got all the subcontractors' janitors ready to unionize: they signed union-cards en masse and doubled their wages.

Justice for Janitors didn't have to contend with the kind of digital controls Amazon has mastered – but they also didn't have access to the Discord and Reddit forums where DSPs are organizing today.

And Biden's NLRB is seeking to strike down Trump's annihilation of the "joint employer" classification that Obama used to force McDonald's franchisees to bargain with their workers.

The 1935 National Labor Relations Act was wise to worker misclassification, and allowed workers to provided service to a company to unionize. The Taft-Hartley Act of 1947 gutted this protection by excluding contractors from collective bargaining.

Flex drivers – and Uber drivers and other "gig economy" chickenizees – are prisoners to this exemption, and the PRO Act, which is headed for a showdown with the GOP in the Senate, would fix it, restoring the right to unionize.

Follow @amazonda3 to learn more about Amazon drivers' campaign for fair wages and decent treatment.

https://twitter.com/amazonda3

(Image: Todd Van Hoosear, CC BY-SA, modified; Cryteria, CC BY, modified)


Announcing "The Shakedown" (permalink)

Back in 2018, I appeared onstage in Melbourne with Rebecca Giblin, a lawyer and researcher who specializes in copyright's relationship to artist compensation for a panel called "How do artists get paid?"

https://www.wheelercentre.com/events/how-do-writers-get-paid

It was a fantastic, intense discussion and even more intense was our chat in the taxi afterwards, where we talked about the specific ways that creative labor markets are open to abuse.

It's not just that people make art for intrinsic reasons and will continue to do so even under miserable circumstances, even if they can do better – it's that copyright is totally inadequate (and sometimes counterproductive) as a labor law.

As creative markets have grown more concentrated – thanks to lax merger scrutiny and an official policy of welcoming monopolies as "efficient" – the bargaining power at every level of the industry has grown more unequal.

A market with one national brick-and-mortar retailer, one global digital retailer, four major publishers, two social media companies, etc etc is not a market that we can fix by handing more copyright to artists.

Giving a writer more copyright under those circumstances is like giving your kid extra lunch money to replace the money the bullies take at the school-gates every morning. No matter how much money you give your kid, the bullies will take that, too.

Think of how Amazon traps writers with Kindle exclusives, which locks their work perpetually to Amazon's own platform using DRM. Or how Disney refuses to pay royalties to writers of bestselling novelizations:

https://pluralistic.net/2020/11/19/disneymustpay/#disneymustpay

Worse: the tech and media companies that operate these "market" monopolies use them to seize creators' artistic monopolies (copyrights) and then invoke copyright law whenever their dominance is challenged.

Governments might punish a company for its monopoly, but they'll actively help it defending its copyrights. A market monopoly based on creative monopolies isn't just sheltered from legal liability – it can use IP law to punish its competitors.

https://locusmag.com/2020/09/cory-doctorow-ip/

No just monopolies.

Markets dominated by excessive buying-power (monoposonies) are far more common than markets dominated by selling-power (monopolies) and they're much worse for workers, including creative workers.

As Rebecca and I discussed all this in that Melbourne taxicab, something germinated in Rebecca's mind; later, as she pursued her research, she kept returning to those themes. Eventually, she realized she wanted to make a book from them.

Last year, during the pandemic lockdown (much more thorough in Melbourne than LA!), Rebecca and I worked on a book called THE SHAKEDOWN, and this week, we can announce that it will be published by Beacon Press!

THE SHAKEDOWN is a book about the way that excessive buying power in creative labor markets lets giant corporations steal from creators – and how creators can push back.

This isn't one of those "Chapter 11" books, where you get ten chapters of terrible news, and then an eleventh chapter called "What you can do about it," full of anodyne advice about writing to your lawmaker or switching to ethical sellers.

This is a book about historical and novel ways of rebalancing the power of workers against the massive corporations that squeeze them, from unionization to limits on contracting law, from interoperability to licensing regulations.

It lays out the way that creative labor markets from games to movies to books to music to news and beyond have been cornered by rapacious, dishonest giants who use the same tactics that destroy the livelihoods of all kinds of workers.

It connects the struggles of creative workers to all workers struggles, and proposes a theory of change grounded in solidarity and systemic action – while focusing on the distinctive tools available to creative workers.

The book is out in 2022, and we're just finished the manuscript now. I couldn't be more excited about this, and I'm incredibly grateful to Rebecca for her invitation to collaborate with her, and to Paul Lucas for selling the book, and Joanna Green for buying it!


This day in history (permalink)

#1yrago The worst Democrat in Congress just lost his job
https://pluralistic.net/2020/03/19/gb-whatsapp/#lipinski-slain

#1yrago Africa's Facebook modders are world leaders
https://pluralistic.net/2020/03/19/gb-whatsapp/#self-determination

#1yrago Data is the New Toxic Waste
https://pluralistic.net/2020/03/19/gb-whatsapp/#oily-rags-r-us


Colophon (permalink)

Today's top sources: Naked Capitalism (https://www.nakedcapitalism.com/).

Currently writing:

  • My next novel, "The Lost Cause," a post-GND novel about truth and reconciliation. Yesterday's progress: 524 words (117721 total).

  • A short story, "Jeffty is Five," for The Last Dangerous Visions. Yesterday's progress: 262 words (8885 total).

  • A cyberpunk noir thriller novel, "Red Team Blues." Yesterday's progress: 1048 words (33112 total).

Currently reading: Analogia by George Dyson.

Latest podcast: Privacy Without Monopoly: Data Protection and Interoperability (Part 3) https://craphound.com/news/2021/02/28/privacy-without-monopoly-data-protection-and-interoperability-part-3/
Upcoming appearances:

Recent appearances:

Latest book:

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