October 7, 2020

10471 words 50 mins read

Podcast Episode: Control Over Users Competitors and Critics

Podcast Episode: Control Over Users Competitors and Critics

Episode 004 of EFF’s How to Fix the Internet Cory Doctorow joins EFF hosts Cindy Cohn and Danny O’Brien as they discuss how large, established tech companies like Apple, Google, and Facebook can block interoperability in order to squelch competition and control their users, and how we can fix this by taking away big companies' legal right to block new tools that connect to their platforms – tools

that would let users control their digital lives. In this episode you’ll learn about:

How the power to leave a platform is one of the most fundamental checks users have on abusive practices by tech companies—and how tech companies have made it harder for their users to leave their services while still participating in our increasingly digital society; How the lack of interoperability in modern tech platforms is often a set of technical choices that are backed by a legal infrastructure for enforcement, including the Digital Millennium Copyright Act (DMCA) and the Computer Fraud and Abuse Act (CFAA). This means that attempting to overcome interoperability barriers can come with legal risks as well as financial risks, making it especially unlikely for new entrants to attempt interoperating with existing technology; How online platforms block interoperability in order to silence their critics, which can have real free speech implications; The “kill zone” that exists around existing tech products, where investors will not back tech startups challenging existing tech monopolies, and even startups that can get a foothold may find themselves bought out by companies like Facebook and Google; How we can fix it: The role of “competitive compatibility,” also known as “adversarial interoperability”  in reviving stagnant tech marketplaces; How we can fix it by amending or interpreting the DMCA, CFAA and contract law to support interoperability rather than threaten it. How we can fix it by supporting the role of free and open source communities as champions of interoperability and offering alternatives to existing technical giants.

Cory Doctorow (craphound.com) is a science fiction author, activist and journalist. He is the author of many books, most recently ATTACK SURFACE, RADICALIZED and WALKAWAY, science fiction for adults, IN REAL LIFE, a graphic novel; INFORMATION DOESN’T WANT TO BE FREE, a book about earning a living in the Internet age, and HOMELAND, a YA sequel to LITTLE BROTHER. His latest book is POESY THE MONSTER SLAYER, a picture book for young readers. Cory maintains a daily blog at Pluralistic.net. He works for the Electronic Frontier Foundation, is a MIT Media Lab Research Affiliate, is a Visiting Professor of Computer Science at Open University, a Visiting Professor of Practice at the University of North Carolina’s School of Library and Information Science and co-founded the UK Open Rights Group. Born in Toronto, Canada, he now lives in Los Angeles. You can find Cory on Twitter at @doctorow. Please subscribe to How to Fix the Internet via RSS, Stitcher, TuneIn, Apple Podcasts, Google Podcasts, Spotify or your podcast player of choice. You can also find the Mp3 of this episode on the Internet Archive.  If you have any feedback on this episode, please email podcast@eff.org. Below, you’ll find legal resources – including links to important cases, books, and briefs discussed in the podcast – as well a full transcript of the audio. Resources Anti-Competitive Laws

EFF’s View on the Digital Millennium Copyright Act Computer Fraud and Abuse Act Reform (EFF) Want More Competition in Tech? Get Rid of Outdated Computer, Copyright, and Contract Rules (EFF)

Anti-Competitive Practices 

Ink-Stained Wretches: The Battle for the Soul of Digital Freedom Taking Place Inside Your Printer (EFF) What HP Must Do to Make Amends for Its Self-Destructing Printers (EFF) EFF To Texas AG: Epson Tricked Its Customers With a Dangerous Fake Update (EFF) Google and Facebook’s “Kill Zone”: “We’ve Taken the Focus Off of Rewarding Genius and Innovation to Rewarding Capital and Scale” (University of Chicago Booth School of Business) Epic Games is Suing Apple (The Verge)

Lawsuits Against Anti-Competitive Practices

Green v. U.S. Department of Justice (Ongoing Case re. Constitutionality of the DMCA’s anti-circumvention provisions) Supreme Court Victory for Right to Tinker in Print Cartridge Case (EFF Victory in Impression Products, Inc. v. Lexmark International Inc. re. Customer Right of Ownership in Purchased Items) Antitrust Suit Against Google is a Watershed Moment (EFF) Oracle v. Google Epic Games, Inc. v. Apple Inc. Case Page GitHub Reinstates youtube-dl After RIAA’s Abuse of DMCA (EFF) 20 Years Later: Metallica v. Napster, Inc. (Plagiarism Today)

Competitive Compatibility/Adversarial Interoperability The Path Forward

Competition, Civil Liberties, and the Internet Giants (EFF) A Legislative Path to an Interoperable Internet (EFF) Adversarial Interoperability (EFF’s Series on Interoperability)

Interoperability: Fix the Internet, Not the Tech Companies Unix and Adversarial Interoperability: The ‘One Weird Antitrust Trick’ That Defined Computing alt.interoperability.adversarial Adversarial Interoperability: Reviving an Elegant Weapon From a More Civilized Age to Slay Today’s Monopolies Gopher: When Adversarial Interoperability Burrowed Under the Gatekeepers’ Fortresses Interoperability and Privacy: Squaring the Circle A Cycle of Renewal, Broken: How Big Tech and Big Media Abuse Copyright Law to Slay Competition ‘IBM PC Compatible’: How Adversarial Interoperabiltity Save PCs from Monopolization SAMBA versus SMB: Adversarial Interoperability is Judo for Network Effects Felony Contempt for Business Model: Lexmark’s Anti-Competitive Legacy Mint: Late-Stage Adversarial Interoperability Demonstrates What We Had (And What We Lost) Adblocking: How About Nah? African WhatsApp Modders are the Masters of Worldwide Adversarial Interoperability

 Facing Facebook: Data Portability and Interoperability are Anti-Monopoly Medicine (EFF)

State Abuses of Lack of Interoperability

Apple’s Good Intentions Often Stop at China’s Borders (Wired) Six Times Apple Gave in to China (South China Morning Post)


The Catalog of Missing Devices (EFF) The Internet Archive Code and the Other Laws of Cyberspace 2.0 by Lawrence Lessig

Transcript of Episode 004: Control Over Users, Competitors, and Critics Danny O’Brien:Welcome to How to Fix the Internet with the Electronic Frontier Foundation, the podcast that explores some of the biggest problems we face online right now, problems whose source and solution is often buried in the obscure twists of technological development, societal change, and the subtle details of internet law. Cindy Cohn:Hello, everyone. I’m Cindy Cohn, I’m the executive director of the Electronic Frontier Foundation. And for our purposes today, I’m also a lawyer. Danny O’Brien:And I’m Danny O’Brien, and I work at the EFF too, and I could only dream of going to law school. So, this episode has its roots in a long and ongoing discussion that we have at EFF about competition in tech, or rather, the complete lack of it these days. I think there’s a growing consensus that big tech–Facebook, Google, Amazon, you can make your own list at home–have come to dominate the net and tech more widely and really not in a good way. They stand these days as potentially impregnable monopolies and there doesn’t seem much consensus on how to best fix that. Cindy Cohn:Yeah. This problem affects innovation, which is a core EFF value, but it also impacts free speech and privacy. The lack of competition has policymakers pushing companies to censor us more and more, which, as we know, despite a few high-profile exceptions, disproportionately impacts marginalized voices, especially around the world. Cindy Cohn:And critically, way too many of these companies have privacy-invasive business models. At this point, I like to say that Facebook doesn’t have users, it has hostages. So, addressing competition empowers users, and today we’re going to focus on one of the ways that we can reintroduce competition into our world. And that’s interoperability. Now this is largely a technical approach, but as you’ll hear, it can work in tandem with legal strategies, and it needs some legal support right now to bring it back to life. Danny O’Brien:Interoperability is going to be useful because it accelerates innovation, and right now, the cycle of innovation just seems to be completely stuck. I mean, this may make me sound old, but I do remember when the pre-Facebook and the pre-Google quasi-monopolies just popped up, but grew, lived gloriously, and then died and shriveled like dragonflies. Danny O’Brien:We had Friendster, then Myspace, we had Yahoo and Alta Vista, and then they moved away. Nothing seems to be shifting this new generation of oligopolies, in the marketplace at least. I know lawsuits and antitrust investigations take a long time. We think at EFF that there’s a way of speeding things up so we can break these down as quickly as their predecessors. Cindy Cohn:Yep. And that’s what’s so good about talking this through with our friend, Cory Doctorow. He comes at this from a deeply technological, economic, and historical perspective, and especially a historical perspective on how we got here in terms of our technology and law. Cindy Cohn:Now, I tend to think of it as a legal perspective, because I’m a litigator–I think, what doctrines are getting in the way? How can we address them? And how can we get the legal doctrines out of the way? But Danny, if I may, I had some personal experience here too. I bought an HP printer a while back, and because I wouldn’t sign up for their ink delivery service, the darn thing just bricked. It wouldn’t let me use anybody else’s ink, and ultimately, it just stopped working entirely. Danny O’Brien:Interoperability is the ability for other parties to connect and build upon existing hardware and software without asking for permission, or begging for authorization, or being thrown out if they don’t follow all the rules. So, in your printer’s case, Cindy–and I love how when your printer doesn’t work, you recognize it as an indictment of our zaibatsu control prison, rather than me who just thinks I failed to install the right driver. But in your case, your printer in Hewlett-Packard was building an ecosystem that only allowed other Hewlett-Packard projects to connect with it. Danny O’Brien:There’s no reason why third-party ink couldn’t work in HP, except that the printer has code in it that specifically rejects cartridges, not based on whether they work or not, but whether they come from the parent company or not. And there’s a legal infrastructure around that too. It’s much harder for third-party companies to interoperate with Hewlett-Packard printers, simply because there’s so much legal risk about doing so. Danny O’Brien:This is the sort of thing that Cory excels at explaining, and I’m so glad we managed to grab him between, oh my god, all the million things he does. For those of you who don’t know him, Cory works as a special advisor to EFF, but he’s also a best-selling science fiction author. He has his own daily newsletter, at pluralistic.net, and a podcast of his own at craphound.com/podcast. Danny O’Brien:We caught him between publicizing his new kid’s book Poesy the Monster Slayer, and promoting his new sequel to his classic “Little Brother” called “Attack Surface”. And also curing world hunger, I’m pretty sure. Cindy Cohn:Hey, Cory. Cory Doctorow:It’s always a pleasure to talk to you, and it’s an honor to be on the EFF podcast. Cindy Cohn:So, let’s get to it. What is interoperability? And why do we need to fix it? Cory Doctorow:Well, I like to start with an interoperability view that’s pretty broad, right? Let’s start with the fact that the company that sells you your shoes doesn’t get to tell you whose socks you can wear, or that the company that makes your breakfast cereal doesn’t get to tell you which dairy you have to go to. And that stuff is … We just take it for granted, but it’s a really important bedrock principle, and we see what happens when people lose interoperability: they also lose all agency and self-determination. Cory Doctorow:If you’ve ever heard those old stories about company mining towns where you were paid in company scrip that you could only spend at the company store, that was like non-interoperable money, right? The only way you could convert your company scrip into dollars would be to buy corn at the company store and take it down to the local moonshiner and hope he’d give you greenbacks, right? Cory Doctorow:And so, to the extent that you can be stuck in someone else’s walled garden, it can turn, instead of, from a walled garden into a feedlot, where you become the fodder. And the tech industry has always had a weird relationship with interoperability,. On the one hand, computers have this amazing interoperable characteristic just kind of built into them. The underlying idea of things like von Neumann architectures, and Turing completeness really says that all computers can run all programs, and that you can’t really make a computer that just, like, only uses one app store. Cory Doctorow:Instead, what you have to do is make a computer that refuses to use other app stores. You know, that tablet or that console you have, it’s perfectly capable of using any app store that you tell it to. It just won’t let you, and there’s a really important difference, right? Like, I can’t use a kitchen mixer to apply mascara, because the kitchen mixer is totally unsuited to applying mascara and if I tried, I would maim myself. But you can install any app on any device, provided that the manufacturer doesn’t take steps to stop you. Cory Doctorow:And while manufacturers–tech manufacturers especially–have for a long time tried to take measures to stop use so they could increase their profits, what really changed the world was the passage of a series of laws, laws that we’re very familiar with at the EFF: the Computer Fraud and Abuse Act, the Digital Millennium Copyright Act, and so on, that started to allow companies to actually make it illegal–both civilly and criminally–for you to take steps to add interoperability to the products that you use, and especially for rivals to take steps. Cory Doctorow:I often say that the goal of companies who want to block interoperability is to control their critics, their customers, and their competitors, so that you have to arrange your affairs to benefit their shareholders. And if you don’t, you end up committing an offense that our friend Saurok from the Cydia Project calls a felony contemptive business model. Cindy Cohn:This is something we care about in general at the EFF, because we worry a lot about the pattern of innovation, but I think it also has spillover effects on censorship and on surveillance. And I know you’ve thought about that a little bit, Cory, and I’d love to kind of just bring those out, because I think that it’s important … I mean, we all care, I think, about having functioning tools that really work. But there are effects on our rights as well, and that kind of old-school definition of rights, like what’s in the constitution. Cory Doctorow:Yeah. Well, a lot of people are trusting of the firms that handle their communications. And that’s okay, right? You might really think that Tim Cook is always going to exercise his judgment wisely, or that Mark Zuckerberg is a truly benevolent dictator and so on. But one of the things that keeps firms honest when they regulate your communications is the possibility that you might take your business elsewhere. And when firms don’t face that possibility, they have less of an incentive to put your needs ahead of the needs of their shareholders. Or sometimes there’s a kind of bank shot shareholder interest where, say, a state comes in and says, “We demand that you do something that is harmful to your users.” And you weigh in the balance how many users you’ll lose if you do it, versus how much it’s going to cost you to resist the state. Cory Doctorow:And the more users you lose in those circumstances, the more you’re apt to decide that the profitable thing to do is to resist state incursions. And there’s another really important dimension, which is a kind of invitation to mischief that arises when you lock your users up, which is that states observe the fact that you can control the conduct of your users. And they show up and they say, “Great, we have some things your users aren’t allowed to do.” And you are now deputized to ensure that they don’t do it, because you gave yourself that capability. Cory Doctorow:So, the best example of this … I don’t mean to pick on Apple, but the best example of this is Apple in China, where Apple is very dependent on the Chinese market, not just to manufacture its devices, but to buy and use its devices. Certainly, with President Trump’s TikTok order, a lot of people have noted that some of the real fallout is going to be for Apple if they can’t do business with Chinese firms and have Chinese apps and so on. And the Chinese government showed up at Apple’s door and said, “You have to block working VPNs from your app store. We need to be able to spy on everyone who uses an iPhone. And so, the easiest way for us to accomplish that is to just tell you to evict any VPN that doesn’t have a backdoor for us.” Danny O’Brien:Just to connect those two things together, Cory, so what you’re saying here is that because Apple phones don’t have … Apple has sort of exclusive control over them, and you can’t just install your own choice of program on the iPhone. That means that Apple is this sort of choke point that bad actors can use, because they’ve got all this control for themselves, and then they can be pressured to impose that control on their customers. Cory Doctorow:They installed it so they could extract a 30% vig from Epic and other independent software vendors. But the day at which a government would knock on their door and demand that they use the facility that they developed to lock-in users to a store, to also lock-in users to authoritarian software, that day was completely predictable. You don’t have to be a science fiction writer to say, “Oh, well, if you have a capability and it will be useful to a totalitarian state, and you put yourself in reach of that totalitarian states authority, they will deputize you to be part of their authoritarian project.” Cindy Cohn:Yeah. And that’s local as well as international. I mean, the pressure for the big platforms to be censors, to decide to be the omnipotent and always-correct deciders of what people get to say, is very strong right now. And that’s a double-edged sword. Sometimes that can work well when there are bad actors on that, but really, we know how power works. And once you empower somebody to be the censor, they’re going to be beholden to everybody who comes along who’s got power over them to censor the people they don’t like. Cindy Cohn:And it also then, I think, feeds this surveillance business model, this business model where tracking everything you do, and pay and trying to monetize that gets fed by the fact that you can’t leave. Danny O’Brien:I want to try and channel the ghost of Steve Jobs here and present the other argument that lots of companies give for locking down their systems, which is that it prevents other smaller bad actors, it prevents malware, it means that Apple can control… But by controlling all of these avenues, it can build a securer, more consumer-friendly tool. Cory Doctorow:Yeah. I hear that argument, and I think there’s some merit to it. Certainly, like, I don’t have either the technical chops or the patience and attention to do a full security audit of every app I install. So, I like the idea of deputizing someone to figure out whether or not I should install an app, I just want to choose that person. I had a call recently with one of our colleagues from EFF, Mitch, who said that argument is a bit like the argument about the Berlin Wall, where the former East German government claimed that the Berlin Wall wasn’t there to keep people in who wanted out, it was to stop people from breaking into the worker’s paradise. Cory Doctorow:And if Apple was demonstrably only blocking things that harmed users, one would expect that those users would just never tick the box that says, “Let me try something else.” And indeed, if that box was there, it would be much less likely that the Chinese state would show up and say, “Give us a means to spy on all your users,” because Apple could say, “I will give you that means, but you have to understand that as soon as that’s well understood, everyone who wants to evade your surveillance just ticks the box that says, ‘Let me get a VPN somewhere else.'” Cory Doctorow:And so, it actually gives Apple some power to resist it. In that way, it’s a bit like the warrant canaries that we’re very fond of, where you have these national security letters that firms cannot disclose when they get them. And so, firms as they launch a new product say, “The number of national security letters we have received in respect to this product is zero,” and they reissue that on a regular basis. And then they remove that line if they get a national security letter. Cory Doctorow:Jessamyn West, the librarian after the Patriot Act was passed, put a sign up in her library that said, “The FBI has not been here this week, watch for this sign to disappear,” because she wasn’t allowed to disclose that the FBI had been there, but she could take down the sign, and in the same way… And so, the idea here is that states are disincentivized to get up to this kind of mischief, where it relies on them keeping the existence of the mischief a secret, if that secrecy vanishes the instant they embark upon the mischief. Cory Doctorow:In the same way, if you have a lock-in model that disappears the instant you cease to act as a good proxy for your users’ interests, then people who might want to force you to stop being a good proxy for your users' interest, have a different calculus that they make. Cindy Cohn:I just want to, sorry, put my lawyer hat on here. Warrant canaries are a really cute hack that are not likely to be something the FBI is just going to shrug its shoulders and say, “Oh, gosh, I guess you got us there, folks.” So, I just, sorry… Cory Doctorow:Fair enough. Cindy Cohn:Sometimes I have to come in and actually make sure people aren’t taking legal advice from Cory. Danny O’Brien:When we were kicking around ideas for the name of this podcast, one of them was, “This is not legal advice.” Cory Doctorow:Well, okay, so instead, let’s say binary transparency, where you just… automatically built into the app is a thing that just checks to see whether you got the same update as everyone else. And so that way, you can tell if you’ve been pushed to a different update from everyone else, and that’s in the app when the app ships. And so, the only way to turn it off is to ship an update that turns it off, and if they only ship that to one user, it happens automatically. It’s this idea of Ulysses pact, where you take some step before you’re under coercion, or before you’re in a position of weakness, to protect you from a future moment. It’s equivalent of throwing away the Oreos than you go on a diet. Cindy Cohn:So, let’s talk just a little bit more specifically about what are the things that we think are getting in the way of interoperability? And then, let’s pivot to what we really want to do, which is fix it. So, what I’ve heard from you so far, Cory, is that we see law getting in the way, whether that’s the Digital Millennium Copyright Act, Section 12, or one of the CFAA, or contract law–these kind of tools that get used by companies to stop interoperability. What are some of the other things that get in the way of us having our dream future where everything plugs into everything else? Cory Doctorow:I’d say that there’s two different mechanisms that are used to block interop and that they interact with each other. There’s law and there’s tech, right? So, we have these technical countermeasures: the sealed vaults, chips, the TPMS inside of our computers, and our phones, and our other devices, which are dual-use technologies that have some positive uses, but they can be used to block interop. Cory Doctorow:As we move to more of a software-as-a-service model were some key element of the process happens in the cloud, it gives firms that control, that cloud, a gateway where they can surveil how users are using them and try and head off people who are adding interoperability–what we call competitive compatibility to a service, that’s when you add a new interoperable feature without permission from the original manufacturer, and so on. Cory Doctorow:And those amount to a kind of cold war between different technologists working for different firms. So, on the one hand, you have companies trying to stop you from writing little scrapers that go into their website, and scrape their users waiting inboxes, and put them in a rival service on behalf of those users. And on the other hand, you have the people who are writing the scrapers, and we haven’t seen a lot of evidence about who would win that fight, at least if it were a fair fight, because of the law–because between the Computer Fraud and Abuse Act, the Digital Millennium Copyright Act, and a lot of other laws that kind of pop up as they are repurposed by firms with a lot of money to spend on legal entrepreneurship. Danny O’Brien:I want to drill down just a little bit with this because I loved your series that you wrote on competitive compatibility, which talked about the old age of the Internet, where we did have a far faster pace of innovation and the life and death of tech giants was far shorter, because they were kind of in this tooth and claw competitive mode, where … I mean, just to plug an example, right? You would have, sort of, Facebook building on the contact lists that telephones and Google had by adversarially interoperating with them, right? Danny O’Brien:You would go to Facebook, and it would say, “Hey, tell us your friends.” And it would be able to do that by connecting to their systems. Now, you can’t do that with Facebook now, and you can’t write an app that competes with Apple’s software business, because neither of them will let you. And they’re able to do that, I think what we’re both saying, because… Not so much because of technical restrictions, but because of the laws that prevent you from doing that. You will get sued rather than out-innovated. Cory Doctorow:Well, yes. So, I think that’s true. We don’t know, right? I’m being careful here, because I have people who I trust as technologists who say, “No, it’s really hard, they’ve got great engineers.” I’m skeptical of that claim because we’ve had about a decade or more of companies being very afraid to try their hand at adversarial interoperability. And one of the things that we know is that well-capitalized firms can do a lot that firms that lack capital can’t, and our investor friends tell us that what big tech has more than anything else is a kill zone–that even though Facebook, Apple, Google, and the other big firms have double-digit year-on-year growth with billions of dollars in clear profit every year, no one will invest in competitors of theirs. Cory Doctorow:So, I think that when technologists say, “Well, look, we beat our brains out on trying to write a bot that Facebook couldn’t detect, or make an ad blocker that … I don’t know, the Washington Post couldn’t stop or whatever, or write an app store and install it on iPhones and we couldn’t do it.” The part that they haven’t tested is, well, what if an investor said, “Oh, I’m happy to get 10% of Facebook’s total global profit, and I will capitalize you to reflect that expected return and let you spend that money on whatever it takes to do that”? Cory Doctorow:What if they didn’t have the law on their side? What if they just had engineers versus engineers? But I want to get to this last piece, which is where all this law and these new legal interpretations come from, which is this legal entrepreneurship piece. So as I say, Facebook and its rivals, they have double-digit growth, billions of dollars in revenue every year, in profit, clear profit every year. Cory Doctorow:And some of that money is diverted to legal entrepreneurship. Instead of being sent to the shareholders, or being spent on engineering, or product design, it’s spent on law. And that spend is only possible because there’s just so much money sloshing around in those firms, and that spend is particularly effective, because they’re all gunning for the same thing. They’re a small number of firms that dominate the sector, and they have all used competitive compatibility to ascend to the top, and they are all committed to kicking away the ladder. And the thing that makes Oracle/Google so exceptional, is because it’s an instance in which the two major firms actually have divergent interests. Cory Doctorow:Far more often, we see their industry associations and the executives from the firm’s asking for the same things. And so, one of the things that we know about competition is when you lose competition, the firms that remain, find it easier to emerge a collusion. They don’t have to actually all sit down and say, “This is what we all want.” It’s just easy for them to end up in the same place. Think about the kinds of offers you get for mobile phone plans, right? It’s not that the executives all sat down and cooked up what those plans would be, it’s just that they copy each other, and they all end up in the same place. Or publishing contracts, or record contracts. Cory Doctorow:Any super-concentrated industry is going to have a unified vision for what it wants in its lobbying efforts, and it’s going to have a lot of money to spend on it. Cindy Cohn:So, let’s shift because our focus here is fixing it. And my journey in this podcast is to have a vision of what a better future would look like, what does the world look like if we get this right? Because at the EFF and we spend a lot of time articulating all the ways in which things are broken, and that’s a fine and awesome thing to do, but we need to fix them. Cindy Cohn:So, Cory, what would the world look like if we fixed interoperability? Give us the vision of this world. Cory Doctorow:I had my big kind of “road to Damascus” moment about this, when I gave a talk for the 15th anniversary of the computer science program at the University of Waterloo. They call themselves the MIT of Canada. I’m a proud University of Waterloo dropout. And I went back to give this speech and all of these super bright computer scientists were in the audience, grad students, undergrads, professors, and after I talked about compatibility, and so on, someone said, “How do we convince everyone to stop using Facebook and start using something else?” Cory Doctorow:And I had this, just this moment where I was like, “Why would you think that that was how you will get rid of Facebook?” Like, “When was it ever the case that if you decided you wanted to get a new pair of shoes, you throw away all your socks?” Why wouldn’t we just give people the tool to use Facebook at the same time as something else, until enough of their friends have moved to the something else, that they’re ready to quit Facebook? Cory Doctorow:And that, to me is the core of the vision, right? That rather than having this model that’s a bit like the model that my grandmother lived through–my grandmother was a Soviet refugee. So, she left the Soviet Union, cut off all contact, didn’t speak to her mother for 15 years, and was completely separated from her, it was a big momentous decision to leave the Soviet Union. We leave that, right? Where we tell people, “You either use Twitter or use Mastodon, but you don’t read Twitter through Mastodon and have a different experience, and have different moderation rules,” and so on. You’re just either on Mastodon or you’re on Twitter, they’re on either sides of the iron curtain. Cory Doctorow:And instead, we have an experienced a lot more like the one I had when I moved to Los Angeles from London five years ago, where we not only got to take along the appliances that we liked and just fit them with adapters, we also get to hang out with our family back home by video call and visit them when we want to, and so on–that you let people take the parts of the offer that they like and stick with them, and leave behind the parts they don’t like and go to a competitor. And that competitor might be another firm, it might be a co-op, it might be a thing just started by a tinkerer in their garage, it might be a thing started by a bright kid in a Harvard dorm room the way that Zuck did with Facebook. Cory Doctorow:And when those companies do stuff that makes you angry or sad, you take the parts of their service that you like, and you go somewhere else where people will treat you better. And you remain in contact with the people, and the hardware, and the services that you still enjoy, and you block the parts that you don’t. So, you have technological self-determination, you have agency, and companies have to fight to keep your business because you are not a hostage, you’re a customer. Cindy Cohn:Yeah. I think that that’s exactly it, and well put. I think that we’ve gotten used to this idea of, what we called back in the days about the Apple app store–I don’t know why Apple keeps coming up, because they’re only one of the actors we’re concerned about–but we used to call it the crystal prison, right? You buy an Apple device, and then it’s really hard to get out of the Apple universe. It used to be that it was hard to use Microsoft Word unless you used a Windows machine. But we managed to pressure, and some of that was antitrust litigation, but we managed to make pressure so that that didn’t work. Cindy Cohn:We want browsers that can take you to anywhere on the web, not just the ones that have made deals with the browsers. We want ISPs that offer you the entire web, just not the ones that pay for it. It really is an extension of network neutrality, this idea that we as users get to go where we want and get to dictate the terms of how we go there, at least to the extent of being able to interoperate. Cory Doctorow:I mean apropos of Apple, I don’t want to pick on them either, because Apple are fantastic champions of interoperability when it suits them, right? As you say that, the document wars were won in part by the iWork suite, where Apple took some really talented engineers, reversed engineer the gnarly, weird hairball that is Microsoft Office formats, and made backwards compatible new office suites that were super innovative but could also save out to Word and Excel, even though you’re writing into Numbers or Pages, and that part’s great. And just like Amazon broke the DRM on music monopoly that Apple had when it launched the MP3 store, but now will not release its audiobooks from DRM through its Audible program. Cory Doctorow:Apple was really in favor of interoperability without permission when it came to document formats–it benefited–but doesn’t like it when it comes to, say, rival app stores. Google is 100% all over interoperability when it comes to APIs, but not so much when it comes to the other areas where they enjoy lock-in. And I think that the lesson here is that we as users want interoperability irrespective of the effect that it has on a company’s shareholders. Cory Doctorow:The companies have a much more instrumental view of interoperability: that they want interoperability when it benefits them, and they don’t want it when it harms them. And I’m always reminded, Cindy, of the thing you used to say, when we were in the early days of the copyright wars around Napster. And we would talk to these lobbyists from the entertainment industry, and they would say, “Well, we are free speech organizations, that’s where we cut our teeth.” And you would say, “We know you love the First Amendment, we just wish you’d share.” Cindy Cohn:Yeah, absolutely. Absolutely, and one of the things that we’ve done recently is, we started off talking about this as interoperability, then we called it adversarial interoperability to make it clear that you don’t need to go on bended knee for permission. And recently, we started rebranding it to competitive compatibility. And Cory, you’ve used both of those terms in this conversation, and I just want to make sure our listeners get what we’re doing. We’re trying to really think about this. I mean, all of them are correct, but I think competitive compatibility, the reason we ended up there is not only is it fewer syllables, and we can call it ComCom, which we all like, but it’s the idea that it’s compatibility, it’s competitive compatibility, it’s being compatible with a competitive market-based environment, a place where users get to decide because people are competing for their interest and for their time. Cindy Cohn:And I really love the vision that if you’re the old … This was the product that Power Ventures tried to put out, was a service where it didn’t matter whether you had a friend on LinkedIn, or you had a friend on Orkut–it’s an old tool–or Facebook. You just knew you had a friend, and you just typed in, “Send the message to Cory,” and the software just figured out where you were connected with them and sent the message through it. Cindy Cohn:I mean, that’s just the kind of thing that should be easy, that isn’t easy anymore. Because everybody is stuck in this platform mentality, where you’re in one crystal prison or you’re in the other, and you might be able to switch from one to the other, but you can’t take anything with you in the way that you go. Cindy Cohn:The other tool that Power had that I thought was awesome was being able to look at all your social feeds in one screen. So, rather than switching in between them all the time, and trying to remember–which I spend a lot of time on right now, trying to remember whether I learned something on Twitter, or I learned it here on Facebook, or I learned it somewhere else–you have one interface, you have your own cockpit for your social media feeds, and you get to decide how it looks, instead of having to log into each of them separately and switch between them. Cindy Cohn:And those are just two ideas of how this world could serve you better. I think there are probably a dozen more. And I’d like for us to … If there’s other ones that you could think of like, how would my life be different if we fix this in ways that we can think about right now? And then of course, I think as with all tech and all innovation, the really cool things are going to be the things that we don’t think about that show up anyway, because that’s how it works. Cory Doctorow:Yeah, sure. I mean, a really good example right now is you’d be able to install Fortnite on your iPhone or your Android device, which is the thing you can’t do as of the day that we record this. And again, that’s what the app store lock-in is for, it’s to take a bite out of Fortnite and other independent software vendors. But if you decided that you wanted to keep using the security system that your cable provider Comcast gave to you but then decided it wouldn’t support anymore, which is the thing Comcast did last year, you could plug its cameras into a different control system. Cory Doctorow:If you decided that you liked the camera that Canary sent you and that you paid for, but you didn’t like the fact that it’s an unencrypted video–or rather, video that was an end-to-end encrypted to your phone and instead decrypted it in its data center so it could look at the video (and it does so for non-nefarious reasons, it wants to make sure it doesn’t send you a motion control alert just because your cat walked by the motion sensor)–but you may decide that having a camera in your house that’s always on, and that’s sending video that third parties can look at, is not a thing you like, but you like the hardware, so you just plug that into something else too. Danny O’Brien:I love the Catalog of Missing Devices. This is the thing that Cory co-wrote, which was just a list of devices that we cannot see right now, because of some of the laws that prevent people confidently being able to innovate in this space. And I sort of concede, because we plod about this all the time, like, EFF’s role in this, right? We’re continuing to sort of lobby and also in the courts as well work out ways that we can challenge and redefine the legal environment here. But what’s the message here if you’re someone who’s an open-source developer, or an entrepreneur, or a user? What’s going to move the needle? What’s going to take us into this future? And what can individuals do? Cory Doctorow:So, this is an iterative process, there isn’t a path from A to Z. There is a heuristic for how we climb the hill towards a better future. And the way to understand this, as I tried to get at with this sort of technology and law and monopoly, is that our current situation is the result of companies having these monopoly rents, laws being bad because they got to spend them on it, companies being able to collude because their sectors are concentrated, and technology that works against users being in the marketplace. Cory Doctorow:And each one of those affects the other. So for example, if we had, say merger scrutiny, right? Say we said that firms were no longer allowed to buy nascent competitors, either to crush them or to acquire something that they couldn’t do internally, the way you say Google has with most of its successful products. Really it’s got search, and to a lesser extent Android, that was mostly an acquisition, and … What’s the other one? Search … Oh, and Gmail are the really successful in-house products. Maybe Google Photos, although that’s probably just successful because every Android device ships with it. But if we just say Google can’t buy Fitbit, Google, a company that has tried repeatedly and failed to make a wearable, isn’t allowed to buy Fitbit. In order to acquire that, then Google starts to lose some of its stranglehold on data, especially if you stop its rivals from buying Fitbit too. And that makes it weaker, so that it’s harder for it to spend on legal entrepreneurship. Cory Doctorow:If we make devices that compete with Google, or tools that compete with Google–ad blockers, tracker blockers, and so on–then that also weakens them. And if they are weaker, they have fewer legal resources to deploy against these competitors as well. If we convince people that they can want more, right? If we can have a normative intervention, to say, “No one came down off a mount with two stone tablets,” saying, ‘Only the company that made your car can fix it,’ or ‘Only the company that made your phone can fix it,'" and we got them to understand that the right to repair has been stolen from them, then, when laws are contemplated that either improve our right to repair or take away our right to repair, there’s a constituency to fight those laws. Cory Doctorow:So the norms, and the markets, and the technology, and the law, all work together with each other. And I’m not one of nature’s drivers, I have very bad spatial sense, and when I moved to Los Angeles and became perforce a driver, I find myself spending a lot of time trying to parallel park. And the way that I parallel park is, I turn the wheel as far as I can, and then get a quarter of an inch of space, and then I turn it in the other direction, and I get a quarter of an inch of space. And I think as we try to climb this hill towards a more competitive market, we’re going to have to see which direction we can pull in from moment to moment, to get a little bit more policy space that we can leverage to get a little bit more policy space. Cory Doctorow:And the four directions we can go in are: norms, conversations about what’s right and wrong; laws, that tell you what’s legal and not legal; markets, things that are available for sale; and tech, things that are technologically possible. And our listeners, our constituents, the people in Washington, the people in Brussels, they have different skill sets that they can use here, but everyone can do one of these things, right? If you’re helping with the norm conversation, you are creating the market for the people who want to start the businesses, and you are creating the constituency for the lawmakers who want to make the laws. Cory Doctorow:So, everybody has a role to play in this fight, but there isn’t a map from A to Z. That kind of plotting is for novelists, not political struggles. Cindy Cohn:I think this is so important. One of the things that … And I want to close with this, because I think it’s true for almost all of the things that we’re talking about fixing, is that the answer to, “Should we do X or Y?” is “yes,” right? We are in some ways, the kind of scrappy, underfunded side of almost every fight we’re in around these kinds of things. And so, anybody who’s going to force you to choose between strategies is undermining the whole cause. Cindy Cohn:These are multi-strategic questions. Should we break up big tech? Or should we create interoperability? The answer is, yes, we need to aim towards doing a bit of all of these things. There might be times when they conflict, but most of the time, they don’t. And it’s a false choice if somebody is telling you that you have to pick one strategy, and that’s the only thing you can do. Cindy Cohn:Every big change that we have done has been a result of a whole bunch of different strategies, and you don’t know which one is going to give way, which is going to pave the way faster. You just keep pushing on all things. So, we’re finally moving on the Fourth Amendment on privacy, and we’re moving in the courts. But we could have passed a privacy law, but the legislation got stuck. We got to do all of these things. They feed each other, they don’t take away each other if we do it right. Cory Doctorow:Yeah, yeah. And I want to close by just saying, EFF’s 30 years old, which is amazing. I’ve been with the organization nearly 20 years, which is baffling, and the thing that I’ve learned on the way is that these are all questions of movements and not individuals. Like as an individual, the best thing you can do is join a movement, right? If you’re worried about climate change, it doesn’t really … How well you recycle is way less important than what you do with your neighbors to change the way that we think about our relationship to the climate. Cory Doctorow:And if you’re worried about our technological environment, then your individual tech choices do matter. But they don’t matter nearly so much as the choices that you make when you get together with other people to make this part of a bigger, wider struggle. Cindy Cohn:I think that’s so right. And even those who are out there in their garages, innovating right now, they need all the rest of the conversation to work. Nobody just put something out there in the world and it magically caught fire and changed the world. I mean, we like that narrative, but that’s not how it works. And so, even if you’re one of those people–and there are many of them who are EFF fans and we love them–who are out there thinking about the next big idea, this whole movement has to move forward, so that that big idea finds the fertile ground it needs, take seed and grows, and then gives all the rest of us the really cool stuff in our fixed future. Cindy Cohn:So, thank you so much, Cory, for taking time with us. You never fail to bring exciting ideas. And I think that you also are really willing to talk to a sophisticated audience and not talk down to people and bring in complicated ideas without having … And expect and get the audience to come up to the level of the conversation, so I certainly always learn from talking with you. Cory Doctorow:I was going to say, I learned it all from you guys, so thank you very much. And I miss you guys, I can’t wait to see you in person again. Danny O’Brien:Cory is this little ball of pure idea concentrate, and I was madly scribbling notes through all of that discussion. But one of the phrases that stuck with me was that, he said the companies are blocking interoperability to control critics, customers, and competitors. Cindy Cohn:Yeah. I thought that was really good too, and obviously, the most important part of all of this is control. I mean, that’s what the companies have. Of course, the part about critics is what especially triggers the First Amendment concerns, but control is the thing and I think that the ultimate power that we should have, the ultimate amount of control we should have is the ability to leave. Cindy Cohn:The ultimate power is the power to leave. That’s the core thing that is needed to get companies to concentrate on their users. The conflict here is really between companies’ desire to control users and users having the right to choose where they want to be. Danny O’Brien:One of the other things that I think comes out of this discussion is when you realize that companies, by blocking interoperability, can have exclusive power of censorship or control over their users. There’s always someone else more powerful who has influenced itself over the companies and is ultimately going to take and use that power, right? And that’s, generally speaking, governments. Danny O’Brien:We notice that when you have this capability to influence, or to censor, or to manipulate your users, governments and states ultimately would like access to that power also. Cindy Cohn:Yeah. We’re seeing this all over the place, there’s always a bigger fish. Right now, we see politicians in the United States, in very different directions, jockeying to force companies like Facebook to obey their preferences or agendas. And again, we have high-profile counter-examples, but where we live, EFF, in the trenches, we see that this power of censorship is most often used against those with the least voice in the political arena. Cindy Cohn:That kind of branches out to why we care about censorship and the First Amendment. I think that sometimes people forget this. We don’t care about the First Amendment and free speech because we think it’s okay for anybody to be able to say whatever they want, no matter how awful it is. The First Amendment isn’t in our Constitution because we think it’s really great to be an asshole. It’s because the power to censor is so strong, and so easily misused. Cindy Cohn:As we’ve seen, once somebody has that power, everybody wants to control them. The other thing I think Cory really has a good grasp on is how we got here. We talked a little bit about the kill zone, that venture capitalists won’t fund startups that attempt to compete. I think that’s really right, and it’s a piece that we’re going to have to fix. Danny O’Brien:Yeah. I think one of the subtleties about the current VC environment that powers so much of current tech investment, at least, is the nature of the exit strategy. These days, a venture capitalist won’t give … expects to get their return, not by a company IPOing, or successfully overturning one of these monopolies, but actually by being bought out by those monopolies. And that really constrains and influences what new innovators or entrepreneurs plan on doing in the next few years. And I think that’s one of the things that sticks in this current, less-than-useful cycle. Danny O’Brien:And usually, in these situations, I think that the community that I most expect to provide adversarial interoperability is, at least in theory, free of those financial incentives. And that’s the free and open-source software community. So much of the history of open-source has been using interoperability to build and escape from existing proprietary systems, from the early days of Unix, to LibreOffice being a competitor, to Microsoft’s word processing monopoly and so on. Danny O’Brien:And I think where these two things interact, is that these days a lot of open-source and free software gets its funding from the big companies themselves, because they don’t necessarily want to fund interoperability. So, that means that the stuff that doesn’t cater to interoperability gets a lot of rewards, and other communities who are fighting to shake off the shackles of proprietary software and dominant monopolies struggle without financial support. Danny O’Brien:And of course, there’s legal liability there too. We just watched the youtube-dl case with GitHub throwing that off their service, because it’s an attempt to interoperate with one of these big tech magnets. Cindy Cohn:Yeah. Free and open-source world is vital. They have those muscles, and it’s always been how they work. They’ve always had to make sure that they can play on whatever hardware you have, as well as with other software. So, I think that this is a key to getting us into a place where we can make interoperability the norm, not the exception. Cindy Cohn:I also, am really pleased about the Internet Archive’s work in really supporting the idea of a more distributed web. I think they really get the censorship possibilities, and are really supporting a lot of little companies, or little developers, or innovators who are trying to build a community to really get this done. And yes, the youtube-dl case, this is a situation in which you see the lack of protection for interoperability really meaning that the first thing that happened was this tool that so many people rely on went away as opposed to any other step. The first thing that happens is we lose the tool. That’s because the legal system isn’t set up to be really even or handle these kinds of situations, but rather just move to censorship first. Cindy Cohn:So in this, we’ve gone over what Cory talked about as the four levers of change. These four levers are things that were originated by Larry Lessig in the 90s. And those four levers are: law, like the DMCA, which is used in the YouTube case, the Computer Fraud and Abuse Act, and antitrust; norms; technology; and markets. Cindy Cohn:They all work together, and you can’t just pick one. And there’s a lot of efforts to try to say, “Well, you just have to pick one and let the others go.” But in my experience, you really can’t tell which one will create change, they all reinforce each other. And so, to really fix the Internet, we have to push on all four together. Danny O’Brien:But at least now we have four levers rather than no levers at all. On that note, I think we’ll wrap up for today. Join us next time. Danny O’Brien:Thanks again for joining us. If you’d like to support the Electronic Frontier Foundation, here are three things you can do today. One: you can hit subscribe in your podcast player of choice. And if you have time, please leave a review. It helps more people find us. Two: please share on social media and with your friends and family. Three: please visit eff.org/podcasts, where you will find more episodes, learn about these issues, you can donate to become a member, and lots more. Danny O’Brien:Members are the only reason we can do this work, plus you can get cool stuff like an EEF hat, or a EFF hoodie, or even a camera cover for your laptop. Thanks once again for joining us, and if you have any feedback on this episode, please email podcast@eff.org. We do read every email. This podcast was produced by the Electronic Frontier Foundation with the help from Stuga Studios. Music by Nat Keefe of BeatMower.

Author: rainey Reitman

Date: 2020-11-24

URL: https://www.eff.org/deeplinks/2020/11/podcast-episode-control-over-users-competitors-and-critics


Video Hearing Wednesday: Advocacy Orgs Go to Court to Block Trump’s Retaliation Against Fact-Checking (2020-10-20) Lawsuit Challenges Executive Order Pressuring Social Media Companies to Ignore Presidents False ClaimsSan Francisco On Wednesday October 21 at 5 pm ET/2 pm PT voter advocacy organizations will ask a district court to block an unconstitutional Executive Order that retaliates against online services for fact-checking President Trumps false posts about voting and the upcoming election Information on ..
Ink-Stained Wretches: The Battle for the Soul of Digital Freedom Taking Place Inside Your Printer (2020-11-05) Since its founding in the 1930s Hewlett-Packard has been synonymous with innovation and manys the engineer who had cause to praise its workhorse oscillators minicomputers servers and PCs But since the turn of this century the companys changed its name to HP and its focus to sleazy ways to part unhappy printer owners from their money Printer companies have long excelled at this dishonorable practic..
Victory! Court Protects Anonymity of Security Researchers Who Reported Apparent Communications Between Russian Bank and Trump Organization (2020-11-24) Security researchers who reported observing Internet communications between the Russian financial firm Alfa Bank and the Trump Organization in 2016 can remain anonymous an Indiana trial court ruled last week The ruling protects the First Amendment anonymous speech rights of the researchers whose analysis prompted significant media attention and debate in 2016 about the meaning of digital records t..
Law Enforcement Purchasing Commercially-Available Geolocation Data is Unconstitutional (2020-12-03) Many of the smartphone apps people use every day are collecting data on their users and in order to make money many of these apps sell that information One of the customers for this data is the US government which regularly purchases commercially available geolocation data This includes the Department of Defense CBP ICE the IRS and the Secret Service But it violates the First and Fourth Amendments..
EFF to Supreme Court: American Companies Complicit in Human Rights Abuses Abroad Should Be Held Accountable (2020-10-21) For years EFF has been calling for US companies that act as repressions little helpers to be held accountable and now were telling the US Supreme Court Despite all the ways that technology has been used as a force for goodconnecting people around the world giving voice to the less powerful and facilitating knowledge sharingtechnology has also been used as a force multiplier for repression and huma..
Police Will Pilot a Program to Live-Stream Amazon Ring Cameras (2020-11-03) Updated as of 11/5/2020: This blog post has been updated with a statement from Amazon in regards to the pilot program described in the Jackson Free Press You can find their response at the bottom of the page This is not a drillRed alert: The police surveillance center in Jackson Mississippi will be conducting a 45-day pilot program to live stream the security cameras including Amazon Ring cameras ..
Facebook’s Election-Week War on Accountability is Wrong, Wrong, Wrong (2020-10-27) A legacy of the 2016 US election is the controversy about the role played by paid targeted political ads particularly ads that contain disinformation or misinformation Political scientists and psychologists disagree about how these ads work and what effect they have Its a pressing political question especially on the eve of another US presidential race and the urgency only rises abroad where acts ..
Augmented Reality Must Have Augmented Privacy (2020-10-16) Imagine walking down the street looking for a good cup of coffee In the distance a storefront glows in green through your smart glasses indicating a well-reviewed cafe with a sterling public health score You follow the holographic arrows to the crosswalk as your wearables silently signal the self-driving cars to be sure they stop for your right of way In the crowd ahead you recognize someone but c.. Augmented Reality Must Have Augmented Privacy
EFF Urges Universities to Commit to Transparency and Privacy Protections For COVID-19 Tracing Apps (2020-11-16) Campus Communities Shouldnt Be Forced to Use Apps They Cant TrustSan FranciscoThe Electronic Frontier Foundation EFF called on universities that have launched or plan to launch COVID-19 tracking technologieswhich sometimes collect sensitive data from users devices and lack adequate transparency or privacy protectionsto make them entirely voluntary for students and disclose details about data colle..
California League of Cities Should Reject Misguided Section 230 Resolution (2020-10-07) The past few months have seen plenty of attempts to undermine Section 230 the law that makes a free Internet possible But now were seeing one from a surprising place: the California League of Cities To be clear the League of Cities an association of city officials from around the state doesnt have the power to change Section 230 or any other federal law But if Congress were to actually follow thei..