Accountability for the Internet of Torts

Rebecca Crootof 

Tort law has always shaped political economy in the wake of technological developments. Sometimes it operates to protect the powerful; sometimes it intervenes in power relations to correct new imbalances. The history of tort law can be understood as a series of case studies in how new technologies enable new conduct and harms, and in how judges and legislatures changed the law to address the resulting power dynamics between industry and individuals. The concept of ultrahazardous activities, the creation of no-fault workers’ compensation and motor vehicle insurance, and the rise of mass tort46038488 - law concept: circuit board with  scales icon, 3d render litigation can all be partially traced to underlying technological changes and accompanying social shifts.

Today, we are at the inflection point of another such transformation. In an earlier post, Introducing the Internet of Torts, I discussed how Internet of Things (IoT) companies are able to create and impose their own contractual governance regimes. They use terms of service to displace the law of the state, and they employ technological self-help to enforce their rules. Furthermore, the physicality of IoT devices increases the likelihood of consumer property damage and physical harm when companies discontinue service or otherwise engage in digital repossession. In this post, I will use prior tort law revolutions as a springboard to discuss how new products liability law and fiduciary duties could be used to rectify this new power imbalance and ensure that IoT companies are held accountable for the harms they foreseeably cause.

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Introducing the Internet of Torts

Rebecca Crootof 

Once upon a time, missing a payment on your leased car would be the first of a multi-step negotiation between you and a car dealership, bounded by contract law and consumer protection rules, mediated and ultimately enforced by the government. You 46038488 - law concept: circuit board with  scales icon, 3d rendermight have to pay a late fee, or negotiate a loan deferment, but usually a company would not repossess your car until after two or even three consecutive skipped payments. Today, however, car companies are using starter interrupt devices to remotely “boot” cars just days after a payment is missed. This digital repossession creates an obvious risk of injury when an otherwise operational car doesn’t start: as noted in a New York Times article, there have been reports of parents unable to take children to the emergency room, individuals marooned in dangerous neighborhoods, and cars that were disabled while idling in intersections.

This is but one of many examples of how the proliferating Internet of Things (IoT) enables companies to engage in practices that foreseeably cause consumer property damage and physical injury. But how is tort law relevant, given that these actions are authorized by terms of service and other contracts? In this post I’ll elaborate on how IoT devices empower companies at the expense of consumers and how extant law shields industry from liability. In a future post, Accountability for the Internet of Torts, I’ll discuss what we can learn from prior tort law revolutions about how the law might evolve to hold these companies accountable. Overarchingly, a political economy perspective highlights how technological developments like the development of the IoT are not neutral—they enable new conduct, new relationships, and new kinds of harm that disproportionately affect the poor—and how law can be used either to preserve or correct resulting power imbalances.

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Bloom on Abood’s Mistake in Jacobin

Will Bloom —

Last Tuesday, I argued in Jacobin that, for all the ways in which Justice Alito’s Janus decision was wrong, it made one important point. Justice Alito correctly noted the false distinction drawn by the Abood court between union’s “ideological” work in the electoral sphere and its “non-ideological” work in collective bargaining and contract enforcement. Abood‘s insistence that there was nothing ideological abut collective bargaining reinforced and reified a trend towards the depoliticization of American workplaces, which in turn dampened the development of class consciousness and working class power. My piece focused on a key LPE concept: the ability of the law to lock in and even create power dynamics between parties, and the need to denaturalize and challenge those baked-in relationships.

Will Bloom is a labor and immigration attorney in Chicago. He is a member of the National Organization of Legal Service Workers, UAW Local 2320, and the Democratic Socialists of America.

Worker Surveillance and Class Power

Brishen Rogers 

Companies around the world are dreaming up a new generation of technologies designed to monitor their workers—from Amazon’s new employee wristbands, to Uber’s recording whether its drivers are holding their phones rather than mounting them, to “Worksmart,” a new productivity tool that takes photos of workers every ten minutes via their webcams. Technologies like these can erode workplace privacy and encourage 46038488 - law concept: circuit board with  scales icon, 3d renderdiscrimination. Without disregarding the importance of those effects, I want to focus in this post on how employers can use new monitoring technologies to drive down wages or otherwise disempower workers as a class. I’ll use examples from Uber, not because Uber is exceptional in this regard — it most certainly is not — but rather because it is exemplary.

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The View from Somewhere: on Samuel Moyn’s Not Enough

Julieta Lemaitre 

moyn post

I am a judge; I used to be a law professor in Bogotá, but this past January I became a judge, a judge in a human rights court, a special tribunal created by the 2016 peace agreement to try both the former FARC guerrilla, and the Colombian Army. A transitional justice mechanism, my court is severely embattled and might not survive the attacks of the incoming president, whose party actively rejected the peace agreement, and campaigned for the triumphant “no” in the 2016 referendum.

One of the most vicious, and personal, attacks led by the new president’s party is on the impartiality of the judges elected to my court. For his party, located firmly in the extreme right, we are communists, or at best subversive guerrilla sympathizers. The evidence is clear in their eyes, and in the eyes of many Colombians: many of my colleagues have long records as human rights defenders, and some have taken on the Army in courts, litigating against the many abuses committed during a very long anti-communist struggle. The stigma associated with human rights litigation is so pervasive that Congress in 2017 approved a law that barred human rights litigators from belonging to this court. This provision is under constitutional review, with the Constitutional Court still undecided on whether or not it violates the basic right to equality.

The association between the defense of human rights and the left, including and perhaps especially the guerrillas, is firmly rooted in Colombia’s recent history. Our contemporary human rights movement emerged from the various committees and lawyer’s collectives that fought first martial then civil courts trying political prisoners. They were often targeted along with their clients, and famously Eduardo Umaña Luna proclaimed it was better to die for something than to live for nothing, and was shot one day working on the same desk where he crafted his clients’ defense. He was replaced by another, and then another, generation of young lawyers equally committed to justice, a justice that was often also defined as social justice. Alternative uses of law, proclaimed agitators across the continent during the eighties, allowed for the use of new and old constitutions not just to face armies and governments but also to do so in the name of what the Catholic Church called the “preferential option for the poor.”

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The Political Economy of Freedom of Speech in the Second Gilded Age.

Jack Balkin — 

We are now well into America’s Second Gilded Age. The First Gilded Age was the era of industrial capitalism that begins in the 1870s and 1880s and continued through the first years of the 20th century, ultimately giving way to the reforms of the Progressive Era. The First Gilded Age produced huge fortunes, political corruption and vast inequalities of wealth, so much so that people became concerned that they would endanger American democracy.

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The Second Gilded Age begins, more or less, with the beginning of the digital revolution in the mid-1980s, but it really takes off in the early years of the Internet Age in the mid to late 1990s, and it continues to the present day characterized by the rise of social media, and the development and implementation of algorithms, artificial intelligence, and robotics. For this reason I call our present era the Algorithmic Society.

If the First Gilded Age is the age of industrial capitalism, the Second Gilded Age is the age of digital or informational capitalism. It too has produced great fortunes and led to concerns that increasing concentrations of wealth and economic inequality are endangering American democracy.  Like the First Gilded Age, it is also a time of deep political corruption and despair about the future of American democracy. It has not yet produced a second Progressive Era, yet every day I see signs that this is where we are headed.

There is a large literature criticizing the judicial doctrines of the First Amendment, and how they are slanted toward the interests of corporations (and capital generally) in the Second Gilded Age. The most obvious examples are the federal courts’ recent decisions on commercial speech and campaign finance regulation. These are interesting and important topics, but they are not the subject of this blog post.

My focus here is on the political economy of free speech in the digital age.  The basic question is this: How does our political and economic system pay for a digital public sphere? It pays for it largely through digital surveillance and through finding ever new ways to make money out of personal data.  Digital capitalism in the Second Gilded Age features an implicit bargain: a seemingly unbounded freedom to speak in exchange for the right to surveil, govern,  and manipulate end-users.

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Purdy on Economic Power in NYT and TNR

Jedediah Purdy —

This week, I published two pieces about economic power. One, an op-ed in the New York Times, distilled some major themes from the Supreme Court’s neoliberal jurisprudence: allowing private power to colonize public law (arbitration), using constitutional rights to protect economic power (First Amendment restrictions on union dues and campaign finance), and deploying federalism doctrine to block national programs of social provision (the Medicaid expansion decision). I argue basic LPE themes: public and private power are inseparable, law stitches them together, and we need to protect and reclaim a way of integrating them that empowers democracy to constrain capitalism. Today the Supreme Court is taking aggressive, creative steps to make this harder. In fact, this has been a major theme of the Roberts Court.
The other piece is a review of three new books on class. There’s a lot of twist, turn, and texture. I celebrate that they try (two of them especially, in very different ways) to describe the experience of class in a new landscape of global commodity chains, rural depopulation, and the fracking boom. I especially admire Eliza Griswold’s description of class–in which she doesn’t use the word–as a web of social and environmental vulnerabilities, ways the world is indifferent and dangerous to you. At the same time, I suggest we might also need to think about class from a different perspective: that of the bosses and owners. Their class consciousness is often arrestingly lucid, and in many ways they are the ones who make the world. And, with the next confirmation, the Roberts Court looks likely to defend the economic power of bosses and owners even more vigorously in its ongoing transformation of American law.

Rule-Making as Structural Violence: From a Taxi to Uber Economy in San Francisco

Veena Dubal 

Between 2012 and 2014, California regulators made critical decisions that ultimately restructured political economies of mobility around the world. In municipal and then state regulatory bodies, policy-makers refused to enforce existing taxi laws and regulations against so-called “ridesharing” services, including industry leader UberX, as well as Lyft, and Sidecar. Regulators determined that the companies were not taxis but “transportation network companies” (“TNCs”), and created new rules to govern them. These California rules were the first of their kind anywhere in the world. The regulations and logics that they engendered were subsequently replicated nationally and internationally. The global regulatory response devastated worker livelihoods and transformed what had been a low-paid full time job to even lower-paid part time gigs.

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How did workers make sense of rapid change in their industry? What were their reactions when regulators refused to enforce existing taxi rules and to the rulemaking that ultimately devastated their livelihoods? And what can their narratives, experiences, and understandings tell us about the political economy of law amidst innovation?

Taxi workers in my ethnographic research challenged two fundamental aspects of the prevailing popular and academic narratives of “uberization” as a neoliberal political and economic re-ordering. First, workers argued that this legal transition and the social and political norms it propagated were embedded neither in technology nor in techno-utopian imaginaries. Instead, in making sense of their own precarity, taxi workers placed blame on the structural power of private actors and the instrumental power of regulators. Second, in telling the tale of how law and power worked together to facilitate the demise of their tenuously secure work, drivers were emphatic that this was not a story of deregulation or state withdrawal. Contrary to some traditional academic accounts, taxi workers argued that both the rule-making process and the rules themselves created and valorized a market in which the state had a strong, active, and even authoritarian hand.

Now a global phenomenon, Uber began as UberCab in San Francisco in 2010. Less than two years later, Lyft and Sidecar launched a different model: non-professional private drivers using their own cars and a suggested, non-mandatory price for the ride. Uber adopted this new model as UberX but with a mandatory fee set by the company. Shortly thereafter, the United Taxicab Workers—a twenty-five year old, worker-led taxi driver advocacy organization—alerted city officials to the growing number of unlicensed taxis competing for their work and roving the streets of San Francisco. They lobbied the city to enforce taxi regulations against the companies.

Mark, a UTW leader and long-time taxi driver, was frustrated at the city’s inaction. He told me in late 2012,

These are worse than illegal limos. They don’t even have licenses! People are using their own cars. Non-professional drivers. They are running afoul of every taxi regulation. They claim they’re innovative and new, but we already have this technology! This is what Cabulous [a taxi app] is. We’ve been using this for the past few years. This isn’t about technology. This is just a new exploitative business model—one step removed from the leasing model that the taxi companies have been using for years. They’re just bandit cabs. We’ve been pushing the MTA to issue another cease and desist but they won’t. They won’t enforce their own regulations. (my italics)

Mark argued that the Uber business model was not about technological innovation—but about the innovation of capital. He, like many other taxi drivers, emphasized that the technology itself pre-existed Uber. He understood Uber as an exploitative evolution from the precarious leasing model introduced in the San Francisco taxi industry in the late 1970s. Unlike taxi drivers who had to pay taxi companies for the lease and gas before they could venture out onto the road, Uber drivers also had to bear the costs of their vehicle maintenance and hybrid liability insurance (which did not exist until 2016). To make matters worse, the companies were operating without vehicle caps or fare regulations—the two key regulations that taxi workers had long used to maintain some semblance of wage stability.

Ruach—who, like Mark, had been driving in San Francisco since the late 1970s—argued that Uber’s innovation was to centralize dispatch, which UTW advocates had been pushing for years.

The media keeps selling this as innovative technology. This is not innovative or about technology. We have been trying to get the Board of Supervisors to pass an ordinance to mandate centralized dispatch for years. They won’t do it. The dispatch companies and the cab companies push back. And now, all of a sudden, these tech companies come in and everyone’s excited about centralized dispatch. HELLO! Have you been listening [to us] all these years? That’s all these companies are. (my italics)

When I asked worker advocates why they thought the city was unwilling to use their regulatory powers to stop these companies, especially since the SFMTA had just commodified and sold 900 medallions two years earlier, they blamed it on the structural power of capital.   Barry, another driver and advocate, described Uber’s massive lobbying efforts as “graft.” Although in most cases, the lobbying was technically not illegal, he understood it to be steeped in anti-democratic, corrupt practices. In a conversation we shared in 2013, he explained,

Ron Conway was an early funder of Mayor Ed Lee, and he is also an investor in Lyft and Uber. There are rumors [former] Mayor Willie Brown is getting his pockets lined as well. This is just graft. They are using the language of the tech economy. But they know that’s not what this is about. These are just taxi companies but with Wall Street money. Infinite amounts of money. We thought they [the taxi companies] were corrupt. (my italics)

In 2013, a rule-making process that began in late 2012, the California Public Utility Commission decided two critical things. As a matter of law, Uber offered pre-arranged rides and therefore, under the California Constitution, was to be regulated not by (more progressive) municipalities but exclusively by the state. And second, in the explicit name of “innovation,” the agency was to create a new regulatory category—Transportation Network Companies—and regulate them differently than limos and taxis—without car licenses, vehicle caps, or fare regulation.

Drivers like Mark, Ruach, and Barry directly related the structural power of venture capital to this regulatory outcome. They often felt their advocacy was misunderstood; they did not oppose technology. In fact, they laid claim to the technology themselves. But they protested the specific role of law, and in Barry’s words, the “greed and graft” through which those laws were achieved, in compelling the demise of their industry and livelihoods. They acknowledged that by producing two regulatory regimes, officials had eased the burden on TNCs at their expense. But they framed the character of the state as heavy-handed, not as laissez faire. This was not government facilitating a “free market” through deregulation, but preventing competition by maintaining fares at below market rates, and creating an overall unequal playing field.

Today, workers’ wages across the Uber-taxi divide are roughly 65% of what they were in 2010. They are often below the minimum wage. Told through the eyes of workers, the case study of how regulators responded to rule-breaking platforms and created the city’s contemporary Uber economy can neither be explained through innovation fanaticism nor fundamentally through a politics of efficiency and deregulation. Taxi workers understood innovation discourse as obscuring both their everyday hardships and corruptive, though legal, state practices. And they reframed the law in this process as playing an active role in undermining democratic principles, producing the myth of a free market, and exacerbating political and economic inequalities. As Mark wrote to me in a text following the fifth recent suicide of a taxi driver, “The invisible hand has shown its hand.”

Veena Dubal is Associate Professor of Law at U.C. Hastings College of the Law, San Francisco. 

Visit our Political Economy of Technology page to read all the posts in this series.

Moving Environmental Politics Out of the Courts

Alyssa Battistoni— 

On the campaign trail in 2016, Donald Trump took aim at Barack Obama’s signature climate change policy, the Clean Power Plan, as a “job-killing regulation.” Trump vowed to tackle regulations “on Day One.” By March 2017, he had signed an executive order directing EPA head Scott Pruitt to review the policy.

But even before Trump was elected, over half the states in the country joined oil and gas companies in suing to overturn the Clean Power Plan in 2016, accusing the EPA of “regulatory overreach.” Now that Trump is trying to roll back the CPP, a group of seventeen different states is suing the EPA to stop it from delaying implementation of the plan. The courts may save the Obama policy yet. But the ongoing litigation battles illustrate how court-centric environmental politics have become, and the limits of legal strategies in achieving political victories.

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Gender Equality as Social Reproduction Infrastructure

Julie Suk —

On May 30, 2018 the Illinois legislature voted to ratify the ERA. Thirty-seven states have now ratified the sex equality amendment to the U.S. Constitution, just one state shy of the three-quarters required by Article V to validly amend the Constitution. Legal commentary following this news is primarily focused on questions about the amendment’s legitimacy, such as the status of post-deadline ratifications and attempted rescissions, the constitutionality of ratification deadlines for amendments, and the validity of legislation eliminating the deadline. But it is equally important to contemplate how the ERA could change the political economy of gender inequality. It can be more than a symbol that locks in the sex discrimination law we already have. We can take some inspiration from feminist constitutionalism around the world to imagine a twenty-first century ERA that catalyzes new gender-equal infrastructures, particularly for biological and social reproduction, compatible with a sustainable and more humane political economy.

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