Pay no attention to Epic's proprietary medical decision-support algorithm behind its closed-source curtain

In a curiously timed post on their ‘Cool Things’ blog, the electronic health records (EHR) software behemoth Epic Systems touted the efficacy of their tools’ predictive models for predicting and identifying acute medical events. The June 28th blog described that one such model was able to detect the potential presence of Sepsis in patients earlier on in their hospital stay than previous detection models were able to.

Sepsis is a life-threatening medical complication wherein the body’s natural response to the presence of an infection causes further damage to tissues and organs. Despite there being—in the United States alone—an estimated 1.7 million adult cases and approximately 270,000 deaths annually, its clinical guidelines for detection, diagnosis, and coding have been a moving target for decades.

A February, 2020 analysis in the Journal of Thoracic Disease described the remarkable extent to which the epidemiological studies of trends in sepsis have been based upon non-constant clinical criteria and medical coding. It additionally explored a multitude of relevant potential biases that muddy research into the increasing or decreasing prevalence of diagnoses—

  • Unaccounted for changes in ICD-9-CM codes over the course of individual studies and across different studies, with particular changes and expansions to the sepsis-specific codes.
  • Greater public awareness investment demonstrated by Google search trends, as well as clinical quality improvement programs focused on sepsis within hospitals
  • There is no surefire diagnostic test for sepsis, so diagnosis necessarily incorporates clinician subjectivity
  • Increasing use of hospice for end-of-life care in the US, which confounds the oft-used metric of in-hospital mortality rates.

Given that recent literature in clinical journals demonstrate that so many aspects of this life-threatening medical episode are equivocal in nature, it would probably stand to reason that broad collaboration and participation among clinical researchers would serve the objectives of all involved parties. Said better and more broadly, Yochai Benkler, of Harvard Law School’s Berkman Center for Internet and Society, writes

Open collaborative innovation [recognizes] that the best people to solve a given problem are unlikely to work for the firm facing the problem, and that models of innovation that allow diverse people, from diverse settings, to work collaboratively on the problem will lead to better outcomes than production models that enforce strict boundaries at the edge of the firm.

Conversely, to draw conclusions from the existing body of research, programatize these conclusions into algorithmic alerting in hospital EHRs, and proprietize that algorithm to shield it from independent third party validation, seems imprudent at best.

Indeed, one week before Epic’s blog post, researchers at the University of Michigan’s Michigan Medicine published an analysis of the Epic Sepsis Model’s (ESM) predictive accuracy in JAMA Internal Medicine. Summarizing their findings, Karandeep Singh, MD, MMSc, stated, “in essence, they developed the model to predict sepsis that was recognized by clinicians at the time it was recognized by clinicians. However, we know that clinicians miss sepsis.”

The ESM is based upon data leveraged from all medical episodes coded as sepsis, with the onset of sepsis defined as the time that the physician identified it and intervened. Again, this data is amassed over a period of time during which there were changes to how sepsis is coded and the very sepsis identification criteria.

A key additional focus of their research was the model’s propensity to result in alert fatigue—the desensitization effect that occurs when physicians are presented with too many warnings.

Alert fatigue is a critical factor considered for designers of Clinical Decision Support Systems (CDSS), which are designed to link patient-specific information in EHRs with evidence-based knowledge to generate case-specific guidance messages through a rule-based or algorithm-based software program.

On this point, the Michigan Medicine researchers—

found the ESM to have poor discrimination and calibration in predicting the onset of sepsis at the hospitalization level. When used for alerting at a score threshold of 6 or higher (within Epic’s recommended range), it identifies only 7% of patients with sepsis who were missed by a clinician (based on timely administration of antibiotics), highlighting the low sensitivity of the ESM in comparison with contemporary clinical practice. The ESM also did not identify 67% of patients with sepsis despite generating alerts on 18% of all hospitalized patients, thus creating a large burden of alert fatigue.

They concluded that “the increase and growth in deployment of proprietary models has led to an underbelly of confidential, non–peer-reviewed model performance documents that may not accurately reflect real-world model performance.”

The corresponding author of the study, Karandeep Singh, MD, MMSc, has raised important questions on Twitter about the downstream consequences of proprietary algorithms for clinical decision support. He likewise presents his recommendations, though all are anathema to the closed-source model for Epic’s sepsis model.

This specific research comes amid a backdrop of countless analogous automations introduced throughout the COVID-19 pandemic.

For example, Epic also introduced the fitting, if not ominously-named Deterioration Index for triaging COVID-19 patients. (For the moment, set aside any discomfort with investing in algorithms to ration hospital beds and ventilators, versus investing in supplying a sufficient inventory of hospital beds and ventilators.)

When not subject to external review, these algorithmic approaches often codify health inequities without necessary socioeconomic contextualization. They likewise may draw conclusions from historical medical episodes whose outcomes were contingent upon clinicians’ subjective judgment.

What outcomes can be expected from the machine learning models trained using a historic dataset of physician-recommended candidates for knee replacements, a procedure shown in some studies to be subliminally recommended to male patients three times more often than females?

What will a proprietary algorithm programatize from datasets of patients receiving treatment for spinal disorders, wherein patients that are treated as part of a worker’s compensation cases exhibit worse outcomes?

How can a closed-source model assure anyone that social contexts are considered in an algorithm’s development? How can external parties even validate the claims made by an algorithm’s proprietor? An article on the subject in the Journal of the American Medical Informatics Association describes ones such approach—

For example, a biomarker-based algorithm to diagnose ovarian cancer has a cost of $897 per patient ( Assume we want to validate this algorithm in a center that has 20% malignancies in the target population. If we want to recruit at least 100 patients in each outcome group, following current recommendations for validation studies, the study needs at least 500 patients. This implies a minimum cost of $448 500 in order to obtain useful information about whether this algorithm works in this particular center. It is important to emphasize this is just the cost required to judge whether the algorithm has any validity in this setting; there is no guarantee that it will be clinically useful.

That example shouldn’t be read cynically, as this philosophy—that you must pay to become a customer in order to be given the means to validate an algorithm—is part of Epic’s official retort to the Michigan Medicine publication. Their spokesperson stated to the industry website Health IT Analytics that—

The full mathematical formula and model inputs are available to administrators on their systems. Accuracy measurements and information on model training are also on Epic’s UserWeb, which is available to our customers.

Who else but the Central Intelligence Agency can reliably induce contrition by the most powerful office on the planet?

Cartoon by Art Young

On August 27, 2019, 19 year old Harry Dunn was riding his motorcycle just outside of Croughton, a village in Northamptonshire, England, when he saw an oncoming SUV in the wrong lane. Anne Sacoolas, an American driving an SUV with diplomatic plates on the wrong side of the road, was on her way back from the US Air Force communications station located at the British Royal Air Force in Croughton.

Sacoolas, initially characterized by all media outlets as the wife of a US diplomat, struck Dunn head on. According to British High Court documents, although Dunn sustained severe injuries, he was able to describe for police officers attending the scene what had happened prior to being taken to hospital. While conscious, Harry was in immense pain, having endured multiple open fractures with bones protruding from his skin after careening into and off of Sacoolas’s bloodied windshield.

Harry’s father, Tim Dunn, arrived soon after the police, shortly before an ambulance. He told his father that he couldn’t breathe. Tim Dunn, watching helplessly, tried to reassure his son as Harry was carried into the ambulance. It was the last time he would see him.

Because he was alive at the time of the incident, Anne Sacoolas was permitted to leave the scene of the crime after speaking with police. Sacoolas herself was initially cooperative with local authorities’ investigation of the incident, but within days, the US State Department was shielding her from any investigation by UK authorities.

Within two days of the accident, they asserted she had diplomatic immunity, a legally questionable assertion. Barely more than two weeks after Dunn’s death, the US State Department escorted her back to Virginia over the strong objections of British officials.

In its pursuit to stymie further investigation into the incident involving the diplomat’s wife, the US has deployed convoluted semantic loopholes, official statements by the Secretary of State, even an impromptu Oval Office meeting. New details, made public for the first time in recent weeks, helps to explain why.

As the name suggests, diplomatic immunity is typically reserved for diplomats and their families. Under the terms of the Vienna Convention on Diplomatic Relations (VCDR), this immunity is in effect from the moment the individuals enter the country, unless their country of origin waives this immunity for a specified reason. The immunity is generally understood to cover misdemeanor crimes, and most often is exercised for debt recovery related offenses, such as parking violations or shoplifting.

Anne Sacoolas is married to Jonathan Sacoolas, an employee for the US National Security Agency (NSA). He had been registered as a member of the staff at the Croughton Royal Air Force base in Northamptonshire, England. The Croughton base is, among other things, the epicenter of the NSA’s spying activities targeting both European Union private citizens and heads of state alike.

But in the context of the countries’ extradition agreement, Jonathan Sacoolas is considered a diplomat, due to a 1995 request submitted by the US that its NSA staff at Croughton be extended diplomatic immunity. As often the case for the American’s NATO allies, it appears ‘no’ would have been a politically inadvisable response from the UK. They granted the request over a series of letters, with one caveat—

on the understanding that the United States Government, by its reply to this letter waives the immunity from criminal jurisdiction of these employees in respect of acts performed outside the course of their duties.

The VCDR stipulates that any such waiver of immunity must clearly express the parties to whom the waiver applies. In their agreement, the US made no reference to extending the immunity to the family members of NSA staff, and the UK made no reference to this caveat applying to NSA staff members’ families. This left a gray area with respect to Anne Sacoolas’s diplomatic immunity status.

As initially understood by authorities, Anne herself had no diplomatic affiliation as the wife of a spy who had diplomatic immunity. But two weeks after Dunn’s death, she was escorted home to Virginia by US officials over the protest of British authorities.

Harry Dunn’s family’s first legal avenue in their quest to have Anne Sacoolas held accountable in some form for their son’s death was to seek her extradition from the US back to Britain.

Citing the 1995 agreement between the two nations, the British High Court would ultimately rule against the right of the UK to extradite Sacoolas, on the grounds that the agreement made no mention of diplomats’ family members. There was no implied waiver of immunity for Anne Sacoolas, the diplomat’s wife.

Whether or not the US was previously privy to this oversight in the extradition agreement, or they identified it only during their planning for Anne Sacoolas’s defense, it’s unclear why the US would go to such lengths in this case. At least as portrayed to the media, the UK—a preeminent ally to the United States— was in opposition to her return home. There are no material discrepancies between the parties’ statements retelling the events preceding and subsequent to Harry Dunn’s death.

The Crown Prosecution Service, the British prosecuting authority in the case, remains intent on securing a trial. The Dunn family meanwhile has an ongoing civil claim against Sacoolas in a separate arena—Sacoolas’s home state of Virginia. But the US government has likewise continued to exercise a remarkable level of involvement in the case, going to extraordinary lengths to insist upon the Dunn family that they forgive and forget.

So what horse does the United States government truly have in this race?

Donald Trump, Crisis Mediator

The Dunn family retained Mark Stephens, a veteran lawyer experienced in high profile and international cases, and hired Radd Seiger, a crisis management adviser to act as their spokesperson. Seiger joined the Dunn family in a trip to the US, where they sought to drum up support among the American people and to meet with American diplomats who might be able to advise them.

The same week they arrived, a member of the White House press staff called Seiger, asking that they come for a meeting. They were on a train to Washington, DC the next day.

Harry’s mother, Charlotte Charles, toldThe Guardian that on the train ride, they discussed what could possibly be in store for them upon their arrival at the White House—“We took it to the most bizarre situation that could have happened – which actually ended up playing out. We were very glad that we had discussed that it would be a possibility, although we actually didn’t think for one second that we would be placed in that position.”

In a scene bizarre even for the Donald Trump White House, the president of the United States hosted the parents of Harry Dunn in the Oval Office, on October 15, 2019, ostensibly to make amends for rejecting the UK’s request to extradite the diplomat Sacoolas’s wife. Among those in the room were Stephen Mnuchin, the Secretary of the Treasury, Robert O’Brien, the National Security Advisor, Mick Mulvaney, the Chief of Staff and several secret service agents.

Reminiscent of an episode of Maury, a few minutes after meeting the parents, Trump explained to them for the first time that in a neighboring room sat Anne Sacoolas, ready to make amends with Trump there to mediate. Aghast and bewildered, Seiger made clear that the couple would agree to meet with Sacoolas at some point, but not in a surprise meeting staged for reporters. Sitting feet away from the guests, Trump tried three or four times to convince them to reconsider, according to an interview with Seiger on the podcast Pushback with Aaron Mate on March 1, 2021.

As recounted by Harry Dunn’s father, Tim, they agreed to meet Sacoolas if she returned to the UK, but the US national security adviser, Robert O’Brien, told them directly at the meeting that she was never coming back. “He was quite abrupt and sharp with his tone,” recounted Tim Dunn.

Of their time in the US, Tim Dunn told The Guardian, “We are bemused by all of it. We still can’t believe how the story is moving on. We come to the USA just to try and get our story across and then within two days, we’re in the White House.”

In the interview on Pushback, Seiger described the ‘rabbit in the headlights’ look of the Dunn parents throughout the affair—

“Even for me as an American, that should’ve been the proudest day of my life. I don’t how many Americans get to go to the Oval Office let alone meet a president of the United States, because I am a proud American. Instead it’s one of the most depressing experiences of my life, and as you can tell 17 or 18 months later it’s still quite upsetting to me.”

Whatever the preferred outcome of the Oval Office meeting might have been, Trump’s mediation session was over in under an hour. As Seiger suggests, there is little precedent for common citizens being invited to the Oval Office for a direct apology from the President of the United States, on behalf of the United States government, for its actions causing the death of their immediate family member.

Indeed, most apologies from the US government as an entity take the form of House resolutions that merely acknowledge responsibility for inflicting harm upon a large group of people, such as that which was directed at Native American peoples or enslaved Africans. Even with the apologies that were accompanied by some form of reparation, like those directed towards interned Japanese citizens or Tuskegee experiment victims, the shear number of injured parties spared Ronald Reagan and Bill Clinton from needing to look any one victim in the face with contrition.

Contrasted with these examples, the immediacy and intimacy of the presidential apology to Harry Dunn’s parents had much more of a “we’re sorry, now stop asking questions” flavor. In 1975, Americans saw perhaps the only other instance in recent US history of this genre of presidential apology. And as in the Dunn case, it was an apology by the president for the actions of US intelligence agents.

A Jump or a Fall

In 1975, then President Gerald Ford hosted the family of the late Frank Olson to deliver a presidential apology for the events leading to Olson’s ‘suicide.’

Olson, an accomplished biochemist, was recruited as a civilian into the US Army’s Biological Warfare Laboratories at Fort Detrick in 1943. By the end of the decade, Olson had advanced through the ranks to be the acting head of its Special Operations Division, which was researching and developing biological agents to assist the US government with interrogation and warfare. Olson’s expertise was in airborne disease transmission.

As part of the work, Olson made a trip in 1953 to Porton Down, UK, to meet with the CIA of Britain, MI6. While there, he witnessed the gruesome death of soldiers who had volunteered to receive an experimental treatment for the common cold, but were in fact given Sarin nerve gas to establish for MI6 what the fatal dose of the gas was.

Later than year, he traveled to Berlin where he witnessed the use of drugs as a means of torture during interrogations. Deeply disturbed by this, Olson abruptly left the trip to go home. Shortly thereafter, he shared his disgust with the CIA’s actions to his colleague in confidence. This expression of human empathy set off alarm bells for his colleague, who reported the comments to their superiors.

The Central Intelligence Agency (CIA) had meanwhile begun collaborating on the US Army’s research  with the help of former Nazi scientists they had plucked before they could face trial. The CIA’s focus was on studying psychoactive drugs as part of a series secret programs—Project BLUEBIRD, Project ARTICHOKE, and culminating in the 1953 start of Project MK-ULTRA.

MK-ULTRA’s expressed purpose was to research and develop drugs for mind control, justified under the guise of trying to catch up with foreign adversaries who had already discovered such drugs. The man in charge of the project, Sidney Gottlieb, was aware of Olson’s intellectual prowess, the extent of what he knew about the CIA’s projects, and his moral misgivings.

Author’s Note: The authenticity of the story of the remainder of Frank Olson’s life can only be verified by those who first told the story—individuals in and around US intelligence and defense agencies. The late Olson’s retelling may have been substantially different.

Under the pretext of a joint strategy meeting between Olson’s Special Operations Division and the CIA to discuss their research projects, Gottlieb invited Olson and several other scientists involved with the work for a weekend ‘rendezvous’ at a cabin in rural Maryland next to Deep Creek Lake. At the start of an evening of drinks, Gottlieb slipped 70 micrograms of LSD into Olson and several others’ drinks.

This infuriated Olson. Even after a few days, he had trouble thinking clearly, but was past the point of forgiving the actions of Gottleib. He decided to resign.

A day after first announcing his decision to his immediate supervisor, his supervisor talked him into first meeting with a ‘psychiatric doctor’ in New York City to talk through things. This doctor was Harold Abramson, who was in fact a pediatric allergist, although he moonlighted as a psychotropic researcher for the CIA.

Abramson, over the course of several meetings, convinced Olson that he needed psychiatric help. Olson agreed in the final session to be checked into a Maryland mental institution. That night, Olson stayed the night at the Hotel Statler in New York City, sharing a room with fellow chemist Robert Lashbrook. Olson hit the pavement at 2:30 AM.

The investigating police detective concluded that Olson had died from multiple fractures “subsequent upon a jump or fall.”

He had somehow gone — the choice of verb has always been the problem — out the window of Room 1018A

Erik Olson on his father’s death in a 2017 essay.

Only after The Washington Post published a series of revelations from the Rockefeller Commission investigation in June 1975 did the Olson family have any knowledge of the LSD. The most provocative (read: most viral) of these headlines described how “a civilian employee” scientist in the army had jumped to his death from a New York hotel window after being drugged with LSD during a CIA meeting.

The story matched the dates and facts of Frank Olson’s death, although the acting chief of the Army’s Special Operations Division, was much more than an army scientist.

The Olson family, quickly swarmed by the press, announced in a press conference from their backyard that they intended to sue the CIA for his death and coverup.

The US government’s intelligence apparatus scrambled to get their story straight. They resolved to share the information about Gottlieb’s actions, explain that the LSD caused Olson to lose his grip on reality, sent him into a depressive spiral, and eventually to his suicide.

Gerald Ford would host the surviving family the next month to apologize to the family on behalf of the US government.

It was all presented as if ‘we're in this for you.’ We had no idea what we were dealing with. I mean first of all if you get invited suddenly to the White House to get up an apology from the president which has never happened in the history of the country from George Washington to Donald Trump nobody has ever gotten an apology in the Oval Office from the president nobody not the American Indians who were subject to genocide not African Americans who were subjected to hundreds of years of slavery only us. Not the Japanese who were in internment camps—they got a rose garden apology; I don't know how many years later.

But only we have a press conference in a backyard, bam! Please come to the White House in the Oval Office which is a very sacred space. You don't get in there for an apology from the president lightly, but we didn't realize what was happening here— that this was so unique, and what it meant was that we had hit upon some kind of a central nerve in the whole construction of the state. We didn’t know what we were into.

They were apologizing. It was very unclear what they were apologizing for but the overall sense of it was, ‘your father got drugged, there wasn't proper medical supervision, this was part of an experiment… Oh my god they shouldn't have done this, if they did do it they should’ve taken better care of him, and they shouldn't have put him in a hotel on the 13th floor, and if they did put him on the 13th floor they should’ve kept watch of him…’

Eric Olson retelling the meeting in the Oval Office in a 2018 podcast

White House lawyers subsequently offered $750,000 to the family in exchange for dropping their pursuit of a lawsuit against the CIA, which after some deliberation, the family accepted.

Source: Associated Press. President Gerald Ford apologizing in 1975 to the family of Frank Olson.

Much of the evidence made public in the years since the meeting, including the exhumation of Frank Olson’s body in 1994 for a private autopsy that revealed major discrepancies from the original medical examiner’s report, suggests it was far more likely that Olson was murdered than that he took his own life. Olson was reckoning with the horrors of the disturbing biochemical weapons research he had been involved with, and the CIA certainly was considering the possibility that he might choose to reveal its actions to the public.

The Olson family posited in a August 2002 statement

As indications accumulated that Frank Olson had been murdered, the question of motive became more pressing. Why would the government murder an “Army scientist” simply because he had been used as an unwitting guinea pig in a drug experiment?

One of his sons, Eric, has spent much of his life trying to get to the truth. In a 2018 podcast, he rose doubts that his father was even drugged at all, which is not much of a stretch. After all, it served the CIA’s narrative that Olson was portrayed as a mere army scientist—it would be far more dubious to assert that Sidney Gottlieb chose to conduct a secret LSD experiment on an acting chief of the US government’s primary biological warfare research entity and someone who knew countless state secrets.

Frank Olson knew as much as anyone alive about the US government’s ghoulish research into biological agents and its experiments exposing them unto unknowing innocent civilians. Whatever the agency’s involvement, the suicide of the compunctious biochemist solved major problems for the CIA.

Much of this section was informed by Eric Olson’s extensive work investigating the circumstances of his father’s death, which he offers free to the public at Eric also worked closely with the producers of the Netflix docuseries about his father, Wormwood, which I highly recommend as well.

Who is Anne Sacoolas?

As demonstrated once more in the Dunn Sacoolas affair, the US executive branch injects itself into any dispute between civilians and the US intelligence apparatus with remarkable speed and ferocity. Any measure— however grandiose, however performative, however disproportionate—is merited in pursuit of removing the CIA and NSA from public scrutiny.

In a February 2021 hearing regarding Anne Sacoolas’s application to dismiss the Dunn family’s federal case against her, one of her lawyers, John McGavin, was made to answer an inconvenient question. Why exactly did she make the decision to flee the UK abruptly, weeks after driving on the wrong side of the road and fatally colliding with the motorcycling teen?

Britain’s Press Association, which was given access to listen to the closed hearing, reported that McGavin replied, “I cannot be completely candid, I know the answer, but I cannot disclose it… Mr. and Mrs. Sacoolas were employed by an intelligence agency of the United States, and that’s why she left.”

The judge rejected their application to dismiss.

The rejection of her extradition was entirely hinged on her being the family member of a diplomat. It was the same justification used by the US to defend the decision to escort her home before facing trial.

For the first time, the public has been presented with the knowledge that both husband and wife were (if not still are) spooks at the time of Harry Dunn’s death.

The UK government could essentially comment on the development in one of two ways—to claim ignorance of any role Anne Sacoolas had working as an intelligence agent at Royal Air Force base, or to acknowledge that they knew of her role, thus undermining the basis of their prolonged diplomatic dispute with the US about her extradition. Thus far, they have chosen the former, claiming ignorance of what exactly the American spy Anne Sacoolas was doing for her employer in the UK. There is no available evidence to suggest otherwise.

After a couple weeks, the Sacoolas family lawyers had their statement ready to clarify things—

The ruling has no impact or bearing on Anne Sacoolas’s diplomatic immunity. ‘Anne Sacoolas’s employment status has never been relevant to her diplomatic immunity, which was based on her husband’s status as an accredited diplomat. The US and British Governments both concluded that Ms Sacoolas had diplomatic immunity by virtue of her husband’s role with the US embassy, and the UK High Court of Justice affirmed that conclusion in its ruling in November 2020.

On March 9th, 2021, Amy Jeffress, the personal lawyer to Anne Sacoolas, offered to Harry’s Dunn’s parents what any grieving parents is their situation would seek—an offer for her to perform community service (in the US) and to give a contribution in Harry Dunn’s memory. The Dunn’s, still plaintiffs in the US civil case against the diplomat’s wife, rejected the offer.

The NBA commentariat sanitizes away any allusion to wealth redistribution, centering gestures and movement co-option

The National Basketball Association (NBA) is widely considered the United States’ most progressive professional sports leagues. On the basketball court, the NBA innovates through rule changes to broaden the appeal of the game far quicker than rival sports leagues.

Off the court, the league has a rich history of solidarity with social justice and civil rights movements. This history is well known by fans, largely because it is well publicized—the NBA and its partners make mention of the NBA’s historical social activism in much of their in-game promotional content and timeout commercials. In a summer rife with social unrest and despair arising from police violence, the league’s corporate partners have been quick to produce their #solidarity commercials.

But the NBA and its media ecosystem aren’t touting solidarity with the more substantive movements that the league’s players have historically been a part of. Moreover, media outlets are infatuated with coverage of individual ungrateful players—the subtext of the so called ‘Player Empowerment Era.’ In NBA media, the ‘Player Empowerment Era’ is a defining characteristic of our current professional basketball epoch, wherein NBA superstars exercise their exceptionally unique talents to demand that their teams trade them, despite the player being under an active contract.

James Harden, a former winner of the Most Valuable Player trophy and an eight time All-Star, has an active trade demand to be moved from Houston. He is also at present the poster child for the Player Empowerment Era, as he has requested the trade despite having two more years on his contract.

He doesn’t have a particularly likable personality off the court, spends much of his wealth traversing the country’s strip clubs, and is renown for his self-centered playing style. This can be simultaneously agreed upon by fans, while concurrently noting that a criticism of him as the present embodiment of the ‘Player Empowerment Era going too far’ is a shallow critique.

No NBA player is more financially well off than the team owner they work for. The value of the rhetorical device ‘The Player Empowerment Movement’ to NBA team owners and top media commentators is apparent. It is a cynical reclassification of skilled, extremely difficult to replace laborers, into a category of greedy individuals only out for themselves. The phrase is seldom used by the laborers themselves, and media commentators will only deploy it in cases where players must be admonished for exercising their bargaining power to an unwelcome extent.

Players hardly ever participate in this discourse, which shouldn’t be surprising. For a team to find success in NBA, players must realize the power they have as a collective. Likewise, when NBA players in the 1960s saw the disparity between their salaries and the revenue they brought in, they realized the power they had as a collective.

While absent from today’s coverage, the early victories of the NBA players union, the NBPA, are instructive as to who power originates from in the NBA, and how it can be wielded.

In 1958, the late Boston Celtics legend Tommy Heinsohn, who had studied labor relations at Holy Cross, took over as the NBPA president. Under his leadership, the players union was strategic and aggressive in their bargaining. In 1964, Heinsohn, together with fellow stars like Elgin Baylor, Jerry West, and Bill Russell, led a player strike just two hours before that season’s All Star game—the first to be televised in the league’s history. If the NBA’s commissioner didn’t agree to their demand for a minimum salary of $7,500 per year ($63,000 in 2020 dollars) and a pension, they would sit out the game.

With his back against the wall, the commissioner agreed to their demands with just 15 minutes to spare.

In today’s sports media climate, how would this players strike have been portrayed? Given its consistent prioritization of shaming NBA players like James Harden for exercising their labor power, I suspect we would hear much more about Bob Short’s point of view than that of the players.

Automotive industry lobbyists pour money into failed campaign opposing Massachusetts antitrust ballot measure

One of the cascading consequences of the financialization of U.S. voting cycles (and one which may be a pet peeve of mine alone) is the number of catchy names claimed in bad faith by short lived industry lobbying firms; names which might otherwise have been adopted by ostensibly progressive organizations.

Enter the Coalition for Safe and Secure Data (I’ll refer to them as CSSD for brevity, but they were not operational for long enough to adopt an abbreviation). I learned about them when I was reading the ballot measure leaflet that Massachusetts sends to residents, in which advocates for and against each ballot question are given 150 words to sway voters toward taking their position. CSSD advocated for the ‘no’ position to Question #1 on the 2020 Massachusetts voters’ ballot.

Question #1 concerned the Right to Repair, a consumer protection measure defined by Consumer Reports as expanding access to the information and tools necessary for consumers and independent shops to make automotive repairs, so that consumers are not captive to the original manufacturer for aftermarket repairs. By preventing vehicle manufacturers from forcing consumers to return exclusively to the original manufacturer for all repairs, Right to Repair laws help to decrease wait times for repairs, remove barriers to technical innovation, and prevent manufacturers from setting any repair cost they choose.

The Right to Repair Connected Devices

If you’ve bought, leased, or driven a car manufactured in the past decade, there’s a good chance you’ve encountered one of the myriad ‘smart’ driver assistance capabilities included in modern vehicles by default. If not, never fear—by 2023, about a quarter of all passenger cars in use worldwide will be connected to the web in some fashion, according to a 2019 report by Capgemini.

Perhaps I’ve led you to think that this initiative’s purpose was to curtail the privacy and cybersecurity weak points that this could introduce. Not quite—this initiative takes as a given the proliferation of connectivity in consumer devices, vehicles included, and forestalls the resulting ability of manufacturers to use this ‘connectedness’ to set up new barriers to entry for third party repairers.

Whether we like it or not, it’s hard to buy a new Ford without Sync, BMW without ConnectedDrive, Honda without HondaLink, etc. And where there’s a connected device, there’s data being captured—driver data is already being collected at a rate of 25 gigabytes per hour according to some estimates. Suffice to say that to whatever extent this data collection is a violation of one’s privacy—legally or ethically—it is already being collected.

Meanwhile, the computerization of present day and future vehicles extends well under the hood; beyond infotainment centers or driver assist functionalities. Like a hatchling turtle’s instinct to get to water, this connectedness invariably evolves into—and is exploited as—a new revenue stream for the manufacturer. Manufacturers can then determine, by their own arbitrary standards, which mechanics are entitled to access a vehicle’s diagnostic data necessary for repairs (viz. Tesla-Approved Body Shop Network).

Right to Repair in Massachusetts

Massachusetts already passed a ‘Right to Repair’ law in 2012, which restricted manufacturers’ ability to close off access to a car’s on-board diagnostics port, the source of the vehicle’s operational data that is necessary for routine repairs. Building upon this, 2020’s Right to Repair ballot question sought to expand that scope to include the vehicle’s wireless data.  

MA Ballot Question #1

Freedom to Tinker

In the absence of adequate anticompetitive regulations, incumbent market leaders embargo new entrants through patent law, copyrighting, and tort reform. Established manufacturers can also sever the means for adversarial interoperability, the technical term for a tool or service that works with an existing tool or service—without permission from the existing tool's maker, as often reported on by Cory Doctorow of the Electronic Frontier Foundation. Anywhere regulation isn’t, the dominant technology vendor sets up tolls. Interoperability is placed behind a paywall.

Restricting a software’s interoperability means that other tools may only build off of or alongside the dominant software if the dominant vendor has a financial interest in them doing so. It is not a concern borne from mere speculation. Rather, this practice is the prudent and instinctual software design pattern of the dominant vendors, and thus an inevitability without regulation.

Consider the example of Lexmark, a printer manufacturer that pioneered the business model in which owners of Lexmark printers were only able to use Lexmark’s own ink and toner refills. Lexmark printers enforced the authenticity of ink cartridges based upon microchips they built into their cartridges. Unless the printer could verify the authenticity of the chip, the cartridge would be disabled.

Another company, Static Control, was able to build their own chip which mimicked the behavior of the authentic Lexmark chip. Static Control marketed this chip to third party ink cartridge remanufacturers, leading Lexmark to file a copyright infringement lawsuit. That case followed a winding path to a 2014 Supreme Court decision against Lexmark, favoring Static Control’s counter-claim.

In comparison to the Right to Repair ballot measure, automotive manufacturers are not even fighting to retain an already-implemented revenue stream, as was the case for Lexmark and their two-tiered printer/toner captive consumer trap. They are not advocating to retain control over who can—legally or technically—repair their vehicles post-purchase, so much as they are protecting their right to assume this control once the means to do so—technically and logistically—become available.

Here though, the vehicle manufacturers’ proxy, CSSD, portrayed their shared interest in the ballot measure as a benevolent concern for the privacy of their drivers’ data.

A Fair-Weather Coalition

Although they gave up fighting for privacy rights after losing on November 3rd, the Coalition for Safe and Secure Data wielded a considerable purse for its 13 month existence. A colorful roster of almost exclusively multi-national vehicle manufacturers raised over $26 million fighting the ballot measure.

CSSD’s application to the Massachusetts Office of Campaign and Political Finance described the committee’s purpose as wholly related to the issue of allowing third party access to vehicle data:

Coalition for Safe and Secure Data, Statement of Organization

These answers were apparently suitable enough to pass the scrutiny of Massachusetts’ campaign disclosure laws, which stipulate that:

(a) Every political committee, other than a political party committee or a candidate's committee, shall name and identify itself in its organizational statement pursuant to section five by using a name or phrase that:

  1. *clearly identifies the economic or other special interest, if identifiable, of a majority of its contributors…*

CSSD flouted this regulation by framing the shared special interest of its contributors as ‘data privacy.’ It may shock you to learn that the manufacturers’ advocacy for this issue does not extend to their respective business practices when it comes to how they themselves use your data.

Nissan, for example, gave $2.4 million to CSSD, yet requires a driver to call a customer service hotline if they would like to request that their vehicle’s telematics data (location history, driving routes, schedules, etc) not be collected, owned, and sold forevermore by Nissan. Their requests will be processed in a few business days, and will result in the discontinuation of some of the vehicle’s functionality.

Masquerading as concern for the protection of consumers from “hackers, criminals and an unlimited number of strangers,” CSSD’s Willie Horton-esque fear mongering was not motivated by a desire to keep a driver’s data under said driver’s control. It was motivated by a desire to keep it under the manufacturers’.

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