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naraburns  nihil supernum  1yr ago (text post)   32050 thread views

Culture War Roundup for the week of October 31, 2022

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I wrote for Singal-Minded (non-paywalled) on the topic of PayPal suspending accounts for what appear to be politically motivated reasons. I describe my experience with PayPal suspending my own account a few years ago, and how I managed to get it back:

I called, emailed, and waited on hold, but never got a straight answer from PayPal’s customer service drones. They endlessly repeated that I had violated PayPal’s acceptable use policy as if it were some mantra. If I asked for any detail whatsoever, their response had the tone of a schoolteacher frustrated at having to explain repeatedly to the same kid that crayons should not be shoved up one’s nose. I knew what I did to get my account deleted, apparently. If I wanted to hear it from them, I’d need a court order.

I took inventory of my options.

Here is what I did not have: money in the account, any serious reliance on it, or any wisp of nostalgia for the 14 years we shared.

Here is what I did have: too much free time and a whole heap of pettiness to propel things forward.

So I made a crazy decision. I read PayPal’s User Agreement.

PayPal, like many other companies, have a mandatory arbitration clause in their user agreements that require you to "agree" to waive your right to sue them in court if you have a dispute. I took PayPal up on the offer to settle our shit via arbitration but we never got that far because they quickly caved. I was prompted to write about all this after I met Colin Wright and offered to help him deal with his own PayPal bullshit. From my perspective, he refused my help but nevertheless kept writing opeds about the issue and soliciting donations. I heavily insinuated that he was intentionally holding on to his victimhood status as a grifting strategy. Turns out, I was wrong.

Colin has brought up the issue publicly multiple times since then (writing about it in Quillette and the New York Post for example), but he never responded to my email until I reached out to him for comment on this piece. He did share correspondence with me where prominent free speech attorneys told him, in an apparent contradiction to my claims, that he had no viable legal recourse to getting his account reinstated. I had transmogrified into a gadfly in his mentions, heavily implying Colin was intentionally choosing not to solve the problem, but I was off-base with my insinuation. Colin was bombarded with countless random people (besides just me) offering their one weird trick to solve the problem, and he had no reason to believe any of them knew something that experienced advocates did not. Colin has now initiated dispute resolution with PayPal using the steps I gave him, and I’m intensely curious to see how it will play out.

As best as I can tell, virtually nobody thinks to try to address the issue of politically-motivated corporate censorship with the tools already available to them. Not even FIRE talked about arbitration dispute resolution. This leads me to think this a low-hanging fruit counter-attack that's just ripe for the taking.

Edit: I found out about another instance of someone taking a company to arbitration and winning. See also the hacker news thread, esp. thathndude's posts where they explain how hiring an attorney (even one that doesn't do anything) can result in absurdly higher settlements.

There are two main reasons an organization like FIRE doesn't use arbitration: (1) it does not set any legal precedent and therefore the outcome is basically only relevant to the specific case at hand, and (2) arbitration is often more expensive than litigation because you must pay the arbitrator's fee, which is typically $1000-$2000 per day.

I echoed the exact same concern about the lack of transparency in arbitration. Do you have a source on how arbitration is more expensive than litigation? It makes sense that arbitrators would be more expensive than judges who are paid a public salary, but that wouldn't be the full analysis. After all the most common benefit cited for arbitration is that it's much cheaper overall when you take into account the full costs (including attorney's fees) because the process is significantly less cumbersome than traditional courts. And in the specific context of whether consumers should initiate arbitration more, the cost is irrelevant if the companies are the ones footing the bill.

Still, I don't expect FIRE to use or even advocate for arbitration, but when they issued a statement on PayPal this is what they said:

Advocacy groups have also criticized the lack of due process provided to users who are suspended or banned. In many cases, PayPal doesn’t even tell users why it took action against them, other than to say they violated the acceptable use policy. Last year a coalition of groups including EFF and the ACLU called on PayPal and Venmo to “provide more transparency and accountability around its policies and practices for account freezes and closures, including publishing regular transparency reports, providing meaningful notice to users, and offering a timely and meaningful appeals process,” consistent with the Santa Clara Principles on Transparency and Accountability in Content Moderation.

I asked FIRE for specific proposals to improve due process and appeals they had in mind but they never responded. EFF/ACLU/FIRE can write all the letters they want, but companies have no reason to pay attention. Maybe someday they'll manage to pass some legislation that addresses this issue, but I don't see that happening anytime soon. So meanwhile, why not tell people about the tools already available?

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