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For EveryonePatient Advocacy Leaders

The Art of Lawfare

“If you know the enemy and know yourself, you need not fear the result of a hundred battles.“

― Sun Tzu, The Art of War

AI Prompt: Sun Tzu, The Art of Lawfare

I first heard the term “lawfare” in a recent great talk on AI and digital rights given by DATAFair Keynote speaker John Wilbanks. While our legal system is designed to be adversarial, patient communities and advocates often may not realize the asymmetric power of our adversaries or the millions of dollars of lobbying work that goes into undermining the autonomy of our online communities and our basic digital rights. When lawfare happens it’s not even obvious that it’s happening unless you look a little closer at yourself and your community.

…Know yourself. Know your community.

As we contemplate the next phase of our work at The Light Collective, I have been striving to be mindful of where our interests align as patient communities and where they do not. A conflict of interest is a situation in which an organization or individual is involved in multiple interests, whether financial or otherwise. Serving one interest may require working against another.

Conflicts of interest can catch anyone off guard, even when an advocacy organization has the best of intentions. As a patient advocate, I have witnessed numerous small organizations changing the world on a shoestring budget out of necessity and survival. However, patient-led organizations sometimes face the difficult choice between survival and taking on conflicting interests. Understanding ourselves and our adversaries in the context of our mission demands mindfulness and the discipline to say “no” to funding that could dilute our mission or conflict with our core values. But to be clear, saying “no” to certain funding may also risk The Light Collective’s survival as an organization in the next year.

We have weathered turbulent times for five years, yet it’s increasingly difficult to discern the battles we are fighting. Is it the war against cancer? The war to eradicate disease as we know it? The war against the greed, exploitation, and outsized power of big tech? We have so much to fight for and so much to fight against, but at what cost? In these battles, do we truly understand our enemy and ourselves? Which battles should we engage in with our limited time and resources? Perhaps “enemy” isn’t the right word when it comes to lawfare, as our legal system is designed to be adversarial—a zero-sum game where one side wins and the other loses. For now I’l just say adversary.

…Know your adversary.

Allow me to illustrate lawfare with an example that is not related to health privacy but is also facing a parallel reckoning in the world of litigation: children’s safety on social media.

Recently, there was a panel discussion, seemingly like any other in this sea of expert opinions, on how we should govern tech and the internet. The topic: Content moderation and children’s safety on social media.

This debate and public discourse are certainly important, especially now that 42 state attorneys general have sued Meta with claims that its features are addictive and target kids. Here’s the full discussion:

….Enter our expert panelists on child internet safety:

At first glance, these four panelists seem to be engaging in an objective and civil debate about the law and internet safety. However, appearances can be deceiving.

What’s truly remarkable about the concept of lawfare is that it can manifest through subtle tactics that ordinary individuals affected by a problem may not fully comprehend. Lawfare takes many forms. As Sun Tzu would say, the best strategy is one that seeks to overcome “the enemy’s resistance without fighting.”

If teens are the “enemy” in this legal case against Meta on child safety, then lawfare is that shiny landing page filled with empowered citizens taking action, orchestrated by an organization of corporate lobbyists. It’s the privacy bill marketed as the ‘The Kids Online Safety Act,’ which experts warn would harm children. It’s the call-to-action for personal responsibility and informed choices when using technology that gradually erodes your choices as you sign away your rights in the fine print of a consent form. It’s that prominent banner on a website proclaiming, “We take your privacy very seriously,” when, in fact, the dark patterns and addictive features of the social media platform reveal that your privacy is a mere jest to them. And it’s this panel of lawyers ganging up on a sole young advocate.

The only panelist directly affected by Meta’s safety problems was Ava Smithing, a GenZ advocate who began her advocacy journey after developing an eating disorder from years of using Instagram. In contrast, consider the funders (and motivations??) behind each of the other panelists: 

There’s no denying that a nonprofit can maintain its independence from funders. After all, Young People’s Alliance has funding from the founder of eBay through Omidyar networks. However, it becomes problematic when this debate is portrayed as neutral, especially when three out of the four panelists’ funders are involved in pending litigation related to health privacy and Meta. Further illustrating this point is that these three panelists’ comments all took the side of Meta in a barrage of gaslighting and half-truths that I’ll break down below:

  • “This litigation is just ambulance chasers recognizing a big opportunity.“ This isn’t true. The state attorneys general involved in the latest lawsuit don’t stand to financially benefit from the case.., and the case would not have advanced to the point it has if they didn’t have evidence to bolster the claims.
  • “This is a misuse of the term addiction.” Also not true. Check out what happened with Purdue Pharma in Texas. The case law on the Opioid crisis included tortious marketing strategies to push drugs on vulnerable people. Texas state AG won the case.
  • “We’re going through psychosis from Covid” …it’s not social media.” Half true. We may all be traumatized by Covid, but plenty of pre-2020 studies and research show the addictive properties of Facebook’s products.
  • “The internet is useful because of targeted algorithms.” I love this one, and it’s completely untrue. Always be wary when an “expert” condescendingly explains how something works in order to assert their superior legal or technical knowledge. Remember that the meteoric rise of Facebook happened before they started mainlining algorithms to target content for ads. Any decent engineer will tell you we don’t need predatory algorithms for the internet to work. Facebook has for years held a patent for suicide risk prediction, yet they somehow fail as a platform to use this IP to improve outcomes for teens.

As this ‘debate’ went on, I felt like I was watching a lawyer’s version of ‘To Catch A Predator’ – only the takedown was by a GenZ advocate calling out corporate lobbyists disguised as neutral experts. These lawyers knew what they were doing by ganging up on a young advocate who was less resourced (to put it mildly) and less experienced than they were. What they did not anticipate is the power of Ava’s voice to speak the truth.

This wasn’t a fair debate among experts…it was an ambush.

I love a good debate. But that’s not what we’re watching. This a garish display of lawfare where the only advocate in the room held her ground. Others took notice:

Make no mistake…the internet is currently a war zone as these companies battle for power – and hold the power to make or break the governments that threaten to hold them accountable. It’s increasingly difficult to know your adversary. Prepare for lawfare, and prepare to defend yourself like Ava, because the adversaries are here for us. Their job: discredit any movement of people affected by a problem so that the companies like Meta can keep monetizing your data without accountability.

And as we work to understand the resources, tactics, and outcomes of our adversaries’ many million dollar campaigns to outsmart, out-lobby, and out-litigate…we still struggle to know ourselves and our true strength as grassroots patient advocates and communities. The power that these “experts” will never have is that found in the determination, ethical convictions, and bonds of organized, grassroots communities. It is hard to struggle from grant to grant and to secure the funding to support our continued work. It’s tiring and often thankless work .And certainly, we are unlikely to ever be in a position comparable to these astroturf think tanks in terms of resources. But seeing these lawyers gang up on this young woman was a pivotal moment for me – it made it very clear: Ensuring we remain independent from unethical funding is what’s required to remain free from conflict of interest and true to our values as we continue to actualize our mission.