Ten Million Dollars a Sentence

There is no jury.

I want that established before anything else, because it is not a rhetorical opening, it is the first fact of the case. There was never going to be a jury. Emily Normandin-Parker agreed to arbitration the way you agreed to arbitration, which is to say she installed an application on a telephone. That agreement survived her. It bound her parents, who never signed it, to a private proceeding held in a room you are not allowed into, before a judge nobody elected, producing no transcript, no precedent, and no public record of any kind.

So this is where it gets said, and you will have to serve.

The facts, which are not in dispute

She was twenty-three. On the twelfth of August, 2023, she was riding home with her friend Luna Moore, and both of them had been drinking. Moore was sick in the car. The driver, Vu Tran, pulled over on State Route 73 at a gore point, the wedge of asphalt beside an off ramp where nobody is meant to stand, and there was an argument about a cleaning fee. The women got out. Normandin-Parker walked into traffic and was struck and killed.

I am telling you she was drunk because the finding depends on it. Tran knew exactly what condition his passengers were in; that was the subject of the argument. He conceded at the hearing that the spot was unsafe, stopping there is illegal under section 21718 of the Vehicle Code, and the MacArthur Boulevard exit was sitting right there. The arbitrator called his testimony almost entirely incredible and unbelievable, and noted he had shown more worry for his new car than for the two people in it. Leaving them there at night is not negligent in spite of their condition. It is negligent because of it.

In July a retired judge named Richard A. Stone found for her family. Not against the driver alone, which would have been the cheap finding. Against Uber, as a common carrier holding a non-delegable duty of safety, which is precisely the thing Uber has told every legislature in this country it is not. Proposition 22 did not save them. Twenty million dollars to her mother. Twenty million to her father. Three hundred thousand to the friend who was in the back seat with her. Stone also found that she did not endure pre-death pain and suffering, which made punitive damages moot. There are none in the award.

Then the paperwork came over for signature. Confidentiality. Non-disparagement. Ten million dollars in liquidated damages for each violation.

Her parents said no.

The same silence, elsewhere, for nothing

Hold that figure still for a moment, because I want to put another one beside it.

Edward Snowden took roughly four hundred thousand documents out of the National Security Agency and then did something careful with them: he split them up, among the Guardian, Barton Gellman, Der Spiegel, the New York Times, ProPublica and the Intercept, with complete copies to Glenn Greenwald and Laura Poitras. The distribution was deliberate. It existed so that no single act of pressure could bury the whole thing.

The Guardian published about thirty of its fifty-eight thousand documents and stopped in February 2014, after destroying its London copy in a basement with government technicians watching. Everyone else stopped too, one outlet at a time, across the following eighteen months. The Intercept closed its archive in March 2019 and gave four explanations in nine days: budget cuts, then no editorial value, then editorial priorities, then academic partners who were never named. Gellman put his share into cold storage. Nothing has come out of the archive since May 2019. Three people hold complete copies and not one of them has published a document or given a straight answer in seven years. Around ninety-nine percent of it has never been seen, and when a doctoral thesis went back into a sliver of the material in 2022 it found things nobody had reported, including which security standards were deliberately weakened and by whom.

Now do the subtraction. Uber was quoted ten million dollars per occurrence to keep two parents from describing in public what happened to their daughter, and considered the price worth paying. The largest body of evidence of state surveillance in modern history went quiet for free. No clause. No liquidated damages schedule. No invoice at all. Whatever obtained that silence, it was cheaper than a rideshare company’s legal department, and it is still working.

What the clause was actually buying

Uber’s answer to all of this is that it ultimately did not pursue confidentiality in this case. Take that sentence apart before you accept it. It does not say the document was never drafted, because it was. It does not say the figure was never chosen, because ten million dollars per occurrence did not arrive by accident; somebody picked that number and somebody above them approved it. All it says is that once the parents refused in public and the refusal was reported, the company stopped asking. A price withdrawn under publicity is still a price quoted. What the record gives us is not a company that declined to buy their silence. It is a company’s own estimate of what their silence was worth.

So look at what a non-disparagement provision is as an instrument, because it is easy to file it under lawyers being lawyers and it is not that.

It is not compensation; the compensation is a separate line. It is not a defense; the finding had already happened and could not be undone by anything in the document. It does not protect Uber from liability, because the liability was already determined by their own chosen judge in their own chosen forum. The clause has exactly one function. It is a purchase order for the non-existence of particular sentences. The product is a mother, at some future dinner, not finishing a thought.

Meanwhile a classifier in Menlo Park declined to run advertising in Spain for a stage adaptation of A Room of One’s Own. Woolf’s argument, a century old and not notably inflammatory, is that a woman requires money and a door that locks before she can write anything. The system read it as political and refused the transaction. Meta would prefer you believe a European regulation compelled this, which it does not, as anyone can confirm by scrolling past the actual political advertising running all day. What happened is duller and worse. A machine was asked whether a certain sentence could be purchased into public view, and it said no, and unlike Uber it did not trouble itself to name a figure.

Silence is the only thing in this industry with a firm, published, per-unit price. Everything else has been driven to zero, and you can watch the zero at work on any given morning: Disney rewriting an agreement you had already signed so that advertisements now run before films on the tier whose entire purpose was the absence of advertisements, a man on a forum unable to remove a Siri process from a computer he owns because the volume is read only and the daemon restarts regardless of every setting he can find. Those cost nothing to do. They cost nothing to complain about either, which is why they happen on a Monday.

The rebuttal

In 1996 somebody at LucasArts sat down and wrote an internal design document for the puzzles in Grim Fandango. It was posted on the web, a scanned PDF, and people read it today with something close to reverence. The reverence is deserved but it is aimed slightly wrong. What is remarkable about that document is that its candor is structural rather than intended. The dead ends are in it. The puzzles that did not work are in it, with notes about why they did not work. It shows the whole apparatus of a thing that later looked effortless, and it shows it without a trace of performance, because the people writing it had no conception that anyone outside the building would ever look. Bryan Cantrill did the identical thing this weekend on purpose and at some cost. He loved Sun. He published what Sun got wrong, and not the strategy version everyone already has; the operational version, which is more humiliating: Sun had become bored with running a business. He tells it through a startup that wanted to give Sun money for hardware and could not get Sun to take it, and a Dell account executive who returned calls and won the sale, and then, because this is the part that costs something, he mentions that he went on to co-found a company with the man from Dell. Nobody paid him for any of that. On the same page a manager has posted a piece titled I am often wrong, a sentence a great many people in this industry have a contractual reason never to commit to writing.

Also on that page, an argument that good people refuse to do bad things, which I do not need to make to you, partly because someone has already made it and mostly because two parents in California made it better last month by declining the version of the money that came with a gag.

So I am not going to ask you whether Uber was wrong. Stone settled that, in private, and the finding stands whatever anybody signs. The question in front of you is narrower and it is about you, and it is this: you have a number. Almost none of you has ever been quoted one, which is not the same as not having one, and the difference between those two conditions is the entire distance between a person of integrity and a person who has simply never been approached.

A man who keeps a website about old computers spent real effort working out which part of the beauty of old pixel art was the cathode ray tube and which part was the artist. It turned out to be mostly the artist: the dithering, the hand built palettes, the anti-aliasing done one pixel at a time by people working around hardware that fought them. The glow gets more credit than it earned. He published that, which makes the story smaller and less magical and considerably harder to tell at a party, and he published it for nothing, and it is true.

Take as long as you need.