All I Want to do is Fly

They Didn’t Ask to Go Viral. Posting on Social Media Without Consent Is Immoral

It's typical to ask friends for permission to share pictures of them. Yet people don't extend this courtesy to strangers, either because the

WIRED

The problem with judging people for their sins is that the internet makes it exceedingly easy to invent sins. In February, Buzzfeed News reported on a man filmed by a passing TikTokker, who then uploaded the footage with text suggesting he’d lied to her to get out of a date. That was false—he’d never met her—but it didn’t stop people from ridiculing him as the video racked up over a million views.

Similarly, last year, an Australian woman objected to being made the star of a stunt in which a TikTokker asked her to hold a bouquet, strolled off, and then congratulated himself on performing a random act of kindness. Sixty million hits later, his viewers were praising him for brightening the day of a woman they judged to be old, lonely, and sad. But she objected to that characterization and declared the whole affair “dehumanizing.” She hadn’t asked to have her day interrupted, let alone be thrust into a global spotlight.

And then there are those incapable of even grasping the situation. In 2022, a TikTok channel was called out for surreptitiously filming the homeless with drones. Loved ones with dementia are put on TikTok to be infantilized or have their worst moments gawked at. Parents transform their children into viral stars. Sometimes, those children grow up and call them out for warping their youth.

When people tell us it was harrowing and wrong to be unwillingly cast into the spotlight, we nod and agree. But those responsible typically offer only half-hearted apologies or remain unrepentant, while their millions of views discourage reflection. Often, moral scolding is implicit in the video and explicit in the comments: It is wrong to be homeless. It is gross to be ill. It is pathetic to be unhappy.

To be sure, crass and hateful public figures are worthy of ridicule. And we’ve been using the internet to judge strangers for as long as we’ve had the internet. But the common trait shared by much of the most obnoxious content today is that someone chose to elevate a stranger for no reason beyond their own gratification, attracting attention at a scale unimaginable in the days of relics like Hot or Not and People of Wal-Mart.

At best, these are misguided attempts to juice the poster’s social media presence. At worst, they are pointless cruelty. That cruelty can be addictive, but we can and must resist the urge to gawk at strangers against their will. It should, in fact, be considered rude, insulting, and wrong to have uploaded a stranger against their will. We would not go out into the streets and stir up a mob against a random person. Why are we so comfortable with doing it online?

Much of what we post online is innocent and will remain so. The average Facebook user has 338 friends, while the average number of Instagram followers, according to one estimate, is just 150. You likely use these platforms to follow celebrities and brands, and to interact with friends and family. These are, for most users, insular communities. Vacation photos with friends or a family portrait at Christmas are unlikely to attract trolls and creeps, and even if they do, they are clearly posted in good faith.

But some platforms, like TikTok and Twitter, are more exposed to the vagaries and cruelties of the wider world. Anything you post on them can wind up in the feed of people who don't follow you. Therefore, anyone can become the day’s punching bag. Does your relative really understand what could happen if you put your interaction with them on TikTok?

Maybe you know better than to post Grandpa on Twitter without thinking it through. We know whether our friends and family like attention and whether they understand social media ecosystems, and with this knowledge we are capable of making informed decisions as to whether and on what platforms we should post them. We do not have the same knowledge of strangers. That can be a reason to not post them, but it can also be an excuse to post them without thinking.

If it came out that an influencer uploaded an interaction with a stranger to a private Facebook page or Discord server solely so their closest friends and family could pick them apart, it would rightly be considered misanthropic. And yet uploading a stranger so millions can mock and over-analyze them is just the business of content. That business needs to change.

It’s exceedingly unlikely we’ll ever eliminate jackassery from the internet, but a social media mishap involving a friend or family member can be resolved with communication.

It is harder for a complete stranger to succeed in that endeavor, especially when “Look at this weirdo I found, please gape at them” is the text or subtext of so many videos and posts by accounts that thrive on content starring the unwilling. Such content must become anathema. Particular thought must be taken before posting an interaction with a stranger, and the consent of a stranger to be posted at all is necessary to retain an internet that is even remotely civil. If someone does post a stranger without their consent, they should be shunned, not rewarded with the attention they crave.

The vast majority of disputes with unruly neighbors are solved by talking to them. Ideally, the law only gets involved when lines of communication break down. The same can be true of digital disputes.

We have privacy laws. If I were to post your name, address, and phone number, you would have legal recourse. And yet the same is not true for your image. Today, at least, you surrender your right to privacy by stepping into public. But outdated privacy laws are catching up to the abuses of government and tech, and the issues raised by social media virality could be next.

Still, a blanket law against posting strangers without their consent would be draconian and unworkable. There are too many variables, too many circumstances, and simply too many cases. However, whole generations who have been online since birth—sometimes unwillingly—could grow up to be more sensitive to the downsides of posting without permission, prompting a normative shift.

More specific laws are already evolving to handle some scenarios raised by nonconsensual virality, specifically as it applies to children. Irina Raicu of Santa Clara University’s Internet Ethics Program points out that a recent French law entitles child influencers to demand that platforms scrub all trace of them once they turn 16. The YouTube career their parents create for them—or force on them—need not be what defines them as adults. The United States is considering a similar law; a woman who testified to a House committee said the details of her first period were turned into content.

Another law being considered in France would make parents responsible for their children’s privacy rights. Le Monde cites, as an example of fame-seeking behavior that France is hoping to discourage, TikTokkers scaring their children by pretending to call the police on them, and an Instagrammer who smeared chocolate on her 4-year-old and convinced them they were covered in feces. We will eventually wonder how parents were able to get away with this at all.

So those who cannot consent are starting to be protected. But what about those who could consent, but don’t? And what if, as some unwillingly viral subjects have found, reaching out and asking for posts to be removed is met with silence or rejection?

In reality we already practice social media consent; it is not unusual to ask a friend if they’re alright with having a picture posted to Instagram, even though the face they make as they try to cram an unusually large sandwich into their mouth is not a flattering one. And yet we continually fail to extend this courtesy to strangers, either because we think nothing of it or because it is our job to go viral at all costs.

Some of this, as Raicu points out, can be blamed on the platforms we use, which encourage hair triggers. “There are ways in which the design choices behind many websites make it harder for all of us to think about consent,” Raicu wrote in an email. She points to the sheer ease of posting and the fact that norms around social media consent have not solidified. But she notes that platforms could “introduce some friction” in the form of, essentially, reminders that other people are human before you hit Post.

Future platforms could work to curtail shaming, either out of moral compulsion or legal necessity. Much as you can report harassment to social media platforms, posts that have elevated you to infamy against your will should be fair targets.

Lines have been drawn before. YouTube banned dangerous pranks and challenges after people were hurt and complaints mounted. TikTok is trying to tweak its algorithm in response to growing concerns that young users are awash in content encouraging suicide and incel ideology. Content made from those unable or unwilling to consent is a broad category that cannot be wiped out with algorithmic tweaks, but the damage is still happening, and we have the power to collectively declare that some forms of content are unacceptable and must no longer be tolerated.

Perhaps, given the increasing universality of social media usage—83 percent of Gen Z uses TikTok—platform-embedded tools could establish consent. Before posting a video of someone, an influencer could ask their username and send them a simple, stock contract granting them permission to post. Again, this need not apply to every random photo of friends. It could be optional, or it might apply only when an account reaches a certain threshold of followers. But a lack of permission could give a user cause when they cite unwanted virality and negative attention when asking for a post to be removed.

But most of the work will fall to people. It's difficult enough to remember that the man being a bit rude in the grocery store line is a fallible human being with hopes and dreams; it can be almost impossible to remind yourself of that when viewing a contextless clip of someone halfway across the hemisphere. The internet is capable of connecting us to tremendous numbers of people, even as it makes us forget that they are human like us.

An influencer comfortable with filming themselves for thousands of viewers should be comfortable with approaching a stranger and saying, “Would you mind appearing in a video I’m making? I’m going to post it on this platform, and I have this many followers. Take a minute to check me out.” Some already do, and surely there are people who would be happy to receive a free bouquet in exchange for appearing in a TikTokker’s silly stunt. But a no should be taken as a no, just as it should in any other scenario involving consent.

It’s all too easy to skip this step today. People who speak out when they feel harmed by what an influencer did with their image receive only a tiny fraction of the attention that the original posts featuring them got. But when an influencer is repeatedly called out for exploiting strangers—or when their exploitation is obvious, such as when they prey on the homeless—they should be frozen out of the social media ecosystem, not rewarded with attention and profit.

In the future, how will we be able to see such casual cruelty as anything but unethical? Maybe stories of regret are a sign of what’s to come. Brianna Wu, one of the victims of GamerGate, says she has fielded over 100 apologies, often from people who were at their lowest and saw her as an easy outlet for their emotions. But we generally don’t take our frustrations out on people on the street; understanding that people deserve to be protected from unsolicited online fame and malice is the next logical step.

We no longer parade people through villages on a cart or lock them in pillories in the town square to shame them, as was done in centuries past. We did not stop enforcing laws and norms, but we recognized that humiliation and ostracization are harsh, counterproductive tools. Eventually, we will make that realization about the strangers we parade across the internet.

Why Scientists Are Clashing Over the Atlantic’s Critical Currents

Is the system of currents that runs through the Atlantic about to shut down, creating climate chaos? Depends on who you ask.

WIRED

So much on this planet depends on a simple matter of density. In the Atlantic Ocean, a conveyor belt of warm water heads north from the tropics, reaching the Arctic and chilling. That makes it denser, so it sinks and heads back south, finishing the loop. This system of currents, known as the Atlantic Meridional Overturning Circulation, or AMOC, moves 15 million cubic meters of water per second.

In recent years, researchers have suggested that because of climate change, the AMOC current system could be slowing down and may eventually collapse. A paper published yesterday in the journal Nature Communications warns that the collapse of the AMOC isn’t just possible, but imminent. By this team’s calculations, the circulation could shut down as early as 2025, and no later than 2095. 

That’s a tipping point that would come much sooner than anyone thought. “We got scared by our own results,” says Susanne Ditlevsen, a statistician at the University of Copenhagen and coauthor of the new paper. “We checked and checked and checked and checked, and I do believe that they're right. Of course, we might be wrong, and I hope we are.” But there’s vigorous debate in the scientific community over just how quickly the AMOC might decline, and how best to even figure that out.

It’s abundantly clear to researchers that the Arctic is warming up to four and a half times faster than the rest of the planet. Arctic ice is melting at a pace of about 150 billion metric tons per year, says Marlos Goes, an oceanographer from the University of Miami and NOAA's Atlantic Oceanographic and Meteorological Laboratory who was not involved with the new paper. Greenland’s ice sheet is also rapidly declining, injecting more freshwater into the sea. That deluge of freshwater is less dense than saltwater, meaning less water sinks and less power goes into the AMOC conveyor belt. 

The consequences would be brutal and global. Without these warm waters, weather in Europe would get significantly colder—more like that of similar latitudes in Canada and the northern United States. “In model simulations, the collapse of the AMOC cools the North Atlantic and warms the South Atlantic, which may result in drastic precipitation changes throughout the world,” Goes says. “There would be changes in storm patterns over the continental areas, affecting the monsoon systems. Therefore, a future AMOC shutdown could bring massive migration, impacting ecological and agricultural production, and fish population displacement.” 

Ditlevsen did her team’s calculation by using measurements of Atlantic sea surface temperatures as a proxy for the AMOC. These readings go all the way back to the 1870s, thanks to measurements taken by ship crews. This meant researchers could compare temperatures before and after the start of the wide-scale burning of fossil fuels and the ensuing changes to the climate. 

Because the AMOC system involves warm water heading north from the tropics, if the circulation is slowing down, you’d expect to find cooler temperatures in the North Atlantic over time. And indeed, that’s what Ditlevsen’s group found, once they compensated for the overall warming of the world’s oceans due to climate change. “When it is established that the sea surface temperature record is the fingerprint of the AMOC, we can calculate the early warning signals of the forthcoming collapse and extrapolate to the tipping point,” says University of Copenhagen climate scientist Peter Ditlevsen, coauthor of the new paper. (The Ditlevsens are siblings.)

The result echoes previous studies finding early warning signals in the circulation, says Stefan Rahmstorf, who studies the AMOC current system at the Potsdam Institute for Climate Impact Research. “As always in science, a single study provides limited evidence, but when multiple approaches lead to similar conclusions, this must be taken very seriously, especially when we're talking about a risk that we really want to rule out with 99.9 percent certainty,” says Rahmstorf. “The scientific evidence now is that we can't even rule out crossing a tipping point already in the next decade or two.”

Still, scientists don’t agree about whether sea surface temperature (SST) is a good indicator of the health of this massively consequential circulation. “Fundamentally, I am deeply skeptical that SST is actually a proxy of AMOC,” says climate scientist Hali Kilbourne, who studies the current system at the University of Maryland Center for Environmental Science. “But there's certainly a school of thought of people who think it's the best thing going—and it may be the best thing going right now. I don't think we have a good alternative, which is why people are using it."

“I really question whether [SST] is an adequate proxy for AMOC itself,” agrees Kevin Trenberth, a climate scientist at the National Center for Atmospheric Research. “But the trouble is there aren't really adequate measurements.”

The core of the issue is that sea surface temperatures are just one component of the AMOC system; other factors also help determine Atlantic temperatures. Warm waters flowing north have an effect, but so does the atmosphere touching the water. “There's a lot of what we call air-sea interactions—the heat exchange between the atmosphere and the ocean,” Kilbourne says. “And that's not at all related to ocean circulation.” 

“This SST fingerprint, although sensitive to the AMOC, is not solely driven by it, so these changes may be overestimated,” agrees Goes, the oceanographer from the University of Miami and NOAA. “Current climate models do not give a strong probability of the collapse of the AMOC this century.”

The beauty of the SST dataset is that it stretches back 150 years, so scientists can see longer-term trends in temperatures. However, those early shipboard measurements were made by people hauling buckets of water aboard and sticking a thermometer in—not exactly the precision that modern science demands. “It is not ideal, but it’s the best we can do,” says Peter Ditlevsen, “since we need measurements to go back to the pre-industrial era to assess the natural state of the AMOC, before it began slowing down toward the collapse.” 

Satellite measurements of SST began in the late 1970s, providing much better coverage across oceans. And it wasn’t until 20 years ago that scientists deployed a dedicated AMOC sensor array, known as RAPID, which also measures current velocities and salinity—another factor that influences the density of water. By comparing this modern data to the historical SST data, Peter Ditlevsen says, they can compensate for the influence of the atmosphere on the sea surface, isolating the signal of the AMOC system.

When the RAPID array went online, the assumption was that it’d take 40 years to get an idea of whether the current system was in decline. “It's just hard to tease apart, because we really don't know what the intrinsic timescales of AMOC are,” says Nicholas Foukal, an assistant scientist at Woods Hole Oceanographic Institution, who wasn’t involved in the new paper. “We haven't had an AMOC collapse in the past 20 years, so it’s like trying to predict a hurricane—having never seen a hurricane.” 

Since RAPID started operating, scientists have seen a good amount of variability. “We've been directly measuring AMOC since 2004, and we don't have any evidence of long-term decline,” says Foukal. “The first six years, there was a very strong decline. And people jumped on that, saying that it's declining, and we have observational evidence of it. But since then, it has recovered.” 

Scientists also use models to simulate how the current system might change as the climate does. Compared to the studies indicating a slowdown and eventual collapse of the circulation, models indicate more stability, says Oluwayemi Garuba, a climate scientist who studies ocean-atmosphere interactions at the Pacific Northwest National Laboratory. “Observations are showing more statistically significant early-warning signals of a collapse of the AMOC, whereas most models are not showing that,” says Garuba. “So, it could be that the overturning circulation in models is just more stable than in observation, as earlier studies have suggested.”

Going forward, Greenland will be a major wildcard. Last week, scientists reported how they used ice cores from an abandoned military base to determine that around 400,000 years ago, northwest Greenland was ice-free. Back then, temperatures were about the same as they are today, yet atmospheric carbon dioxide concentrations were far lower. That raises the alarm that the decline of Greenland’s ice sheet could accelerate. If it does, the melt would load the north Atlantic with astonishing amounts of freshwater, fast-tracking the decline of the AMOC and adding many feet to sea levels.

It’s complexity and uncertainty all the way down. “The fact that, with continued warming, AMOC will slow down is a very robust result. The uncertainty—and where science still needs to figure things out—is when,” Kilbourne. “But I kind of think that by the time we figure out when, it'll already have happened.”

Heat Waves Aren’t Just Getting Hotter—They’re Stickier Too

This summer's extraordinary heat is but a preview of what's to come: Humidity not only makes daytime highs more miserable, it extends the ho

WIRED

Because you’re a smooth-skinned mammal, no weather feels quite as oppressive as a humid heat wave. The more water vapor in the air, the less efficiently your sweat can evaporate and carry excess heat away from your skin. That’s why 90 degrees Fahrenheit in humid Miami can feel as bad as 110 in arid Phoenix. 

Climate change has supercharged this summer’s exceptionally brutal heat all around the world—heat waves are generally getting more frequent, more intense, and longer. But they are also getting more humid in some regions, which helps extend high temperatures through daytime peaks and into the night. Such relentless, sticky heat is not just uncomfortable, but sometimes deadly, especially for folks with health conditions like cardiovascular disease. 

One of the more counterintuitive effects of climate change is that a warmer atmosphere can hold more water vapor than a colder one. A lot of it, in fact: Each 1.8 degree Fahrenheit bump of warming adds 7 percent more moisture to the air. Overall, atmospheric water vapor is increasing by 1 to 2 percent per decade. That additional wetness is why we’re already seeing supersize downpours, like the flooding that devastated Vermont earlier this month. 

Water vapor is actually a greenhouse gas, like carbon dioxide or methane, responsible for about half of the planet-warming effect. (It's supposed to be up there, whereas humans have been pumping in way too much extra carbon.) More warming evaporates more water, which causes more warming—a climatic feedback loop. 

In landlocked areas, heat waves evaporate water from plants and soils. But humidity gets especially oppressive near the ocean, where water is more readily available. “Coastal regions in general are seeing more humid conditions as ocean temperatures warm,” says Alexander Gershunov, a research meteorologist at the Scripps Institution of Oceanography, who studies humidity and heat waves. “Air sitting over a water body tends to be close to saturated. It has a lot of moisture in it—close to 100 percent relative humidity.”

Sea surface temperatures have been steadily climbing globally, as the oceans absorb something like 90 percent of the excess heat that humans are adding to the atmosphere. But since March, global sea surface temperatures have been skyrocketing above the norm. The North Atlantic, in particular, remains super hot, loading Europe’s air with extra humidity. 

The waters around Florida are also logging truly astonishing sea surface temperatures: On July 24, a buoy recorded a temperature of 101 degrees Fahrenheit. “You have incredibly warm Gulf water that warms the atmosphere, which can then absorb more moisture. So it's kind of a feedback loop,” says Kent State University biometeorologist Scott Sheridan. “In a lot of the areas around the Mediterranean, where there's been really bad heat, and then in Florida and the Gulf Coast, those have been the really big driving factors for why the humidity is so high.” 

Accordingly, in Miami the heat index—a measurement that combines temperature and relative humidity—has been above 100 for over 40 days in a row, smashing the previous record of 32 days in 2020.

Meanwhile in California, Gershunov’s research has confirmed that heat waves are getting stickier. “It's not just more frequent, more intense, and longer-lasting heat waves, like is the case all over the world with the warming climate,” says Gershunov. “Here, the heat waves are also changing flavor. They're becoming more expressed disproportionately in nighttime temperatures. It turns out it's because of humidity, and that's related to the warming of the ocean.”

If you’re in a desert and suffering days of 110-plus-degree heat, you can at least look forward to those temperatures coming down at night, as the landscape sheds built-up heat. But when it’s humid, the atmosphere stubbornly holds onto that heat. “With more and more humidity, more people will be impacted during the night. And I don’t think we’re ready at all for that,” says Tarik Benmarhnia, an environmental epidemiologist at the UC San Diego. “There's basically no break, no pause in the stress that heat is going to cause to humans.”

The more humid it gets, the harder it is for water to evaporate off the body and the less effective sweating becomes. “If that’s not effective, the only way is to have more and more exchange between the blood and the skin,” says Benmarhnia. “To do that, our body sends more blood, faster and faster.” 

That’s why skin flushes if it’s hot out—the body is trying to expel heat via the water in the blood. That means blood is diverted from vital organs to the skin, a sort of physiological panic that’s especially dangerous for people with cardiovascular disease. “But if it's not effective, we just waste a lot of energy, and our circulation system is going to be overwhelmed and lead to very severe complications,” says Benmarhnia. “This is the main cause of hospital admission and emergency department visits during a heat wave.” High heat is correlated with risk of heart attacks and strokes; indeed, heat kills more Americans each year than any other kind of disaster.

It can also potentially cause issues for babies developing in the womb. “For people who are pregnant, blood flow is also diverted from the placenta when the core body temperature increases,” says Rupa Basu, chief of the air and climate epidemiology section at the California EPA’s Office of Environmental Health Hazard Assessment. “That also could provide less nutrients to the fetus, and sometimes, in more extreme cases, could cause preterm delivery.”

Getting more people access to air conditioning will go a long way in preventing heat-related deaths, since AC both reduces indoor temperatures and humidity. “Cooling centers” are a key tool—facilities where people who don’t have AC, or the unhoused population, can take refuge. But because high humidity extends scorching temperatures through the night, people often need that respite through the evening, when cooling centers are closed. 

City planners are increasingly turning to green spaces to lower temperatures in the first place. Vegetation “sweats,” which significantly cools the landscape. (Thanks to their lack of greenery, plus all that concrete and brick, urban areas can get way hotter than rural ones.) 

Adding vegetation can be helpful, says Edith de Guzman, an environmental researcher at UCLA—but it depends on how you deploy it. “In an arid environment, that's a very good thing, because you create basically an evaporative cooler,” says de Guzman, who is also the director and cofounder of the Los Angeles Urban Cooling Collaborative, a partnership of researchers who work with communities on cooling strategies. “But in a more humid environment or during a more humid heat wave, it's not necessarily good. You have a bit of a penalty for that.” 

Basically, sweating greenery adds more humidity to already humid air. And there are trade-offs based on the kind of plants you pick. Big trees have the additional benefit of providing a lot of shade, which makes people feel much cooler, regardless of the added humidity. Vast expanses of lawn are stupid for a number of reasons—they waste water and are awful for biodiversity—plus they provide extra humidity but not a bit of shade. 

As the world continues to rapidly warm, humidity will grow worse. But with the right infrastructure and social policies, people won’t have to suffer for it. “Any heat-related death is preventable,” says Benmarhnia. “There is no exception.”

Does tech need a regulatory antitrust alternative after the Microsoft-Activision decision? | Brookings

The FTC's failure to block Microsoft's acquisition of Activision in court suggests a dedicated regulator for tech could be more effective.

Brookings

The ball game appears to be over for the global objections to the Microsoft/Activision merger. After a series of setbacks for antitrust enforcers last week, the merger is set to close in the near future. But the lesson for policymakers might be to pursue a regulatory alternative in the effort to control harmful vertical tech mergers.

Judge Jacqueline Scott Corley, a recent Biden appointee, wrote the district court opinion last week that rejected the Federal Trade Commission’s (FTC) complaint against the merger. The opinion holds that the FTC had been unable to prove that Microsoft would have a real incentive to withhold the enormously popular game, Call of Duty, from other platforms after the merger. And so, the merger would not be likely to substantially lessen competition in the different video game markets.

Some legal scholars said she got the legal standard wrong. Judge Corley said it was not enough for the FTC to argue that “a merger might lessen competition – the FTC must show the merger will probably substantially lessen competition.” But the Clayton Act requires the FTC to prove the proposed deal “may” harm competition, not that it “will.”

But that verbal slip was not determinative. Judge Corley’s opinion is in line with much current antitrust jurisprudence in imposing a very high burden of proof on an antitrust agency seeking to block a merger, especially a vertical merger. And, on July 14, the Ninth U.S. Circuit Court of Appeals agreed with her reasoning and rejected the FTC’s appeal to pause her decision.

In addition Microsoft and Sony signed a binding agreement on July 16 to keep Call of Duty on PlayStation for 10 years following the acquisition. Microsoft had already signed 10-year licenses for Activision games with some other companies, including Nintendo. Sony’s acceptance of this offer, which it had declined earlier, suggests that it has recognized the writing on the wall and decided to take its best deal in the absence of antitrust action to block the merger.

In the United Kingdom, the Competition and Markets Authority (CMA), which had objected to the deal, agreed with Microsoft to delay appeal proceedings at the Competition Appeal Tribunal, pending negotiation of a deal that would address its concerns. Perhaps the CMA will accept the merger provided the 10-year license agreement to keep Call of Duty available on PlayStation is a condition of the merger, not merely a voluntary business agreement. But it no longer seems likely to block the merger.

The initial deal signed 18 months ago stipulated that if the transaction were not completed by July 18, 2023, Microsoft would have to pay Activision a $3 billion breakup fee. But last week the companies extended the deadline to close their deal until October as they work to settle regulatory concerns.

A trial before an FTC administrative law judge (ALJ) had been scheduled to begin on August 2, 2023. But the ALJ court has no power to halt the merger, and so on July 20, the FTC paused this in-house trial. Even though the FTC’s loss is only on the issue of a stay, it is probably going to end its attempt to block the merger as it did after losing its attempt to block Meta’s merger with the VR game developer Within.

Some commentators, such as entrepreneur Scott Galloway, say one lesson is that FTC Chair Lina Khan must be more cautious. We have an inexperienced agency head, goes the thinking, who is taking excessive legal risks. These commentators point out that the effectiveness of the FTC is based on industry fear that the agency will win if it must go to court. They also point out that she tried and failed to block the Meta merger with Within and now she has had this new setback. If this losing streak keeps up, they think businesses will lose their respect for the FTC and mergers will soar.

This recommendation from these commentators for more caution might underestimate the very real accomplishments of more stringent merger reviews. The willingness to file these challenges has had and will continue to have a deterrent effect. The Microsoft Activision deal was announced 18 months ago. As The Economist notes, an 18-month delay “would be enough to chill future dealmaking.” Not many companies will wait 18 months to close a deal in the face of international regulatory objections that are removed only at the eleventh hour.

It is true that heightened antitrust scrutiny of mergers has not deterred some companies from proposing questionable deals. For instance, even though it ultimately had to accede to a court order to unwind its involvement in the Northeast Alliance with American Airlines, Jet Blue felt comfortable seeking to acquire Spirit while still under challenge from the Department of Justice (DOJ) regarding that alliance. Moreover, the number of mergers has held steady. These facts suggest that more stringent merger reviews have not been effective in deterring questionable mergers.

Still, more stringent merger reviews at DOJ and the FTC have meant a decline in the pace of large mergers. As The Economist also notes, the average value of mergers has shrunk by about 40% in the last year compared to the past five years. The DOJ and the FTC are far from being toothless tigers, even when they ultimately lose in court. Continuing their tough stance against problematic mergers will likely continue to deter companies.

In addition, FTC Chair Khan is acting in line with a new understanding among antitrust enforcers of the risks of mergers, including vertical mergers. It is worth remembering that the Trump Administration’s DOJ brought its own vertical case in 2017, this one against AT&T’s acquisition of Time Warner. The antitrust agency worried that, because AT&T owned DirecTV, it would take its newly acquired must-have programming off rival cable services including HBO and CNN. This was the same vertical concern that motivated the FTC’s challenge to the Microsoft Activision deal. But DOJ lost in court and the merger went through in 2018.

Despite these court losses, worries over vertical combinations are extremely intuitive. It is just common sense that a large distributor will withhold product from its competitors if it can. Traditional antitrust wisdom followed this idea and sought to control that anticompetitive conduct by refusing to allow integration between key distributors and producers.

The Borkian revolution in antitrust in the 1980s reversed that presumption and taught that vertical mergers were almost always benign. However, much recent antitrust commentary on the measurement and effects of vertical mergers (see Serge Moresi & Steven C. Salop and Marissa Beck & Fiona M. Scott Morton) backs up the traditional intuition that vertical mergers are often anticompetitive and rebuts the idea that they should be considered presumptively benign.

Antitrust agencies are increasingly taking this view. In addition to its cases, in 2021 the FTC withdrew its lenient vertical merger guidelines, citing their reliance on “unsound” economic theories. On July 19, the FTC and the DOJ issued new draft merger guidelines that more realistically take into account the evidence that past approved mergers have led to a loss of competition. Guideline 6 states that vertical mergers “should not create market structures that foreclose competition.”

The problem is with the courts. In the end, judges approve or reject cases brought by antitrust enforcers. Antitrust activist Matt Stoller rightly points out that President Biden’s commitment to a robust antitrust agenda hasn’t included appointing judges who share a similarly progressive view of antitrust laws. But this is urgently needed if the new thinking about the harms of mergers is going to prevail. The extraordinarily high burden of proof in merger cases is judge-made law, made under the influence of Robert Bork’s outdated antitrust framework. It can be undone by appointing judges who would effectively operate under a burden of proof that properly considers the Clayton Act concern about the concentration risks and tendencies attendant to large mergers.

Of course, Congress could act to adjust the Clayton Act standard for merger review. In 2021, Senator Amy Klobuchar proposed a new standard for mergers. It would bar mergers that “create an appreciable risk of materially lessening competition,” rather than mergers that “may substantially lessen competition,” where “materially” is defined as “more than a de minimus [sic] amount.” The intent of Senator Klobuchar’s bill was that, by reemphasizing the Clayton Act’s concern with the risks that large mergers lead to concentration, the updated standard would allow enforcers to “more effectively stop anticompetitive mergers that currently slip through the cracks.” Such a new standard might also force judges to look more favorably on agency efforts to rein in mergers, as the framers of the Clayton Act intended.

But, in the short-term, Congress is not likely to be a source of antitrust reform. Representative David Cicilline, head of the House Antitrust Subcommittee until this year and a leader of the antitrust reform effort last year, has retired. Representative Jim Jordan, the new Republican chair of the House Judiciary Committee, is hostile to Chair Khan’s stewardship of the FTC, as evidenced most recently by his tough questioning at an oversight hearing last week, and he is certainly no friend of antitrust reform. This week he signed a letter with 21 other House of Representative Republicans praising the Microsoft/Activision merger as “procompetitive,” endorsing the outmoded Borkian antitrust framework that has dominated antitrust jurisprudence for decades, and rejecting progressive reforms as “anti-consumer, anti-innovation, and anti-American.” Antitrust reform bills stalled in the Senate last year and there is no sign of resurrection.

The long path forward for student loan forgiveness | Brookings

Student loan policy is shifting from forgiveness to repayment.

Brookings

Less than a year after the Biden administration proposed forgiving up to $10,000 in federal student loan debt for most borrowers, the Supreme Court ruled the policy unconstitutional. At the core of the case was whether the HEROES Act of 2003 granted the Secretary of Education the authority to “waive or modify” federal student loan terms, up to and including forgiving those loans. The Court ruled in a 6-3 decision that broad forgiveness was beyond the scope of what Congress intended when passing the HEROES Act, further arguing in the majority decision that policies with such a large economic and political impact should be decided through Congress, and not executive action.

In the wake of that decision, the Biden administration has shifted policy toward improving the borrowing process as well as the repayment process. Political attention has focused on repayment (from the Biden administration’s attempts at loan forgiveness to Republican-sponsored legislation proposing new repayment structures) but must also turn to reforming how students decide whether and how much to borrow to ensure future students do not face unmanageable student loan debt.

With widespread student loan forgiveness struck down by the Supreme Court, the Department of Education (ED) is moving forward on two repayment-oriented efforts. First, the Department has been implementing targeted student loan forgiveness under existing programs. In one recent move, ED announced they had reviewed old income-driven repayment accounts to ensure borrowers received accurate credit for prior monthly payments — as a result about 800,000 borrowers had the rest of their loans forgiven.

The Department is also working to expand student loan forgiveness for students who attended fraudulent universities. In some cases, the administration has automatically forgiven loans for students attending colleges that misrepresented its graduates’ employment rates or that lied about their program accreditation when recruiting prospective students. The administration is also launching a “borrowers defense” application on July 30 where borrowers can make claims against their colleges engaging in misbehavior and request loan forgiveness.

Second, the Biden administration announced the details of their new income-driven repayment plan, with some elements going into effect prior to when student loan repayments restart later this year. The new Saving on a Valuable Education (‘SAVE”) plan will replace REPAYE (an existing income-driven repayment plan) and will automatically transfer borrowers on REPAYE to the new SAVE terms.

The key short-term changes include exempting a higher threshold of income and limiting interest accrual. Borrowers’ monthly payment is calculated off their discretionary income, which has to-date been any income above 150% of the poverty line. Under SAVE, that will be any income above 225% of the poverty line. For a household of four, that means an additional $22,500 of income is protected against consideration when calculating monthly payments. Further, starting this summer if borrowers’ payments don’t cover the interest accrued that month, that interest won’t be charged. Interest accumulation has been a key driver of why some borrowers owe more on their loans four years after graduation than their original balance. While other elements of the plan, such as reducing the years borrowers have to pay before forgiveness, won’t go into effect until next summer, many have argued the new repayment plan is so generous it amounts to a new loan forgiveness program.

Pre-pandemic, the Congressional Budget Office estimated that ED loses 16.9 cents on the dollar for loans in income-driven repayment plans (as opposed to the 12.8 cents on the dollar they gain from loans repaid in standard plans). In its initial review of the Biden administration’s proposed income-driven repayment plan, CBO estimated the program would cost about $230 billion over the next decade, though will update that estimate as the details of the program get finalized.

Millions of borrowers have had their student loan payments on pause since March 2020, but a provision in recent debt ceiling negotiations stipulated that the pause must end this year and payments will resume this fall. One analysis estimates about 16% of borrowers could be unprepared to make their student loan payment, recommending ED double-down on enrolling borrowers in existing income-driven repayment plans and calls on states and employers to provide assistance navigating loan repayment.

At the federal level, the Biden administration announced that borrowers would not face any negative credit consequence of non-payment until September 30, 2024 during a repayment “on ramp” period. While this action will help borrowers avoid default, it is incumbent on the administration to clearly communicate to borrowers that interest will still accumulate on their loans, so borrowers aren’t surprised by increasing debt balances.

The administration has not stopped pursuing widespread student loan forgiveness. But these actions must be taken through the authority granted to the Secretary of Education under the Higher Education Act (HEA). The administration now turns to a long, complicated process called “negotiated rulemaking,” (commonly abbreviated as “neg reg” or “reg neg”) to advance student loan forgiveness.

This Brookings explainer details the negotiated rulemaking process from 2021 when ED convened a committee around student loan forgiveness rulemaking. At a high level, ED must craft a negotiating committee, which will hold hearings and vote on proposed actions, and then ED will propose rules based on committee consensus. These phases can take a long time — but ED is moving quickly and the 2023-24 negotiated rulemaking process is already underway.

There are two key timing considerations for implementation. ED must propose rules by November 1 for them to go into effect by the following July — meaning the Department will likely announce final rules on student loan forgiveness just days before the November 2024 presidential election, raising the stakes on implementation. A new presidential administration could potentially pause implementation and move to formally rescind a federal rule, as former Secretary of Education Betsy DeVos did in 2019 when she rescinded a “gainful employment” rule regulating career programs’ eligibility for federal financial aid that had been passed under the Obama administration.

There’s another date to consider — the end of 2025. Most types of student loan forgiveness are subject to taxation, but the American Rescue Plan has a provision that federal student loan discharges are not subject to federal taxation through December 31, 2025 (and most, though not all, states have followed suit). This deadline makes it even more pressing for borrowers that neg-reg rules get submitted by November 2024 so they can be implemented in the second half of 2025 before the tax exemption expires.

Federal rulemaking is subject to judicial review, and whatever rules emerge from the current neg-reg process will almost certainly face legal challenge. However, based on the Administrative Procedural Act, those challenges will be unlikely to come until late 2024 once there has been “final agency action” (e.g., when the final rule is posted). Of course, a legal challenge to one rule does not preclude another attempt from an agency. When the Obama administration was crafting gainful employment regulations, their first proposal was struck down, after which they changed the metrics they would use to evaluate colleges and proposed a new rule that was upheld against legal challenges. This may be the first of multiple rulemaking processes around student loan forgiveness and how to best structure loan repayment.

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