Is Chevron’s Vendetta Against Steven Donziger Finally Backfiring?

Steven Donziger, the human rights lawyer who spent nearly three decades fighting Chevron on behalf of 30,000 people in the Ecuadorian rainforest, has been sentenced to six months in federal prison for “criminal contempt.” On October 1, in a lower Manhattan federal courtroom, Judge Loretta Preska justified imposing the maximum penalty by asserting that Donziger, now 60, had not shown contrition. She said, “It seems that only the proverbial two-by-four between the eyes will instill in him any respect for the law.”

In May, Preska had found Donziger guilty after a trial without a jury. And now Donziger, along with his family and scores of supporters, had to listen to the federal judge compare him to a mule who needed to be beaten with a piece of wood before complying.

Prior to sentencing, Donziger reminded the court in a polite and at times emotional statement that he had already spent 787 days under house arrest in his New York City apartment, a confinement that had put great pressure on his wife and teenage son. He explained that the court-imposed restrictions meant that his son had a father who was “unable to travel, leave his home except under narrow exceptions with court permission 48 hours in advance, unable to even go out for dinner, unable to have a father capable of doing all the things a father can do and should do with a child, including act with spontaneity.”

But even though Donziger was facing prison, he told the court he would not back down: “I have been attacked and demonized for years by Chevron in retaliation for helping Indigenous peoples in Ecuador try to do something to save their cultures, their lives, and our planet in the face of massive oil pollution. That’s the context for why we are here today.”

In response, Preska read out a prepared 50-minute statement for her harsh sentence. “Mr. Donziger spent the last seven plus years thumbing his nose at the US judicial system,” she said. “It’s now time to pay the piper.”

Donziger will not go to prison immediately. His attorneys will challenge the criminal contempt conviction, and they will also ask a higher court to put off his prison sentence pending that appeal. But Preska will keep him under house arrest, once again calling him a “flight risk.” In the past, she has warned that he “has ties to Ecuador,” insinuating that he would abandon his family and his New York City apartment to go live in the rain forest.

You can’t understand this latest injustice without looking back at Chevron’s long campaign against Donziger, who won a landmark pollution case against the oil giant in Ecuadorian courts in 2013. Chevron was ordered to spend $9.5 billion to clean up a contaminated area the size of Rhode Island, and to pay for the health care of the 30,000 plaintiffs whose communities have seen a rising number of cancer cases. Instead of following the legal order, Chevron launched a case in New York, and in 2014, a federal judge, Lewis Kaplan, found Donziger and some of his Ecuadorian allies civilly liable for racketeering, bribery, and fraud. Then, Kaplan asked the federal prosecutor for the Southern District of New York to put Donziger on trial for “criminal contempt” connected to the original conviction. The federal prosecutor refused, so Kaplan handpicked an attorney from a private firm, Rita Glavin, to prosecute—a nearly unprecedented legal maneuver.

As Chevron’s vendetta continued, international outrage grew. Just before sentencing, the United Nations High Commissioner for Human Rights issued an opinion in Donziger’s favor, ruling that his two years of house arrest was illegal under international law and that he had been denied the right to a fair trial. A panel of five prominent jurists called that confinement “arbitrary” and said that both judges, Kaplan and Preska, had shown “a staggering lack of objectivity and impartiality.” In court, Preska briefly acknowledged the UN findings only to dismiss them.

Once again, the mainstream media is largely ignoring Chevron’s campaign of retaliation against Donziger. The New York Times, Donziger’s hometown newspaper, reported nothing in the two days after the verdict, and has barely mentioned the case for the past seven years.

Back in 1993, Donziger, fresh out of Harvard Law School, joined an ongoing fight for environmental justice. The struggle against Texaco, which was taken over by Chevron in 2001, began in the late 1980s in eastern Ecuador, where the oil company drilled and operated wells from 1972 to 1992. Texaco had disposed of its drilling wastes by methods that in some cases would have been illegal in the United States. (More details are here.) Local people began organizing against the pollution in their rivers and streams and in oil-soaked stretches of their land. The case started in the New York federal courts, but then a judge ordered it sent back to Ecuador—a move that Chevron’s lawyers welcomed at the time. So, in 2003, the legal battle re opened in the eastern oil frontier town of Lago Agrio.

The case wound its way up through three levels of the Ecuadorian courts, and in the end, after Chevron exhausted all appeals, its guilt was confirmed. Meanwhile, though, its counterattack back in New York was underway. Chevron charged that Donziger and his allies had committed bribery and fraud in Ecuador to win their case, and it used the Racketeer Influenced and Corrupt Organizations Act (RICO), which had been designed to prosecute the Mafia. Donziger and the codefendants expected they would face a jury, but at the last minute, Chevron dropped its demand for financial damages. Under RICO law, this meant the defendants lost their right to a jury, and Kaplan alone would decide the case.

Donziger’s supporters objected to Kaplan’s pro-corporate statements and hostility toward the human rights lawyer during the RICO trial. Kaplan is a career corporate lawyer turned judge, with no experience in Ecuador or anywhere else in the Global South. Yet he decided which witnesses to believe and which to disregard—and in 2014 he found Donziger and the others guilty.

Only a corporation like Chevron worth billions could have financed such a prosecution. The oil giant paid for a disgraced former judge named Alberto Guerra and his family to move to the United States. Chevron’s lawyers rehearsed Guerra’s testimony with him 53 times before he went on the witness stand, where Guerra claimed that Donziger and an Ecuadorian lawyer had offered him a $500,000 bribe and that the pair had ghostwritten the final judgment against Chevron. Donziger and his defense team estimate that Chevron has spent $2 billion on legal fees and other costs. (Chevron’s designated spokesman, James Craig, declined to give the corporation’s own figure for how much it has spent on the case. Craig also declined to say if Chevron is still paying Guerra or if he is still living in the United States.)

Chevron’s attacks against Donziger did not stop after it won the racketeering verdict. The current contempt case began when the oil corporation petitioned Kaplan for access to Donziger’s personal computer and cell phone. Donziger declined, arguing that his electronic communications would give Chevron’s lawyers “backdoor access to everything we are planning, thinking, and doing.” He said he would wait until the US Court of Appeals heard his argument, and if it required him to, then he would hand over his electronics. Preska dismissed his defense and convicted him in May—again, without a jury.

It’s vital to recognize Chevron’s role in this legal persecution. Its attorneys show up at every Donziger legal case—even the ones that don’t directly involve the company. At the same time as Donziger was defending himself against the criminal contempt charge, he was also fighting the effort to take away his license to practice law in New York. The state bar association appointed a special officer named John Horan to preside over open hearings, and he found in Donziger’s favor. Horan, a former prosecutor, had harsh words for Chevron: “The extent of [Donziger’s] pursuit by Chevron is so extravagant, and at this point so unnecessary and punitive, [that] while not a factor in my recommendation, [it] is nonetheless background to it.”

Months later, a higher New York state court tossed out Horan’s finding and disbarred Donziger.

Putting Donziger in a federal prison for six months is more than vindictiveness. The $9.5 billion judgment against Chevron in Ecuador still stands, but the oil giant unloaded its assets there. That means the plaintiffs must collect in other countries where the corporation has holdings. Kaplan’s racketeering verdict specifically prohibited the Ecuadorians from forcing Chevron to pay the judgment in the United States. But there are promising possibilities in Canada and elsewhere. Donziger is forced to put those fights on hold while he tries to stay out of prison.

But there are signs that Chevron has gone too far, and that relentlessly pursuing a human rights lawyer is damaging its international reputation. The United Nations High Commissioner for Human Rights is only the latest sign of concern and anger. Sixty-eight Nobel Laureates have shown their solidarity; another 475 lawyers and human rights defenders have signed a letter that calls his prosecution “one of the most important corporate accountability and human rights cases of our time.” Representative Jim McGovern, a Democrat from Massachusetts, said after the prison sentence that “it’s the executives at Chevron,” not Donziger, “who should be behind bars.”

What’s more, a movement to boycott Chevron is in the early stages. Big Oil is under scrutiny because of its role in the climate crisis, and divestment campaigns on college campuses and elsewhere are starting to have an impact. Large institutional investors may also start to pay attention. CalPERS, the giant retirement investment fund for California government employees, is headquartered in Chevron’s home state, and the teachers and municipal employees who contribute to it may ask why it holds $456 million of the oil giant’s stock.

Timnit Gebru’s Exit From Google Exposes a Crisis in AI

This year has held many things, among them bold claims of artificial intelligence breakthroughs. Industry commentators speculated that the language-generation model GPT-3 may have achieved “artificial general intelligence,” while others lauded Alphabet subsidiary DeepMind’s protein-folding algorithm—Alphafold—and its capacity to “transform biology.” While the basis of such claims is thinner than the effusive headlines, this hasn’t done much to dampen enthusiasm across the industry, whose profits and prestige are dependent on AI’s proliferation.

It was against this backdrop that Google fired Timnit Gebru, our dear friend and colleague, and a leader in the field of artificial intelligence. She is also one of the few Black women in AI research and an unflinching advocate for bringing more BIPOC, women, and non-Western people into the field. By any measure, she excelled at the job Google hired her to perform, including demonstrating racial and gender disparities in facial-analysis technologies and developing reporting guidelines for data sets and AI models. Ironically, this and her vocal advocacy for those underrepresented in AI research are also the reasons, she says, the company fired her. According to Gebru, after demanding that she and her colleagues withdraw a research paper critical of (profitable) large-scale AI systems, Google Research told her team that it had accepted her resignation, despite the fact that she hadn’t resigned. (Google declined to comment for this story.)

Google’s appalling treatment of Gebru exposes a dual crisis in AI research. The field is dominated by an elite, primarily white male workforce, and it is controlled and funded primarily by large industry players—Microsoft, Facebook, Amazon, IBM, and yes, Google. With Gebru’s firing, the civility politics that yoked the young effort to construct the necessary guardrails around AI have been torn apart, bringing questions about the racial homogeneity of the AI workforce and the inefficacy of corporate diversity programs to the center of the discourse. But this situation has also made clear that—however sincere a company like Google’s promises may seem—corporate-funded research can never be divorced from the realities of power, and the flows of revenue and capital.

This should concern us all. With the proliferation of AI into domains such as health carecriminal justice, and education, researchers and advocates are raising urgent concerns. These systems make determinations that directly shape lives, at the same time that they are embedded in organizations structured to reinforce histories of racial discrimination. AI systems also concentrate power in the hands of those designing and using them, while obscuring responsibility (and liability) behind the veneer of complex computation. The risks are profound, and the incentives are decidedly perverse.

The current crisis exposes the structural barriers limiting our ability to build effective protections around AI systems. This is especially important because the populations subject to harm and bias from AI’s predictions and determinations are primarily BIPOC people, women, religious and gender minorities, and the poor—those who’ve borne the brunt of structural discrimination. Here we have a clear racialized divide between those benefiting—the corporations and the primarily white male researchers and developers—and those most likely to be harmed.

Take facial-recognition technologies, for instance, which have been shown to “recognize” darker skinned people less frequently than those with lighter skin. This alone is alarming. But these racialized “errors” aren’t the only problems with facial recognition. Tawana Petty, director of organizing at Data for Black Lives, points out that these systems are disproportionately deployed in predominantly Black neighborhoods and cities, while cities that have had success in banning and pushing back against facial recognition’s use are predominately white.

Without independent, critical research that centers the perspectives and experiences of those who bear the harms of these technologies, our ability to understand and contest the overhyped claims made by industry is significantly hampered. Google’s treatment of Gebru makes increasingly clear where the company’s priorities seem to lie when critical work pushes back on its business incentives. This makes it almost impossible to ensure that AI systems are accountable to the people most vulnerable to their damage.

Checks on the industry are further compromised by the close ties between tech companies and ostensibly independent academic institutions. Researchers from corporations and academia publish papers together and rub elbows at the same conferences, with some researchers even holding concurrent positions at tech companies and universities. This blurs the boundary between academic and corporate research and obscures the incentives underwriting such work. It also means that the two groups look awfully similar—AI research in academia suffers from the same pernicious racial and gender homogeneity issues as its corporate counterparts. Moreover, the top computer science departments accept copious amounts of Big Tech research funding. We have only to look to Big Tobacco and Big Oil for troubling templates that expose just how much influence over the public understanding of complex scientific issues large companies can exert when knowledge creation is left in their hands.

Gebru’s firing suggests this dynamic is at work once again. Powerful companies like Google have the ability to co-opt, minimize, or silence criticisms of their own large-scale AI systems—systems that are at the core of their profit motives. Indeed, according to a recent Reuters report, Google leadership went as far as to instruct researchers to “strike a positive tone” in work that examined technologies and issues sensitive to Google’s bottom line. Gebru’s firing also highlights the danger the rest of the public faces if we allow an elite, homogenous research cohort, made up of people who are unlikely to experience the negative effects of AI, to drive and shape the research on it from within corporate environments. The handful of people who are benefiting from AI’s proliferation are shaping the academic and public understanding of these systems, while those most likely to be harmed are shut out of knowledge creation and influence. This inequity follows predictable racial, gender, and class lines.

As the dust begins to settle in the wake of Gebru’s firing, one question resounds: What do we do to contest these incentives, and to continue critical work on AI in solidarity with the people most at risk of harm? To that question, we have a few, preliminary answers.

First and foremost, tech workers need a union. Organized workers are a key lever for change and accountability, and one of the few forces that has been shown capable of pushing back against large firms. This is especially true in tech, given that many workers have sought-after expertise and are not easily replaceable, giving them significant labor power. Such organizations can act as a check on retaliation and discrimination, and can be a force pushing back against morally reprehensible uses of tech. Just look at Amazon workers’ fight against climate change or Google employees’ resistance to military uses of AI, which changed company policies and demonstrated the power of self-organized tech workers. To be effective here, such an organization must be grounded in anti-racism and cross-class solidarity, taking a broad view of who counts as a tech worker, and working to prioritize the protection and elevation of BIPOC tech workers across the board. It should also use its collective muscle to push back on tech that hurts historically marginalized people beyond Big Tech’s boundaries, and to align with external advocates and organizers to ensure this.

We also need protections and funding for critical research outside of the corporate environment that’s free of corporate influence. Not every company has a Timnit Gebru prepared to push back against reported research censorship. Researchers outside of corporate environments must be guaranteed greater access to technologies currently hidden behind claims of corporate secrecy, such as access to training data sets, and policies and procedures related to data annotation and content moderation. Such spaces for protected, critical research should also prioritize supporting BIPOC, women, and other historically excluded researchers and perspectives, recognizing that racial and gender homogeneity in the field contribute to AI’s harms. This endeavor would need significant funding, which could be achieved through a tax levied on these companies.

Finally, the AI field desperately needs regulation. Local, state, and federal governments must step in and pass legislation that protects privacy and ensures meaningful consent around data collection and the use of AI; increases protections for workers, including whistle-blower protections and measures to better protect BIPOC workers and others subject to discrimination; and ensures that those most vulnerable to the risks of AI systems can contest—and refuse—their use.

This crisis makes clear that the current AI research ecosystem—constrained as it is by corporate influence and dominated by a privileged set of researchers—is not capable of asking and answering the questions most important to those who bear the harms of AI systems. Public-minded research and knowledge creation isn’t just important for its own sake, it provides essential information for those developing robust strategies for the democratic oversight and governance of AI, and for social movements that can push back on harmful tech and those who wield it. Supporting and protecting organized tech workers, expanding the field that examines AI, and nurturing well-resourced and inclusive research environments outside the shadow of corporate influence are essential steps in providing the space to address these urgent concerns.


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