Episode #656

[GodSlayer]

As far as Im concerned Dunning has done his time and should be free to get on with his life and career.

he's done time. but how much is enough should be his time, is open to opinion.
if people feel a sentence is too lenient, or a person is a likely reoffender (which is my experience with calculating fraudsters), they might disagree that he's paid his dues and this should be considered as all in the past.

[Belgarath]

As far as Im concerned Dunning has done his time and should be free to get on with his life and career.

I agree with this, I'd be a bit more forgiving if he actually admitted that what he did was wrong.  But I also know that this is difficult for people who do wrong to do.

[lonely moa]

Steve was a bit off hand with the stement that NZ had no indigenous predators.  The is the NZ falcon (Falco novaeseelandiae), the Australasian harrier  (Circus approximans) an of course the was the Haast eagle (Harpagornis moorei); the largest eagle known to have existed.  There is also the morepork (Ninox novaeseelandiae), any number of carnivorous waders and the ancient Tuatara. 

[Eternally Learning]

As far as Im concerned Dunning has done his time and should be free to get on with his life and career.

I agree with this, I'd be a bit more forgiving if he actually admitted that what he did was wrong.  But I also know that this is difficult for people who do wrong to do.

Honestly, Dunning's inability to admit he's wrong and his inability to maturely and effectively respond to criticism is the main reason why I stopped listening to him and why I don't recommend Skeptoid to non-skeptics I might otherwise recommend it to.  Especially his listener mail episodes where he just straight up mocked people who disagreed with him.

[CarbShark]

For the sake of argument lets assume that Dunning is telling the truth, that he worked with an EBAY executive running the affiliate program who was trying to promote the program and knew exactly what Dunning was doing, and was sent to Europe and unavailable for subpoena, deposition or testimony.

If all that were true would that change anyone’s opinion?

(Let’s also assume that only going to eBay directly from a page with an ad earned affiliate credit, so there were no legitimate cookies over written, meaning he didn’t take money from other affiliates, which is also Dunning’s claim)


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[CarbShark]

I’m going to listen to the episode today, but the one question I would ask Dunning is if his talking to the FBI and trying to clear things up by explaining what he did, when they showed up at his house with warrants, was a mistake. 

That’s an important question for all of us.


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[Belgarath]

For the sake of argument lets assume that Dunning is telling the truth, that he worked with an EBAY executive running the affiliate program who was trying to promote the program and knew exactly what Dunning was doing, and was sent to Europe and unavailable for subpoena, deposition or testimony.

If all that were true would that change anyone’s opinion?

(Let’s also assume that only going to eBay directly from a page with an ad earned affiliate credit, so there were no legitimate cookies over written, meaning he didn’t take money from other affiliates, which is also Dunning’s claim)


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I'm not willing to assume that.  Especially since the indictment also alleges that the cookies he wrote were designed to NOT write themselves when they detected an IP address that may be close to, or associated with E-Bay's offices.

BUT, lets assume that everything he says is true and everything he did was at the direction of this nebulous E-bay mistress.  I still think I'd have an obligation to inform based solely on the fact that he knew it was against the contract (he even says so in the interview). 

If I assume Dunning's assertions with regard to the facts, then of course I might change my opinion, but that's sort of an absurd hypothetical because we have lots of evidence that his version of events is not correct:

1) We have the indictment and the superseding indictment:

http://www.benedelman.org/affiliate-litigation/dunning-indictment.pdf
http://www.benedelman.org/affiliate-litigation/dunning-superseding-information-041513.pdf

2) We also have statements made by Sean Hogan to the FBI regarding Dunning (page 17 of the PDF) which indicate that Dunning knew he was doing something wrong and told Hogan to keep quiet:

http://www.benedelman.org/affiliate-litigation/hogan-opp-suppress-exhibit2.pdf#page=17

3) We have this article by Business Insider (it's really comprehensive and quite good) including the following quote:

Hogan pointed out that even if his allegations were true, legally they're irrelevant: "[It] would not have mattered. eBay affiliate program managers are not authorized from a legal standpoint to ask affiliates to violate their terms of service."

http://www.businessinsider.com/ebay-the-fbi-shawn-hogan-and-brian-dunning-2013-4


Dunning knew all this stuff and continued anyway.  As I said earlier, I believe that he has served his time for the crime and should be given another chance, but I cannot accept his continued insistence on innocence.  In order to do that, I would need to be shown the following 1) That he did not violate the terms of service that he signed up for as an affiliate marketer or 2) That the terms of service were legally modified by his conversations with Christine Kim.


ETA:  I 100% agree with Dunning when he explains that you should never talk to the FBI with regard to crimes.  They do NOT record anything, they take notes.  He asserts in his defense that the FBI agent's notes mischaracterize the events.  I do not know if they do or do not, but there's no way I'd talk to them if I thought I was in trouble without having it recorded.

[CarbShark]

Let’s also assume that only going to eBay directly from a page with an ad earned affiliate credit, so there were no legitimate cookies over written, meaning he didn’t take money from other affiliates, which is also Dunning’s claim

OK, I was wrong about this. In the interview Dunning says that after the cookie was downloaded, if the person went to eBay and signed up anytime in the next 30 days, Dunning would get credit.

So, yes, that would override other affiliates cookies and those other affiliates could have been entitled to the money.

[sowellfan]

BUT, lets assume that everything he says is true and everything he did was at the direction of this nebulous E-bay mistress.  I still think I'd have an obligation to inform based solely on the fact that he knew it was against the contract (he even says so in the interview).

I've wondered quite a bit about what exactly was going on with his Ebay account manager (or whatever her title was). It's possible that they were clueless I suppose, but I wonder if perhaps they had a financial incentive to allow him to do the cookie stuffing that he was doing. For example, could it be that account managers were compensated based on how much they were handling in terms of commission payments?

In any event, Dunning seemed really disingenuous in his framing of this as "Ebay kept telling me that it was okay", and "Commission Junction was the only party that had an issue with this." I think those would be more accurately stated as, "My one contact at Ebay was personally fine with what I was doing.", and "Commission Junction was tasked with enforcing the Terms and Conditions of the eBay contract." Clearly there was a legal framework that the Affiliate program operated under, and clearly he was operating wildly outside the spirit of those terms, and almost certainly outside the letter of those terms. Given Dunning's behavior, it seems that he convinced himself that there was a way that what he was doing was actually within the rules - but I'm not sure exactly how he 'misinterpreted' those rules.

I'm disappointed that the Rogues couldn't think to bring up the fact that *other* affiliates (who actually had people click on their adds) were robbed by Dunning's behavior. And, Dunning's setup apparently had geographic limiters, which is a huge red flag that he knew that what he was doing was sketchy. Well, honestly I'm disappointed just in general that they didn't call him out on his duplicitous framing of the entire affair. Did they go into this thing, knowing that it was going to be a big controversy, without actually reading some of the source articles? (like, the Arstechnica article, the indictment, the Business Insider article...)

[PatrickG]

I've wondered quite a bit about what exactly was going on with his Ebay account manager (or whatever her title was). It's possible that they were clueless I suppose, but I wonder if perhaps they had a financial incentive to allow him to do the cookie stuffing that he was doing. For example, could it be that account managers were compensated based on how much they were handling in terms of commission payments?

I do think that is unlikely. With or without paying Dunning millions for worthless stuffed cookies, she would have seen the same affiliate marketing results. Even for large companies the millions that Dunning cached are significant chunks of money. That is also the reason why they went after Dunning and his stuffing buddy for years.

If the mysterious Mrs K. indeed existed at eBay, and if she indeed told him that stuffing is A-OK, it is more likely she was a little clueless and not very tech-savvy. After all, they had outsourced part of the affiliate work to a contractor.

It is hard to do on-line advertising right, especially in the early internet days when Dunning's flying circus was busy. So I can empathize somewhat with mrs K.

I did a few pay-per-click campaigns on Facebook that thought me a lot about the shady world of online marketing. The first time I was paying Facebook ~$0.50 per 'like' in a specific audience demographic. But when I sampled who actually liked the page it was all garbage: mainly people who also liked 5000 other unrelated things as well, and whose pictures were too pretty to be real. In this case Mark Zuckerberg was the scammer, selling me junk likes by fake users via his affiliate program. Facebook provides no way to find out where the affiliate ad occur, and also no way to get rid of fake likes. It soon dawned on me that it was useless. In my experience Zuckerberg is at least as shady as Dunning.

[Eternally Learning]

I've finally gotten the opportunity to finish the episode and listen to the interview and I was surprised to hear Brian say some things about all this that I don't recall ever hearing before, even from him in his first written explanation after his legal gag orders were lifted.  Some of the points sound reasonable on their own, presuming they are accurate, and this is honestly the first time I'm hearing him phrase his side of things in a way that I find actually compelling.  I'm going to try and dig back into this and look at the actual evidence available to me again and also do a tad more research on all the involved topics to get a better handle on things.  That said, I also find some of of the points he made a tad contradictory because he seemed to be both selling us on the idea that he had no reason to believe that anything he was doing was wrong or unethical, and also selling us on the idea that he knew it was wrong from the beginning and questioned eBay on apparently asking him to do something against their terms of service and also warned the other company (blanking on the name) about what eBay was asking him to do but was backed into a corner without a reasonable option to take aside from just walking away from his business.  I also don't buy that he was between a rock and a hard place for one second when the rock is apparently eBay supporting him and allowing him to make money, and the hard place is violating the terms of service with the other company.  That's basically like saying that you were faced with a difficult situation when a cashier accidentally gave you a $100 in change instead of a $10 and you had to face choosing between giving back the money that wasn't yours or getting $90 by pretwnding you did nothing wrong.

All that out of the way, I do have one specific question for Steve, if he'd like to answer it. During the interview, you stated multiple times that you didn't understand multiple central facts of the case against Brian and wanted him to clarify.  It very much painted a picture of you asking him to inform you so you could form an opinion on his guilt, both morally and legally.  My question is: if his answers convinced you that he actually was guilty of fraud and that he actually illegally and unethically obtained money for his own personal gain, would you have allowed him to go on to not just promote his current work on your show, but also solicit donations from your listeners?  If so, why do you see that as OK?  If not, what would you have done?  Would you have even aired the interview?

[CarbShark]

I've wondered quite a bit about what exactly was going on with his Ebay account manager (or whatever her title was). It's possible that they were clueless I suppose, but I wonder if perhaps they had a financial incentive to allow him to do the cookie stuffing that he was doing. For example, could it be that account managers were compensated based on how much they were handling in terms of commission payments?

I do think that is unlikely. With or without paying Dunning millions for worthless stuffed cookies, she would have seen the same affiliate marketing results. Even for large companies the millions that Dunning cached are significant chunks of money. That is also the reason why they went after Dunning and his stuffing buddy for years.

If the mysterious Mrs K. indeed existed at eBay, and if she indeed told him that stuffing is A-OK, it is more likely she was a little clueless and not very tech-savvy. After all, they had outsourced part of the affiliate work to a contractor.

It is hard to do on-line advertising right, especially in the early internet days when Dunning's flying circus was busy. So I can empathize somewhat with mrs K.

I did a few pay-per-click campaigns on Facebook that thought me a lot about the shady world of online marketing. The first time I was paying Facebook ~$0.50 per 'like' in a specific audience demographic. But when I sampled who actually liked the page it was all garbage: mainly people who also liked 5000 other unrelated things as well, and whose pictures were too pretty to be real. In this case Mark Zuckerberg was the scammer, selling me junk likes by fake users via his affiliate program. Facebook provides no way to find out where the affiliate ad occur, and also no way to get rid of fake likes. It soon dawned on me that it was useless. In my experience Zuckerberg is at least as shady as Dunning.

This has been my take on the thing from fairly early on:


Suppose Dunning's eBay contact was the corporate executive in charge of the affiliates program and her bonuses and measure of success on the job is determined by the size of the affiliate program. If the bottom line for the affiliates program shows growth, then she's done her job.

In that case it would be in her interests to make affiliates rich, deserving or not. And that makes Brian Dunning a millionaire.

Then eBay gets a new no-nonsense CEO (Meg Whitman?) and her staff discovers that the company has given away millions of dollars for nothing. They see it as their fiducial responsibility to correct this, through civil law suits and criminal reporting.

And that makes Brian Dunning a broke ex-con.

In this case I see no real villains. Dunning's contact was just trying to get ahead in the corporate world. The new bosses would be negligent if they didn't pursue losing all that money. Dunning was an active participant in and greatly benefited from the affiliate program's manager's inflated numbers.

Oh, and whenever the FBI comes to your home or office with warrants and want you to help clear things up for them, remain silent. That's your right. Call your lawyer so he can tell you the same thing.

[God Bomb]

Richard Dawkins deplatformed by Steve for a twitter gaff, but happy to collaborate with a convicted felon.  Am I oversimplifying things? 

His explanation on the podcast started off as "I don't know why I was locked up... it's complicated" and gradually he was forced to admit more and more to the point where he just came across as being dishonest in the first place. 

I don't want to come down too hard on the SGU as I know they avoid controversies like the plague, but sometimes they need someone with a spine like Rebecca who isn't quite so mealy-mouthed. 
I remember when Dunning was on the podcast previously and her tone towards him was clear.  During that time the allegations had already been made.  Plus he's been accused of other things more Dawkins-like in the past too.  Who could forget his terrible music video?
I have to agree the best thing he  can do for the skeptical community is to not be a public figure anymore.

Maybe all it takes to get on good terms with Steve is to put him in a movie.

[Jaloopa]

If you assume everything Dunnig said was accurate, he still seems to have been guilty.

He had a contract with the middle man which specifically stated that any affiliate cookies must be via clicks, not just impressions from a tracking pixel. He knowingly broke that contract. If his eBay contact said it was OK he should have had that in writing and got the contract amended in order to stay on the right side of the law. It sounds like the middleman was trying to keep within their official terms and conditions, but being strong armed by eBay into keeping quiet. It does sound likely that his eBay contact was stretching what was allowed in order to pad the numbers and get a nice fat bonus

[Eternally Learning]

Richard Dawkins deplatformed by Steve for a twitter gaff, but happy to collaborate with a convicted felon.  Am I oversimplifying things? 

Steve was only one vote among the NECSS Board which actually made the decision to pull Dawkins and we have no idea how he voted, at least I don't recall ever hearing him state how he voted.