The two talked onstage with Kara about sexual harassment and Silicon Valley culture. On this special edition of Recode Decode, hosted by Kara Swisher, Tony West and Eric Holder joined Kara onstage at the Phenomenal Woman Action Campaign event in San Francisco to talk about the current spate of sexual harassment allegations and the subsequent fallout, plus the ongoing legal challenges that still exist for Uber. West is Uber’s new general counsel, and Holder is the attorney general who investigated Uber’s company dysfunction.
You can listen to the entire interview in the audio player below. We’ve also provided a lightly edited complete transcript of their conversation.
If you like this, be sure to subscribe to Recode Decode on Apple Podcasts, Spotify, Pocket Casts, Overcast or wherever you listen to podcasts.
Kara Swisher: Recode Radio presents Recode Decode, coming to you from the Vox Media podcast network. Hi, I’m Kara Swisher, executive editor of Recode. You may know me as an undercover Uber driver, my alias is Sarah Kwisher, but in my spare time I talk tech. You’re listening to Recode Decode, a podcast about tech and media’s key players, big ideas and how they’re changing the world we live in. You can find more episodes of Recode Decode on Apple Podcasts, Spotify, Google Play Music or wherever you listen to podcasts, or just visit recode.net/podcast for more.
Today we’re going to play an interview I conducted at an event hosted by the Phenomenal Woman Action Campaign in San Francisco. I talked to former Obama administration Attorney General Eric Holder and Uber General Counsel Tony West about everything that has happened at Uber in 2017. Let’s take a listen.
Thank you so much. I like your whole thing about allies and power, but I’ve got to say, you really just should be in power.
Tony West: I agree with that.
KS: I’m the CEO of my company. I boss around men all day long and it’s totally enjoyable, including my two poor sons who have to put up with it. Anyway, I am well known as a grumpy old lady who makes life hard for mostly white young men of Silicon Valley.
Eric Holder: That’s good.
But now I’m moving on here, I’m expending. In any case, we’re going to start by talking about this idea of allies. But I do … it’s really hard for me not to start with the fact that you’re both involved with Uber, which is probably one of the most toxic cultures I’ve ever seen in my … And I was there …
TW: You know, he was involved with Uber before I was involved with Uber.
EH: I’m the fixer, remember?
I’m going to preface that, that it’s not your fault, that it’s not your fault but now it’s your responsibility.
TW: That’s right, that’s right. That’s right.
But I don’t say that lightly. I don’t say that lightly because I literally have been covering the internet since Al Gore invented it, and by the way he did. He was there at the beginning. I’ve been covering tech for 25 years in Washington, when the internet was first made commercial.
I want to first start talking about Uber, because I think … The reason I want to talk about it, because it does represent the quintessence of all that is horrible about the male white culture of Silicon Valley. Let’s start with Tony: Why the hell did you take this on? What do you hope to accomplish? Because I’m going to start by saying, you put out a … I have so many questions. Glutton for punishment seems to begin with it, but you started out with a really great memo that Johana Bhuiyan, who’s in the audience, who covers Uber and other transportation issues for Recode, wrote about.
We got the memo, we published it. It was a really tough memo on what the legal situation at Uber should be right now. I think it was long and damning and about some standards. Can you talk about it a little bit? Because I want to talk about … because this goes to the heart of dealing with sexism and sexual harassment and all kinds of other issues there.
TW: Kara, it’s nice to be here.
EH: I don’t know, Tony, I think we’ll see. We’ll see.
[To Holder] I’ve got some questions for you.
TW: No, look, I think a lot of questions, good questions … The reason I wrote the memo is because it needed to be written. For those of you who may not be familiar with it, my first day, my first official day on the job, we announced a data breach that had occurred a year before. It had not been reported to affected parties.
So my first official day I spent on the phone talking to a number of state regulators, state AGs, FTC commissioners, saying, “Hi, my name is Tony West. I’m new. By the way …” And over that weekend I began to really get into — because this was the day before Thanksgiving, actually — and then over the weekend I began to try to get an awareness of some of the legal issues. Early that next week I learned about some practices that a component of our security department had been engaged in, which involved human surveillance for competitive intelligence.
Look, I’ve been in public sector, I’ve been in private sector, you don’t have to be a well credentialled lawyer to look at that and say, “What the hell is this?” So when I learned about it, I talked with Dara, who said, “What the hell is this?” I wrote a note to the security team, who was at that time, just that day, had now been reporting to me because the person who had led that team had been terminated as a result of not disclosing the breach.
I said something very simple, which is that first I am actually very proud to be at Uber. Notwithstanding all of the things that you’ve said, which I think there’s ample justification for a lot of what you said, but I am very proud to be at Uber. They are incredibly talented people, incredibly dynamic environment, doing what I really do believe is going to change the future of work and the way that we think about how people and things move. Absolutely groundbreaking.
I said that in my memo, but what I also said was, I’ve also learned some things. I’ve learned, and it’s reaffirmed to me that I made the right decision, but what I’ve also learned are some things that disturbed me. Not disclosing the breach is one, this human surveillance for competitive intelligence is another.
I said, “Look, we don’t need to do that.” That’s not who we are, we’re better than that. We have better technology, we have better people. We have a better product. We don’t need to follow people around to gain competitive intelligence. Everything we have to do as a company has to rest on three things: It has to rest on transparency, integrity in everything that we do and accountability.
I want to talk about this because in this case, spying on Lyft and things like that …
TW: No, no, no, no. I’m being really specific. Actually following executives.
Right, I know. I’m aware. What I’m talking about is, because it led the legal department … this is what I want to get into, is these structural systems that are in place at these companies that create situations that are not just spying on people, not just hacking, but really systematic inability of the legal departments to really protect people at these companies, especially women. That’s what seems to have happened at Uber. It’s not just women who work at Uber, it’s women who ride Uber, all kinds of things that they’ve been up to that have been really disturbing.
I want to talk to both of you about … And Eric, you did the Holder Report, which chronicled all kinds of problems there, which were myriad, which I wish you would release because I think people should see exactly the extent of the toxicity so we can understand it. But let’s talk about where you … We’ll get to the idea of male allies. I think human allies is the way I look at it. But what can legal departments do to do this? Because I think that a lot of the problems at Uber had to do with the aggregation of responsibility by the lawyers there who did this, who were in a place to say, “No.”
We broke a story about an executive at Uber who was carrying around the medical file of a rape victim in India in order to try to prove that she wasn’t raped. Which was appalling, that he was holding onto a criminal file in this thing. The lawyer at Uber did not get it away from him when they were aware of it. Lots of things like this. Can you talk about the responsibilities of the legal department to protect especially women? Because every time it seemed like there was some issue around women and the rights that were abrogated by the previous management there.
EH: Okay, well, you have to understand, I don’t have …
Because in general the legal department …
EH: Let’s talk generally, because I don’t have the ability to release the report. I think as attorney for the company there’s only so much I can say about what it is that we did.
Right, firstname.lastname@example.org is fine. Or Signal. WhatsApp is encrypted.
EH: Yeah, that won’t get me in any trouble. But what I think …
Your name could be “Shmeric.”
EH: Who’d know, right?
Yeah. No, I don’t know who you are.
EH: I think legal departments have to be empowered. They can’t be ignored. They also have to understand that there’s a responsibility, a particular responsibility I think that lawyers have in the context of an organization, whether that’s in government or it’s in the private sector. It’s in the same way that the justice department occupies a special place within the executive branch of the United States’ government. We are the watchdogs.
Right, when it works properly.
EH: Yeah, when it works properly, yeah.
I’m referring to Trump, just FYI.
EH: I wasn’t even going to go there, but …
You did on Twitter.
EH: But tonight I was going to be nice.
All right. Okay, fine. Please don’t. Wouldn’t you rather be tired and winning? Talk about the role of lawyers, because I think that’s what I’m talking about, where the roles are. Because again, the New York Times today had another story off of Ronan Farrow’s story about the complicity of lawyers, of PR people, of the media, everybody in this. So I’d like to get to that idea of how you create systems, where especially lawyers to me are the watchdogs of that.
EH: I think lawyers, given the training that we have, the place that we are supposed to occupy in these entities, that we are the ones who should be responsible for, I think, more than maybe another body of people, the development of appropriate cultures. We are trained in the law, we’re supposed to know the way in which things are to be done. We know what the rules are supposed to be like. We should be, again, within the appropriate context, we should be the enforcers.
To the extent that we detect issues and problems, it is our responsibility not only as members of the corporation, but as lawyers, to bring to the attention of the appropriate people problems, issues. Not only with regard to specific people and specific incidents, but also with regard to culture. To the extent that we identify cultural issues that are having a negative impact on the entities that we are a part of, we have the responsibility of surfacing those things. But it is also the responsibility of management to listen to those lawyers. It shouldn’t be difficult for lawyers to bring to the attention of management those concerns. You shouldn’t be penalized, you shouldn’t be seen as a problem if you are raising those issues.
Who do you think your constituency is, Tony? Throughout your career, not just at Uber, but who do you imagine it is? Is it the law or is it the people you work for?
TW: I think it’s both, actually. I think it’s both. I think because the law at its best is manifested in the way people interact with one another, so clearly it’s both. You asked the question, why did I take this job? Actually, the opportunity to do just that, to be able to have the impact of helping to put in place processes and systems that actually work well to protect both people, whether it’s women or people of color, or frankly riders and drivers. That was an incredible opportunity to me.
That’s really my constituents. But you know, the constituency group that you’re also speaking to, I think Eric rightly says, is management, and you had a broken system.
Often that’s the case. It’s not just there but a lot of places.
TW: No, a lot of places, but it was particularly broken, I think in all fairness. I mean look, I would not have taken this job and I would not have taken this challenge if I did not believe that A) Dara Khosrowshahi was committed to real change, and B) that it was actually possible. Because so many of the issues that Uber suffers from are self-inflicted.
One of the things that always struck me, and especially, again, I recommend reading another New York Times’ piece called … It’s about complicity. One of the things that strikes me, as lawyers, that I’ve noticed is, they always say for example in Hollywood, they don’t have money, enough money to … They don’t seem to have money to pay women to tell stories, they have money to shut them up. They certainly can pay them off. They can do nondisclosure agreements. They can do very difficult ways not to talk about things. Talk about the nondisclosure thing, because that to me has been one of the poisons of this whole system, is that women are paid not to say anything.
I think I was the one who told Uber about someone you hired that had sexual … Not when you were there, but I actually called Travis and said this person was under investigation for sexual harassment. He was like, “What?” He didn’t know because they’d been passed on like a contagion from one company to the other. Can you talk about that issue around nondisclosure? Again, I’d like that report as soon as possible. But why does that persist, that idea of nondisclosure? As women know, telling stories has been the power of #MeToo. As people of color know, the telling of the stories, as gay people know, the telling of the stories is where the power resides. Why as lawyers do you continually keep writing these fucking things? Explain it. Explain it, how does that change? How does the law change so that people are allowed to tell their stories without this complicity, where people get to move along and pay people off, essentially?
EH: For the record, I’ve never written a nondisclosure agreement in my career. It’s particularly …
Actually, just David Boies, but go ahead.
EH: It’s particularly bad in government, as I see now.
Yeah, with the Congress right now.
EH: Right. I didn’t even know that this thing existed until the last couple of weeks. That there’s a fund that allows congressmen, some of whom were my biggest tormentors, Blake Farenthold, that fat guy from Texas, has got about $80,000 to keep quiet some inappropriate conduct that he had with a female …
80,000 tax dollars, but go ahead.
EH: $80,000 of our money. From my perspective, I don’t particularly like the notion of hiding things like that. Real progress is made by the exposure of negative conduct and then what happens to address that conduct. Having said that, there may be victims who for a variety of reasons do not want to have exposed the issues that are the subject of the nondisclosure agreement. Although more often than not my suspicion is it is the person with power who is saying, “I will only settle if there is a nondisclosure agreement.”
From my perspective, shining light on problems is the way you solve problems. But it requires a certain degree of bravery for victims to come forward and tell their stories. That’s a societal problem. It’s always interesting to me that it’s difficult for a woman to talk about a sexual assault in the way that a guy who is assaulted by a stranger in a bar, something like that, that’s a relatively easy story to tell. So why do we as a society make it more difficult for women to tell their stories?
Misogyny, but go ahead.
EH: Yeah. No, no, no, there’s a huge amount of that. There’s a culture thing that we have to change there. It always struck me that when I was a judge and when I was a U.S. attorney in Washington, D.C., if a man hit a man, no question, you try that case, that’s an assault. A man hits a woman with whom he has a relationship, and then there’s all kinds of things.
EH: It becomes a much more difficult thing to adjudicate, to bring into the system. That’s a societal thing that we have to get at, where women are the victims. They should be not differentiated because of their gender, you’re just a victim. You’re just a victim and we need to hear your stories.
What about you and the nondisclosure thing? Then I’m going to talk about allies. About nondisclosure, where does that go? Because I think to me that is the absolute tool of tyranny among people, as much as they say, “I’m helping you by not letting you talk about your story,” you’re not doing anyone any favors by not allowing them to do that.
TW: I think that’s right, but I think that you do have to, in all of these kinds of case, approach it from the perspective of the victim. I think that has to drive the analysis, and where that flows, I think. I don’t think you … I’ve always believed that sunshine is the best disinfectant, and you never see progress in the law, you never see progress in society, when you’re using the law as something to cover up, a blanket to cover up certain things. It’s always much better if you … This is why we have open courts, this is why we have public courts, this is why it’s important. Yet, I still think at the end of the day you want to make sure, in the do no harm kind of approach, that you’re approaching those kinds of issues from the perspective of the victim.
All right, I want to finish …
EH: One thing I think we have to really … I agree with what Tony said, but I’m kind of getting back to what I said before. We’ve also got to get to the place where there can’t be shame, there can’t be an issue in being a victim. Why is it so hard — and it is hard and women who do it have a great deal of courage — in the society as we have constructed it? Why is that the case? Why is that the case?
I actually don’t, I don’t think a lot of victims are as ashamed. I think they are bullied into being ashamed. You know what I mean? I think that’s really … and because when you say, “I’m going to make it easier for you.” I think the media has kind of had it and is starting to publish these stories, as long as they can get contemporaneous assertions that these people said. I mean, the Roy Moore thing is a perfect example of that, is that these women said their stories, they didn’t wait. They had some off the record, some on the record. Now the women who are called liars by him are now coming out with even more. Like, “We’ve had enough,” despite the fact that they’ve been bullied and threatened and everything else, those sorts of things.
Let’s finish up talking about allies, we’ve only got just a few more minutes. One of the things I’ve also noted that I think is really interesting is most of the stories that have come out just recently around sexual harassment and everything else have been written by women.
All the best stories on racism and issues have been written by people of color. Most — Ronan Farrow, a gay man — who understand and empathize and have had enough of this and understand that. How do you think of yourself as allies? Because I think that it’s a critical issue, in that it’s not women’s rights, it’s human rights, it’s everybody’s rights. How do you get that empathy into the dominant culture, which is a white male culture?
Now, they talk about the idea of using VR, for example. That a policeman could watch a thing and know what it’s like to be a young black man. I don’t think you can do that because it’s a lifetime of fear. I don’t know how you do that without putting in a chip, a fear chip, into someone’s brain. How do you think about that? Because you’re both prominent men of color, how do you then use your power that you have as men, for example?
TW: There’s a real … You have to be intentional. You have to be very intentional and very cognizant. But I will say, one of the things that this whole experience as we’ve seen it unfold over the last several months has really brought home to me. Look, I’m someone who has really spent my entire life very committed to these issues, being intentional about how I recruit and who I hire and making sure that women are at the table. Raised by a phenomenal woman, my mom, who’s in the audience, Peggy West, somewhere. I grew up with strong women. Grew up with strong women and really cared about these issues.
I have to say, it was both disturbing and enlightening to come to the realization that I did not fully appreciate just how pervasive sexual harassment and sexual assault is. I think therein, you turn that into what that means is that for so many of us, we’re kind of like, it’s like air. This is the norm. What was so shocking, or so disturbing, is that for so many women this is the norm, but there’s nothing normal about it. There’s nothing normal about that. So then the question is, “Okay, then what do you do with that realization?” For me, it begins with really listening, not just hearing the stories. I do think one of the things I do fear is that when we hear the stories, and you hear so many and you start hearing the numbers, that people become numb to that.
That does concern me. But really, hearing and internalizing the universality of it, so then that becomes an opportunity to notice. To notice patterns, to notice how our language, how our behavior, how the systems and structures and paradigms in which we operate actually reinforce these power differences, which lead to sexual assault and sexual violence. Then, it’s incumbent upon those of us who can to act. Whether you’re in a position where you can act on policy or you can act in the C-suite or you can act in any way that you can.
It is remarkable that so many … everyone in Silicon Valley, and they’re just the Silicon Valley ones, every woman has a story, or six, or 10, from micro-aggressions to something more serious, and every good man was shocked. It was, “I can’t believe that, Kara.” I think it’s either, women weren’t talking about it or they weren’t listening or nobody was asking. It’s a really interesting thing.
Eric, I’m going to finish with you on this idea, bring it to a national level. It feels hopeless on lots of levels. With Roy Moore, you’ve got Trump and the Oval Office, a long list of issues around sexual harassment. How do you look at it? Are you hopeless right now? How does that change when it seems like, “Oh good God, they’re going to elect that horrible monster in Alabama, we’ve got the president here on these issues.” How do you look at where it’s going?
EH: First off, my wife is from Alabama and she used to say that in Alabama they always said, “Thank God for Mississippi.” I fear that if he’s elected, people in Mississippi will be saying, “Thank God for Alabama.” That’s how bad it could be.
I think we have here a potential inflection point that we’ve got to hold onto and we have got to make it work for all the positive things that I think it can potentially give to us, but we should not be too optimistic. Just because it’s there doesn’t mean that it’s going to lead to something that’s lasting and that’s positive.
There is, I think, the need for action, but I also think that we cannot underestimate, you all cannot underestimate the power that you have. If you don’t think that you have power, you think about the power … Trump got inaugurated and that was … We all drank, I was drunk. But you think about the power of that march the next day. The next day, all those women, my wife and my two kids had the hats with the things on, the power of …
Did you have the hat?
EH: The hats were there. There’s pictures of me in the hat though you’ll never see those. But the power that …
EH: Yeah, yeah, yeah, yeah. The power that was exhibited that day and the power that has also been seen as women have gone to congressional offices, senators’ offices, congressmen’s offices, as they were in the process of trying to take ObamaCare apart. We have, you have, power. That power has to be used.
I’m old enough to remember that the people, united, focused, energized, stopped a war. Nixon didn’t stop the Vietnam War because he thought the military objectives had been met. That war was stopped because people were focused and said, “We’re not going to have it.” There was the loss of public support.
This inflection point that we have has to be something that galvanizes people, and in particular women, in particular women. In Virginia, boy, we saw women power there. Where in the election three, four weeks or so ago, women ran who said, “I’m sick of what’s going on. I’m going to run for office,” and women won. I think women can lead us to a better place with the power that they have, with the power that you have, but you’ve got to use that power. It’s not enough to yell and scream at the television watching MSNBC, Fox, CNN, whatever. You can’t … You know, just read the newspaper. What is it that you’re doing? What are you doing to make this better?
On that note, we’re over time. I want a promise from each of you of something you’re going to do. What are you going to do at Uber? I’m going to hold you to it.
TW: I have a whole long list.
But what’s the one thing you’re going to do as a male ally of the women?
TW: The one thing that … One of many things that I’m going to do is set an unambiguous tone at the top of intentionality in bringing women into every single significant decision that we make at that company.
Right. One good thing that you have going for you is that it’s an extraordinarily low bar, and we’ll talk about that later. What about you, Eric? And then we’ll finish. I want a bigger thing from you.
EH: Well, as the chair of the National Democratic Redistricting Committee, I’m going to … Yeah. I’m going to make sure that we’re going to have a fair census in 2020 and fair redistricting in 2021. And we’re going to throw out of office these … these idiots who have passed these laws who have perpetuated these systems that are anti women, anti people of color. I think that we can do this. We saw it in Virginia in 2017, we’re going to do great in the midterms in 2018, and then we’re going to put a new president in 2020. That’s more than one thing but I’m going to be successful at the NDRC, that’s my one thing.
All right, we should all make promises like this. I’m going to … I’m going to announce my new formation of the Militia Etheridge in The Castro. Get it? You can all join. But we should all make promises. I really appreciate … I started to give you a hard time but not really, sorry not sorry kind of thing. We really appreciate you as allies but as human beings, not just as male allies but as humans. Thank you.
EH: Thank you. I can’t blame you.