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I don't understand why in both contracts and legal communication (particularly threatening one), there is little to no consequence for the writing party to get

I don't understand why in both contracts and legal communication (particularly threatening one), there is little to no consequence for the writing party to get things right. I've seen examples of an employee contract, with things like "if any piece of this contract is invalid it doesn't invalidate the rest of the contract". The employer is basically trying to enforce their rules (reasonable), but they have no negative consequences if what they write is not allowed. At most a court deems that piece invalid, but that's it. The onus is on the reader to know (which tends to be a much weaker party). Same here. Why can a company send a threatening letter ("you'll go 20 years to federal prison for this!!"), when it's clearly false? Shouldn't there be an onus on the writer to ensure that what they write is reasonable? And if it's absurdly and provably wrong, shouldn't there be some negative consequences more than "oh, nevermind"?

bdowling 3y ago
It's a balance between encouraging people to stand up for their rights on one hand and discouraging filing of frivolous lawsuits on the other. The American system is "everyone pays their own legal fees", which encourages injured parties to file. The U.K. on the other hand is a "loser pays both parties' legal fees" (generally), which discourages a lot of plaintiffs from filing, even when they have been significantly harmed.
LastTrain 3y ago
There can be consequences, but you have to be able to demonstrate you have been harmed. So, in what way have you been harmed by such a threat, and what is just compensation? How much will it cost to hire a lawyer to sue for compensation, and what are your chances of success? These are the same kinds of questions the entity sending the threatening letter asked themselves as well. If you think it is unfair because they have more resources, well that is more of a general societal problem - if you have more money you have access to better justice in all forms.
fallingknife 3y ago
That's not the language they use. It will be more like "your actions may violate (law ref) and if convicted, penalties may be up to 20 years in prison." And how do you keep people from saying that? It's basically a statement of fact. If you have a problem with this, then your issue is with Congress for writing such a vague law.
- arrosenberg 3y ago
  No, you are talking about criminal law. What OP is talking about is severability, which exists so that if a judge determines Clause X violates the law, they can still (attempt) to enforce the rest of the contract if X can be easily remedied. I.e. The contract says no lunch breaks but CalOSHA regulations say 30 minutes required, the contractor can't violate the contract in its' entirety, they just take the breaks and amend the contract if the employer pushes it. I disagree with OP - a judge can always choose to invalidate a contract, regardless of severability. It is in there for the convenience of the parties, and I've not heard of it being used in bad faith.
- ender341341 3y ago
  you can read the language they do use here https://stanforddaily.com/2022/11/01/opinion-fizz-previously-compromised-its-users-privacy-it-may-do-so-again/ https://stanforddaily.com/2022/11/01/opinion-fizz-previously... they threaten if they receive written confirmation that the researchers won't discuss the security issues they won't pursue charges. The lawyers were very much not "for your information you could be liable for x if someone responded poorly", they were in fact responding poorly.
- SilasX 3y ago
  "That's not the language they used. They simply admired your place of business and reflected on what a shame it would be if a negative event happened to it. How would you keep people from saying that? It's basically a statement of fact..."
- InSteady 3y ago
  “[the security researchers] may be liable for fines, damages and each individual of the [security research] Group may be imprisoned… Criminal penalties under the CFAA can be up to 20 years depending on circumstances.” “the Group’s actions are also a violation of Buzz’s Terms of Use and constitute a breach of contract, entitling Buzz to compensatory damages and damages for lost revenue.” “the Group’s agreement to infiltrate Buzz’s network is also a separate offense of conspiracy, exposing the Group to even more significant criminal liability.” Emphasis added. The language is quite a bit more forceful and threatening than you make it out to be. Given that they were issuing these threats as an ultimatum, a "keep quiet about this or else...", it was likely a violation of California State Bar's rules of professional conduct.
bagels 3y ago
Even if you get it right, the court can change what is right at any time by ruling differently than last time.
MajimasEyepatch 3y ago
There is obviously such a thing as going too far, but it's kind of hard to draw a clear line. In a good faith context, laws and precedents can change quickly, sometimes based on the whim of a judge, and there are many areas of law where there is no clear precedent or where guidance is fuzzy. In those cases, it's important to have severability so that entire contracts don't have to be renegotiated because one small clause didn't hold up in court. Imagine an employment contract that contains a non-compete clause (ignore, for a moment, your personal beliefs about non-compete clauses). The company may have a single employment contract that they use everywhere, and so in states where non-competes are illegal, the severability clause allows them to avoid having separate contracts for each jurisdiction. And now suppose that a state that once allowed non-competes passes a law banning them: should every employment contract with a non-compete clause suddenly become null and void? Of course not. That's what severability is for. In the case in the OP, it's hard to say what the context is of the threat, but I imagine something along the lines of, "Unauthorized access to our computer network is a federal crime under statute XYZ punishable by up to 20 years in prison." Scary as hell to a layperson, but it's not strictly speaking untrue, even if most lawyers would roll their eyes and say that they're full of shit. Sure, it's misleading, and a bad actor could easily take it too far, but it's hard to know exactly where to draw the line if lawyers couch a threat in enough qualifiers. At the end of the day, documents like this are written by lawyers in legalese that's not designed for ordinary people. It's shitty that they threatened some college students with this, and whatever lawyer did write and send this letter on behalf of the company gave that company tremendously poor advice. I guess you could complain to the bar, but it would be very hard to make a compelling case in a situation like this. (This is also one of the reasons why collective bargaining is so valuable. A union can afford legal representation to go toe to toe with the company's lawyers. Individual employees can't do that.)
- notpushkin 3y ago
  > At the end of the day, documents like this are written by lawyers in legalese that's not designed for ordinary people. Does it have to be this way?
  - ipaddr 3y ago
mentalpiracy 3y ago
> I've seen examples of an employee contract, with things like "if any piece of this contract is invalid it doesn't invalidate the rest of the contract". This concept of severability exists in basically all contracts, and is generally limited to sections that are not fundamental to the nature of the agreement. (The extent of what qualifies as fundamental is, as you said, up to a court to interpret.) In your specific example of an employee contract, severability actually protects you too, by ensuring all the other covenants of your agreement - especially the ones that protect you as the individual - will remain in force even if a sub section is invalidated. Otherwise, if the whole contract were invalidated, you'd be starting from nothing (and likely out of a job). Some protections are better than zero.
- Buttons840 3y ago
  > especially the ones that protect you as the individual - will remain in force even if a sub section is invalidated In a right-to-work state, what protections can an individual realistically expect to receive from a contract?
  - abduhl 3y ago
    The employment of an individual that has an employment contract is governed by the strictest set of rules between the right-to-work state's laws and the employment contract. Literally every permissible provision of an employment contract can be a protection: golden parachutes, vacation days, sick days, payout of the same, IP guarantees for hobby work, employment benefits, etc. Right to work at its most generic level means freedom from being forced into a union, not freedom from being held to a contract.
    - feoren 3y ago
      > golden parachutes Nobody has these except top execs who are already in a huge position of power. > vacation days, sick days, payout of the same Nope, not anymore: nothing is guaranteed with "flexible time off". I literally cannot meet my performance goal if I take more than 1 day of sick/vacation day PER YEAR. Yes, my raises are tied to this performance goal. Yes, it's probably illegal, but who cares? Nobody is ever going to do anything about it. This is every company with FTO. Who gets "paid out" for PTO anymore? > IP guarantees for hobby work You're joking, right? Most employment contracts claim that they own the slam poetry you write on your napkin at 2:00 am on a Saturday while high on your couch. Every mention of IP in an employment contract is as greedy as possible. > employment benefits Ok but in a right to work state these can be terminated any time anyway. Literally nothing about an employment contract is ever written in favor of the actual employee. Of course it's not: they wrote it. If every company in an industry does this and they all refuse to negotiate, workers have no choice but to sign it. It's crazy to me to think that a U.S. company would voluntarily ever do anything in the interest of any of its employees, ever. This is the whole reason why ambiguities are supposed to go in favor of the party that didn't write it. Voiding any part of an employee contract can therefore only ever benefit the employee (except possibly the part where they get paid). If you want protections for employees, look to regulation and unions, not contracts written by the employer.
gingerrr 3y ago
> "if any piece of this contract is invalid it doesn't invalidate the rest of the contract". Severability (the ability to "sever" part of a contract, leaving the remainder intact so long as it's not fundamentally a change to the contract's terms) comes from constitutional law and was intended to prevent wholesale overturning of previous precedent with each new case. It protects both parties from squirreling out of an entire legal obligation on a technicality, or writing poison pills into a contract you know won't stand up to legal scrutiny. If part of the contract is invalidated, they can't leverage it. If that part being invalidated changes the contract fundamentally, the entire contract is voided. What more do you want? It seems like you're arguing for some sort of punitive response to authoring a bad contract? That seems like a pretty awful idea re: chilling effect on all legal/business relationship formation, and wouldn't that likely impact the weaker parties worse as they have less access to high-powered legal authors? That means that even negotiating wording changes to a contract becomes a liability nightmare for the negotiators, doesn't that make the potential liability burden even more lopsided against small actors sitting across the table from entire legal teams? I guess I'm having trouble seeing how the world you're imagining wouldn't end up introducing bigger risk for weaker parties than the world we're already in.
- cj 3y ago
  Practical example: your employment agreement has a non-compete clause. If 3 years later non-competes are no longer allowed in employment contracts, you won’t want to be suddenly unemployed because your employment contract is no longer valid. You’ll want the originally negotiated contract, minus the clause that can’t be enforced.
- jbombadil 3y ago
  Thanks for the explanation and the term "severability". I understand its point now and it makes sense to have it conceptually. I also didn't know about this part: > so long as it's not fundamentally a change to the contract's terms However, taken down one notch from theoretical to more practical: > It seems like you're arguing for some sort of punitive response to authoring a bad contract? Not quite so bluntly, but yes. There's obviously a gray area here. So not for mistakes, subtle technicalities. But if one party is being intentionally or absurdly overreaching then yes, I believe there should be some proportional punishment. Particularly if the writing party's intent is to scare out of inaction more than a core belief that their wording is true. The way I think of it is maybe in similar terms as disbarring or something like that. So not something that would be a day-to-day concern for honest people doing honest work, but some potential negative consequences if "you're taking it too far" (of course this last bit is completely handwavy). Maybe such a mechanism exists that I'm not aware of.
treis 3y ago
These guys (at least according to the angry letter) went beyond reasonable safe harbor for security researchers. They created admin accounts and accessed data. Definitely not clearly false that there's no liability here. Probably actually true.
convolvatron 3y ago
I recently got supremely frustrated by this in civil litigation. The claimant kept filing absolute fictional nonsense with no justification, and I had to run around trying to prove these things were not the case and racking up legal fees the whole time. apparently you can just say whatever you want.
anigbrowl 3y ago
Because contract law mostly views things through the lens of property rights. Historically those with the most property get the most rights, so they're able to get away with imposing wildly asymmetrical terms on the implicit basis that society will collapse if they're not allowed to.
hnfong 3y ago
IANAL, but the letter is borderline extortion/blackmail. Threatening to report an illegal activity unless the alleged perpetrator does something to your advantage can be extortion/blackmail AFAIK.

bdowling 3y ago

It's a balance between encouraging people to stand up for their rights on one hand and discouraging filing of frivolous lawsuits on the other. The American system is "everyone pays their own legal fees", which encourages injured parties to file. The U.K. on the other hand is a "loser pays both parties' legal fees" (generally), which discourages a lot of plaintiffs from filing, even when they have been significantly harmed.

LastTrain 3y ago

There can be consequences, but you have to be able to demonstrate you have been harmed. So, in what way have you been harmed by such a threat, and what is just compensation? How much will it cost to hire a lawyer to sue for compensation, and what are your chances of success? These are the same kinds of questions the entity sending the threatening letter asked themselves as well. If you think it is unfair because they have more resources, well that is more of a general societal problem - if you have more money you have access to better justice in all forms.

fallingknife 3y ago

That's not the language they use. It will be more like "your actions may violate (law ref) and if convicted, penalties may be up to 20 years in prison." And how do you keep people from saying that? It's basically a statement of fact. If you have a problem with this, then your issue is with Congress for writing such a vague law.

arrosenberg 3y ago
No, you are talking about criminal law. What OP is talking about is severability, which exists so that if a judge determines Clause X violates the law, they can still (attempt) to enforce the rest of the contract if X can be easily remedied. I.e. The contract says no lunch breaks but CalOSHA regulations say 30 minutes required, the contractor can't violate the contract in its' entirety, they just take the breaks and amend the contract if the employer pushes it. I disagree with OP - a judge can always choose to invalidate a contract, regardless of severability. It is in there for the convenience of the parties, and I've not heard of it being used in bad faith.
ender341341 3y ago
you can read the language they do use here https://stanforddaily.com/2022/11/01/opinion-fizz-previously-compromised-its-users-privacy-it-may-do-so-again/ https://stanforddaily.com/2022/11/01/opinion-fizz-previously... they threaten if they receive written confirmation that the researchers won't discuss the security issues they won't pursue charges. The lawyers were very much not "for your information you could be liable for x if someone responded poorly", they were in fact responding poorly.
SilasX 3y ago
"That's not the language they used. They simply admired your place of business and reflected on what a shame it would be if a negative event happened to it. How would you keep people from saying that? It's basically a statement of fact..."
InSteady 3y ago
“[the security researchers] may be liable for fines, damages and each individual of the [security research] Group may be imprisoned… Criminal penalties under the CFAA can be up to 20 years depending on circumstances.” “the Group’s actions are also a violation of Buzz’s Terms of Use and constitute a breach of contract, entitling Buzz to compensatory damages and damages for lost revenue.” “the Group’s agreement to infiltrate Buzz’s network is also a separate offense of conspiracy, exposing the Group to even more significant criminal liability.” Emphasis added. The language is quite a bit more forceful and threatening than you make it out to be. Given that they were issuing these threats as an ultimatum, a "keep quiet about this or else...", it was likely a violation of California State Bar's rules of professional conduct.

bagels 3y ago

Even if you get it right, the court can change what is right at any time by ruling differently than last time.

MajimasEyepatch 3y ago

There is obviously such a thing as going too far, but it's kind of hard to draw a clear line. In a good faith context, laws and precedents can change quickly, sometimes based on the whim of a judge, and there are many areas of law where there is no clear precedent or where guidance is fuzzy. In those cases, it's important to have severability so that entire contracts don't have to be renegotiated because one small clause didn't hold up in court. Imagine an employment contract that contains a non-compete clause (ignore, for a moment, your personal beliefs about non-compete clauses). The company may have a single employment contract that they use everywhere, and so in states where non-competes are illegal, the severability clause allows them to avoid having separate contracts for each jurisdiction. And now suppose that a state that once allowed non-competes passes a law banning them: should every employment contract with a non-compete clause suddenly become null and void? Of course not. That's what severability is for. In the case in the OP, it's hard to say what the context is of the threat, but I imagine something along the lines of, "Unauthorized access to our computer network is a federal crime under statute XYZ punishable by up to 20 years in prison." Scary as hell to a layperson, but it's not strictly speaking untrue, even if most lawyers would roll their eyes and say that they're full of shit. Sure, it's misleading, and a bad actor could easily take it too far, but it's hard to know exactly where to draw the line if lawyers couch a threat in enough qualifiers. At the end of the day, documents like this are written by lawyers in legalese that's not designed for ordinary people. It's shitty that they threatened some college students with this, and whatever lawyer did write and send this letter on behalf of the company gave that company tremendously poor advice. I guess you could complain to the bar, but it would be very hard to make a compelling case in a situation like this. (This is also one of the reasons why collective bargaining is so valuable. A union can afford legal representation to go toe to toe with the company's lawyers. Individual employees can't do that.)

notpushkin 3y ago
> At the end of the day, documents like this are written by lawyers in legalese that's not designed for ordinary people. Does it have to be this way?
- ipaddr 3y ago

mentalpiracy 3y ago

> I've seen examples of an employee contract, with things like "if any piece of this contract is invalid it doesn't invalidate the rest of the contract". This concept of severability exists in basically all contracts, and is generally limited to sections that are not fundamental to the nature of the agreement. (The extent of what qualifies as fundamental is, as you said, up to a court to interpret.) In your specific example of an employee contract, severability actually protects you too, by ensuring all the other covenants of your agreement - especially the ones that protect you as the individual - will remain in force even if a sub section is invalidated. Otherwise, if the whole contract were invalidated, you'd be starting from nothing (and likely out of a job). Some protections are better than zero.

Buttons840 3y ago
> especially the ones that protect you as the individual - will remain in force even if a sub section is invalidated In a right-to-work state, what protections can an individual realistically expect to receive from a contract?
- abduhl 3y ago
  The employment of an individual that has an employment contract is governed by the strictest set of rules between the right-to-work state's laws and the employment contract. Literally every permissible provision of an employment contract can be a protection: golden parachutes, vacation days, sick days, payout of the same, IP guarantees for hobby work, employment benefits, etc. Right to work at its most generic level means freedom from being forced into a union, not freedom from being held to a contract.
  - feoren 3y ago
    > golden parachutes Nobody has these except top execs who are already in a huge position of power. > vacation days, sick days, payout of the same Nope, not anymore: nothing is guaranteed with "flexible time off". I literally cannot meet my performance goal if I take more than 1 day of sick/vacation day PER YEAR. Yes, my raises are tied to this performance goal. Yes, it's probably illegal, but who cares? Nobody is ever going to do anything about it. This is every company with FTO. Who gets "paid out" for PTO anymore? > IP guarantees for hobby work You're joking, right? Most employment contracts claim that they own the slam poetry you write on your napkin at 2:00 am on a Saturday while high on your couch. Every mention of IP in an employment contract is as greedy as possible. > employment benefits Ok but in a right to work state these can be terminated any time anyway. Literally nothing about an employment contract is ever written in favor of the actual employee. Of course it's not: they wrote it. If every company in an industry does this and they all refuse to negotiate, workers have no choice but to sign it. It's crazy to me to think that a U.S. company would voluntarily ever do anything in the interest of any of its employees, ever. This is the whole reason why ambiguities are supposed to go in favor of the party that didn't write it. Voiding any part of an employee contract can therefore only ever benefit the employee (except possibly the part where they get paid). If you want protections for employees, look to regulation and unions, not contracts written by the employer.

gingerrr 3y ago

> "if any piece of this contract is invalid it doesn't invalidate the rest of the contract". Severability (the ability to "sever" part of a contract, leaving the remainder intact so long as it's not fundamentally a change to the contract's terms) comes from constitutional law and was intended to prevent wholesale overturning of previous precedent with each new case. It protects both parties from squirreling out of an entire legal obligation on a technicality, or writing poison pills into a contract you know won't stand up to legal scrutiny. If part of the contract is invalidated, they can't leverage it. If that part being invalidated changes the contract fundamentally, the entire contract is voided. What more do you want? It seems like you're arguing for some sort of punitive response to authoring a bad contract? That seems like a pretty awful idea re: chilling effect on all legal/business relationship formation, and wouldn't that likely impact the weaker parties worse as they have less access to high-powered legal authors? That means that even negotiating wording changes to a contract becomes a liability nightmare for the negotiators, doesn't that make the potential liability burden even more lopsided against small actors sitting across the table from entire legal teams? I guess I'm having trouble seeing how the world you're imagining wouldn't end up introducing bigger risk for weaker parties than the world we're already in.

cj 3y ago
Practical example: your employment agreement has a non-compete clause. If 3 years later non-competes are no longer allowed in employment contracts, you won’t want to be suddenly unemployed because your employment contract is no longer valid. You’ll want the originally negotiated contract, minus the clause that can’t be enforced.
jbombadil 3y ago
Thanks for the explanation and the term "severability". I understand its point now and it makes sense to have it conceptually. I also didn't know about this part: > so long as it's not fundamentally a change to the contract's terms However, taken down one notch from theoretical to more practical: > It seems like you're arguing for some sort of punitive response to authoring a bad contract? Not quite so bluntly, but yes. There's obviously a gray area here. So not for mistakes, subtle technicalities. But if one party is being intentionally or absurdly overreaching then yes, I believe there should be some proportional punishment. Particularly if the writing party's intent is to scare out of inaction more than a core belief that their wording is true. The way I think of it is maybe in similar terms as disbarring or something like that. So not something that would be a day-to-day concern for honest people doing honest work, but some potential negative consequences if "you're taking it too far" (of course this last bit is completely handwavy). Maybe such a mechanism exists that I'm not aware of.

treis 3y ago

These guys (at least according to the angry letter) went beyond reasonable safe harbor for security researchers. They created admin accounts and accessed data. Definitely not clearly false that there's no liability here. Probably actually true.

convolvatron 3y ago

I recently got supremely frustrated by this in civil litigation. The claimant kept filing absolute fictional nonsense with no justification, and I had to run around trying to prove these things were not the case and racking up legal fees the whole time. apparently you can just say whatever you want.

anigbrowl 3y ago

Because contract law mostly views things through the lens of property rights. Historically those with the most property get the most rights, so they're able to get away with imposing wildly asymmetrical terms on the implicit basis that society will collapse if they're not allowed to.

hnfong 3y ago

IANAL, but the letter is borderline extortion/blackmail. Threatening to report an illegal activity unless the alleged perpetrator does something to your advantage can be extortion/blackmail AFAIK.