6 ms·

Malicious compliance is a thing. They're supposed to use neutral language.

by jkirsteins 1y ago

hajile 1y ago
Malicious compliance is only illegal if it doesn't actually comply.
- DannyBee 1y ago
  This is also wrong. Good faith is a requirement. Act in bad faith, and you can still be sanctioned. Do you have any background in this, or are you just asserting what you want reality to be? Because you are just spouting wrong information that, even for a non-lawyer, would take you 10 minutes to go find and read right information.
  - Wobbles42 1y ago
    Non-lawyer here. This information is surprising to me (to be clear, I believe you, I just would have guessed otherwise). Is some degree of malicious compliance not extremely common when companies deal with the courts? From the outside it seems like the incentive would be to comply with a court order to the minimum degree required to avoid further legal consequences, but no more. Is compliance more enthusiastic that that in practice? Again, I have zero experience, but the idea of a company losing a lawsuit and then actually acting in good faith is a strange one to me. An individual might be intimidated to act in actual good faith to avoid serious consequences, but Apple as an entity can't be tossed in jail for contempt of court, right? So it would seem that it is incentivized to push it's employees to take risks like this, with the understand that they can be replaced by employees who will if they refuse.
    - DannyBee 1y ago
      Again, once you lose, the adversarial part is over. Malicious compliance is exactly why good faith is a requirement but not a defense. Bad faith will get you contempt, good faith will not save you from contempt if you didn't do enough. Do companies try to skirt this anyway - sure. But they run the risk of a judge finding they didn't do enough, and sanctioning them anyway, even if they didn't have obvious bad faith, or heck, even if they have objectively good faith. There are plenty of cases where judges sanctioned good faith actors who didn't do enough. I quoted McComb in another comment (so don't want to paste it again here), but see https://supreme.justia.com/cases/federal/us/336/187/ https://supreme.justia.com/cases/federal/us/336/187/ and friends. In the end, once you lose, if you play stupid games, you will usually win stupid prizes. That doesn't mean people don't play, but it's almost always against their lawyers strong advice. As for jail - you have to distinguish civil and criminal contempt. Criminal contempt can get you thrown in jail, and has different requirements.
    - vkou 1y ago
      > Is compliance more enthusiastic that that in practice? Once a company gets burned by scary litigation, it is often very reticent about pushing the line again.
  - hajile 1y ago
    I know the current interpretation, but I also know that it's not logically sustainable. The key here is "reasonableness", but you can't read a judge's mind, so reasonable only means what a reasonable person would infer. That is completely subjective based on an individual's implicit biases and knowledge of all surrounding circumstances. For example, the dev team tasked with implementing this may not be familiar with the entire case, so what they consider reasonable will be different based on that. They also know much more about technology and likely have strong feelings about what is acceptable, but the judge is NOT a subject matter expert (SME) in that area. Likewise, the judge is NOT a SME on UI/UX, so the judge's interpretation of "reasonable" may well be at odds. There is also an argument that directing to these third-party sites opens 1.4B people to exploitation, so it would be reasonable to allow them access, but also to protect those users (who also aren't SMEs and often have essentially zero understanding) from potential issues by framing things appropriately. I could go on with many other qualifiers about what would be reasonable. The judge is qualified to make rulings based on the law, but utterly unqualified to decide what the details of a reasonable implementation would be. If she were a qualified SME, she could and should have written her reasoned decision and removed the need for interpretation. If the ruling were itself reasonable and clear, there wouldn't be meaningful room for debate about reasonableness which would in turn effectively render reasonableness a mute point. As such, you can see that "reasonableness" in these kinds of cases is a crutch to protect unqualified judges making rulings they should not be making which is ironically a very unreasonable approach. As to "good faith", who is she to dictate that you must do what she says and be happily compliant or else? After all, unhappiness will almost certainly taint all actions to a greater or lesser degree, so anything less than perfect contentment would be "bad faith" to a greater or lesser degree. Who is the judge to single-handedly decide these people's state of mind? Has all her study of law made her an expert on what happens in other people's minds and privy to their thoughts and experiences while ridding herself of her own biases? Such a task is impossibly hard for a jury even in broad terms with lots of facts and even less possible for a single person judging the actions of many people based only on a few chat messages. How does she ensure that every single one of those hundreds to thousands of people involved is "acting in good faith" is an impossible task and you can be assured that at least one of them at any given time isn't acting in good faith about ANYTHING. This would imply that you must ALWAYS assume that bad faith was involved. How do you determine how much bad faith is too much? Based on outcome is the only logical answer, but in that case, you could have been explicit about the outcome in the first place and skipped all the trouble and possible excuses of misunderstanding once again rendering "bad faith" as a crutch to protect the judge from their incompetence. She passed judgement based on the law. As long as that judgement is fulfilled to the degree specified, the state of mind of the hundreds to thousands of people involved in carrying out that judgement should not matter. "Good faith" and "reasonableness" is a faulty and fickle metric at its best when applied to a single person by a group of peers. It is a broken and unusable metric when applied to a group or corporate entity by a single judge not an expert in the matters at hand.
  - ycombinatrix 1y ago
    we're arguing semantics - "malicious compliance" is by definition compliant, meaning (in this case) it is in good faith.

Malicious compliance is a thing. They're supposed to use neutral language.

hajile 1y ago

Malicious compliance is only illegal if it doesn't actually comply.

DannyBee 1y ago
This is also wrong. Good faith is a requirement. Act in bad faith, and you can still be sanctioned. Do you have any background in this, or are you just asserting what you want reality to be? Because you are just spouting wrong information that, even for a non-lawyer, would take you 10 minutes to go find and read right information.
- Wobbles42 1y ago
  Non-lawyer here. This information is surprising to me (to be clear, I believe you, I just would have guessed otherwise). Is some degree of malicious compliance not extremely common when companies deal with the courts? From the outside it seems like the incentive would be to comply with a court order to the minimum degree required to avoid further legal consequences, but no more. Is compliance more enthusiastic that that in practice? Again, I have zero experience, but the idea of a company losing a lawsuit and then actually acting in good faith is a strange one to me. An individual might be intimidated to act in actual good faith to avoid serious consequences, but Apple as an entity can't be tossed in jail for contempt of court, right? So it would seem that it is incentivized to push it's employees to take risks like this, with the understand that they can be replaced by employees who will if they refuse.
  - DannyBee 1y ago
    Again, once you lose, the adversarial part is over. Malicious compliance is exactly why good faith is a requirement but not a defense. Bad faith will get you contempt, good faith will not save you from contempt if you didn't do enough. Do companies try to skirt this anyway - sure. But they run the risk of a judge finding they didn't do enough, and sanctioning them anyway, even if they didn't have obvious bad faith, or heck, even if they have objectively good faith. There are plenty of cases where judges sanctioned good faith actors who didn't do enough. I quoted McComb in another comment (so don't want to paste it again here), but see https://supreme.justia.com/cases/federal/us/336/187/ https://supreme.justia.com/cases/federal/us/336/187/ and friends. In the end, once you lose, if you play stupid games, you will usually win stupid prizes. That doesn't mean people don't play, but it's almost always against their lawyers strong advice. As for jail - you have to distinguish civil and criminal contempt. Criminal contempt can get you thrown in jail, and has different requirements.
  - vkou 1y ago
    > Is compliance more enthusiastic that that in practice? Once a company gets burned by scary litigation, it is often very reticent about pushing the line again.
- hajile 1y ago
  I know the current interpretation, but I also know that it's not logically sustainable. The key here is "reasonableness", but you can't read a judge's mind, so reasonable only means what a reasonable person would infer. That is completely subjective based on an individual's implicit biases and knowledge of all surrounding circumstances. For example, the dev team tasked with implementing this may not be familiar with the entire case, so what they consider reasonable will be different based on that. They also know much more about technology and likely have strong feelings about what is acceptable, but the judge is NOT a subject matter expert (SME) in that area. Likewise, the judge is NOT a SME on UI/UX, so the judge's interpretation of "reasonable" may well be at odds. There is also an argument that directing to these third-party sites opens 1.4B people to exploitation, so it would be reasonable to allow them access, but also to protect those users (who also aren't SMEs and often have essentially zero understanding) from potential issues by framing things appropriately. I could go on with many other qualifiers about what would be reasonable. The judge is qualified to make rulings based on the law, but utterly unqualified to decide what the details of a reasonable implementation would be. If she were a qualified SME, she could and should have written her reasoned decision and removed the need for interpretation. If the ruling were itself reasonable and clear, there wouldn't be meaningful room for debate about reasonableness which would in turn effectively render reasonableness a mute point. As such, you can see that "reasonableness" in these kinds of cases is a crutch to protect unqualified judges making rulings they should not be making which is ironically a very unreasonable approach. As to "good faith", who is she to dictate that you must do what she says and be happily compliant or else? After all, unhappiness will almost certainly taint all actions to a greater or lesser degree, so anything less than perfect contentment would be "bad faith" to a greater or lesser degree. Who is the judge to single-handedly decide these people's state of mind? Has all her study of law made her an expert on what happens in other people's minds and privy to their thoughts and experiences while ridding herself of her own biases? Such a task is impossibly hard for a jury even in broad terms with lots of facts and even less possible for a single person judging the actions of many people based only on a few chat messages. How does she ensure that every single one of those hundreds to thousands of people involved is "acting in good faith" is an impossible task and you can be assured that at least one of them at any given time isn't acting in good faith about ANYTHING. This would imply that you must ALWAYS assume that bad faith was involved. How do you determine how much bad faith is too much? Based on outcome is the only logical answer, but in that case, you could have been explicit about the outcome in the first place and skipped all the trouble and possible excuses of misunderstanding once again rendering "bad faith" as a crutch to protect the judge from their incompetence. She passed judgement based on the law. As long as that judgement is fulfilled to the degree specified, the state of mind of the hundreds to thousands of people involved in carrying out that judgement should not matter. "Good faith" and "reasonableness" is a faulty and fickle metric at its best when applied to a single person by a group of peers. It is a broken and unusable metric when applied to a group or corporate entity by a single judge not an expert in the matters at hand.
- ycombinatrix 1y ago
  we're arguing semantics - "malicious compliance" is by definition compliant, meaning (in this case) it is in good faith.