The Lawyer wins, the law loses

Yes, it is a stage that we will be seeing soon enough. As the lawyer wins, the law loses and tht is just the beginning. As we see ‘Apple loses appeal in Fortnite court battle’ (source: Australian Financial Review) there is a secondary stage that comes up. It is not immediately clear, but someone gave the reader by Jeff Dotzler in GC Consulting in 2019 ‘Will You Get Sued if Your Business is Hacked?’ There we see “Even though the company was able to restore the records, one of the affected clients, Surfside Non-Surgical Orthopedics in Boynton Beach, sued Allscripts in federal court. Surfside accused Allscripts of not doing enough to prevent the attack or lessen its impact and sued on behalf of all affected clients for “significant business interruption and disruption and lost revenues.”” Now consider that ‘significant business interruption’ can be replaced with ‘game score disruption’, a stage I saw coming a mile away. Epic Games did not  consider the stupidity of their actions and now, should they win they will soon face several, if not well over a dozen class cases. They cannot make some ‘we are not responsible draft’, the moment ANYONE at Google or Apple squeals the setting of the hack and it comes with the accompanied ‘We could have prevented that’ Epic Games is lost, it will cost them billions in settlements and lawyer costs. If you doubt that, consider ‘SolarWinds says unknown hackers exploited newly discovered software flaw’ (at https://www.reuters.com/technology/solarwinds-says-unknown-hackers-exploited-newly-discovered-software-flaw-2021-07-12/), so they just got out of one mess only to land in a new one and these people have a decently simple system, Epic Games will have to spend on protection that is several levels higher and I feel decently certain that it is not enough. The moment any profile is transgressed on whilst there was a purchase, that is the game, loss Epic Games and loose they will, a lot. 

Even as we are told “SolarWinds said the flaw was “completely unrelated” to last year’s hack of government networks”, it will not matter, another flaw is found and there is every chance that more than one will still be found. In this Forbes gives us ‘Why SolarWinds Is The Wakeup Call No One Heard’, it comes with “everyone talks a good game, but the very structure of American (and other businesses around the globe) makes it nearly impossible to, for example, deliberately and significantly reduce EBITDA to prepare for cyber warfare” and when you consider that EBITDA is Earnings Before Interest, Taxes, Depreciation, and Amortisation. You see the problem, it is not all, it is earnings before interest and depreciation that bites, earnings before interest is all earnings with cost diminishing this and too many corporate players tend to cut cost. In some cases they have no choice in the cloud a lot does not matter but it is transgressed on (according to some numbers) for almost 90%. And when you add that Amortisation is merely anther view of  depreciation the path is clear. Steve Andriole also gives us “The number of severity of cyberattacks will explode in 2020.  Cyberwarfare has now levelled the playing field in industry, in government, and in national defence:  why spend ten or fifteen billion dollars on an aircraft carrier when you can disable it digitally?” You think that this is about defence? Do you have any idea what 50 million whining gamers can do? EVERY ransomware player will target Epic Games and with an open Android and iOS setting they will succeed. I saw this when this all started in 2020 within 5 minutes, the short sightedness will hit Epic Games and others in a few ways. Think I am BS’ing you?  Consider that several sources gave you a month ago “Hackers Stole 780GB Data Including FIFA 21 Source Code in EA Hack” and EA has been in this game a lot longer than Epic Games has been. That is not evidence, but it is a setting that we need to consider and when Epic Games loses that data the class actions start, and it is not something that they can keep quiet (apart from that being a crime), the people will talk and the parties involved, including government parties will find a nice letter making claim to financial losses. The law source (see above) also gives us a link to the Ohio Data Protection Act. There we see “Under the law, damages cannot be imposed if a state court finds your company had a reasonable cybersecurity plan when a breach occurred and followed it to the best of your ability. Or, as the legislation puts it, the law is “an incentive to encourage businesses to achieve a higher level of cybersecurity through voluntary action.”” In this I offer ‘reasonable cybersecurity plan’, was it followed through? Was there a backup if it fails, was there consideration for cross platform transgressions? In this last part I offer to the older programmers 

IF(clipper)
   …
ELSE
   …
ENDIF

Those who know will nod and consider what else Epic Games and others have forgotten, what happens when someone exploits a Sony flaw over the entire system, and at that point these companies have little to no protection. 

Which gets us to ‘when a breach occurred and followed it to the best of your ability’, but the suing side will argue that the breach could have been prevented on day zero, or even day -1, which will be their way of saying that they opened the system when they were not ready and that is another billion in class actions right there, and I agree with the stage that there will be enough cases that have no bering (just like the loot box cases in the media), yet Epic Games will have to hand to their lawyers to investigate them all, the hours alone will rake up millions and that is merely year one. The lawyer wins his bread and butter for a year (at the very least) and the law is up the creek without a clause. The law was never ready for this, so the going will be good towards the coffers of Epic Games, a looting box that requires time, not money. 

So when we go back to Forbes and consider “When I took the results to the CFO (to which technology weirdly reported), his only question was, “what’s all this going to cost me?,” which of course was the wrong question.” We see there setting, but I wonder who gave that same question to the Chief Legal Officer (CLO) with the question ‘What will this cost the firm?’, a question that he can decently predict when he considers 1-5 class actions and that result has to be scary and any consideration of future profit goes straight out of the window, not merely the legal costs, marketing will have to offer a whole range of products and services to stem the tide of people leaving for the next safer harbour, the most dangerous of all settings, and that is merely the beginning of year one as Android and iOS stores open. Forbes also gives a reference to Andy Greenberg (Wired Magazine, 2019) said about why governments have been unwilling to deal with cyberthreats: “More fundamentally, governments haven’t been willing to sign on to cyberwar limitation agreements because they don’t want to limit their own freedom to launch cyberattacks at their enemies.  America may be vulnerable to crippling cyberattacks carried out by its foes, but US leaders are still hesitant to hamstring America’s own NSA and Cyber Command, who are likely the most talented and well-resourced hackers in the world.” And this is not a government setting, Epic Games will be hit be greed driven and vengeance driven hackers as well as organised crime, a %5 billion company? With the state of cybercrime convictions? They are definitely on board. A stage Epic Games could have prevented from the start, but someone saw 30% of $5,000,000,000 and did the math, but whoever did the math was not ready for the tidal wave they would be inviting through that choice. In this, Forbes had one more gem, it comes from Nicole Penroth and ‘The hubris of American exceptionalism’, when we see “More hacking, more offence, not better defence, was our answer to an increasingly virtual world order, even as we made ourselves more vulnerable, hooking up water treatment facilities, railways, thermostats and insulin pumps to the web, at a rate of 127 new devices per second”, now consider that Fortnite is on Windows, MacOS, Switch, Sony, Microsoft, iOS and Android, they drew more than 125 million players in less than a year, do you think that there will be no flaws? And how many devices a second will that add to the equation? Do you have any clue what level of protection is required, even as Sony, Solarwinds, Nintendo and Microsoft have all been hacked even though they had nowhere near that level of complexity required. This was a dangerous situation from the start and gamers will soon have to seriously consider to remove any program that has an ‘open’ store, the cost will be too high for a lot of them. 

And that is not all, as Nicole spoke about ‘an increasingly virtual world’ the danger that open stores will mean that you either have a dedicated computer, or healthcare and safety products will not be considered to be insured in your house, when that happens we get a whole new level of nightmare, I can only imagine that setting, but I am clueless as to the impact, we cannot oversee that, not with an evolving IoT and 5G evolving before our very eyes.