Tag Archives: Torts

February 1, 2022 · 16:07

That first step

We have all heard it, the first step is admitting you have a problem. There is of course debate on WHAT the problem is. I am not any different. I hate stupidity, hypocorism and bot to mention short sighted issues. One of these issues is ‘Tax the rich’, we see all these stupid people screaming ‘tax the rich’ whilst the system is set, there is a tax system, there are tax laws and instead of all screaming to adjust the tax system we see the empty gesture to tax the rich, the rich do not care, they adhere to tax laws, so these laws will PROTECT them. Another issue was seen in ‘Greed and Law helping each other’, I wrote it on July 9th 2021 (at https://lawlordtobe.com/2021/07/09/greed-and-law-helping-each-other/). There I set out the short sighted setting of the Oxycontin setting. I wrote “Yes, there are culprits in this story. You see some sources give us that in 1996 316,000 prescriptions were dispensed, it grew to an impressive amount topping over 14 million prescriptions with an estimated value of $3,000,000,000. The issue we see everyone painting over is ‘prescriptions dispensed’, this is not something that a person can get, it needs a doctor and it needs a pharmacist.” You see there are laws and rules, and they were massively broken by doctors and pharmacists. So when do they go to court? 

It is Reuters who give us today (at https://www.reuters.com/legal/transactional/sacklers-near-deal-contribute-more-opioid-settlement-purdue-pharma-bankruptcy-2022-01-31/) the story of ‘Sacklers near deal to increase opioid settlement in Purdue bankruptcy’, I personally do not believe that members of the Sackler family who own Purdue Pharma LP were completely innocent, yet that is not the setting is it? SOMEONE handed a paper to dispense Oxycontin, a pharmacist handed over the drugs. Yet nearly all of them banked the money and did not ring the alarm bell (some really did that) and those who cashed in on 14,000,000 prescriptions? Why are they not in court? Members of the Sackler family cannot hand over prescriptions, they cannot dispense drugs to people, they can merely distribute to pharmacies. So I do not believe that they are completely innocent, but to go after them and not after the doctors and pharmacies is (as I personally see) immoral. 

Yes, I know that in Torts you go after the money.

So in that setting: “Jeff Bezos, I do believe you owe me $50,000,000 post taxation, pay up please!”

But is any of that fair? You might say that fair has nothing to do with it and it is not incorrect but it is wrong. So when Reuters gives us “An agreement involving members of the Sackler family and several state attorneys general could potentially end a legal challenge that has prevented Purdue from exiting bankruptcy, and clear the way for a plan aimed at helping to abate the opioid crisis” my personal thoughts are wondering how many of these state attorney generals went after the doctors and the pharmacies? Justice handed in August 2021 a verdict, ‘Doctor Sentenced To More Than 15 Years In Prison For Conspiring To Distribute Thousands Of Oxycodone Pills Illegally’, there is no way in hell that only ONE doctor did that, so how many are serving 15 years? 

It is U.S. Attorney Audrey Strauss who gives us “Dr. Emmanuel Lambrakis wrote medically unnecessary prescriptions for thousands of oxycodone pills – an addictive and potentially fatal opiate.  Instead of abiding by his oath to ‘do no harm,’ Lambrakis pumped deadly drugs into the community.  Lambrakis put his own greed before his duties as a medical professional, and for that he will now spend a lengthy term in federal prison.” And as stated before, there is no way that there was merely one doctor guilty of that, in addition, there are truckloads of pharmacies that require the same amount of attention and that too is not being done to the degree it had to be done, it is my personal opinion that some state attorneys general’s were lazy and decided to go after the money, go for the easy conviction. Yes, the Sackler family benefitted, but who prescribed? Who handed them over? I see close to nothing on that. It is a simple tax the rich approach to a failing in law and a failing to observe the law and there are clearly a vast amount of doctors and pharmacies more guilty than any of the Sackler family. But we do not get to see that, do we?

As I see it, it started with that first step and the law has a problem, it cannot properly dispense justice to the wrongdoers. It merely went to the richest person and found them guilty. So what happens when it becomes about something more problematic? What happens when someone figures out that any Ponzi scheme can be done online handing the mess to Apple or perhaps Epic systems? So what happens when the hackers find the weakness in something like Nvidia’s GeForce Now service? What happens when 300,000,000 people lose $10-$35 and Epic goes ‘Not my Problem’, and Nvidia goes ‘We know nothing’? Who will end up with that bill of $3,000,000,000-$9,000,000,000 because the people will demand payment and as I see it the Justice departments will be globally clueless on how to proceed. The nice part here is that the court setting makes Apple automatically innocent, they had to open up the system and the people will merely lose their money. 

How a spindled world wide web we weave.

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April 7, 2021 · 23:30

Feel free to lose control

Yup, we all have that. You, me, pretty much everyone. Even the Catholic cleric in [censored], should you doubt that, ask any choir boy there. So when the BBC gave us ‘Facebook sued for ‘losing control’ of users’ data’, I merely shrugged and went ‘Meh’. You see, it is not about “the case against the technology giant, expected to last for at least three years, will argue a “loss of control” over users’ personal data warrants individual compensation”, which is hypocrite on a few levels, we see people handing over data and fact to complete strangers in Facebook and plenty of other social media paths. We laugh at “Coolum resident Essena O’Neill, 19, said she was paid up to $2,000 for the posts, which show her posing with products and often in revealing positions. With more than 600,000 followers on Instagram and 260,000 on YouTube, Ms O’Neill has deleted many of her original photos and re-captioned others with more honest descriptions” (ABC, 2015). We also get (two weeks ago) ““I accidentally posted a picture on Instagram of my wine glass and I was naked,” she said whilst nervously laughing. Then, she went on to explain that you could actually see her naked body in the reflection of the wine glass”, is anyone buying this? Social media has been used on a huge number of settings revealing ‘accidentally’ facts that normally do not get to see the light of day, and in all this we are given ““loss of control” over users’ personal data”? Go cry me a river! In the mean time, did anyone see Alexander Nix, Julian Wheatland, Rebekah Mercer, or Steve Bannon in the dock of a courtroom in any of the hit countries? In this the quote “harvesting of Facebook users’ personal information by third-party apps was at the centre of the Cambridge Analytica privacy scandal” applies, a third party app, was there any documented agreement, or documented acceptance of the harvesting of personal data? I do not see Microsoft in the dock in court over their exchange failure that had hit 250,000 businesses, so why not? And when we see “Cambridge Analytica’s app on Facebook had harvested the data of people who interacted with it – and that of friends who had not given consent” did anyone consider putting the board of directors of Cambridge Analytica in prison? I wonder how far we have strayed from the flock of convictions to go after the money and not the transgressors. I do get it, it is a rule or Torts, the mere “go where the money is” is not a wrong setting, but in this setting all the blame on Facebook seems wrong. They are not without fault, I get that, but to see a reference to Journalist Peter Jukes giving us “leading the action, claims his data was compromised”, so how was his data compromised? What evidence is there? In turn I have equal issues with “The Information Commissioner’s Office investigation into these issues, which included seizing and interrogating Cambridge Analytica’s servers, found no evidence that any UK or EU users’ data was transferred by [app developer] Dr [Aleksandr] Kogan to Cambridge Analytica”, I wonder how far backup investigation went, in turn the setting of ‘no evidence that any UK or EU users’ data was transferred’ is almost preposterous, the data was collected, as such it went somewhere, the fact that the Information Commissioner’s Office couldn’t find that part is mere icing on the cake of Cambridge Analytica. In addition, when we see “Mr Jukes told BBC News it was not about “where the data went” but rather “that Facebook didn’t care”. “They didn’t look after it,” he said.” Can this be proven? ‘Didn’t care’ is subjective and presumptive, we can agree that security measures failed, yet ‘They didn’t look after it’ is equally unproven, and these people are not going after the people of Cambridge Analytica as THEY transgressed on the data. As such as we look at Eton boy Alexander Nix, in the setting of “Nix agreed to a disqualifying undertaking prohibiting him from running U.K. limited companies for seven years after permitting companies to offer potentially unethical services, while denying any wrongdoing”, he got a mere slap on the hand, with a mandatory 7 year vacation all whilst we are told ‘denying any wrongdoing’, in addition there is “agreeing to delete previously obtained data”, a 2019 agreement, so where was the data all this time? Let’s be clear, Facebook has made blunders, huge ones, yet in light of the fact that Microsoft gets a mere fine and the issues is closed after that, why keep on going after Facebook? When we see ZDNet give us ‘Microsoft Exchange Server attacks: ‘They’re being hacked faster than we can count’, says security company’ two weeks ago (at https://www.zdnet.com/article/microsoft-exchange-server-attacks-theyre-being-hacked-faster-than-we-can-count-says-security-company/), what gives, why are they not being sued for setting a dangerous precedence on corporate information? We go after Huawei without evidence, we ignore alleged criminals and their app transgressions with our data, but it is fine to go after Facebook whilst ignoring the massive flaw that is Microsoft? So what gives?

So yes, we can lose control all we like, but if we hamper the courts with empty cases that are set on emotion, all whilst people like Alexander Nix, Julian Wheatland, Rebekah Mercer, and Steve Bannon are allowed to return to positions and try again? And what about Cambridge Analytica? As it was soon thereafter acquired by? The only reason I see to acquire Cambridge Analytica is because of hardware, because of software and because of data, so who is looking into that, preferably all before we lose time slapping Facebook around? I see very little after 2018, but perhaps Peter Jukes is too busy to see were his alleged compromised data optionally went. 

So whilst we giggle on statements like “I accidentally posted a picture on Instagram of my wine glass and I was naked”, we see a setting where a large group of people are using social media for all kind of things, the limelight most of all and in this we need to separate the real issues from the fictive cash cows. In this, did you wonder if the people are realising that Wired gave us a mere hour ago “collaboration platforms like Discord and Slack have taken up intimate positions in our lives, helping maintain personal ties despite physical isolation. But their increasingly integral role has also made them a powerful avenue for delivering malware to unwitting victims—sometimes in unexpected ways” (at https://www.wired.com/story/malware-discord-slack-links/) and that is a mere tip of the iceberg, a massively large one. How many apps are a gateway to YOUR system? So when we take notice of “hackers have integrated Discord into their malware for remote control of their code running on infected machines, and even to steal data from victims”, as such in that case it is not the nude reflection shot that matters, it is the wineglass porn that some people decided not to post that is out there for everyone to see. Consider the words by Stephen Fry on 2014, when he said “The best way to prevent nude pictures online, is to never pose nude”, or something according to those lines and he is right, the best social media is the boring one, where you just say hi and connect to relatives. But the limelight is for some just too appealing and to give everyone the lowdown on all your needs and that is what players like Cambridge Analytica were banking on. As such, when we add that light, that spotlight, what data of Peter Jukes was transgressed on and in light of the Exchange server issues, the Cisco issues and the larger stage of interconnecting apps, can it even be proven that it was Facebook? 

I’ll buy popcorn for that court case, it should be fun.

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February 7, 2019 · 11:03

A cat with a violin

A few issues came to my attention last night. Even as it is great to have a 9 month summer in Sydney, yet when you are in a Victorian house and the temperature inside the room is 10 degrees more than outside, you tend to forego a little sleep that tends to be the nature of the beast between Christmas and the end of February. So as I saw ‘Why celebrities are being sued over images of themselves‘ (at https://www.bbc.com/news/world-us-canada-47128788), I woke up a little more than I was comfortable with. You see, the issue is given with “A number of well-known celebrities, including Jennifer Lopez and model Gigi Hadid, have had lawsuits filed against them for posting paparazzi images on their social media accounts.” This is true; the creator owns the copyright, so in that case the paparazzi. This gave me the idea that we can finally use the law to stop the unacceptable amount of invasion of privacy (as well as public harassment). This is seen when we consider one small part of the copyright act where we could change the game.

In the UK there is the Copyright, Designs and Patents Act 1988. Here we see in section 20: “(1)The communication to the public of the work is an act restricted by the copyright in—
(a)a literary, dramatic, musical or artistic work,”

As well as:

“(2) References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include—
(b) the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.”

These parts give the right exclusively to the creator (the paparazzi), yet we can counter this with the idea of ‘Where the work is the product of a collaboration, the copyright may be jointly owned.‘

It is stated in section 10 with:

“Works of joint authorship.
(1) In this Part a “work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors.”

As such, when we set the stage that unless clearly documented, any photographic work is automatically a joined authorship. It would be a first step in culling abusive paparazzi’s. It would give rise to less trespass on others people privacy. There is little we can do in the public environment, because that remains a real stage and there are decent paparazzi’s, and they seem to limit their activities to the red carpet events. It does not completely solve the issue as there if a gap between what the Paparazzi can do and the direct invasion of privacy which is protected through torts in pretty much every common law nation.

Yet we can in part stop these activities by making every photographed person a joint owner of the image. It still allows for the photographer to do their work, because most models sign a contract/ agreement including one that hands over the rights of the photos through a release agreement, which at that point hands the rights to the photographer/modelling agency. For them nothing changes, yet the paparazzi would get culled as the model could publish images on their own channel (any social media) diluting the value of their image to €0.01. Giving the paparazzi that feeling that he has been working for the cat’s violin that day (an expression that means ‘for naught’). A few of these events and he/she will find becoming an Uber driver to be a more profitable vocation.

By adding:

“(2)In this Part a “work of joint authorship” means any artistic work where the photograph included a person, who as the model becomes author through collaboration as a contributor, in which the contribution of the work is seen as an equal to the actual creator (the photographer) of the artistic work.”

If the paparazzi claims that this is not the case loses as the model becomes co-owner unless there is a release agreement. It would solve a lot of issues for many models and celebrities in one go.

I also agree with the quote: “Neel Chatterjee, a US lawyer who specialises in high-profile intellectual property disputes, says social media has created an “enormous amount of complexity” in the field.” This is true, but I also believe that the matter could have been simplified a long time ago and I wonder why this step had not been set in motion a lot sooner. It was not that complex, was it?

Still, time is needed to consider and test the addition, whether it holds water and what else is affected, I believe that culling the paparazzi is a decent choice of lifestyle and in addition to that, there is a decent chance that we can nip the entire “copyright trolling” in the behind before it takes on a size that clogs up the court system (especially in the US and UK). In addition it would not impact players like Getty Images as they tend to remain at the red carpet events, even better (for them) their need might increase over time, or perhaps better stated they will grow the foundation of their workflow and I am not against that, to be honest I think that it will not affect any paparazzi that limits themselves to a decent place at the red carpet line. Those moments are for the celebrities to market their work, their albums, movies and charities.

Even as we can all agree with: “defence in regards to paparazzi copyright complaints remains complex and largely untested in case law“, Mr Chatterjee is right yet I feel that we could try and defuse the situation before it is too late and a long term precedent will have been created.

 

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July 25, 2017 · 14:11

A shaky Farce Majeure

I got confronted with two news items today, the weirdest part is that the source is the Daily Mail (at http://www.dailymail.co.uk/news/article-4717082/Chaos-British-holidaymakers-killer-earthquake.html), which is upsetting to some degree. The news started with the earthquake on Kos last week, a shaking that extended all the way to Crete. Now, as the building laws are on Crete, the news of the earthquake was not one that shook me, the people there know it, yet the strength was stronger than usually dealt with. OK, so far no biggie as news goes. Yet, the initially not highly regarded headline became ‘Thomson REFUSES to refund terrified holidaymaker and his family as they try to cancel their trip to Kos amid earthquake chaos‘, which woke me up. This is not the first time that travel agencies are frowned upon, so I decided to take another look. Justin Curtis who wrote this is pounding on a few items that are actually bigger news than most realise.

Now apart from the news you are about to see, there is a few matters that we need to consider, and I will get to them shortly. First we see “Brits due to go to region say they are being told they cannot have a refund“, I’ll tell you another one, they are still offering these trips online, so I could fly out Saturday at £3275 for a fortnight, by the way a comparable trip with a 5 star hotel booked in the Netherlands is €1048 (£937), which is a totally absurd difference (it included the flight, so ordering the trip in the Netherlands, or book it online and take an additional Euro trip train could save you £2300 (minus the two train tickets), so in light of the prices Thomson is pretty ridiculous. In addition, Thomson proclaims to be an ABTA member (shown on their website), With ABTA we see “Clients’ Options on Cancellation 3B) If they are Principals who cancel previously confirmed Travel Arrangements, inform Agents and direct Clients without delay and offer Clients the choice of: i) alternative Travel Arrangements if available; or ii) a full refund of all monies paid. Such refunds shall be sent to Agents and direct Clients without delay. ”

Now, this is only one part, in addition we see:

“3D) Not make a significant alteration to Travel Arrangements less than 14 days before the departure date of the Travel Arrangements unless it is necessary to do so as a result of Force Majeure.”

I think that we can agree that an Earthquake is as Force Majeure as it gets.

There are rules of compensation for part, in case it was not a Force Majeure. So in light of what I see, Thomson might be in a lot more trouble than they think they are.

It was merely a first part, the fact that Thomson kept the lines open for flights this coming Saturday indicates just how insensitive they are to their clients. If the Daily Mail is to be believed, we should also consider their website. When we see: “We’re part of TUI Group – one of the world’s leading travel companies. And all of our holidays are designed to help you Discover Your Smile.” You have to wonder how they will address the issues as given with “Some laid down on the grass after they were denied entry to the airport, with staff limiting the number of people allowed inside due to its small size“, which for safety reasons makes perfect sense, in addition we see “I said I wanted my money back but they told me no and that it was safe. But Kos is not going to be rebuilt in a week and I asked if they could guarantee me the buildings there and my hotel were structurally sound and they couldn’t“, from a torts point of view, Thomson now might have an expensive legal issue evolving at their front door, one that they cannot defer under ABTA, This case could get us to Donoghue v Stevenson. Ms Donoghue claimed compensation for illness, after she consumed a ginger beer containing a decomposed snail, in a public house in Paisley, Scotland. This is the first case of Torts, as Thomson is now quoted to have stated that Kos is Safe, if any mishap comes from the trip, the family could sue as there is news and evidence on the dangers. Kathmiri, the Greek news source gives that dozens of buildings are at present unsafe with dozens more not yet investigated, so Thomson was THIS negligent? The question becomes why Thomson has become this negligent whilst the ABTA code of conduct is pretty clear in section 3 on those who have booked, yet not yet travelled. They could have faced praise and clientele as they bended over backwards by offering and working towards alternative solutions for scores of travellers, now they could get into a lot of hot water. The diverted Ferry service is only a small issue, the reason why it was diverted is the real danger as some quays are actually ripped from the road, making for unsafe conditions. This issue goes beyond the Tsunami that came, yet in all this the complications from electricity, sewage and heat will go up and could potentially create additional hazards for some time, we cannot state how long or how realistic these dangers would be, but they will be there. If essential parts are fixed within a month it would be a small miracle, a given that no one should bank on. For Kos, this could not have happened at a worst time, the summer is the height of their annual tourism income flow. July-September is essential to the people on Kos and Crete; as such Kos might get a big blow in a time when the Greek economy could afford it the least. So back to Torts, we have basically shown a Duty of Care and now we get to Breach of Duty, so as we get to the ‘reasonable man‘ test, would a reasonable man send another person into an earthquake stricken place for a family holiday (or any holiday?), if we consider a reasonable safe environment (especially) for children, Thomson could be seen as the reckless endangering element to the health of these children on that vacation. As such, they might state, the people could have decided not to go. In this a step towards criminal law is that the vacation is a product (or service), so as we see product liability we get “Anyone who is harmed by an unsafe product could sue. They can begin their court case up to three years from the date of the injury. In some cases, they can even sue up to ten years after the product was sold“, it is a thin line, yet with these bulk vacations, the minimum amount of people for a class action should be easily reached, especially when there are torts exploiters (they do exist). Consider that the vacation is a product that is offered, in such we could go towards the ‘Guide to the Consumer Protection Act 1987‘, where we see “In the past those injured had to prove a manufacturer negligent before they could successfully sue for damages. The Consumer Protection Act 1987 removes the need to prove negligence. A customer can already sue a supplier, without proof of negligence, under the sale of goods law. The Act provides the same rights to anyone injured by a defective product, whether or not the product was sold to them“, in addition, there is “Liability under the Act extends to components and raw materials. If a finished product contains a defect in a particular component, both the manufacturer of the finished product and the component manufacturer may be liable“, which is interesting, so any item on the package sold to the tourist might be up for instigating the damage compensation track, so not merely the hotel, any excursion sold to the tourist could start liability at this stage. So how defective is this product?

Well the act gives us “A defective product is defined as one where the safety of the product is not such as persons generally are entitled to expect” and according to the Daily Mail, the people at Thomson proclaimed that Kos was safe, so in light of damaged quays, collapsed buildings with rubble all over the street, when the light goes a little low, spraining an ankle would be the easiest part in the entire equation and the elements to sue have been met, after which the liability track could commence. All because Thomson stated according to the Daily Mail source: “Gary Taylor, left, is due to fly to Kos with wife Katy and daughter Summer, pictured, next week but said he wanted to cancel due to safety fears, only to be told by Thomson he ‘could not have the £2,800 cost refunded due to terms and conditions’ of the deal“, yet this is opposed by ABTA code of conduct section 3b and 3d. And ABTA went one step further by giving within the definition of a Force Majeure as “circumstances where performance and/or prompt performance of the contract is prevented by reasons of unusual and unforeseeable circumstances beyond the control of the Principal, the consequences of which could not have been avoided even if all due care had been exercised“. Such circumstances include a natural disaster, so when were earthquakes and Tsunamis not natural disasters? If the Daily Mail is correct, this Force Majeure is making Thomson look like a Farce Majeure, the one place where booking a holiday might not be the best idea, not just for the prices stated.

Yet in the sidelines we also read “Thomson is offering alternative holidays for those due to travel to Kos or Bodrum should they no longer wish to“, which is one offer that ABTA clearly allows for, yet when we see at the Code of Conduct at 3B.ii “a full refund of all monies paid. Such refunds shall be sent to Agents and direct Clients without delay“, the issue of asking a few more questions to the top of Thomson seems a warranted issue to pursue.

The final part that rocked me is that there is at present no ombudsman for travels, something I actually never considered not existing, when we see that a trip per person could be in advance of £2500 and there are 8,000 UK travellers stranded on Kos, is it not weird that one event, representing £20m is not properly protected? Not merely for the traveller, to some extent to protect the travel agency as well? Is such a voluntary code legally enforceable? Well, that is actually the issue, I am not certain in the UK law settings, in Australia, the case in the Victorian Supreme Court named National Australia Bank Ltd v Rose [2016] VSCA 169 gives us “The Voluntary Banking Code in question stated that NAB had to give Mr Rose “prominent notice of various matters” before taking a guarantee from him. Chief Justice Marilyn Warren and Justice Stephen McLeish of the Victorian Court of Appeal dismissed NAB’s appeal of the original case: “We would respectfully agree with the trial judge’s conclusion that those clauses of the Banking Code had contractual force as terms of the guarantee at issue.”“, I reckon that the UK might find against Thomson travel agency if it gets sued, there is a decent chance that the judges will see the voluntary code of conduct, which seems to be used at times as a marketing presentation on the travellers rights as a mandatory setting regarding the terms of guarantee, or as a Terms of Service, in equal measure, in light of what I have found so far Thomson made a few blunders, several on the same day as their terms of service are seen. I also reckon that Thomson might be the only one visible now, but this issue could hit any agency that has some mention of ABTA in their sales prospectus or website and not offer a decent alternative or a full refund.

 

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December 29, 2016 · 13:08

The back door

This news got to me this morning. It is yesterday’s news and it is by no means anything ground breaking like the US and UK actions on the Middle East at present. Yet what happens now will have a long term consequence and even as global legislation is trying to stay away from this issue for now, the question becomes: ‘Should this be allowed?’

The Guardian (at https://www.theguardian.com/technology/2016/dec/28/amazon-refuses-to-let-police-access-suspects-echo-recordings), gives us the following premise ‘Company has declined to provide audio recorded by smart speaker system at house where man died, according to a report‘, the company in question is Amazon.

It is the following quote that brings the issue to the surface: “But firms often retain a “back door” for their own use – to automatically scan emails for key terms used to target advertising, for example – and that can complicate claims that law enforcement access would uniquely invade a user’s privacy. Amazon’s internal approach to user data will likely prove integral to its ability to resist the warrant“, in this it is important to set the term ‘alleged‘, because there is no data available to state that this is actually happening in this specific case. You see, when we see ‘a “back door” for their own use’ and ‘used to target advertising‘, so how is that firm NOT invading a person’s privacy? More important if that Meta data is saved by Amazon to create a fingerprint profile, how are they not invading ones privacy? In that regard the ‘Amazon has refused to hand over data from an Echo smart speaker‘ especially in light of ‘an industry that considers privacy a prime selling point‘ is like watching the pot calling the kettle black. In this there is an issue, especially whether the police should be given access to all data. There is off course, especially in the US the 4th amendment, which officially reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”

Which sounds all good and fine, yet in this case as James Andrew Bates has been charged with the murder of a man found dead in his hot tub in November 2015, we need to worry on how Amazon can sell to its customers that they are instrumental in protecting a person incriminating data, possibly guilty of nothing less than manslaughter. In all this, the Alexa speakers could be seen as a factor to his proclaimed innocence, so as the legal team of the accused is making all kinds of statements, we should worry whether the voices collected are a real issue or not, you see we do not know, more important, what data is Amazon actually collecting? What is stated and what is happening are two very different things. In addition to this ‘the device is also occasionally accidentally activated, through similar sounds‘, which is an additional path in all of this. You see, we knew that this was a factor as the Xbox One had a similar issue in the very beginning, I do not know whether this was ever fixed, but the link to all this is not just the audio file, the fact that the police got other data, in this case from a water meter, stating that ‘a flow of 140 gallons between 1am and 3am‘ was recorded. Here is part of the issue seen. You see, I get that this data is recorded, yet next year as 5G kicks off, we will see an integral set of systems all getting more and more complex and more and more complete. The Amazon and Google systems are at the forefront of all this. By 2019 the average household will have a minimum of 10 devices linked to 5G systems, all that data collected, some open, some not so open and it is that part that is the worry, not just for privacy reasons mind you. A large group of people will get more and more access to your way of life. In addition, there will be an option to influence your way of life, which is a side nobody signed up for. Not unlike the inaccurate systems we see at present at the Australian Centrelink, we will see a shift in data quality by bad designers and even worse coders, we will end up getting categorised into groups we were never part of and as such we will get information pushed onto us that we might not want, we will not need and as those markers shift we will be denied access to information we actually needed. In this last part there is a small exercise you can try on yourself. Let’s say that you can only access the last 10 email messages a day for a few days, now take notice, yet do not read the other messages sent to you, so on average I get 35 messages a day. Consider that I miss out on 25 messages a day. How long until you notice that you missed out on essential information? Now, the number 10 was chosen at mere random, just to make a point, now consider the amount of mail you have at present and see what happens when 10 devices are added to your house profile. The refrigerator, your smart TV, your smart recorder, your game console, your laptop/tablet/PC, your 5 smart devices. How much additional information will you get? How much time will you lose? Because as advertisement is set to your personality, you will be more and more inclined to read those messages that were automatically sent to you. That is just a mere matter of fact. More important, no matter how good the Google Home presentation was (it was actually really good, and here is another review https://www.youtube.com/watch?v=7hKRPMpxRuc), the reviewer touches on the issues we need to ask ourselves. I think more important, we need to be aware of them. You see, the sketch we see here https://www.youtube.com/watch?v=yVBIeEglehw. Now this is good for a laugh, yet what did the parrot remember and what will your speakers save on cloud servers (read: remember for all to hear for all eternity). It is one thing when it is a murder investigation, it is quite another when it is marketing collected data you were not so comfortable with. In addition, what happens to the connected devices when the data is all combined? The dangers of fueling crime (because the cloud tags you as being in another country, or the collected data shows that the water meter shows no usage of hot water for 2 days, when those are not weekend days, there is every option that the criminals now know that there is a decent chance that you will remains out of the house for 3 days or more. The more devices we attach, the greater the danger of security becomes. It is for that reason I noticed the flaw in the Google Pixel and the Google Pixel XL. It is not an issue now, but it will likely become one in 2018, meaning you might still have that device.

In all this there is no proper legislation, this is not merely a Common Law or Civil Law issue, the global nations at large, none of them have proper legislation in this regard and 5G is less than a year away, which will trigger a tsunami of these issues as we imbue ourselves with the options of laziness of tomorrow. In addition, as we will be more and more relying on RFID option in our daily life, we will see a different cloud of data evolve. It will be a new version of Pokémon Go, only now, we the people become the Pokémon. The big issue is not just the collection of data, it is in addition the security that these new ‘innovations’ are also likely to lack, we will see a cloud of data bundling and with each addition we will also grow the flaws of security. Now, this is speculation from my side, yet history has proven me right again and again. In the end it will be a short sighted head of marketing forcing a deadline that will result in a needed app that suddenly sets all our personal data open to the people on the internet, after which we get carefully phrased denials, apologies and a half-baked ‘promise’ that it will be fixed as soon as possible. In that time our personal data remains on the open internet and we will lose days to get passwords changed and settings checked on all the connected devices. In all this there will be a lack of legislation, especially as ‘intent’ is still a factor, as we see ‘the plaintiff must prove the additional element that the defendant acted with the specific intent to perform‘, yet in all this ‘intent’ can never be proven and the loss will be ours and ours alone. In all this the need to set factors on ‘negligence’ and there is the issue we see, you see ‘people should exercise reasonable care when they act by taking account of the potential harm that they might foreseeably cause to other people‘, which at this point can never be proven in cases of privacy loss due to broadcasted data. The firms will ‘always’ be taking account of potential harm. The issue is that in many cases there is never any foreseeable cause, just the consequence. In this data gatherers and IP creators need to isolate data more and more and this takes smaller independent creators equally out of the farm, which is not that just. In all this legislation will fail the consumer and time is running out for the people who want to move forward. 5G will bring a massive amount of innovation and technology forward, yet in this greed driven world, it will also bring forward the utter idiots who want to make their cash quick and in that case there are too many options for them to remain unaccountable.

The back door in programs and apps is a real problem (not the only one in this case) and those who need to ask all the serious questions currently aren’t doing anything of the sort. In that, it does not matter whether Amazon Echo actually has a back door (not established), too many apps do have that and in some cases hardware does too. DSL gateways with a backdoor to port 32764 is one noted version, an issue that was at some point concealed yet never fixed. Some get one added via a free plug-in (read: Joomla), Interbase versions 4 through to 6. Some of these back doors were intentionally added, some were hacks and some were zero day exploits. All have consequences to your life when you get to 5G, and these are the easy to spot kind. Once you get to a situation where the security is circumvented by linked apps, for example Facebook and Facebook Messenger. Once we start getting apps like that and the combination introduces a back door, there is every chance that this weakness would not be found until millions of records have been obtained by those finding the linked weakness. In all this organised crime remains a growing concern, because they will ignore whatever legislation is in place and just transfer the data to a hidden server, or better, sell all that fresh and juicy data on the deep web or Darknet.

There is no easy solution and you should realise that most developers have indeed the best intentions, yet for a growing group of those needing a fast fix on income, the user ends up with less security, even less safety and no option to seek compensation, whilst those connected to it get to have all the freedoms and at present end up not getting convicted in any way, which has to change and it has to change rather fast because time is running short.

 

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June 26, 2015 · 21:41

Questioning Assurance

A positive approach intended to question confidence. That is at the heart of the matter today. I have been involved in such tracks before, but in a slipping age of technology, where we see greed driven (or bonus driven) changes where some executives hide behind the excuse of giving new young Turks a start in the business, we need to wonder whether they were looking at the world through chartreuse glasses.

I have seen the stupidity (for the lack of a better word) of software firms pushing out software, some to make sure they kept some deadline, whilst the product was nowhere near ready. In a few cases they thought the product was truly ready and the QA department messed up in a royal kind of way. There is of course the third option, where a product was tested, was deemed good and things pop up. These are the three parts of QA the user faces, I have seen them all!

The third one is the clearest one. Development does its work, the QA department did all the test and then some and when released things go a little awry. Weirdly enough, this tends to happen to parts of the program that people seldom use, like that weird, off the wall setting that only 0.000001% of all Microsoft Word users tend to use. Microsoft had no idea, and at some point it gets fixed. This is just a flaw. You name a product, like anything in the range of Microsoft Office, Adobe Photoshop, Oracle, SPSS, Sybase or SAS Miner, they all have them. These programs are just too large to get 100% tested, and even when that happens, there is the interaction with another program, or with an operating system update that will then throw a spanner in the cogs. You only need to search for issues with Windows 8.2 or IOS 8.2 to see that things just happen. In the zero layer, we see the hardware, in layer one we get the operating software, in layer two we see the application, in layer three we get the peripherals (printer, keyboard, mouse and joystick), one massive sandwich to check! In any of these interactions things can go wrong and a QA department needs to sift through it all. Of course even if all of that did work correctly we see the fourth layer which is the user him/herself, who then decides to dunk that layered sandwich in tea. Boy oh boy can they mess up their own system! No software can truly prepare for that!

Yet in all this QA needs to have high standards, which are proven when we see the third option in all this. Options one and two are an entirely different mess! It is for the outsider often impossible to tell what on earth happened. I had the inside scoop on an event where something was marketed ready, yet the program was nowhere near that. Deadlines for stakeholders had to be met and some figured that a patch afterwards via the BBS systems would do the trick. So basically a flawed product went to the shops. I remember those days, that was long before any level of fast internet, I was a trendsetter in those days by owning a 64Kb modem, yes I was a speed demon in those days! LOL!

You see, legally the consumer is in a messy situation, product liability laws are not that strong, unless health and lives are placed in peril, beyond that, you would think that these consumers are protected when it involved fraud, yet, when we consider that part of fraud is ‘deception intended to result in financial or personal gain’, we see any case go south really fast when the defence becomes, ‘the consumer was offered a refund’ and ‘Your honour, our costs are massive! We are doing everything to aid the consumers, offering them a refund immediately’ and we see any fraud case go south. Consider part of this with the ruling ‘intentional perversion of truth’, the keyword ‘intentional’ can usually be swayed too easily, faltering the case of fraud. But in the core, getting people to sign on in the first weeks, getting that revenue on their boards can mean the survival of such a company, so some accept the costs for what happens to remain on the game board.

The other situation is where the Quality Assurance (QA) department messed up. Here is the kicker, for the outsider to tell which scenario played is impossible, without working at a place, it is an impossible task to tell, one can make estimated guesses, but that is as good as it goes. For example, Ubisoft had a net profit on -66 million in 2013, they fell from grace in 2008 from $32 to $3.80 per share, that’s a not too healthy drop of 90%. The interesting part here is that when we look at their games, we see over those terms Prince of Persia, the language coaches on DS, which was novel (especially Japanese), Assassin’s Creed II, Tom Clancy’s Splinter Cell: Conviction and a few more. This is the interesting part, here we see a few excellent games, a Prince of Persia that would bring back to life a forgotten franchise, Assassin’s Creed II, which was so far above the original that it mesmerised a massive player population, Prince of Persia: The Forgotten Sands, which upped the ante of Prince of Persia by a lot and Assassin’s Creed: Brotherhood, which gave us even more challenges. Yet, these good games could not hinder the fact that Ubisoft had produced so many games over that time, many of them far below great that it impacted their stock. Is their value back to $16 because of their games? So what about Assassins Creed: Unity? Is stock the reason for the lacking game. I personally would state no! I think lacking games drop the stock. Yet, this is an emotional response, because stock is driven by demands and rejections, as great games are made, people want a shae of that rabid bunny, if the games are nowhere near, the stock gets rejected. In this case it is about the games, because Ubisoft is gaming! This is also why the E3 is such a big deal and even though I was not impressed with their E3, ‘For Honor’ clearly shows that Ubisoft has some gems in their arsenal, or should that be ‘had’? For Honor is a new and likely high in demand game, the presentation was extremely well received. I am not much for those types of games, but I also looked with anticipation of a lovely challenge. The issue here remains, it is online, so timing and decent players are required to make this a good experience. Yet beyond that new title, I would see it as a collection of predictable that have become indistinguishable from their other titles. Sequels sharing bits from other sequels with an interchangeable codebase. With too many triggered scripts. We remain with a blurred sense of gaming. I stated it a few years ago, by adding too many prince of Persia moments into Assassins Creed, we end up not playing Assassins Creed, if I wanted that, I would have bought Prince of Persia! So why these games?

Well, there is of course method to my madness (and my madness is purely methodical). You see, Assassins Creed 2 and Splinter Cell: Conviction were amazing achievements. I can still play these two today and have loads of fun. They had set a standard, even though Assassin’s Creed: Brotherhood was a step up, certain flaws were never dealt with, flaws that became part of the engine for 5 iterations of the game. You see that in the second premise, I went from new game to iteration? That part matters too! With the Splinter Cell series we went from Conviction to Blacklist. Again, it was a step forwards, but now we get the issue that QA messed up buy not properly testing the re-playability part of the game, leaving players in a lurch, making the game a mess if I wanted to play a ‘NewGame+’, it is a little thing, with a far reaching consequences. What was great became good, a step forward, hindered by one and a half steps back., which is the faltering part. Ubisoft needed a QA department with teeth, as I see it, they did not have one, or Marketing got involved. There is in all honesty no way to tell how that came to pass.

Yet, this is not about Ubisoft, because Rocksteady Studios outdid it all with Batman: Arkham Knight, making Warner Bros. Interactive Entertainment extremely unhappy as I see it. A game that should be heralded as a new legendary release got a 50% rating by Steam and 70% by Gamespot, these are not good numbers, they are ratings that resemble coffin nails. Not a good thing at all. In my view, this is a massive fail by their QA department. However, when we accept the statement from Kotaku.com, we get “The moment I’m inside the batmobile, it’s not surprising to see it dip to 15 frames-per-second“, did QA really not see that? So is it Marketing or is it QA? No matter what answer I give here, it is pure speculation, I have no facts, just personal insight from 30 years of gaming. No matter where it lies, QA should not have signed off on it, not at such drops of quality. Which gets us back to the non-liability of these firms. ‘Res Ipsa Loquitur’, or in slightly more English “the thing speaks for itself“, The plaintiff can create a presumption of negligence by the defendant by proving that the harm would not ordinarily have occurred without negligence. Yet, what harm? The only harm the game has is spending funds which are refundable, the only harm there is for the maker of the game. So, there is no case, what is the case is that until these firms properly invest into QA, we get to go through buying and returning a lot more. Yet, these companies realise and they take a chance that the gamers (which tends to be a loyal lot) in that they hold on to the game and just download the patch. So basically, the first hour gamers become the sponsors for the development of an unfinished game. That is how I personally see it.

In my view, the game suffered, what could have been great will soon be forgotten. Yet, what happens when it is not a videogame? What happens when it is not a game, what happens when it is business software? you see the Donoghue v Stevenson case gives us that a maker can be held responsible for personal injury or damage to property, yet, what happens when neither is the case?

It is a very old UK case in Torts, where a Mrs Donoghue was drinking a bottle of ginger beer in a café in Paisley. A dead snail was in the bottle and because of that she fell ill, and she sued the ginger beer manufacturer, Mr Stevenson. The House of Lords held that the manufacturer owed a duty of care to her, which was breached, because it was reasonably foreseeable that failure to ensure the product’s safety would lead to harm of consumers. This is a 1932 case that is still the key case of torts and personal harm involving negligence. Yet, with video games there is no visible harm, there is only indirect harm, but the victims there have little say in this as the direct victim is offered a refund, the competitor missing out on revenue has no case. So as revenue is neither injury nor damage to property. Now we get the issue that if the buyer buys goods which are defective, he or she can only have a claim under contract of sale against the retailer. If the retailer is insolvent, no further claims will be possible. So, with Arkham Knight, when 2500 copies are returned, a large shop will not go insolvent, you get the idea, when the shop needs to close the doors, you are left out of money.

Here we get the crux, a maker of a game/program has pushed an inferior product to market. It will offer compensation, yet if the shop closes (that is a massively big if), the buyer is out in the cold. Now, the chance of this ever happening is too unrealistically small, but the need to set rules of quality, setting the need of standards is now becoming increasingly important. With games they are the most visible, but consider a corporation now pushing a day one product to get enough revenue to tailor a patch which the customer needs to download. An intentional path to stay afloat, to buy time. Where do you stand, when you got pushed to solution 2 as solution 1 is a month away, only to discover the flaw in the program, which gets freely adjusted in Week 23, so 22 weeks without a solution, this situation also hindering the sale of solution 1, which was fine from day one onwards.

Not only is a much better QA required, the consumer should be receiving much stronger protection against these events. That could just be me.

Now to the real issue connected to this. Assassins Creed: Unity became a really bad joke last year,

It went so far as Ubisoft offering a free game because (source: Express) “UBISOFT have confirmed some Xbox One fans who have previously applied patch 3 for Assassin’s Creed: Unity are now being hit by a 40GB download when trying to use the latest title update”. 40GB is massive, that comes down to 10 DVD Movies, it is well over 10% of the entire hard drive space, this gives us the image that one game has clear impact on the total space of the console. Also be mindful of the term ‘patch 3’, which implies that patch one and two had been applied, so is there clarity on the reasonable assumption that there is an issue with both release and QA here? In my view, delayed in addition or not, the game should never have been released to begin with.

Don’t get me wrong, with the new AAA games, the chance of a patch becomes larger and larger. You see QA can only get us to a certain distance and an issue on a console is a lot less likely than an issue on your PC (with all kinds of hardware combinations), yet the amount of fixes as shown here is way off the wall. Now we see a similar thing happening to the PC edition of Arkham knight. Warner Brothers have decided to call back the game, all sales have stopped at present. However, the issues we see on gottabemobile.com are “Warner Brothers’ forums are filled with complaints about the game including Error CE-34878-0 issues on the PS4, various issues with the Batmobile including this one on Xbox One, issues with cut scenes, Harley Quinn DLC problems on the PS4, Batman season pass problems, problems launching the game, problems with the game’s well-known Detective Mode, missing Flashpoint skin, problems with missions, problems saving the game, and more”.

Now we get the question, was this properly QA-ed? Was a proper quality test made, because the size and nature of the issues, as reported give out a negative testing vibe, which I consider to be extremely negligent! As such we must wonder, should such levels of non-functionality be allowed. Can the law allow the release of a product that causes, as alleged ‘no harm has been caused’, an industry, hoping on the users to wait quietly as a game gets finished on the consumers costs.

Now that the Nextgen consoles are all set out to be downloaded in the night, how long until games start tasking the game of ‘customer expectations’ and release a 90% game? How long until corporations will work on a business model that relies on consumer sponsoring whilst they contract even better profits. We also need to be careful, patches will always be a factor, I have no issue with that, and the list of games that needing massive patches keeps on growing, AC: Unity, GTA-V, Arkham Knight, Destiny, and the list goes on a little longer. I am only mentioning the patches over 3GB (one is well over 6Gb) and in this light Destiny gets a small pass as that game is all about multiplayer, which is a dimension of errors all on its own.  The Elder Scrolls Online wins this year with a 16Gb patch, again, all about online play, but overall the gaming industry seems to adapt the bad traits of Microsoft, which is definitely not a good idea.

For now we seem to accept it, especially as the Nextgen systems are relatively new, but that feeling will change sooner rather than later and at that point someone official needs to step in, which might end up being a lot more official that the game makers bargained for, especially as games outside of the US can be up to 70% more expensive, at that point we are entitled to some proper consumer protection, against these levels of negligence, levels that currently only exist on a limited scope.

 

 

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