Ladar Levison Explains How The US Legal System Was Stacked Against Lavabit

from the because-secrecy-for-the-government-triumphs-all dept

Last month, after Lavabit lost its appeal, we noted that the court avoided the major constitutional issues, focusing on how the company and its founder Ladar Levison mucked up procedural stuff early on, effectively barring him from raising the more serious constitutional issues on appeal. We pointed out that this was unfortunate on many levels, but also noted that this shows how important it is to get a good lawyer early on, rather than trying to handle things yourself. Levison has now written a more thorough explanation over at the Guardian, in which he seeks to explain why gag orders and other issues made it almost impossible for him to get good legal help, leading to the procedural issues later on:
In the first two weeks, I was served legal papers a total of seven times and was in contact with the FBI every other day. (This was the period a prosecutor would later characterize as my "period of silence".) It took a week for me to identify an attorney who could adequately represent me, given the complex technological and legal issues involved – and we were in contact for less than a day when agents served me with a summons ordering me to appear in a Virginia courtroom, over 1,000 miles from my home. Two days later, I was served the first subpoena for the encryption keys.

With such short notice, my first attorney was unable to appear alongside me in court. Because the whole case was under seal, I couldn't even admit to anyone who wasn't an attorney that I needed a lawyer, let alone why. In the days before my appearance, I would spend hours repeating the facts of the case to a dozen attorneys, as I sought someone else that was qualified to represent me. I also discovered that as a third party in a federal criminal indictment, I had no right to counsel. After all, only my property was in jeopardy – not my liberty. Finally, I was forced to choose between appearing alone or facing a bench warrant for my arrest.

In Virginia, the government replaced its encryption key subpoena with a search warrant and a new court date. I retained a small, local law firm before I went back to my home state, which was then forced to assemble a legal strategy and file briefs in just a few short days. The court barred them from consulting outside experts about either the statutes or the technology involved in the case. The court didn't even deliver transcripts of my first appearance to my own lawyers for two months, and forced them to proceed without access to the information they needed.

Then, a federal judge entered an order of contempt against me – without even so much as a hearing.
This is, without a doubt, problematic, and shows the kind of massive imbalance that is set up in these situations. The government has the power to force companies to do what it wants, and companies have little ability to push back, especially when they're left scrambling under gag orders and with limited information.

That said, Levison still should shoulder some of the blame. Yes, he had to scramble to find lawyers, but if you're setting up a "private" and "secure" email service, in which you're making certain promises to users that you must know the government won't like, you need to have ready and competent legal help on call from the beginning. In the last year or so, there has been an explosion of new startups and services promising more private and secure messaging. I hope that all of them are reading what happened here and that they all have competent legal representation who understands the underlying issues ready to go now, rather than waiting until the DOJ knocks on their doors. There will still be some issues, depending on the specifics of the request and jurisdiction, but from what Levison is saying, he was starting from scratch at a point when he should have been much more prepared.

Again: if you are offering private or secure services, you need to have a competent and knowledgeable lawyer on call who can pick up your case immediately.

In the end, while the ruling against Lavabit was disappointing, perhaps it's a blessing in disguise. Hopefully, the next time this issue comes up, it comes up with a company that's much more legally prepared to deal with it, and can present a much stronger case.

Reader Comments (rss)

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  1.  
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    Josh in CharlotteNC (profile), May 20th, 2014 @ 10:36am

    How do we fix it?

    What has happened to equality under the law? To me this shows a very clear imbalance among those with real access to the legal system (namely those with money or connections to lawyers), and those without.

    Every other day I've got to "agree" to some type of legally binding contract to buy things, install basic software, or use basic services - and it all changes without any warning or objection I can raise. I have to sign 20 pages of dense legalese contracts to get a job, and to be expected to keep up with it when it changes without notice. I luckily rarely deal with the government, but the situation is the same there. If you don't want to be screwed by someone with their lawyer, you need multiple lawyers skilled in wildly disparate parts of the legal code available to you all the time.

    I know there's a lot of lawyers that read Techdirt. I know most of you are both very good at what you do, and very well intentioned. You're just trying to help those of us without years of legal training navigate through a crazy byzantine system you had no part in creating. But there is something fundamentally *broken* about the legal system.

    I'm a technical, engineer type person. When I see something that doesn't work well, or work fairly, or work efficiently I want to fix it. Rather than just working in the system with its faults, what can be done to make the legal system better? What can be done to simplify it for normal people so that we don't need a lawyer for every minor interaction we might have with the government, with other companies (or our own), or any random passerby on the street?

     

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  2.  
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    Anonymous Coward, May 20th, 2014 @ 11:17am

    It's no wonder the court is stacked against the defendant. You have politicians who nearly have to be lawyers just to hold the job. Lawyers have the viewpoint of all solutions are found in court. When lawyers are the policy makers they are going to stack the laws in their favor. When they work for the government, this is the result.

    The cure for this is making laws that it doesn't take a lawyer to understand. It also takes the government being transparent to the citizens it represents. This idea that the government should hide everything, despite all the laws and FOI stuff on the books, merely is a means to hide what is uncomfortable to them.

    If you want to break this up, the only way is to start holding public officials responsible personally for their actions. As long as the public pays the tab and there are no penalties personally to be paid, nothing will change. There is no incentive to do so.

    This will take a massive unrest in the country to create. One so powerful that the politicians are fearful of going against it. I don't see that happening any time soon.

     

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  3.  
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    Mason Wheeler (profile), May 20th, 2014 @ 11:20am

    Re: How do we fix it?

    Every other day I've got to "agree" to some type of legally binding contract to buy things, install basic software, or use basic services - and it all changes without any warning or objection I can raise.

    IANAL, but it seems to me that the fundamental concept underlying EULAs was struck down by the Supreme Court, the better part of a century before the first software EULA was ever written: http://en.wikipedia.org/wiki/Bobbs-Merrill_Co._v._Straus

    This deals directly with the whole "licensed not sold" scam on copyrighted works, and the court said "no, you can't do that." So I don't see why anyone thinks they can get away with it today.

     

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    Anonymous Coward, May 20th, 2014 @ 11:20am

    and we were in contact for less than a day when agents served me with a summons ordering me to appear in a Virginia courtroom, over 1,000 miles from my home.

    I am not sure that even having having a lawyer available would have helped him, because as soon as he found one they moved the goal posts.

     

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  5.  
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    Devonavar (profile), May 20th, 2014 @ 11:21am

    No, this is NOT Levison's fault

    I'm sorry, saying that it's Levison's fault because he should have been more prepared is bullshit. Levison is not in the wrong here.

    Could he have been more prepared? Of course. Should he? It would have been a wise business decision. But he is not in the wrong for missing out on that.

    Why? Because simply building a well-engineered product, particularly one that is *more* supportive of personal liberty and privacy, should not require that amount of red tape.

    Saying he is at fault for not having a good lawyer on call is tantamount to saying that our liberty and privacy is only as good as the lawyer we can hire; if these rights are not simple enough to invoke without expensive and complex legal help, what good are they to me?

    I get that we live in the world we live in; the correct business decision was to be legally prepared. But there is nothing *right* about this situation.

     

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  6.  
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    Mason Wheeler (profile), May 20th, 2014 @ 11:22am

    Re:

    The cure for this is making laws that it doesn't take a lawyer to understand.

    I've always been in favor of Jonathan Swift's solution, personally. In Gulliver's Travels, in one of the places our beleaguered protagonist ends up stranded for a while, they have a law that no law shall contain more words than the alphabet has letters.

    That seems like a good place to start.

     

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  7.  
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    Mike Masnick (profile), May 20th, 2014 @ 11:33am

    Re: No, this is NOT Levison's fault

    Saying he is at fault for not having a good lawyer on call is tantamount to saying that our liberty and privacy is only as good as the lawyer we can hire; if these rights are not simple enough to invoke without expensive and complex legal help, what good are they to me?

    There's ideal and there's realistic.

    If you're going to advertise a secure and private system, you have to deal with reality.

     

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  8.  
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    Anonymous Coward, May 20th, 2014 @ 11:34am

    Re: How do we fix it?

    There is only one solution - glassing the concept of 'national security'.

    And by 'glassing', I mean make the concept so toxic to the élite's livelihoods that it never comes up again.

     

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  9.  
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    Anonymous Coward, May 20th, 2014 @ 11:49am

    Re: Re: No, this is NOT Levison's fault

    There's ideal and there's realistic.

    If you're going to advertise a secure and private system, you have to deal with reality.
    From this, are we to assume you believe that what happened to Levison is both his fault for not having counsel on longterm retainer and that it is morally right that the government not only acted in this way, but prevailed in every meaningful way?

    I will grant that he realistically should have expected the government to engage in dirty tricks. I absolutely disagree with the premise that it is morally right that the government's conduct in this case did not result in both reprimand from the court and professional sanction on the government employees who arranged this travesty.

     

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  10.  
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    mcinsand, May 20th, 2014 @ 11:49am

    Re: Re: No, this is NOT Levison's fault

     

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  11.  
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    mcinsand, May 20th, 2014 @ 11:51am

    Re: Re: No, this is NOT Levison's fault

    First, sorry about the misfire. Next...

    >>If you're going to advertise a secure and private system,
    >>you have to deal with reality.

    This is especially true if you live in a country like the US, where the government has declared war on privacy and security.

     

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  12.  
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    Michael, May 20th, 2014 @ 11:55am

    Re: How do we fix it?

    What has happened to equality under the law?

    What do you mean? It's exactly the same as it always has been.

    It never really existed.

     

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  13.  
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    Devonavar (profile), May 20th, 2014 @ 12:03pm

    Re: Re: Re: No, this is NOT Levison's fault

    Certainly, reality needs to be dealt with. I said as much in my original post.

    My point is that we should not be assigning blame on the basis of a broken reality.

    Levison didn't deal with reality. The consequence was losing a painful battle.

    We should not be justifying the RIGHTNESS of that loss by shrugging our shoulders and say "that's reality, he should have been prepared".

    In this case, the reality is wrong, and needs to be fixed.

     

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    AJ, May 20th, 2014 @ 12:04pm

    Sad

    I have to agree with Mike. You have to know that the Gov is going to come after you. Either you are prepared for a fight or you don't get in the ring.
    Unless of course, the whole thing was designed to draw attention to to the lengths the Gov will go to squash companies that want to protect our privacy... if that was the goal, mission accomplished... but their was probably an easier way...

     

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  15.  
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    Josh in CharlotteNC (profile), May 20th, 2014 @ 12:10pm

    Re: Re:

    But it's not just "the laws" that are the problem. Even if a law is short, you'll still need a lawyer to know about all of the various court decision that apply (caselaw), and to follow all the proper procedures in a court case.

    Let's look for a minute at the Constitution and its amendments. Most of them are short and understandable. Yet there are entire sections in law school libraries filled with volumes of constitutional law.

    Lessig is attacking problems in politics with money for transparency. I think he's got a good idea and has a shot of fixing some of the issues with transparency we talk about, and that could lead to a lot of good changes. Can someone find the right spot for a targeted attack for injustice in the legal system?

     

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  16.  
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    Anonymous Coward, May 20th, 2014 @ 12:17pm

    How can anyone still consider holding their head up high if they work for the FBI? What a bunch of lowlifes no better than the criminals they claim to catch. Failures and embarrassments.

     

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  17.  
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    Anonymous Anonymous Coward, May 20th, 2014 @ 12:18pm

    Would a lawyer on retainer have helped?

    What result difference might there be if he called a competent lawyer 5 minutes after the first contact from the FBI? It appears by all the government shenanigans thereafter would have made that contact mute, unless the firm was licensed in every state. It does not appear that the government had any intention of letting their prey make use of any parts of the system that might benefit the prey. See Mega Upload for another such example, I am sure others have more examples.

     

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  18.  
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    Mike Masnick (profile), May 20th, 2014 @ 12:38pm

    Re: Re: Re: No, this is NOT Levison's fault

    From this, are we to assume you believe that what happened to Levison is both his fault for not having counsel on longterm retainer and that it is morally right that the government not only acted in this way, but prevailed in every meaningful way?

    Did I say that? No. So why make a bullshit argument?

     

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  19.  
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    Devonavar (profile), May 20th, 2014 @ 12:47pm

    Re: Re: Re: Re: No, this is NOT Levison's fault

    This then, must be the core of the misunderstanding.

    Because you may not have meant this, but this is exactly what I understood when I read the article.

    For me, it was this line that got me:

    "That said, Levison still should shoulder some of the blame."

    I interpret saying someone should be blamed as a moral indictment of their behaviour.

    Since that's not what you meant, I apologize ... but please be aware of how your "shoulds" come across.

     

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  20.  
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    AntiSocialist, May 20th, 2014 @ 12:51pm

    Re: How do we fix it?

    Adhering to small-government, conservative principles?

     

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  21.  
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    Anonymous Coward, May 20th, 2014 @ 12:54pm

    Re: Re: Re: Re: No, this is NOT Levison's fault

    Did I say that? No. So why make a bullshit argument?
    You implied it in a way that multiple independent readers (me, Devonavar, and maybe others) all took it that way. I made no argument, bullshit or otherwise. I restated very pointedly the argument that I extrapolated from your statements. You seem to have taken my restatement as an attack. I could have phrased it differently, but I chose to use the pointed phrasing in hopes that you would elaborate on what you actually believe. Your dodge that you did not say the restated argument seems to say you disagree with it, but that's still open to interpretation.

     

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  22.  
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    LAB (profile), May 20th, 2014 @ 1:02pm

    Re: Re: Re: Re: Re: No, this is NOT Levison's fault

    "That said, Levison still should shoulder some of the blame."

    I think this statement is more than clear and I feel the same. Yes he should shoulder SOME of the blame. How can you truly safeguard a client's information if you don't have a contingency plan when there is a legal challenge to acquire it. I am not implying what the government did should be condoned, but business doesn't operate on a moral compass. On the contrary, to truly be prepared in a business setting, you should at least have an idea of what to do when something goes wrong, especially legally. To do anything less could imply the client's information and privacy are not a top priority.

     

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  23.  
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    alternatives(), May 20th, 2014 @ 1:05pm

    So only people with money can start such a business

    If the below is taken as a truth:

    but if you're setting up a "private" and "secure" email service, in which you're making certain promises to users that you must know the government won't like, you need to have ready and competent legal help on call from the beginning.

    Then only someone with a whole lot of money has the "right" to start such a business if Mike's position is correct.

     

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  24.  
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    Quiet Lurcker, May 20th, 2014 @ 1:08pm

    I call BS

    I retained a small, local law firm before I went back to my home state, which was then forced to assemble a legal strategy and file briefs in just a few short days. The court barred them from consulting outside experts about either the statutes or the technology involved in the case. The court didn't even deliver transcripts of my first appearance to my own lawyers for two months, and forced them to proceed without access to the information they needed.

    Then, a federal judge entered an order of contempt against me – without even so much as a hearing.


    This passage alone is enough for me to decide that the government was playing at silly buggers with the entrepreneur.

    Prior comments talk about the 'real world'. Well, in the 'real world' appellate courts should have taken one look at the behavior of the lower courts than a) reverse the decision by the lower courts without remanding it for 'further consideration' b) explain to the putative court that by its own action it denied the entrepreneur the benefit of qualified counsel, which should have been a strict no-no, given the criminal nature of the complaint and c) explained in rather pointed terms (preferably involving time behind bars and lost licenses/certification) to the government that they got it horribly wrong.

    Instead, the appellate court punted the issue by relying on procedural error by the government (self-evident lie by government officials, not allowing the entrepreneur time to reply properly, among other things) to support a bad decision.

     

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  25.  
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    Josh in CharlotteNC (profile), May 20th, 2014 @ 1:10pm

    Re: Re: Re: Re: Re: No, this is NOT Levison's fault

    I did not read the article as a moral attack on Levison. I simply read it as Levison should be blamed for being unprepared. There was no moral judgement.

    On the other hand, you wildly "extrapolated" Mike's comments to somehow supporting the government abusing the legal system. And that rightly deserves to be called bullshit - no interpretation or extrapolation needed, statement of fact time: your comment was bullshit.

     

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  26.  
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    Michael, May 20th, 2014 @ 1:12pm

    Re: Re: Re: No, this is NOT Levison's fault

    There is a big difference between saying that the government acted in an appropriate (or morlally right) way and pointing out that the victim of the bahavior (in this case) should have had a reasonable expectation that this would happen and done something to protect himself.

    Levinson's pretty smart. He should have been a little better prepared for this situation. Others should certainly take note of this mistake and protect themselves.

     

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  27.  
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    AntiSocialist, May 20th, 2014 @ 1:14pm

    Only my property was in jeopardy...

    "After all, only my property was in jeopardy – not my liberty. Finally, I was forced to choose between appearing alone or facing a bench warrant for my arrest."

    Being able to pursue a comfortable way of life and to pursue happiness are valuable liberties. Jeopardy to your property is a jeopardy to those liberties.

    Providing a medium for private conversations should not be construed as criminal activity requiring a lawyer on hand for fear of government reprisal.

    The advice to have a lawyer on hand is probably sound for any business owner, but not having a lawyer on hand should not be cause for additional punishment and certainly not seen as evidence that Mr. Levison should 'shoulder some of the blame'.

    The secret nature of these laws and the difficulty in being allowed to seek proper counsel is problematic... and in itself a violation of your liberty (defined as your right) to due process and essentially interferes with the fundamental liberties that allow for self-determination.

     

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  28.  
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    Josh in CharlotteNC (profile), May 20th, 2014 @ 1:21pm

    Re: So only people with money can start such a business

    I don't think Mike was saying it "should" be like that, only that it "is" in the current reality.

    I don't see why this is so surprising. The US government has savagely attacked everything related to publicly available encryption for the last 40+ years. if you're going to go into that space, you should know what's coming. Whether it's right is entirely a different question - and that's where my first comment is coming from - how do we get away from what the current reality is and move to a better place.

     

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  29.  
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    Anonymous Coward, May 20th, 2014 @ 1:28pm

    Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault

    In summary, the guy gets screwed and you support the screwing because he didn't have his ducks in a row?

    Do you see what is wrong with this logical, everyone makes a mistake, but no one should ever be OKAY with someone getting screwed over because you think they either deserved it or because they were not prepared for it.

    Every time it happens the easier it gets... until they just say... you are accused and sentenced to death. Jury? What Jury? You have been accused, therefore you receive death!

     

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  30.  
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    alternatives(), May 20th, 2014 @ 1:39pm

    Re: Sad

    Either you are prepared for a fight or you don't get in the ring.

    Then the only people who have a right to protect rights are ones with money?

     

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  31.  
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    AntiSocialist, May 20th, 2014 @ 1:46pm

    Re: Re: Re: Re: No, this is NOT Levison's fault

    You DID say that. Not only did you say that, but highlighted your supporting arguments for that thought in bold letters.


    You wrote, "...Levison still should shoulder some of the blame."

    Followed by "if you're setting up a "private" and "secure" email service, in which you're making certain promises to users that you must know the government won't like, [emphasis here] you need to have ready and competent legal help on call from the beginning".

    Followed by "Again: if you are offering private or secure services, you need to have a competent and knowledgeable lawyer on call who can pick up your case immediately".

    In that context, in the current zeitgeist of civil liberties seemingly constantly at stake, it appears that you are attempting to strengthen your case that Levison is at fault (else why shoulder the blame; this is blaming the victim).

    In the complete context of your story, you sound more sympathetic to privacy advocates and tech developers who create software that is useful for business-to-business communication of proprietary information and other intellectual property, but those emphasized statements could also seem like pro-government propaganda to government watchdog on high alert - whether that was the intention or not.

    The eastern philosophy of communication would place the blame of this miscommunication on the reader/listener. The western philosophy places the blame on the writer/speaker.

     

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  32.  
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    Edward Teach, May 20th, 2014 @ 1:47pm

    Re:

    How can anyone still consider holding their head up high if they work for the FBI?

    Arr, mate, ye speaks God's Truth! We know that a few NSA folks had a conscience (Wiebe, Binney, Tice) and a few CIA folks had a conscience (John Kiriakou, perhaps others). But there doesn't seem to be a shortage of knaves willing to do foul deeds in deepest darkness, nor a shortage of silver-tongued rogues like John Yoo willin to conjure the most heathen of apologies for them foul deeds!

    If most of the FBI is "good people", as we are led to believe by the propagandizers, why don't the "good" cops turn in the "bad" cops? Silence == death, lads! Arrr! Shiver me sides, I'm reachin for me cutlass!

     

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  33.  
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    art guerrilla (profile), May 20th, 2014 @ 1:55pm

    Re: No, this is NOT Levison's fault

    thank you, my thoughts exactly...
    next article: you *really* shouldn't wear that mini-dress, gals, you were asking for it!
    as the poster above this said: IF he had lawyered up, they would have found THAT to be 'suspicious', 'admission of guilt', blah blah blah...
    no, he was screwed, blued and tattooed, no matter what...
    disappointed at mike's admonition: blame the victim? i think not...

     

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  34.  
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    John Fenderson (profile), May 20th, 2014 @ 2:44pm

    Re: Re: Re: Re: Re: No, this is NOT Levison's fault

    "I interpret saying someone should be blamed as a moral indictment of their behaviour"

    That wasn't my interpretation at all. I interpreted it as meaning that he since he failed to act in a way that would make the situation easier to deal with, some of the blame for the situation falls on him. Not a moral blame, a functional one.

    Although if I wrote the article, I would have used the word "responsibility" rather than "blame".

     

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  35.  
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    John Fenderson (profile), May 20th, 2014 @ 2:48pm

    Re: Re: Sad

    Yes, that's the problem with that line of thinking -- following it rigorously is pretty much the same as saying "bend over for the rich and powerful" for ordinary people.

     

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    John Fenderson (profile), May 20th, 2014 @ 2:51pm

    Re: Would a lawyer on retainer have helped?

    It might not have. But the benefit of having a lawyer involved from the start is that the lawyer can advise you about how to arrange your project to minimize legal risk, and that the lawyer will know the ins and outs of your business before trouble comes -- reducing the amount of time and effort needed to prepare a defense.

    Just keeping a lawyer on retainer in the sense of just cutting a monthly check to them isn't terribly useful. You want their advice every step of the way. This also holds true for all business activities, not just the obviously risky ones.

     

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  37.  
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    Anonymous, May 20th, 2014 @ 2:53pm

    The US legal system is stacked against all of us...unless, of course, you're rich.

     

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  38.  
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    John Fenderson (profile), May 20th, 2014 @ 2:56pm

    Re: So only people with money can start such a business

    I don't think he's saying you don't have a right, I think he's saying that if you don't have your legal butt covered, you're increasing your risk and exposure. If your business is selling security to your customers, then you're also increasing their risk and exposure, which is a bit squirrelly unless you've made sure that they understand the situation.

     

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    madasahatter (profile), May 20th, 2014 @ 3:35pm

    One Problem

    One problem I see with a startup getting competent legal help is they have little or no money. Most startups are initially operating on financial shoestring and probably can not afford highly specialized legal assistance. This is more of an indictment of the current legal and regulatory environment when someone who is running a legal, ethical business can have it destroyed by the US government on essentially bogus, star-chamber proceedings.

     

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  40.  
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    John Fenderson (profile), May 20th, 2014 @ 3:54pm

    Re: One Problem

    Yes, as someone who has started a number of businesses, I agree that this is a problem. When you're just starting out, you probably have to just take a calculated risk about it. The "calculated" part of that is important -- just like gambling, you never want to risk more than you're willing to lose. If you have your eye on a high-risk venture, it's often better to work your way up to it through one or more lower-risk ventures first, so you have the protection more money and experience provide.

    Also, there are ways around the money problem. Some lawyers (particularly business lawyers) will occasionally pick a startup that excites them and provide legal services as an investment in the business. Instead of paying up front, they get a return from the revenue later. This is really hard the first time, but once you show a track record of successful startups (and you've increased the number of lawyers who know you) it can get a lot easier.

     

    reply to this | link to this | view in thread ]

  41.  
    icon
    Devonavar (profile), May 20th, 2014 @ 3:55pm

    Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault

    "Although if I wrote the article, I would have used the word "responsibility" rather than "blame"."

    That crossed my mind earlier ... if the word responsibility had been used, I wouldn't have been confused.

    This confusion, like so many others, boiled down to semantics for me.

    The word "blame" carries a sense of culpability that "responsibility" lacks. I interpreted Mike saying Levison should be blamed as meaning he deserved what he got, which I objected to. Whereas, simply saying he bore some responsibility for the situation wouldn't have implied that he deserved his misfortune; it would merely have explained why things turned out the way they did.

    Once Mike made clear that he didn't mean to imply guilt — showing that all he meant was "functional blame", that cleared things up for me.

    But I do think more careful word choice would have helped. I clearly wasn't the only one confused here.

     

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  42.  
    identicon
    Anonymous Anonymous Coward, May 20th, 2014 @ 5:12pm

    Re: Re: Would a lawyer on retainer have helped?

    No disagreement.

    It does seem a bit strange to consider that a selection criteria for hiring an attorney should include:

    Can they provide assistance in case the government comes steamrolling and violating due process in whatever jurisdiction they choose?

     

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  43.  
    identicon
    Anonymous Anonymous Coward, May 20th, 2014 @ 5:13pm

    Re: Would a lawyer on retainer have helped?

    I did MEAN moot. Fingers, please let me introduce you to mind.

     

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  44.  
    identicon
    Whatever, May 20th, 2014 @ 5:15pm

    FTFY

    "Again: if you are breaking the law or working on the very edge, you need to have a competent and knowledgeable lawyer on call who can pick up your case immediately. "

    FTFY

    It's beyond understanding that a business of this size did not have some sort of legal council on retainer. They could have, at minimum, made motions for delay explaining that the defendant couldn't be in multiple places at nearly the same time.

     

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  45.  
    identicon
    Anonymous Anonymous Coward, May 20th, 2014 @ 5:20pm

    Re: Re: Re: Would a lawyer on retainer have helped?

    Maybe there should be a question about how many bounds for tall buildings as well.

     

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  46.  
    icon
    JMT (profile), May 20th, 2014 @ 5:20pm

    Re: Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault

    "In summary, the guy gets screwed and you support the screwing because he didn't have his ducks in a row?"

    Jeebers, where do you get this shit from?! Neither Mike or anyone else said anything like that. If you want to have a constructive argument, start by not making up what the other person said. It makes you look like quite an asshole.

     

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  47.  
    icon
    JMT (profile), May 20th, 2014 @ 5:27pm

    Re: Re: Sad

    No, the only people who have a chance to protect rights are ones with money. This is not exactly news.

     

    reply to this | link to this | view in thread ]

  48.  
    icon
    JMT (profile), May 20th, 2014 @ 5:29pm

    Re: Re: Re: Re: No, this is NOT Levison's fault

    "We should not be justifying the RIGHTNESS of that loss..."

    Absolutely nobody here is doing that. Stop making up nonsense.

     

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  49.  
    icon
    JMT (profile), May 20th, 2014 @ 5:41pm

    Re: So only people with money can start such a business

    Stop sounding so mortally offended by this. There are many types of businesses that are subject to government regulation and oversight, and if you want to get into those businesses you need to be able to afford to be legally prepared to deal with the government.

    Note that there's no indication in the story that lack of money was Levison's problem, only a lack of preparedness for what should've seemed like a possible course of events.

     

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  50.  
    identicon
    Anonymous Coward, May 20th, 2014 @ 7:45pm

    Re: Re: Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault

    In fairness, he's questioning his summary interpretation of what *was* said. That's what the question mark at the end means.

    I have some sympathy, in that Mike's wording makes me feel uncomfortable as well - "Levison still should shoulder some of the blame"... because he lacked hindsight? Blame seems like a very harsh word here. He could have managed things much better if he'd been prepared, which may or may not have helped (enough) against the stacked deck he was dealt from, but any *blame* for the stacked deck falls on the shoulders of those stacking the deck, not the guy who wasn't ready for it.

     

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  51.  
    identicon
    Anonymous Coward, May 20th, 2014 @ 7:49pm

    Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault

    I did not read the article as a moral attack on Levison. I simply read it as Levison should be blamed for being unprepared. There was no moral judgement.

    You didn't read it like that, but multiple other people (as GP mentions) including me *did* read it like that. To us, "blame" carries moral judgement in the action being critiqued - in this case, the legal steps that stacked the deck against Levison.

     

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  52.  
    icon
    JMT (profile), May 20th, 2014 @ 8:22pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault

    Ok, totally my bad, it though the comment was from LAB, not a reply to LAB. Sorry, dunno how I did that. Now who looks like the asshole... ;)

     

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  53.  
    icon
    Jay (profile), May 20th, 2014 @ 8:39pm

    Re: Re: How do we fix it?

    You mean the type of thinking that hasn't worked since Reagan?

     

    reply to this | link to this | view in thread ]

  54.  
    identicon
    Paul Keating, May 21st, 2014 @ 4:20am

    Judicial "Authority"

    There is no way for a company to sustain the cost of having a highly qualified attorney "on-call" 24/7. And even if they could these types of things quickly snow-ball out of control making it impossible for anything but a small army of attorneys to deal with it.

    An example happened in Texas when an individual defendant was accused of firing too many attorneys and not paying them. The result was imposition of a personal receivership in which all assets were seized (including retirement plans). The claims by the attorneys that they were not paid was never resolved and remains pending. Meanwhile the receiver burned through the man's assets reportedly charging over $5 million in legal fees. See:http://www.thedomains.com/2012/12/24/appeals-court-overturns-bankruptcy-sale-of-baronondova-doma ins-axes-the-receivership/

     

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  55.  
    icon
    The Wanderer (profile), May 21st, 2014 @ 5:13am

    Re: Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault

    Would it have helped you to read it as "blame for the outcome", as distinct from "blame for what happened"?

    Because I think that (or something similar to it) is what I did, and I didn't have the immediate objection to it that many respondents here seem to have had.

     

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  56.  
    icon
    Bergman (profile), May 21st, 2014 @ 5:19am

    Re: Re: Re:

    This.

    The published text of the law may be completely clear and understandable, but with so much case law attached that it means something very different, possibly even the opposite of what the law actually says.

    Even a lawyer who does nothing but study law would be hard pressed to find every bit of case law on every statute, let alone decipher every nuance -- especially since nothing stops a court from ruling completely differently from all previous case law tomorrow.

    Between words having different meanings than those found in the dictionary when used by courts and the way laws are written by lawyers for lawyers (New York is particularly guilty of this) it's effectively impossible for anyone who isn't a lawyer to know if any given action is legal or not.

    And yet, ignorance of the law is not an excuse for breaking it. The legal system is very badly broken when the only thing you can understand amidst all the nonsense and gibberish is catch-22 after catch-22.

     

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  57.  
    identicon
    David, May 21st, 2014 @ 6:04am

    Re: Re: No, this is NOT Levison's fault

    If you're going to advertise a secure and private system, you have to deal with reality.

    To be fair: it's not always been as obvious as now that the U.S. is run by an organized crime syndicate that shits on the constitution and has its own secret fake court hierarchy purportedly authorized to rubber-stamp the violation of the first, fourth, and sixth constitutional amendments without oversight, without publicity, without due process and without being bound by the law.

    There are still Americans who believe themselves not to be in a fascist totalitarian police state pretending to be in a permanent "state of emergency" allowing it to bypass every law and curtail the freedoms guaranteed by the constitution.

    He's been too patriotic. That's indistinguishable from being a gullible fool, sure, but that was not always the case.

     

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  58.  
    identicon
    AJ, May 21st, 2014 @ 6:36am

    Re: Re: Sad

    "Then the only people who have a right to protect rights are ones with money?"

    That's exactly what I'm saying. I didn't make the system, but that is how it works. Getting into the ring unprepared wont change that.

     

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  59.  
    identicon
    Rekrul, May 21st, 2014 @ 8:14am

    Re: Re: No, this is NOT Levison's fault

    There's ideal and there's realistic.

    And the reality is that the Constitution means nothing and the only "rights" that the American people have are those that the government is willing to allow them to have. :(

     

    reply to this | link to this | view in thread ]

  60.  
    icon
    John Fenderson (profile), May 21st, 2014 @ 8:27am

    Re: Judicial "Authority"

    "There is no way for a company to sustain the cost of having a highly qualified attorney "on-call" 24/7"

    That's not entirely true. I keep a highly qualified lawyer on retainer. It costs me a couple hundred bucks a month unless I have actual work for them to do. The lawyer you keep on retainer doesn't have to be the best available, only competent. The important thing is that they can jump into action and can get additional legal help very quickly if needed.

     

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  61.  
    icon
    MatBastardson (profile), May 21st, 2014 @ 9:25am

    Re: How do we fix it?

    Glad to know that lawyers had no part in creating the crazy, byzantine system we mere mortals can't navigate without them. I guess that's why they are so widely loved and revered that the accepted way to stop one from drowning is to shoot him.

     

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  62.  
    icon
    MatBastardson (profile), May 21st, 2014 @ 9:36am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault

    If Levinson hadn't been wearing such a short skirt, he wouldn't have gotten raped that way. He was asking for it.

     

    reply to this | link to this | view in thread ]

  63.  
    icon
    Josh in CharlotteNC (profile), May 21st, 2014 @ 11:51am

    Re: Re: How do we fix it?

    I made no claim that no lawyers had a hand in creating the monstrosity of a legal system we have. I simply said that most well intentioned lawyers that read Techdirt had no hand in creating it.

     

    reply to this | link to this | view in thread ]

  64.  
    icon
    Lars (profile), May 21st, 2014 @ 3:50pm

    Re: Re: Re: How do we fix it?

    Implying Reagan was small government.

     

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  65.  
    icon
    SimonInOz (profile), May 21st, 2014 @ 5:03pm

    Re: Re:

    "no law shall contain more words than the alphabet has letters"

    has 61 letters.

     

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  66.  
    icon
    MatBastardson (profile), May 21st, 2014 @ 10:22pm

    Re: Re: Re:

    ...more words than the alphabet has letters.

     

    reply to this | link to this | view in thread ]

  67.  
    icon
    Jay (profile), May 22nd, 2014 @ 8:45pm

    Re: Re: Re: Re: How do we fix it?

    That's one of the many contradictions from right wing thinking...

     

    reply to this | link to this | view in thread ]

  68.  
    identicon
    Anonymous Coward, May 23rd, 2014 @ 1:19am

    Re: Re: Re: Re: No, this is NOT Levison's fault

    He should have known.
    Others should take note.

    Others should take note of what they should know?

    Note to self: Water is wet.

     

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  69.  
    identicon
    Anonymous Coward, May 23rd, 2014 @ 1:28am

    Re: Re: Re: Re: Re: No, this is NOT Levison's fault

    Mega should have been better prepared. They should be responsible for everyone's loss of work/access...

     

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  70.  
    identicon
    Pragmatic, May 23rd, 2014 @ 5:57am

    Re: Re: How do we fix it?

    Arbitration for all, AntiSocialist?

    How about when a group describes itself as being in favour of a given set of principles, it actually carries them out instead of merely paying lip service to them.

    I believe in government by the people for the people. We don't have that right now. What we have is government by some politicians and their employees for the big multinational corporations, the MISC (military-industrial-security complex), and some noisy, well-funded special interest groups on both sides of the aisle.

    Give us government by and for the people, and the rest will take care of itself.

    - a real, moderate conservative.

     

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  71.  
    identicon
    Pragmatic, May 23rd, 2014 @ 6:04am

    Re: Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault

    The system and the government are at fault. Attack them, not LAB or any of the other commenters.

    What we're saying is, if you go outside on a rainy day without a raincoat and umbrella, you're going to get wet. Be prepared. Levison wasn't prepared.

     

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  72.  
    identicon
    Pragmatic, May 23rd, 2014 @ 6:05am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: No, this is NOT Levison's fault

    Keep it classy, troll.

     

    reply to this | link to this | view in thread ]

  73.  
    identicon
    Pragmatic, May 23rd, 2014 @ 6:06am

    Re: Re: Re: Re: No, this is NOT Levison's fault

    In this case, the situation is wrong, and needs to be fixed.

    FIFY

     

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  74.  
    identicon
    Pragmatic, May 23rd, 2014 @ 6:12am

    Re: FTFY

    Levison wasn't breaking the law, or on the edge of breaking the law. The govt. was acting unconstitutionally and he called them on it. They responded by breaking up his business because they called on their avenging angel, "National Security."

    => Secret interpretations, etc. => he couldn't get a competent lawyer when he needed one.

    The thing is, trying to keep your customers' data confidential is increasingly seen as breaking the law, or on the edge of breaking the law because if you have nothing to hide you've got nothing to fear, right?

     

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  75.  
    identicon
    Anonymous Coward, May 25th, 2014 @ 10:04pm

    Re: Re: So only people with money can start such a business

    What about the guy in Vegas who was handing out gold coins for labor at the face value of the gold coins?

    He paid 1/4 of a mil to figure out if what he was doing was 'legal' (and it seems to have been). And the 1st trial he didn't lose. But the 2nd go-round he lost - after spending another 1/4 of a mil for the trials.

    This idea that getting your legal ducks in a row 1st is a fallacy.

     

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  76.  
    identicon
    Anonymous Coward, May 25th, 2014 @ 10:10pm

    Re: Re: So only people with money can start such a business

    Stop sounding so mortally offended by this.

    How about things stop happening that offend?

    There are many types of businesses that are subject to government regulation and oversight,

    When 3 different attempts to count and list the various federal laws have failed - do take the time to explain how a business is to be complaint when the Government itself can't count its own laws?

     

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  77.  
    identicon
    Anonymous Coward, May 26th, 2014 @ 10:58am

    Everyone

    "Again: if you are offering private or secure services, you need to have a competent and knowledgeable lawyer on call who can pick up your case immediately."

    Actually, this applies to everyone. You never know when the government may come knocking for whatever reason it desires. When it does, you better have a lawyer on speed dial. That's just the reality of living in America today.

     

    reply to this | link to this | view in thread ]

  78.  
    icon
    terry_allen (profile), May 26th, 2014 @ 4:45pm

    Re: How do we fix it?

    Okay, here's a thought. It's just a thought at this point, however.

    One of the profoundly irritating things I run into every day is the "We have changed your agreement" notice. Now I realize that any company with more than two lawyers to rub together is already smart enough to bake into its agreements/licenses/releases the ability to change an agreement pretty much unilaterally.

    But it's fairly routine in some parts of the legal system to send out the revised agreement in 'markup' form, and it would be quite straightforward to require by law that all revisions to agreements be presented in this form. Ordinary ballots sometimes do this in the case of state constitutional amendments.

    This would give the consumer/cardholder/employee/voter/unintended victim a fighting chance to keep up with the changes in these agreements.

     

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  79.  
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    Seegras (profile), May 26th, 2014 @ 11:18pm

    Lawyers are not scientists

    Lawyers learn to know and interpret the law, and to argue fine points of it with or against other lawyers.

    They don't learn how to make laws that work best.

     

    reply to this | link to this | view in thread ]

  80.  
    icon
    Doug (profile), May 27th, 2014 @ 5:48am

    Re: How do we fix it?

    Theoretically our government should be the means to fixing this. The power imbalance you mention is inherent in our economic system, wherein consumers must transact with large corporations for most of their economic activity.

    A corporation has the combined power and money of many people (employees and shareholders) which one or a few people, the executives, can deploy in a coordinated fashion for every transaction. An individual consumer has effectively no power to balance that if they don't like what the corporation is doing. The power to *not* do business with a large corporation is only effective when there is sufficient and strong enough competition, and only when the competition have not all adopted the same objectionable tactics. These conditions rarely hold.

    So, how do consumers band together? Their government, at least in theory. The people can say, "we don't think binding mandatory arbitration is fair" and outlaw it. But this doesn't work anymore because business and money have too much influence on politicians and the people have too little.

    That's what needs to be fixed. We need to eliminate business's ability to influence politics, or we need to form another political "collective bargaining" entity (like a "consumers' union" or something).

    Our system is not fair until power is balanced.

     

    reply to this | link to this | view in thread ]


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