Mike,
I just listened to the podcast interview with Eric from Beeper, and as an Apple user since the 80s and a Techdirt reader since probably the late 90s or early 00s, I have been increasingly displeased with Apple's policy decisions on a number of fronts, Beeper being only the latest.
That said, I can't help but wonder if the rational explanations for Apple's position on this must include the fact that the vast majority of the marketplace for modern technology is functionally technologically illiterate, all efforts to introduce coding into standards curricula notwithstanding.
People in general buy tech devices for what they can do and they don't care how they do it, nor do they understand the issues at stake. A massively significant corollary to this is that people are largely ignorant of security concerns and happy to simply depend on the suppliers of their devices to handle security on their behalf.
Apple is well aware of this and so it stands to reason that it would be legitimately concerned that allowing Beeper to do what it has done opens the doors to a flood of maliciously designed apps which an unsophisticated user base will be unable to distinguish from Beeper and other genuinely benign products.
I feel like a well rounded discussion of this problem, published for a tech-savvy audience, should not exclude considerations like this, and in fact should aggressively address this problem rather than apparently pretending it does not exist and that the open internet exists in a bubble of benign intention for all to experience, but for the unreservedly evil and self-interested actions of the tech giants.
Thanks for your great work over the decades, and I look forward to an earnest and thoughtful response when you have the opportunity to make one.
First, both Florida and California have created special circumstances which benefit Disney and Walgreens respectively.
Florida created a special district commission which allows Disney significant control over the use of public resources in a way that no one else can, barring the state government. California had awarded a contract for provision of services to Walgreens.
If those special circumstances are removed, for whatever reason, there is no other factor preventing the companies affected from doing business in the respective states on the same level of playing field as any of their competitors. I would argue that this means the actions of the governors, regardless of rationale, is not actually a punishment so much as the withdrawal of special consideration (or reward); something that governments should be free to do when and however they will and for whatever reason.
These actions should be weighed against theoretical legal actions which make it harder for the targeted companies to do business than it is for any of their competitors. This would definitively qualify as punishment, and is exactly what I agree should NOT be allowed as a political action of state governments, particularly as punishment for "speech" that political leaders find objectionable.
Second, let's skip the whole ridiculous concept of corporate personhood because it is an abominable fiction which has been given such depth of legitimacy for so long that I cannot see any way for the country to claw right and proper controls on corporate entities back, but we can look at "speech" and see that generally, the policies and practices under discussion here are merely choices made to serve the bottom line. Disney wants to foster the kind of open and welcoming environment for customers and staff that is consistent with the branding they have spent untold billions to create and maintain, and wingnut cult leaders elected by kleptocratic oligarchs and their media bootlickers are not going to cost Disney enough to make them change. In the dcase of Walgreens, they simply wanted to walk the line between avoiding a fight with wingnut cult leader AGs and pissing off a large portion of their customer base, and they could not competently or coherently manage the conflict between these desires, and their inability to make a clear statement that they would continue to provide the services for which California had contracted them was not so much speech as the failure to speak when called upon to do so, and their failure is what cost them the contract.
By the same logic which allows persons to be prosecuted for drug possession after officers have placed drugs in their vehicles, this device is now the property of the person to whose vehicle it was attached.
Alternatively, law enforcement can claim ownership of the device and by the same stroke, it owns any illegal drugs "found" in vehicles, thereby making the vehicle owner inelegible for charges of possession.
In addition, failure to correct the training means the agency or city remains perpetually liable for that violation (and any that follow) until such time as that training is demonstrably corrected.
If the court accepts "training and expertise" as a legitimate defense of the individual officers, then -- by definition -- the very same ruling determines that the law enforcement agency and/or city employing those defendants is unquestionably liable for the violations committed by the defendants.
Pay particular attention to the following lines from the article,and see what you get when you apply them to ckick-through agreements on software, terms for financial institutions and utility accounts, etc. (could they be so applied?):
"[T]he revocation of rights must be voluntary, but B.L.'s wasn't really of the free will and volition variety.
"[N]either B.L. nor her mother had bargaining equality with the coaches or the school; the Cheerleading Rules were not subject to negotiation; and B.L. and her mother were not represented by counsel when they agreed B.L. would abide by the Rules.
"Also:
"Additionally, conditioning extracurricular participation on a waiver of a constitutional right is coercive."
Beeper and Apple: A Problem of Tech Illiteracy
Mike, I just listened to the podcast interview with Eric from Beeper, and as an Apple user since the 80s and a Techdirt reader since probably the late 90s or early 00s, I have been increasingly displeased with Apple's policy decisions on a number of fronts, Beeper being only the latest. That said, I can't help but wonder if the rational explanations for Apple's position on this must include the fact that the vast majority of the marketplace for modern technology is functionally technologically illiterate, all efforts to introduce coding into standards curricula notwithstanding. People in general buy tech devices for what they can do and they don't care how they do it, nor do they understand the issues at stake. A massively significant corollary to this is that people are largely ignorant of security concerns and happy to simply depend on the suppliers of their devices to handle security on their behalf. Apple is well aware of this and so it stands to reason that it would be legitimately concerned that allowing Beeper to do what it has done opens the doors to a flood of maliciously designed apps which an unsophisticated user base will be unable to distinguish from Beeper and other genuinely benign products. I feel like a well rounded discussion of this problem, published for a tech-savvy audience, should not exclude considerations like this, and in fact should aggressively address this problem rather than apparently pretending it does not exist and that the open internet exists in a bubble of benign intention for all to experience, but for the unreservedly evil and self-interested actions of the tech giants. Thanks for your great work over the decades, and I look forward to an earnest and thoughtful response when you have the opportunity to make one.
Subtle but important distinctions
First, both Florida and California have created special circumstances which benefit Disney and Walgreens respectively. Florida created a special district commission which allows Disney significant control over the use of public resources in a way that no one else can, barring the state government. California had awarded a contract for provision of services to Walgreens. If those special circumstances are removed, for whatever reason, there is no other factor preventing the companies affected from doing business in the respective states on the same level of playing field as any of their competitors. I would argue that this means the actions of the governors, regardless of rationale, is not actually a punishment so much as the withdrawal of special consideration (or reward); something that governments should be free to do when and however they will and for whatever reason. These actions should be weighed against theoretical legal actions which make it harder for the targeted companies to do business than it is for any of their competitors. This would definitively qualify as punishment, and is exactly what I agree should NOT be allowed as a political action of state governments, particularly as punishment for "speech" that political leaders find objectionable. Second, let's skip the whole ridiculous concept of corporate personhood because it is an abominable fiction which has been given such depth of legitimacy for so long that I cannot see any way for the country to claw right and proper controls on corporate entities back, but we can look at "speech" and see that generally, the policies and practices under discussion here are merely choices made to serve the bottom line. Disney wants to foster the kind of open and welcoming environment for customers and staff that is consistent with the branding they have spent untold billions to create and maintain, and wingnut cult leaders elected by kleptocratic oligarchs and their media bootlickers are not going to cost Disney enough to make them change. In the dcase of Walgreens, they simply wanted to walk the line between avoiding a fight with wingnut cult leader AGs and pissing off a large portion of their customer base, and they could not competently or coherently manage the conflict between these desires, and their inability to make a clear statement that they would continue to provide the services for which California had contracted them was not so much speech as the failure to speak when called upon to do so, and their failure is what cost them the contract.
Seems like there's a choice to be made...
By the same logic which allows persons to be prosecuted for drug possession after officers have placed drugs in their vehicles, this device is now the property of the person to whose vehicle it was attached.
Alternatively, law enforcement can claim ownership of the device and by the same stroke, it owns any illegal drugs "found" in vehicles, thereby making the vehicle owner inelegible for charges of possession.
Which way do you think it will go?
Re:
In addition, failure to correct the training means the agency or city remains perpetually liable for that violation (and any that follow) until such time as that training is demonstrably corrected.
If the court accepts "training and expertise" as a legitimate defense of the individual officers, then -- by definition -- the very same ruling determines that the law enforcement agency and/or city employing those defendants is unquestionably liable for the violations committed by the defendants.
Applicable concepts to Terms of Service?
Pay particular attention to the following lines from the article,and see what you get when you apply them to ckick-through agreements on software, terms for financial institutions and utility accounts, etc. (could they be so applied?):
"[T]he revocation of rights must be voluntary, but B.L.'s wasn't really of the free will and volition variety.
"[N]either B.L. nor her mother had bargaining equality with the coaches or the school; the Cheerleading Rules were not subject to negotiation; and B.L. and her mother were not represented by counsel when they agreed B.L. would abide by the Rules."Also:
"Additionally, conditioning extracurricular participation on a waiver of a constitutional right is coercive."Phrasing issue
I take issue with your phrasing in the following phrase: "half-formed brain fart".
The correct form would be: "fart of a half-formed brain".