[DannyBee]

This is also wrong.

Good faith is a requirement. Act in bad faith, and you can still be sanctioned.

Do you have any background in this, or are you just asserting what you want reality to be?

Because you are just spouting wrong information that, even for a non-lawyer, would take you 10 minutes to go find and read right information.

[Wobbles42]

Non-lawyer here. This information is surprising to me (to be clear, I believe you, I just would have guessed otherwise).

Is some degree of malicious compliance not extremely common when companies deal with the courts? From the outside it seems like the incentive would be to comply with a court order to the minimum degree required to avoid further legal consequences, but no more. Is compliance more enthusiastic that that in practice? Again, I have zero experience, but the idea of a company losing a lawsuit and then actually acting in good faith is a strange one to me.

An individual might be intimidated to act in actual good faith to avoid serious consequences, but Apple as an entity can't be tossed in jail for contempt of court, right? So it would seem that it is incentivized to push it's employees to take risks like this, with the understand that they can be replaced by employees who will if they refuse.

[DannyBee]

Again, once you lose, the adversarial part is over.

Malicious compliance is exactly why good faith is a requirement but not a defense.

Bad faith will get you contempt, good faith will not save you from contempt if you didn't do enough.

Do companies try to skirt this anyway - sure. But they run the risk of a judge finding they didn't do enough, and sanctioning them anyway, even if they didn't have obvious bad faith, or heck, even if they have objectively good faith.

There are plenty of cases where judges sanctioned good faith actors who didn't do enough.

I quoted McComb in another comment (so don't want to paste it again here), but see https://supreme.justia.com/cases/federal/us/336/187/ and friends.

In the end, once you lose, if you play stupid games, you will usually win stupid prizes.

That doesn't mean people don't play, but it's almost always against their lawyers strong advice.

As for jail - you have to distinguish civil and criminal contempt. Criminal contempt can get you thrown in jail, and has different requirements.

[vkou]

> Is compliance more enthusiastic that that in practice?

Once a company gets burned by scary litigation, it is often very reticent about pushing the line again.

[ycombinatrix]

we're arguing semantics - "malicious compliance" is by definition compliant, meaning (in this case) it is in good faith.

[hajile]

I know the current interpretation, but I also know that it's not logically sustainable.

The key here is "reasonableness", but you can't read a judge's mind, so reasonable only means what a reasonable person would infer. That is completely subjective based on an individual's implicit biases and knowledge of all surrounding circumstances.

For example, the dev team tasked with implementing this may not be familiar with the entire case, so what they consider reasonable will be different based on that. They also know much more about technology and likely have strong feelings about what is acceptable, but the judge is NOT a subject matter expert (SME) in that area. Likewise, the judge is NOT a SME on UI/UX, so the judge's interpretation of "reasonable" may well be at odds. There is also an argument that directing to these third-party sites opens 1.4B people to exploitation, so it would be reasonable to allow them access, but also to protect those users (who also aren't SMEs and often have essentially zero understanding) from potential issues by framing things appropriately. I could go on with many other qualifiers about what would be reasonable.

The judge is qualified to make rulings based on the law, but utterly unqualified to decide what the details of a reasonable implementation would be. If she were a qualified SME, she could and should have written her reasoned decision and removed the need for interpretation. If the ruling were itself reasonable and clear, there wouldn't be meaningful room for debate about reasonableness which would in turn effectively render reasonableness a mute point. As such, you can see that "reasonableness" in these kinds of cases is a crutch to protect unqualified judges making rulings they should not be making which is ironically a very unreasonable approach.

As to "good faith", who is she to dictate that you must do what she says and be happily compliant or else? After all, unhappiness will almost certainly taint all actions to a greater or lesser degree, so anything less than perfect contentment would be "bad faith" to a greater or lesser degree.

Who is the judge to single-handedly decide these people's state of mind? Has all her study of law made her an expert on what happens in other people's minds and privy to their thoughts and experiences while ridding herself of her own biases? Such a task is impossibly hard for a jury even in broad terms with lots of facts and even less possible for a single person judging the actions of many people based only on a few chat messages.

How does she ensure that every single one of those hundreds to thousands of people involved is "acting in good faith" is an impossible task and you can be assured that at least one of them at any given time isn't acting in good faith about ANYTHING. This would imply that you must ALWAYS assume that bad faith was involved.

How do you determine how much bad faith is too much? Based on outcome is the only logical answer, but in that case, you could have been explicit about the outcome in the first place and skipped all the trouble and possible excuses of misunderstanding once again rendering "bad faith" as a crutch to protect the judge from their incompetence.

She passed judgement based on the law. As long as that judgement is fulfilled to the degree specified, the state of mind of the hundreds to thousands of people involved in carrying out that judgement should not matter.

"Good faith" and "reasonableness" is a faulty and fickle metric at its best when applied to a single person by a group of peers. It is a broken and unusable metric when applied to a group or corporate entity by a single judge not an expert in the matters at hand.

[freejazz]

Here's a great application of reasonable: your post is incredibly unreasonable.

It's a long rant that is not based in the law, the application of "reasonability" in the law, or other examples of "good faith" standards being used. It's made without any expertise or direct relevant knowledge, yet it is offered with the authority and conviction as if you understood more about the law than the judge in question. Reasonable isn't a state of mind, so when you ask things like "who is this judge to read these people's minds" it begs a million quesitons like, how can your worldview ever deal with laws that DO involve a state of mind? This isn't some huge problem in the legal world, we rely on evidence and the reasonable conclusions and inferences you can make from the evidence.

[DannyBee]

+1 to this.

In addition, one of the ironic things is that I ran engineering teams that did the equivalent of project michigan, at Google.

More than once.

The upsides (downsides?) of being an engineer/manager/lawyer.

So i even have plenty of firsthand experience dealing with exactly this situation, both on the legal side, and the engineering side.

[hajile]

You didn't read what I wrote and that is apparent in your response. You didn't address any of the facts and instead just blindly parroted back the equivalent of "it's true because they say it's true". If you think I'm the first person to argue that the reasonableness standard is unreasonable, you'd be mistaken.

I stated that establishing reasonableness was hard enough with a jury of peers judging just one person in a more limited scope and more facts available and a very high burden of proof. The number of cases overturned based on differing views of "reasonableness" is proof that it isn't an objective standard of anything.

> Reasonable isn't a state of mind,

How can you define reasonableness without either directly or indirectly including subjectivity? If you add subjectiveness, then it is indeed a state of mind with different subjects (minds) having different conclusions.

Reasonableness is akin to Platonic Idealism. It assumes there is some hypothetical human who represents the reasonableness of humanity, but that is unreasonable.

As a simple example, would a reasonable person allow a trans person to use the bathroom of their choice? Ask a person on the left, a person on the right, a SME, and a trans person and you are likely to get a whole spectrum of reasonableness so wide that the two extremes would be complete opposites.

Would you trust the reasonableness of an all-white Mississippi jury judging a black man in the 1800s? This shows that reasonableness is at best a bad approximation of what the majority of the people in a specific group agree about a specific topic. This has almost nothing to do with objectivity and everything to do with subjectivity and is a state of mind rather than objective truth.

> how can your worldview ever deal with laws that DO involve a state of mind?

Mens Rea is taught to have both a subjective and objective component. The entire point of "beyond reasonable doubt" is that you should have clear indicators of the crime. This is no different with Mens Rea and someone should not be convicted strictly on a subjective "they look guilty to me" basis. The standard is still "beyond reasonable doubt" which means the overwhelming evidence for Mens Rea should be objective rather than subjective ("reasonableness" is subjective).

It is better to let the guilty go free than punish the innocent. If there is not objective evidence of Mens Rea beyond reasonable doubt, then there should not be a conviction on that charge. This is the only way to reduce wrongful conviction.

> This isn't some huge problem in the legal world, we rely on evidence and the reasonable conclusions and inferences you can make from the evidence.

This is a massive problem that you paper away until some trial makes the news and it is once again shown that there is very little agreement at large about what passes as "reasonable".

While we're on the topic, would you care to explain the utter unreasonable logic and outcomes behind qualified immunity? If you'd like a very specific example, what about the one where the cop draws his gun on a non-aggressive dog not caring that a little girl is behind it. He then shoots the girl instead of the dog and is protected by SCOTUS having crafted law out of nothing because it would be argued that he acted "reasonably" (even though it would 100% be a criminal conviction were the badge removed from the equation).

I'll say again that reasonableness is almost completely unreasonable.

All of this is speaking only of criminal law where the Mens Rea is (generally) limited to a single incident by a single person. When you involve many people (most not directly involved and some potentially from different places, cultures, and legal systems) over time and what all of them consider to be reasonable would be unreasonable enough. Making a judge qualified to judge the actions of these people as reasonable or unreasonable then hold an entirely different group of people (a group almost certainly unaware and with no reasonable means of becoming aware) responsible for those actions is also unreasonable.

And of course, a judge writing up stuff she isn't a SME in is going to be seen as unreasonable by a supermajority of people. Should the burger flipper at McDonalds be writing up criteria about how brain surgery should be conducted? Would you consider his judgement about how that brain surgery was conducted to be reasonable? I think not.

[freejazz]

>You didn't read what I wrote and that is apparent in your response.

I absolutely did read what you wrote. What I will not read is any of your response after this sentence.

[Goronmon]

You didn't read what I wrote and that is apparent in your response.

Are you writing these long nonsense posts specifically to make this claim? Because it certainly reads like you are.

You need to be better about writing more concisely. As it stands, it reads like you are trying to hide ignorance behind a large word count.