Morning Ethics Warm-Up, 5/6/2020: Question, Questions…

Good morning?

1. Is this is a Catch 22 or what? In order to start using Adobe Acrobat in the Creative Cloud “suite,” you must agree to Adobe’ s new Terms of Use. However, a user can’t  read the Terms of Use until after he or she agrees to the Terms of Use.  Among the provisions in those terms is this…

14.1 Process. If you have any concern or dispute, you agree to first try to resolve the dispute informally by contacting us. If a dispute is not resolved within 30 days of receipt by us, any resulting legal actions must be resolved through final and binding arbitration, including any question of whether arbitration is required, except that you may assert claims in small claims court if your claims qualify. Claims related to the Terms, Services, or Software are permanently barred if not brought within one year of the event resulting in the claim.

That’s right: you have to agree not to sue  them.

Rob  Beschizza posted a video online showing him futilely  clicking the “Terms of Use” link only to be prevented from reading them because he hadn’t agreed to the Terms of Use.  As he points out, almost nobody—yes, not even lawyers—reads these fine print, intentionally verbose and obscure conditions before they agree to  terms of use, but that’s the users’  fault. Being forced to agree to terms before it is possible to read them is another kettle of fish. That’s con-man stuff. That makes it an invalid contract.

Of course, a company that tries this stunt assumes that when it produces a lawyer-signed statement reminding  dissatisfied customers of the terms they signed, that will be sufficient to discourage any further action.

2. In a mass shooting any excuse for this? Watch this video of an arrest by Canadian police in Lethbridge, Alberta:

A  young woman  dressed as an Empire Storm Trooper and carrying a plastic “blaster” on May the Fourth (…”be with you!”) to promote her employer’s cafe was surrounded by four officers, guns drawn, then tackled—bloodying her nose—cuffed and arrested. Lethbridge Police Inspector Jason Walper said  his department received  two 911 calls regarding  someone brandishing a weapon.

Apparently there really are people, at least in Canada, who have never seen “Star Wars.” But what are the odds that none of the four police were aware that this was a costume? Surely the rational approach to the silly situation would be to ask the woman to  take off her helmet and explain what she was doing before they attacked her. If the girl had been black, and this had occurred in the U.S., the NAACP would be demanding an investigation.

Canadians are trying to mitigate the stupidity here by noting that everyone is traumatized by the nation’s  mass shooting last month that left 22 dead. And, I suppose, a Storm Trooper outfit could have been a diabolical hit man’s clever disguise. I suppose.

Only 22? Heck, in the U.S., that’s chicken feed!

Since gun phobics everywhere have managed to make any form of toy gun a source of public terror, the young woman’s employer shares some blame here.  Still, this is another situation where a tiny flicker of common sense and the ping of an ethics alarm would have prevented a series of events that could have ended up in tragedy rather than mockery.

3.  Is it unreasonable to expect government transparency in California?  From the LA Times:

Attorneys for Gov. Gavin Newsom’s administration refused Monday to reveal the contents of a $990-million contract for purchasing protective masks from a Chinese electric car manufacturer, even though millions of the masks have already arrived in California to combat the COVID-19 pandemic….In a letter responding to a public records request from the Los Angeles Times, the Governor’s Office of Emergency Services insisted the contract with BYD does not have to be made public, despite similar requests made by members of the Legislature since Newsom announced the deal last month….Asked on April 18 about his administration’s refusal to disclose the document, Newsom said he looked forward to “all those details becoming public very, very shortly.” Repeating a promise that the BYD deal could also produce enough protective masks for other states, the governor dismissed concerns about the lack of transparency. “Some are consumed by process, personality, intrigue, who’s up, who’s down?” Newsom said. “We are for actually solving a major, major problem. Not only for the state, but potentially a template for the country..”

$900 million? That’s enough of an expenditure of taxpayer funds to mandate immediate disclosure, wouldn’t you think? Can you think of a legitimate reason why Newsom wouldn’t just produce the document? I can’t. “Consumed by process”? Another word for “process” where government action is involved is called “the law.”

4. Dear Trader Joe’s: Can you forgive me?  After some missteps, the grocery chain’s pandemic procedures have been perfected and stream-lined, and its staff has perfected the routine. Now I’d say it is the best and most responsible of the stores I’ve visited in my ravening searches for various items. Earlier I accused the chain of emulating fascists. That was unfair. They were learning.

I apologize to Trader Joe’s, and will add that their Steak and Stout Pies might be the best frozen dish I’ve ever eaten.

16 thoughts on “Morning Ethics Warm-Up, 5/6/2020: Question, Questions…

  1. 2. So interesting Justin Trudeau has banned something along the lines of 1600 types of guns in the wake of a mass shooting (In Canada? Eh? No way, hoser.) committed by a guy using an already illegal (in Canada) gun he’d purchased in the U.S. Canadians evidently have two years to turn in their guns. It’s ot yet clear whether they’ll be compensated. The confiscated weaponry will doubtless be wholesaled to Mexican drug lords.

    • One of Trudeau’s campaign promises was that he would enact that ban, and then he won a minority government, and there was no way in hell either the NDP or conservatives would have supported the ban, so the idea was effectively racked.

      My take on it was that the policy sat in Trudeau’s desk drawer, waiting until some inevitable tragedy happened, so he could try to squeeze out some emotional support. That happened, but I don’t think the recent attack would have been enough to get people excited about passing gun control legislation during a pandemic. Apparently, JT agrees with me, because instead of passing legislation, he implemented an OIC (Order in Council) from wikipedia;

      “An Order in Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom this legislation is formally made in the name of the monarch by and with the advice and consent of the Privy Council (Queen-in-Council), but in other countries the terminology may vary.

      An Order in Council made under the Royal Prerogative is primary legislation, and does not depend on any statute for its authority, although an Act of Parliament may change this.[3] This type has become less common with the passage of time, as statutes encroach on areas which used to form part of the Royal Prerogative.

      Matters which still fall within the Royal Prerogative and hence are regulated by (Prerogative) Orders in Council include dealing with servants of the Crown (e.g., standing orders for civil servants), appointing heads of Crown corporations, governance of British Overseas Territories, making appointments in the Church of England and dealing with international relations.

      Traditionally, Orders in Council are used as a way for the Prime Minister to make political appointments, but they can also be used to issue simple laws as a sort of decree. In times of emergency, a government may issue legislation directly through Orders in Council, forgoing the usual parliamentary procedure.[4][5] Most Orders of this sort are eventually formalized according to the traditional lawmaking process, if they are not revoked at the end of the emergency. However, in the UK, this power was later superseded by a statutory power to make such Orders in Council under the Civil Contingencies Act.

      British Orders in Council may occasionally be used to effectively reverse court decisions applicable to British Overseas Territories without involving Parliament. Within the United Kingdom itself, court decisions can be formally overruled only by an Act of Parliament, or by the decision of a higher court on appeal.

      In the rest of the Commonwealth they are used to carry out any decisions made by the cabinet and the executive that would not need to be approved by Parliament.”

      Basically, it’s a rarely used device to legislate in areas not already legislated, until legislation can be made, or as a stop-gap for obvious incompleteness errors (one of the most common use for OICs previous to this in Canada was to prevent individuals from getting passports).

      Gun control, obviously, does not suffer from a lack of ink in the Canadian legal cannon. The idea that the Prime Minister could issue an OIC to unilaterally pass additional gun control is, frankly, one of the stupidest things I’ve heard in a while, and it’s been a gongshow of a couple of years. It’s per se unconstitutional (We have one of those, we really do), and it won’t survive the legal challenges currently being furiously scratched onto paper.

      Honestly, if I didn’t think that Trudeau was an idiot, I might think that the purpose was to get people who didn’t realize that this law wasn’t going to stand to divest themselves of their guns while the legal battle was ongoing, ensuring fewer guns in the market after his legislation was shut down.

    • I would expect that Canadian authorities will learn that many of the banned weapons have been lost in “boating accidents.” I would also predict a brisk but discrete traffic of said weapons south across the U.S. border during the next two years. Imagine, smuggling guns INTO the United States!
      Too bad for Canadians that we were unsuccessful in annexing Canada during the War of 1812.

  2. Even if that blaster was real, everyone knows Imperial Storm Troopers can’t hit the broad side of a barn.

    The restaurant is named “Coco Vanilla Galactic Cantina” and serves Jabba the Gut pizza and Yoda soda.

    In a small city like Lethbridge, you would expect the police department to be more familiar with the businesses in the community, but it is good to know that if the Empire does show up, the boys in blue in Lethbridge are up to the task.

  3. #1 – Have you heard of the law group “Fair Shake”?

    One of the features corporate lawyers love the most about binding arbitration is it blocks class action lawsuits. It leaves little money for a lawyer to take the case because these cases are often about a smallish amount per person. Since there is no lawyer on the plaintiff side, it is an ameture going against corporate lawyers. The companies know it doesn’t work out on the individual cases as the defense is expensive. What they’re hoping is to make the process cumbersome and so few people follow through fighting it. The company wins by keeping the successful case count low.

    What “Fair Shake” are doing is lumping similar cases together. They’re out scouring the internet to gather greevences against big corporations. When a giant company is mistreating people, it usually does it on a mass scale. (Things like banks opening unauthorized accounts… or Comcast being Comcasty.) If they hit a critical mass, they give each person the blueprint for filing and winning the arbitration process for a cut of the proceeds. It’s effectively a class action lawsuit without the class action, but worse. The “but worse” part is now the company is defending themselves from thousands of arbitration cases. Each and every arbitration case is standalone, so the defense is expensive. Any new argument the company tires gets expert legal advice on countering and is applied to future cases.

    DoorDash stopped following the arbitration process and FairShake went to federal court. Judge William Alsup of the San Francisco federal court ruled that either DoorDash must resume all arbitration cases by a deadline or he’ll certify a class action.

    The quote of judge in the article is a classic:

    “Your law firm and all the defense law firms have tried for 30 years to keep plaintiffs out of court,” the judge told lawyers for Gibson Dunn late last year. “And so finally someone says, ‘OK, we’ll take you to arbitration,’ and suddenly it’s not in your interest anymore. Now you’re wiggling around, trying to find some way to squirm out of your agreement.”

    “There is a lot of poetic justice here”

    • Great mini-post, Matthew. Thank you. Made my day. I wonder how many thousands of dollars the phalanx of Gibson Dunn guys billed Door Dash for the time they spent being dressed down by the federal judge.

  4. 1. When Beschizza clicks, it appears that the General Terms of Use appear on the screen for an instant and then disappear. It may be just a coding error, rather than ‘con-man’ stuff.
    I don’t use Creative Cloud, but the General Terms of Use are available online and easy to find, including the specific part 14.1 which is quoted above.
    A more serious complaint, IMHO, is the fact that the General Terms consist of about 20 pages with a multitude of lawyerisms.

    • Very useful intelligence. The fact that the General Terms of Use are available online and “easy to find,” however, won’t do any good if this is raised in a legal dispute. A party that presents a contract that the user has little choice but to sign can’t say “the terms you’re agreeing to are easy to find, so go hunting.”

      • Agreed, Adobe has an obligation to be more transparent.
        I pursued this a bit because I ran into the same kind of thing with a couple of government agencies I have to deal with — in both cases, they had changed over to a private company to send out notices (taxes in one case, emergency alerts in the other) and terms/privacy statements for both were not readily apparent. In one case, I couldn’t even tell if it was a private company being contracted or just another bureau in the county government; I badgered them until I got to the right person who provided a coherent answer.

  5. Living in California and having to deal with Gavin Newsom’s bullshit, I’m not surprised by his lack of transparency re: the Covid-19 masks made by a Chinese manufacturer which will cost the taxpayers 900 million dollars. Facing opposition about closing the beaches in San Diego and a Mayor there who will probably run against him in the next governor’s election, he backed off ordering the beaches there closed.

  6. The police response makes sense: E-11 blasters were one of the weapons Trudeau put on his new proscription list.

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