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Comment by troad | Hacker News Reader

The court decision itself is worth reading for a revealing look behind the curtain. [0]

>> In Slack communications dated November 16, 2021, the Apple employees crafting the warning screen for Project Michigan discussed how best to frame its language. Mr. Onak suggested the warning screen should include the language: “By continuing on the web, you will leave the app and be taken to an external website” because “‘external website’ sounds scary, so execs will love it.” [...] One employee further wrote, “to make your version even worse you could add the developer name rather than the app name.” To that, another responded “ooh - keep going.”

[0] https://storage.courtlistener.com/recap/gov.uscourts.cand.36...

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The most shocking thing to me about that isn't the malicious compliance, but that even after a court injunction, and fully knowing that there could be subsequent discovery, they have people putting something like that in writing.

Seriously, this is one of the top 10 largest companies in the world, and they're playing chicken with the court in order to preserve their ongoing revenue. These weren't random employees, but people part of "Project Michigan", Apple's "activities relating to Injunction compliance".

How doesn't every single person that's a part of that project have an Apple lawyer hovering over them every time they get near any sort of device that can put anything on the record?

People put everything in writing and in videos nowadays and don't even think about it. Often it's "not so smart" criminals but we see again and again that even people are the highest levels do the same...

It is not always a question of smart of vs not smart. At times, you will see people say something in an email or chat for no other reason than 'now it is part of the record'.

CYA, always be building a paper trail in systems of record. "Will this be committed to something with a retention schedule and that is subject to a potential legal hold?" hits return

they did try to hide some of this stuff, by abusing attorney client privilege, which is one of the reasons the judge is SO pissed at them.

>they did try to hide some of this stuff, by abusing attorney client privilege

I don't know a thing about the legal system: if someone gets caught doing that sort of thing, does that incur additional punishments?

I mean, if you do something illegal, and when the police arrest you they prove that you were trying to hide it from them, that's another charge. How does that work if the court catches you doing it?

> THE COURT FURTHER FINDS that Apple’s abuse of attorney-client privilege designations to delay proceedings and obscure its decision-making process warrants sanction to deter future misconduct. Apple is SANCTIONED in the amount of the full cost of the special masters’ review and Epic’s attorneys’ fees on this issue alone through approximately May 15, 2025, the anticipated date of completion.

So pretty mild thus far. As far as I remember from reading other court decisions, court-imposed sanctions against individual lawyers are also a thing. As far as the clients are considered, given production of documents is mandated by a court order, presumably this counts as defying a court order and so any punishments would fall under criminal contempt?

(Not a lawyer, in case this wasn’t clear from the above already.)

That's not even "mild". From Apple's perspective that sounds great.

They were trying to delay the proceedings, were successful in doing so, and as a result need to pay for the attorneys' fees incurred.

Fees that probably add up to mere seconds of worldwide revenue resulting from these monopolistic practices.

"Don't threaten me with a good time" comes to mind.

> Seriously, this is one of the top 10 largest companies in the world, and they're playing chicken with the court in order to preserve their ongoing revenue.

Maybe that is a result of the attitudes that made them one of the largest companies in the world?

Other way around. Too big to fail and individual employees are too isolated from any consequences so they have no reason to give a shit.

Or both. Vicious circle.

"The most shocking thing to me about that isn't the malicious compliance, but that even after a court injunction, and fully knowing that there could be subsequent discovery, they have people putting something like that in writing."

Keep in mind that once you lose, the process is no longer adversarial. In ~all cases you will be required to provide evidence and status updates and such on implementation of an injunction, among other things.

So you do practically have to keep records of what you are doing to comply. These are the kinds of records you would normally see as a result. The only shocking thing is that they didn't lie :)

They often do try to hide bad stuff through privilege anyway - I believe they tried here and lost but i will go back and look - but that doesn't often work.

> you do practically have to keep records of what you are doing to comply

I would argue that the text the parent comment has pulled out is not part of the record keeping you need to do to comply. Lawyers will tell you to have certain conversations in person, and it is surprising that some of these conversations happened in text instead of in person.

i'm aware of what lawyers tell you sometimes, since i am in fact, a lawyer in addition to being an engineer, but you have to think about the context as well. You aren't talking about trying to avoid another side finding it in mountains of discovery, you are talking about trying to avoid a judge who easily has the power to force your engineers to testify under oath about what they are doing, finding out about what you are doing.

This is a very bad plan :)

On top of that I'll also offer to you that the days of trying to avoid generating evidence as a mechanism for avoiding bad things happening are fast dying after google got sanctioned for having off the record conversations for exactly this reason.

It's bad advice - the better advice i used to give my clients is - if you are not doing anything wrong, don't act like you are doing anything wrong. If you are doing something wrong, stop.

    > If you are doing
    > something wrong, stop.

You may be a lawyer, but this is clearly bad advice if your client was Apple.

It's not like they couldn't afford competent legal advice, and surely they either knew they were flaunting the injunction, or could have predicted that the judge would take this view of their activity.

So, they're set on doing the "wrong" thing, but could still use legal advice.

What I'm amazed at up-thread is how seemingly incompetent they were at changing their workflow so they wouldn't hand the court evidence on a silver platter.

In this case, surely they could have pulled all the stakeholders into a room with a whiteboard, and made sure nobody kept any records of the meeting.

They'd have ended up with the same wording, but the court couldn't have merely done a text search of relevant Slack conversations.

Yes, the court could have eventually forced everyone who was in that room to testify, but the end result would have been a bunch of "I think so-and-so wanted it more such-and-such".

Surely that's better than the sort of quotes the court could copy/paste into its decision.

At some point it has to be documented as to the decisions made and the reasoning.

If there is literally no documentation up until the final moment, doesn't that itself act as evidence that they were consciously and deliberately not wanting their reasoning documented?

Why not just do the right thing. Damn.

    > At some point it has
    > to be documented as to
    > the decisions made and
    > the reasoning.

It really doesn't, I've worked in large organizations where almost all text strings shown to customers were the decision of some UX design sitting at their desk, with no "paper trail".

In this case (approximately page 35-40) you can see the "execs" had clearly provided guidance on the interface needing to be "scary"

The teams tasked with implementing that then proceed to create an extensive and incriminating on-the-record discussion, including things that the court could subsequently use to contradict their testimony.

They could have just ... not done any of that.

Whatever "exec" involved could have written the copy themselves.

The court could still infer that the interface was in violation, as they're doing here, but didn't need to be handed incriminating statements on a silver platter.

"So, they're set on doing the "wrong" thing, but could still use legal advice."

As a lawyer, that is your time to exit the scene. There are no airquotes that should be around wrong here. This isn't advocacy for some not-ethically-amazing legal position that has yet to be decided on. They lost already. They have already been found guilty. You are now under an active (IE not stayed) court order. If your client then is basically saying "well how do we ignore the court order and do the illegal thing anyway", helping them them is not defensible.

"What I'm amazed at up-thread is how seemingly incompetent they were at changing their workflow so they wouldn't hand the court evidence on a silver platter."

You (and others) are amazed because you think this would have worked. I don't know why. I mean, i kind of get it - I would guess you assume this because hiding things from showing up in discovery (a very different part of the process) used to work better. FWIW - It doesn't work anymore, either. See google being heavily sanctioned for doing exactly this, for example.

Beyond that - assume for a second that the lawyers involved are not morons. Assume they are instead, very smart people. Given that, why not assume that maybe your view of what would have worked might be wrong?

"In this case, surely they could have pulled all the stakeholders into a room with a whiteboard, and made sure nobody kept any records of the meeting."

Try it sometime after you get enjoined and see what the judge does to you. I've never seen it go well, but hey, maybe someone has.

While sometimes very smart people are idiots, it's not that common.

"but the end result would have been a bunch of "I think so-and-so wanted it more such-and-such"."

Uh, i think you are sort of dreaming here. Or just lying to the judge? Or maybe you've never actually been grilled by a judge in this situation. I dunno.

In any case, i think the judge would have gotten nearly the same info, if not more, but also would have been a lot more pissed and made a lot more criminal referrals :)

Lots of judges are former prosecutors, litigators, or defense attorneys.

Who don't get to have that kind of fun of cross-examining people, etc, anymore.

In this case she's a former private litigator for many years.

Good luck with your strategy of telling her "I dunno what happened, we just sort of talked about stuff".

This is like the scene from the dark knight where he wants to blackmail batman.

"Surely that's better than the sort of quotes the court could copy/paste into its decision."

I don't believe so. I think the judge would have written something making them look even more stupid, evil, and criminal.

If you read e.g. page 36-38 you can see that the court was able to use Apple's prior internal discussions to contradict their subsequent claims, in that case the use of the word "scary".

The only reason they can do that is due to Apple's own internal workflows. If it was another company, or even Apple from the 80s-90s they wouldn't have been able to do that. The document is full of those sorts of examples.

They may be trying to hang you, but you don't have to provide the rope.

    assume [...] that the lawyers
    involved are not morons. Assume
    they are instead, very smart
    people.

I'm not assuming that. I assume someone at legal warned them about the dangers, but they were overridden by executives.

The arrogance of power is very difficult (perhaps nearly impossibly difficult) for humans to overcome. Apple is worth more than many countries, so employees are going to feel immune to everything. And for the most part, that is true. Big money buys both laws and courts. Only rarely does this assumption fail.

Because otherwise it means getting up from your desk and talking to people. Risk your malicious compliance being discovered or have to go for a walk?

The phrase "incandescent with rage" comes to mind when reading that order. A couple of choice quotes:

To hide the truth, Vice-President of Finance, Alex Roman, outright lied under oath.

This is an injunction, not a negotiation. There are no do-overs once a party willfully disregards a court order. Time is of the essence. The Court will not tolerate further delays. As previously ordered, Apple will not impede competition. The Court enjoins Apple from implementing its new anticompetitive acts to avoid compliance with the Injunction.

She also referred Alex Roman's actions and everyone else complicit for review of contempt of court, which carries a possible prison sentence. I never thought Apple would outright defy the courts to the degree they'd risk a prison term for the executives.

Give the current situation with people ignoring the court (cough into the presidency) with no consequences, what do you expect them to do? Take the courts seriously?

Now, practically speaking, that exposes them to the Court taking all their frustration out on the execs. Oops.

You do realize that they ignored the court order -during- Biden's administration, not Trump's, right?

Is it surprising? If the revenue realized by the ongoing defiance of the courts exceeds the cost of replacing the executive (including any risk premium caused by the risk of jail time in that job) then it seems rational for Apple as an entity to continue to defy the law.

Even if these executive positions carried a guarantee of a several year term in minimum or medium security prison, for the salaries involved they should be able to find someone who is reasonably competent and willing to do the job.

It's not like the corporate entity itself can be threatened with state violence, and it's owners (probably half the US!) are insulated from any real consequences. An entity like Apple really has diffused responsibility to the point that it transcends the law at this point, and it becomes perfectly rational for it to defy the courts.

You seem to be ignoring the question of why any executive would be dumb enough to risk actual jail time to further the interests of the inhuman, soulless entity that is Apple Computer.

Because they're getting paid tens of millions. same reason people join criminal organizations, really. the profit outweighs the potential downsides.

They'll defy the courts for profit but not for warrants and surveillance requests. Telling

Do they defy the courts in China or just in the US?

> I never thought Apple would outright defy the courts to the degree they'd risk a prison term for the executives.

He probably got offered a couple mil for a slap on the wrist, he likely won't even be jailed for a day. Why wouldn't they lie? They have the money to get away with it.

I wonder if Alex Roman was pulled aside by the caporegime and told that if he takes the fall for this one, he'll be a made man once he's out of prison.

It's so jarring to get these kinds of message, especially for compliance with EU directives, because it's so obviously designed to look un-Apple-like which triggers some sort of malware or scam heuristic without the typical nice Apple presentation.

Ironically it ends up getting flagged as some deliberate Apple malicious compliance BS which just sours you on the whole iOS experience.

I'm not even sure how "external website" is malicious compliance. Yes, I know the intention is to sound scary. But external website is the correct, neutral term which means... external website.

To you and me, sure. On the other hand, I wonder if is intended to scare people who like and want the safety of the apple ecosystem and perceive everything as outside of it as dark web. Come to think of it, that is kinda how I see dark web.. is there a scarier place on line than that?

I think it would be easy to argue that the term "external website" is neutral rather than scary sounding, if not for actual chat logs in evidence saying "let's use this term because it's scary sounding".

It kind of surprises me that people working in that environment haven't been better trained about what not to write. I have zero legal background, but even twenty years ago at my very first corporate job I received a training module about legal discovery and the consequences of poorly worded emails -- and that was at a company that I genuinely believe was trying to follow the law in good faith, and was simply worried about liability due to misperception of careless language.

For a team specifically working on a legal compliance project, I am with the poster above that mentioned legal teams providing oversite. If nothing else, every one of these chats should have had a lawyer logged in to provide a mental reminder to participants that the conversation really isn't private.

You're posting on HN and you think regular websites are the "dark web"? Do you think HN is the dark web?

Hm. Maybe I did not phrase it correctly. I was presenting two perspectives: one of a user, who thinks net outside walled garden is dangerous and user who regularly traverses non-walled garden that the first user perceives as dark net. That was followed by: is there a place darker than dark net:D

Apologies, there are times I do not express myself as clearly as I would want to.

Why does it need to be labeled at all? Is opening netflix.com while in the Netflix app really an external website?

Because non-tech people are more susceptible to phishing attempts. It’s obvious to you or I, but my grandma needs all the help she can get to know whether she’s still in the app or an external website when she’s handing over her credentials.

So now we're assuming that the Netflix app does not know which domain it considers safe?

Think of an app that allows user generated content

There is already the ability to establish "associated domains" for the apps which establishes a special relationship between them.

What does external mean here? Why are Apple services not external?

Jesus Christ. How worse can they be? Willfully malicious

Now we will have corporate training programs teaching us to say "inform the user" when we mean "scare the user", and then this wont show up in court. Just like how Microsoft taught us to never say "crush the competition". They will do all the same things though.

Then that training will get called into evidence (like Google’s prior training re: anti competitive training) to prove they were being intentionally anti-competitive, and rinse repeat.

I’ve worked for one BigTech company in my career and there were a list of banned words we couldn’t say in writing. The one word I remember we couldn’t say was “moat”.

I wonder if they implemented some filter that prevented messages containing those words from posting. Return a 401 or 403.

You give way too much credit to the capabilities of Chime. (how do you say where you worked without saying where you worked)

I received training like this over 20 years ago as a brand new engineer at my first job. The training was literally about how to avoid writing emails that could create legal liability due to careless language. Emails that came out during the Ford Pinto lawsuits were used as examples. It was all carefully worded to be about not being misperceived in court.

That job was at an avionics company working on safety critical systems. They paid tons of lip service to always placing safety first -- and from what I personally witnessed, at least at that time, the concern was genuine. There was a culture of taking the responsibility seriously, at least at the engineering level I interacted with.

Even acting in good faith though, things happen. Planes crash (usually due to pilot error), and when they do everyone gets sued, and when that happens careless language represents a risk for a company, even if they did everything right.

Having moved on to consumer tech, I haven't seen similar cultures of doing the "right thing". That could be the modern world, my own cynicism, or just the differences inherent to industries where lives aren't explicitly on the line. Regardless, it's not at all hard to imagine that employees can be taught to self censor in ways that won't themselves create more liability.

Honestly, I’ve seen way, waay, waaaaaaaaaaaaaay worse in internal comms in different companies. Not trying to defend Apple, but this just sounds like an average conversation to me.

I mean, that's just evidence that they really are doing illegal shit and should be punished for it.

Or that they are doing legal shit that has the appearance of doing illegal shit, and will get into a lot of trouble more trouble than they want if it ever goes to trial.

Nobody stops you from texting your friends about buying ten pounds of cocaine, (when you actually meant confectioner's sugar), but putting it in writing may make your life more difficult if at some point, by happenstance, you might end up the defendant in a narcotics trial. Even if you are completely innocent.

Eh, every single group chat I've been a part of is littered with this kind of a talk.

It's evidence of malfeasance, that's the topic at hand. Otherwise it's just whataboutism right.

Unless the judge actually specified the type of language to be used, this seems completely compliant.

Are they supposed to say "Please use our competitor. You'll find your experience with them far superior to what we provide" or something similar?

Malicious compliance is a thing. They're supposed to use neutral language.

Malicious compliance is only illegal if it doesn't actually comply.

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.

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.

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.

> 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.

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.

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.

+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.

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.

>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.

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.

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

Why are they using any language at all? Why not just let the app maker open the payment screen directly?

Because users will then blame Apple when they get scammed.

There are a lot of websites that give you a warning when you click on a link outside of their control.

But this is from a non-Apple app. You’re already on a page outside of Apples control.

I have my parents use iOS because they couldn’t help themselves from downloading malware on Android. It wasn’t from Google, but it didn’t matter, because the whole Android system’s reputation was reduced because of it.

Allowing third party payment systems does not mean they have to be less strict in the rest of their app vetting process.

It doesn’t matter. The app came from the App Store.

Same (perceived) reason my bank and brokerages (and I think even my kid's school website does this) pop up a warning every time I click on a link that will take them outside their website.

I think there's a valid reason to think "if it's OK and common for banks and brokers to do it, it's OK for me to do it" and also to think "this will help protect users from being scammed by other apps who might pop open random links without any notices".

There is probably nothing whatsoever the judge could have done about this action by itself. The issue is the conversations around it, which established intent. The chat logs provide hard evidence that it was done in bad faith and with criminal intent.

Now that I think about it, I wonder how much of the current backlash against remote work is to avoid this exact situation. Face to face conversations don't end up in evidence. Written conversations do, and video chats are increasingly being summarized and recorded by AI.

But in this case, it's not taking the user out of Apple's website. It's taking them out of Epic's app into Epic's website.

You and I both know the underlying reason Apple wants to do this.

The fig leaf reason is “it’s an app we approved and we need to protect our customers.”

From a positive point of view: so that app makers can't open up malicious payment screens. Of course, I don't think there's anything stopping them now.

From a more negative point of view, so Apple knows how much it happens and gets to have some influence over it.

Lawyer here - that's not how these things work. This is definitely non-compliant.

Injunctions are, intentionally, required only to "describe in reasonable detail the act or acts restrained or required". The key being "reasonable". They are not required to specify every detail, or every wrong or right thing, especially when the party being enjoined knows more of the details of how things work than the court does.

You seem to believe the court must specify language, etc, and they are absolutely not required to do so. It is your job to figure it out, and if you need more information, shockingly, you can ask the judge for the information, or whether your proposed approach would be compliant.

You are also required to make good faith attempts to comply with a court order. The evidence here is overwhelming bad faith - they were not trying to figure out how to actually ensure the court's goals were carried out, they are instead trying to figure out how to thwart them. That is pretty much the definiton of bad faith.

The injunction has reasonable detail. This is neither good faith, nor did they ask.

You seem to think this is game of try to find legal loopholes. That is a good way to get thrown in a jail by a judge.

It's not. Once you are found guilty and injunction entered, the adversarial process is done. You lost.

Your job is to do what the court requires of you, in good faith, as best you can.

Even if you appeal it, unless it is stayed, you are still required to do it.

Would this still be clear bad faith had these chat logs not been created?

In other words, could Apple have done these exact same actions and successfully argued that the language ("external website") was in fact neutral, if not for the direct written record that established their intent to do otherwise?

Everything you just said makes sense, but the details of how the courts manage to enforce orders like this are interesting, and it seems like enforcing notions of good faith must be extremely difficult.

Thanks for writing this though, this is a window into a space I have never played in. The legal system is very mysterious to me.

"Would this still be clear bad faith had these chat logs not been created?"

Yes, almost certainly. The party claiming non-compliance has to prove your non-compliance, but they do not have to prove your bad faith.

Instead, the burden falls to the enjoined party to prove good faith.

Affirmative good faith usually comes up more in trying to dissolve injunctions, etc (where the enjoined party has to prove good faith) than civil contempt of an order.

This is because in the case of civil contempt, Judges still have discretion to find you in contempt even if you acted in good faith. IE bad faith will definitely get you contempt, but good faith alone will not save you from it. You can act in good faith, not do enough, and still be found in contempt for not doing enough. This helps dissuade malicious compliance as well.

See, generally, mccomb and friends:

https://supreme.justia.com/cases/federal/us/336/187/

"The absence of willfulness does not relieve from civil contempt. Civil as distinguished from criminal contempt is a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance . . . . Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act . . . . An act does not cease to be a violation of a law and of a decree merely because it may have been done innocently. The force and vitality of judicial decrees derive from more robust sanctions. And the grant or withholding of remedial relief is not wholly discretionary with the judge. . . . The private or public rights that the decree sought to protect are an important measure of the remedy."

>You seem to think this is game of try to find legal loopholes. That is a good way to get thrown in a jail by a judge.

What I don't get is that sometimes it seems that is the game, sometimes the legal loopholes are accepted and other times they are not. It feels one of the big benefits of hiring a good lawyer is that they know which loopholes are accepted and which are seen as spiting the authority of the courts.

Jeez, it's almost like cases are different from each other. It's almost like sometimes some laws are different from others. It might even then follow that when the facts are different, different outcomes can result from the application of law.

Two things:

Don't confuse the adversarial process with the post-adversarial process.

Don't confuse civil and criminal cases.

On the first: The adversarial process is between two sides, maybe you and a company, or two companies, or you and the government, whatever. The adversarial process ends when someone wins or loses.

During the adversarial process, the judge is basically a referee. This is an oversimplification, but close enough. Beyond that, they mostly are trying to get all of the info out on the table, so the dispute can be resolved.

If you want to be an asshole to the other side, you can be as much of an asshole as the referee lets you get away with, and this is going to vary depending on lots of things. This is true in many contexts (sports, for example).

But once that's done, the judge is not a referee anymore. They decide the remedy. If you are an asshole to them, that is not going to go well.

This is also true in many contexts - talk shit to the guy who knocked you down on the pitch, maybe you get a yellow card. Talk shit to the ref after they card you, they'll throw your ass out of the game, and fine or suspend you afterwards for doing it.

On the second - criminal cases have both a different burden of proof, and a different effective set of expectations of behavior, because of the stakes.

FWIW - the various rules of professional conduct explicitly go into various roles and hats that lawyers (and judges) often wear, and the acceptable behaviors during those roles.

Let's cut to the fundamental argument here. Government should NEVER be allowed to dictate your state of mind and should NEVER be allowed to dictate based on feelings instead of facts.

If the judge wanted "reasonable" in that sense, then they should have defined the limits of reasonable. The assumption that "reasonable is what I the judge consider reasonable" is bad in every conceivable way. You can't read the judge's mind. If they didn't say exactly what they meant, then it is the judge that is at fault.

Next, the judge is an expert in law -- NOT an expert in humane interface, UI, or UX. They are in NO position to exert their amateur, ignorant opinion as fact and no effort was made by the judge to consult experts in the field about what would generally be considered "reasonable".

Finally, reasonable is subject to the facts and how those facts are subjectively viewed. Most Apple employees likely view this ruling as bad for their consumers and feel an obligation to protect their 1.4B iPhone users. From this perspective, discussing how to dissuade people from making decisions that could harm them would be very reasonable even if that discussion had a light-hearted tone or some joking along the way.

As an aside, I actively dislike what mostly amounts to forcing Apple to implement California state law outside of the state of California. I get no vote in California and should not be expected to abide by their laws in which I have no say. This whole thing should have been dealt with a the Federal level as it is obviously about interstate commerce and should have been legislated by congress rather than a politically-appointed judge that nobody voted for.

The law isn't some objective truth. Reckless endangerment, harassment, etc. don't have every form of those outlined. But if it walks like a duck and quacks like a duck it's a duck.

If the people involved don't have the brain cells to figure this out, maybe Apple should employ smarter people, because it's about to cost them a lot. And I don't even necessarily mean the UI people - anything would go through legal. I have contracted for companies that have had legal judgements similar to, but not exactly, like this, and they erred on the side of caution. Everything went through legal. And yes, that can mean not doing stuff your competitor does because you stepped too far over the line. Oh well, you fucked up big time and now you have a magnifying glass on you.

But Apple is too stupid or too bold to have an ounce of sense here.

The idea that people can follow laws based upon 'feelings' but billion dollar corporations can't is ridiculous. Fuck them, they 100% knew what they were doing.

Something like reckless endangerment is criminal rather than civil. It will involve subject matter experts (SMEs) presenting both sides. It will involve a jury of peers with various perspectives rather than just the Judge's perspective making it less subject to individual bias. It will involve one person (the accused) or multiple people only if it can be clearly proven that they worked in direct concert with each other. The bar for conviction is much higher and you wouldn't find yourself deciding the Mens Rea of person A based on messages person B sent to person C (text messages lack enough context that all but the most flagrant statements won't constitute "beyond reasonable doubt"). Once the sentence is handed down, the penalties will be clear and with essentially zero room for "good faith" or "reasonableness" in its execution. SMEs will almost certainly be completely unrelated to the final ruling.

Basically none of that applies here. This is a civil case. It did not involve a jury. The group tasked with carrying out the ruling were not involved with the trial either directly or indirectly. The ruling was vague because the judge as I understand it wasn't a SME and wasn't qualified to write what she wrote. Rather than consult SMEs to reach a reasonable conclusion, she proceeded (unreasonably I might add as it is unreasonable for someone to pretend to be an expert in something they know little about) to pretend she was an expert anyway.

After her vague guidelines didn't get the results she thought it should, it seems that rather than discuss, she doubled down on SMEs needing to read her mind to decide what she considered reasonable rather than what other SMEs might consider reasonable then leveraged her position as judge to punish their lack of understanding (which seems very close to acting in bad faith to me) instead of reflecting on what could have been done differently and changing accordingly.

Regardless of how you feel about this particular case (personally, I'm in favor of opening up iOS to other stores rather than this third-party website bandaid), the court's actions and expectations are flawed in this case.

Do you think experts don't testify in civil cases?

I find these really elaborate rants about the law, which are based on nothing but presumptions, and in this case, presumptions that do not even arise from actual personal experience, to be incredibly exhausting and in service of creating more confusion than anything else.

Like, you just said upthread that courts shouldn't rely on the word reasonable? I cannot think of an easier way to express that you have absolutely no experience with the legal system than that. It's for sure a common misconception of programmers that the law should function the way code does. What's sad about that is that you are somehow so devoid of actual life experience as to not realize how it must be the case that something like the law must not function like source code out of necessity.

I'm familiar with what exists -- I simply think it is flawed.

I never said SMEs don't testify in civil cases. My contention was that the judge should have consulted SMEs when defining parts of the ruling outside her expertise.

You aren't making a case for reasonableness as a concept. You are simply asserting that it exists, so it must continue to exist with the implication that it is good. You seem to be further implying that an assertion of reasonableness by a judge should carry the same weight as an assertion of reasonableness by SMEs or a jury of peers.

Can you defend these assertions?

I didn't say you said that. I asked if you thought that. Once again, that's a faciallly unreasonable response. Just to demonstrate that reasonable is a workable term that need not be this vague unlawful mystery that you decided is the case, entirely on your own.

>My contention was that the judge should have consulted SMEs when defining parts of the ruling outside her expertise.

The case consists almost entirely of the testimony of experts and the professionals working on both sides, so I think the judge is actually very familiar with the issues at play here and I'm not sure why you came to the conclusion that this kind of expertise was not considered when its the very nature of the entirety of the case.

>You aren't making a case for reasonableness as a concept.

I don't need to. It is not my obligation to defend the legal system because you have your own ridiculous and unfounded assumptions.

>You seem to be further implying that an assertion of reasonableness by a judge should carry the same weight as an assertion of reasonableness by SMEs or a jury of peers.

Judges make orders. SMEs don't and can't. And lol at the idea you are suggesting that a layman jury should define these things. It is clear to me that you do not understand the role of a jury in a trial. Jury's determine disputed facts. Nothing more, nothing less.

>Can you defend these assertions?

The issue isn't defending them. The issue is convincing you, an incredibly unreasonable person. That's probably not going to happen judging by the conversations I see you engaged with here.

But hey, I'm glad you came up with your own idea as to how the legal system should work, seemingly without any actual experience outside of reading the news. Very smart kid energy.

> The case consists almost entirely of the testimony of experts and the professionals working on both sides, so I think the judge is actually very familiar with the issues at play here and I'm not sure why you came to the conclusion that this kind of expertise was not considered when its the very nature of the entirety of the case.

Those experts spent collective centuries learning their area of expertise, but the judge became familiar with everything over the course of this one trial...

> I don't need to. It is not my obligation to defend the legal system because you have your own ridiculous and unfounded assumptions.

I've provide an argument that it is not. You have provided an unsubstantiated assertion. If you aren't willing to engage, then why make the assertion in the first place?

> The issue is convincing you, an incredibly unreasonable person.

You have made zero reasoned arguments and outright refused to make any reasoned arguments, but consider me to be the unreasonable person who just won't listen to what you have to say. How does this make sense to you?

> Judges make orders. SMEs don't and can't. And lol at the idea you are suggesting that a layman jury should define these things. It is clear to me that you do not understand the role of a jury in a trial. Jury's determine disputed facts. Nothing more, nothing less.

If a judge rules that a bridge should be built, that doesn't mean they should tell the engineers how to build it. You are confusing the legal ruling with the implementation.

In this example, the engineers put in a suspension bridge and the judge got angry because it wasn't a truss bridge even though a truss bridge wasn't specified in the ruling and the judge has no real idea why one might choose one bridge type over the other.

If the type of bridge mattered, it was the judge's responsibility to talk with the parties involved and reach a decision then add that decision to the final ruling.

In this specific case, the judge should have gotten SMEs together to decide which approach was correct and included it in the ruling rather than complain that things weren't as the judge envisioned, but never even bothered to write down other than in the vaguest terms. Holding someone in contempt because they didn't read your mind is unreasonable.

>Those experts spent collective centuries learning their area of expertise, but the judge became familiar with everything over the course of this one trial...

And?

>I've provide an argument that it is not. You have provided an unsubstantiated assertion. If you aren't willing to engage, then why make the assertion in the first place?

Your argument is an unsubstantiated assertion. That you think it isn't is one of the things that makes this conversation incredibly unenjoyable.

>You have made zero reasoned arguments and outright refused to make any reasoned arguments, but consider me to be the unreasonable person who just won't listen to what you have to say. How does this make sense to you?

You being unreasonable is absolutely not predicated upon me or anything I have to say in particular, but instead seems to be a consistent pattern in your posting throughout this entire article.

>If a judge rules that a bridge should be built, that doesn't mean they should tell the engineers how to build it. You are confusing the legal ruling with the implementation.

But that's not what happened and its an incredibly strained analogy.

>In this specific case, the judge should have gotten SMEs together to decide which approach was correct and included it in the ruling rather than complain that things weren't as the judge envisioned, but never even bothered to write down other than in the vaguest terms. Holding someone in contempt because they didn't read your mind is unreasonable.

Only one of the parties is complaining. They also happen to be the party in violation of the court order. I think you do not really seem to get the point. They are in contempt because they did not bother to make a good faith effort to comply, not because they did not read his mind.

This is probably one of the most unenjoyable conversations I've had here because you are highly argumentative, incredibly uninformed on the topic you are arguing about, and starting it from such an absurdly low point that getting to a basic level conversation on this topic is impossible because you are busy arguing about things that are non-issues, like the use of the world reasonable in legal proceedings.

> so it must continue to exist with the implication that it is good

The purpose and reason why these concepts are absolutely good would be specifically because people like you, with your attitude exist.

The purpose of the law isn't to play this game of bad faith find the loophole. Instead, the purpose is to make people follow both the letter and the intent of it.

And The reason why vague concepts like this are good, is because people who try to get around the law should be punished as harshly as possible, through whatever teh most effective means necessary are, specifically so as to discourage this behavior of trying to get around the law.

It is much better for society if people and companies are trying to act in good faith to follow the law, instead of going around trying to find clever ways to break it. Thats why the bad actors should be punished as much as possible, if they are trying clever tricks.

Then we should just eliminate all the laws and instead pass one law that says "don't be evil" and just let the judges/juries make it up as they go.

The truth is that you don't believe your own argument. You want LOTS of laws specifying all kinds of unacceptable behaviors in great detail. You only differ from me in where that line should be drawn.

If we ditched "reasonableness" as a legal concept, even the most basic laws like e.g. the ones about murder would be significantly affected. So what you're proposing is a drastic redesign, and the onus is on you to demonstrate that it is even workable.

How do you envision the legal system dealing with issues such as intent and negligence without the notion of a "reasonable person"?

> If we ditched "reasonableness" as a legal concept, even the most basic laws like e.g. the ones about murder would be significantly affected. So what you're proposing is a drastic redesign, and the onus is on you to demonstrate that it is even workable.

Reasonableness is a quick approximation for world view or "the majority values and lived experiences of a specific culture at a specific time and place". For example, dueling is considered murder, but was once considered absolutely reasonable and NOT requesting a duel in some circumstances would be considered a "reasonable" sign of guilt.

Would you convict someone of murder over manslaughter because your gut told you they were guilty? The Southern US has countless cases of innocent black men hanged because they had "reasonableness", but no hard evidence.

Reasonableness is fickle. For example, in self defense cases with video (probably the most important cases concerning reasonableness), the prosecution pushes to review the video frame by frame while the defense pushes to play the video in realtime. Why? because when you see the video in realtime and make snap decisions, the defense seems more reasonable. When you pick it apart frame by frame, you have tons of time to think about all the things you might have done and can convince yourself that maybe lethal defense wasn't needed.

If reasonableness changes so much just by HOW you watch the same video, how can it really be considered reasonable? What is does reasonable actually mean in practice?

It's also worth noting that not all evidence is admitted in trials and the judge has significant ability to shape the outcome of the trial based on what evidence they "reasonably" believe should be included.

> How do you envision the legal system dealing with issues such as intent and negligence without the notion of a "reasonable person"?

I'm not proposing something radically different. I'm proposing we use reasonable doubt instead of reasonable intuition as the primary metric. You can never completely remove reasonableness, but its effect should be mitigated and controlled. If you can't prove something, you shouldn't convict based on the unprovable ideas your world view fabricates that may or may not be accurate.

No, we don't have to do that. The current system works well as it is.

> You want LOTS of laws specifying all kinds of unacceptable behaviors in great detail.

I don't have a problem with detail. Instead, I am rejecting the idea that mass amounts of details is always necessary, or that the law somehow completely collapses when it doesn't have detail.

No, the law is perfectly able to handle vague situations all the time, and you are the one trying to claim that it all falls apart for some reason. It doesn't. It works out quite well, and it worked out quite well in this case.

> You only differ from me

No, you are demanding that a completely pervasive and common concept of "reasonableness", which exists in all parts of the law be changed.

No, we don't need to do that. The law deals with that concept all the time and isn't falling apart.

Wrongful conviction rates range from 4% to nearly 16% depending on the study. That means between 1 in 25 and 1 in 6 people convicted of crimes are actually innocent. Is that what you consider a system that works well? Would you get on a plane that crashed 1 out of 25 times? Would you consider that plane to be working well?

A huge percentage of those wrongful convictions happen because there wasn't any evidence, but the police and prosecutors were "reasonable". The judge was "reasonable" and the juries were "reasonable" too. Despite the complete absence of facts to support their "reasonable" feeling, they managed to convict an astonishing number of innocent people.

If one jury is full of suspicious people who always see the worst in others and another jury is full of people who always assume the best, the idea of reasonableness says that both should reach the exact same conclusion. You of course recognize that both will convict when there is clear evidence of guilt, but only one will convict when "reasonableness" becomes an issue.

That is the point. Reasonableness only exists when there's ambiguity or missing facts and only exists to CREATE a crime where you can't PROVE a crime (if you could prove that the act was criminal, reasonableness would be unnecessary) all while saying without evidence (and with plenty evidence to the contrary) that every other person on the planet would jump to the same conclusion as you did. Or as a paradox, reasonableness exists to create unreasonable situations.

I'm not demanding that the law be changed wholesale. The only required change is that the law only charge for crimes it can prove. For almost every greater charge, there is a lesser charge with wider scope. If you cannot prove the greater charge, then only prosecute the lesser charge (and don't prosecute the greater charge and the lesser charge while hoping "reasonableness", jury cynicism against the defendant, and randomness of the jury pool gets you a conviction).

Most good prosecutors already follow this principle and remove reasonableness as much as possible. When they do not is where many/most those wrongful convictions come into play (that and the unjust practice of plea bargaining). There seems to be very little to lose except bad prosecutions and bad convictions.

>Wrongful conviction rates range from 4% to nearly 16% depending on the study. That means between 1 in 25 and 1 in 6 people convicted of crimes are actually innocent.

This has nothing to do with the use of "reasonableness" in law as you argue. There are all kinds of reasons a wrongful conviction could happen, such as falsified evidence. Claiming that the number of wrongful convictions is entirely because of slight ambiguity in various laws needs extraordinary sources, sources, and sources, because that is an extraordinary claim. You don't seem to realize just how widely used intent and reasonable compliance is in law.

Gotcha, so then basically your entire rant has almost nothing to do with the actual topic, you just want to overthrow the entire system or something.

I was previously thinking that your comments had something to do with the topic, but now that you are admitting that you just want to, like, over throw the entire system and get rid of very common concepts in the law, I can ignore it for being basically irrelevant.

The 180-page injunction outline the reason for it and the goals of the injunction. They knew the court ruled against them for specific reasons but came up with a solution that didn't take into account any of the stated goals into account.

Their solution didn't address any of the goals of the injunction.

IANAL.

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