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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.