The cost of frivolous lawsuits is always higher outside the US. In the rest of the world it is regulators and governments who enforce laws on companies and in many of them the government fines the company for damages and takes all the money itself.
In most cases there isn't a significant harm to any individual.
If the government has been set up as a reliable enforcer of the laws then it makes more sense for it to collect the fines -- as with being personally fined for a breach of the law (eg., fined for speeding).
The US is a strange place -- its unclear whether its use of elections "in everything" has caused this partisan distrust of every last elemenet of government -- or whether it would be worse without it.
I tend to see the preference for more direct democracy, as in the US, as corrosive. (And yet, you also have the most tyrannical element of gov: a court supreme over the legislature).
First of all any claim that the US Supreme Court is categorically 'supreme' than the legislature is not true. It is a fact that each of the three branches of government have powers that check and balance each other. In other words if you were to draw a diagram of powers, there are responses available to other branches to counter one branch's action.
These responses vary in time scale and impact of course. So you will certainly find scholars who get into the details of how e.g. the Supreme Court's power changes over time.
One would be making a value judgement if they were to claim that, overall, the US Supreme Court is 'more powerful'. Opinions are fine -- just recognize them as such and explain your reasoning -- one's weightings of what matters more and less.
Several maneovers have made the supreme court vastly more powerful than ever envisaged. The SC declaring for itself (in Marbury v. Madison) the right for itself to review the law itself. And subsequent to the civil war, the widening supremacy of federal law (esp. via commerce clause) -- which its own opinions are incorporated in -- and so on.
The "balance of powers" was set up in an essentially pre-federal US. The current US is a system which feels itself "finally answerable" to the at-whim constitution interpretations of nine people. This is a radically different end-state than imagined pre-Madison.
In my view the legislature needs to exercise much more constitutional oversight over the SC, and up-end the last century of scope-creep.
Almost all Western countries have a system of judicial review, so I would personally find the opposite to be odd (why would it make sense to have a constitution at all if it can be effectively ignored by the legislature?)
If anything, from an European perspective, what I find odd is that the US Supreme Court is both the final appellate court and the judicial body that determines constitutionality of primary legislation.
I prefer the British system: parliament is sovereign and the primary source of all power. The executive is derivative of the lower-house and the courts merely resolve issues between laws (and it used to be that the courts, derived from the upper-house -- which i'd go back to).
The benefit of the legislature being the source of all power is it leads to a tremendously stable system. Tremendous instability arises from the legislature being neutered (as by the courts, or the executive). As popular sentiment is profoundly frustrated, and the legislature absolves itself of responsibility to govern. Almost all the "culture wars" in the US can be traced to the supreme court, as can the civil war -- which in its rebuke against the Missouri compromise caused the civil war!.
"Balance of powers" systems have always ended up in civil wars. The post-civilwar presidential system is the longest such a system has survived: but let's be clear, it failed (ie., there was a civil war). That means of running governments has led to all of them collapsing.
I'd incorporate the constitution as an act of the legislature; and subordinate the supreme court to work like every other: reviewing laws for consistency between themselves -- and not for consisency with "higher principles".
The legislature can then, by any act if it wishes, elaborate or change the constitution to resolve "contradictions" the supreme court points out. This hands power back to the body actually responsible for governing.
(The instability due to Brexit in the UK precisely arose from the legislature stupidly binding itself with the Fixed-Term Parliaments act, which is now being revoked. Had that not been in place, Brexit would have been resolved immediately.
And, incidentally, it is precisely that the EU is a "constitutional order" in the US sense which is causing its internal stress; and why the UK left. )
> Almost all Western countries have a system of judicial review, so I would personally find the opposite to be odd (why would it make sense to have a constitution at all if it can be effectively ignored by the legislature?)
I get your drift.
It is possible to design a government where a constitution limits a legislature's power without a separate judicial branch. Here are some ways (not mutually exclusive):
1. The legislative branch could have an internal judicial branch
2. The Constitution would guide procedures of the legislature; e.g. different kinds of actions require different thresholds
Can you please be more specific; take a particular sentence that I wrote (above) and make an argument for why it is or is not 'true' -- and then please explain what you mean by 'true'.
It’s often stated that in theory each branch of government is equal, in practice the idea of the constitution splitting power into three exactly equivalent portions is kind of silly.
As you point out it’s somewhat arbitrary how much weight to assign to each individual branch of government. But, the judicial branch sure tells the legislative branch no far more often than the reverse (edit: than the legislature tells to judicial branch no.). Hypothetically the ability to modify the constitution is a real power the legislature holds across the state and federal levels, in practice a divided legislature has issues passing via simple majority.
Which adds another layer to these assessments. Does the each branch actually have the powers it should hypothetically have or only those it can actually exercise in practice?
> But, the judicial branch sure tells the legislative branch no far more often than the reverse
The court does not really interact with the legislature directly, to say Yes or No. The court interprets a body of laws, and won’t have an opinion on the validity of a law except insofar as it is in conflict with another law (such as the Constitution, or state laws in conflict with federal ones, or maybe just one law that’s inconsistent with itself).
Moreover, a the key function of the Supreme Court of the United States specifically is to resolve conflicts in interpretation in law in the lower circuit courts (as is relevant to actual ongoing disputes). If the law is clearly invalid, a lower court can decide that.
So yeah, if the law is obviously valid or uncontroversial, or even if it’s obviously invalid, chances are there’s just not any case brought before the Supreme Court. That’s just the default. They don’t affirm the validity of laws that often because most valid laws aren’t really challenged there.
> It’s often stated that in theory each branch of government is equal
Not by myself (above), but yes, sometimes others say this
> in practice the idea of the constitution splitting power into three exactly equivalent portions is kind of silly.
I wouldn't use the word 'silly'. I would say that any such design goal of a constitution would be (a) tricky to implement and (b) probably impossible to convince the public that it was 'equivalent' because doing so would require value judgments (norms).
> But, the judicial branch sure tells the legislative branch no far more often than the reverse (edit: than the legislature tells to judicial branch no.).
This is only one of many ways to try to quantify the balance of powers between the branches. To make a comprehensive assessment, we'd need to be much more systematic.
It's hard to see how this "sends shockwaves through [the] legal community." The ruling essentially upheld the status quo in the UK, and doesn't even definitively do that. It's pretty unsurprising.
Mass action lawsuits are not common under English law, and opt-out mass action lawsuits are only allowed in a small number of legal areas, competition law and data protection being two. I think Merrick vs Mastercard has been one of the biggest and was to do with excessive card fees so is easy to demonstrate what the harm to each victim would be.
The Google case doesn’t sound like it has significantly changed things in this area.
> “ failed to provide evidence of financial damages and mental distress being caused to any individual iPhone users.”
Glad to see some reason exists in the world. To read HN comments, one would think cookies and tracking pixels were robbing peoples’ bank accounts or publicizing their illicit affairs to friends and family.
Yeah this is sort of like littering. One wrapper on the ground does not mean much. But millions of them do. Which is basically what many of these companies have done. Basically lots of 'little' things that add up to a big thing. In this particular case it sounds like the one who brought the case did not sufficiently show the court that any harm had occurred? Reading the output to the case probably would be better here instead of playing telephone with an article and why it is 'sending shockwaves'. This sounds more like 'you did not make your case try again some other time'.
> lots of 'little' things that add up to a big thing.
Yes. Another way to think about it is that we have a situation where people/citizens as a whole are hurt rather than individuals.
It boils down to the argument of whether or not these concerns apply to individuals that have "nothing to hide". I say yes, it does.
What happened with Facebook and Cambridge Analytica is an example of what the future holds. Was any specific individual "hurt" by Facebook and Cambridge Analytica providing massive amounts of information to bad-actors running disinformation campaigns? No. Was democracy as we know it hurt? Yes.
The same infrastructure used to effectively sell us toothpaste and other consumer goods, is something that has been on the wish list of autocratic despots for decades. This stuff is irresistible to them and they will find ways to use it.
Silently gathering data about a person's activities without their knowledge is antithetical to human dignity and people's freedom. It's no accident that no tracking is done in the open or asks for permission.
Money is not the definite metric by which everything can or should measured.
The most concerning part from the article IMO is this:
> the Supreme Court’s landmark judgment rejects the Claimants’ argument that the loss of control of personal data has an intrinsic value capable of compensation.
The article is light on details. Did they fail to demonstrate it, or did they demonstrate it and no one took them seriously? Because the latter is my experience trying to articulate mental health issues to authorities and the justice system.
This seems like a separate issue - this thread is about the accusation (and insta-rebuttal) that this was all about money-related damages.
If you think the justice system's statement that no evidence was provided is false, then it would be good to know why. Probably in another thread so as to not undermine your point.
> antithetical to human dignity and people's freedom
This is an extraordinary claim and thus requires extraordinary proof. Speaking for myself, I feel absolutely no loss of freedom or dignity through the presence of cookies, pixels, etc. Quite the opposite, actually. Some of the greatest technology in human history is available to me for free thanks to them. That’s rather liberating.
That's the problem, many other voices were disregarded. Being tracked on the internet is not too different from being peeped on in the shower. Some like it, some don't care, and some definitely wouldn't want to consider the possibility. In that spectrum of views someone will feel "absolutely no loss of freedom or dignity".
Your argument can easily be applied to pervasive surveillance, backdoors, tracking malware, etc. (along with the traditional "only criminals should fear it"). I even heard it from people using this "I wouldn't mind if it happened to me" as a defense for sexual harassment. I'm glad it works for you, what about the people for whom it's not working?
At the very least this should have been a real choice. If people aren't bothered then explain the choice and let them make it. Anything else is abuse.
> Silently gathering data about a person's activities without their knowledge is antithetical to human dignity and people's freedom. It's no accident that no tracking is done in the open or asks for permission.
I disagree. Tracking happens very much all the time, everywhere. People know habits of those they're interested in at work, be that their boss or clients, for the benefit of their career. That's tracking. Corner shops track their customers' routine. We call their attention "charm", "nice touch", that make them superior to the big boxes. The subjects in both case certainly aren't aware and it's hard to claim it's antithetical to human dignity and people's freedom.
You may argue that Google do it at scale, and that make them vile, so at which scale does tracking become a problem? Is my little website free to do so? If not, what is different than a little shop with a book that details frequent customers' name, address, birthday, etc.?
Tracking isn't the issue. Using the data against the will or to do harm to people is the issue that needs to be addressed.
>Silently gathering data about a person's activities
(As a privacy fanatic who uses GPDR all the time to get control of his data) sadly, I think that this is the fundamental nature of the technological era that we're living in. This is just how software works, many things that were previously private in an analog era are now explicit somewhere in the code. Do you really think that if various Apple or whomever policies are struck down, the tech that's built in the 2020s & 30s & 40s & the rest of the 21st century somehow won't gather data on people? As someone who's really unhappy about that state of affairs, it just seems inevitable.
Edit to include: I suspect that 'privacy' is going to be viewed as just a brief moment in time for humans. Previously we all lived in small groups or villages with little privacy (I grew up in a small town, I know!), so the 'privacy' era may have just been for urban dwellers for a few centuries
I don’t buy that technology is anti privacy by nature, at least to the extent that it is today. By and large people’s personal data is collected in order to support ad-based business models. Back in the 90s it was more common for people to pay for software and tech did not collect as much data.
Our current state hasn’t always been the case. It’s just been normalized because lawmakers moved at glacial pace to protect people’s privacy.
It's not. It's just how spyware works, but software doesn't need to be that way. It may right now be, but this doesn't make it right. Or inevitable, like a force of nature.
My free, open source software doesn't silently gather data about me (and if it did, I would patch it). We have a right to run our software on our own machines, on our own terms.
Billions of people cannot afford to be online, the environmental toll of consumer gadgets is catastrophic.
You seem to think this is forever. I wish more engineers had gone into plain old physics. Humanity hardly needed more meandering story tellers emotionally decoupled from the real constraints of our reality.
Physical reality always determines our next steps as that’s what provides the information we have to iterate against.
> Money is not the definite metric by which everything can or should measured.
It is, however, the basis of any damages claim. I don't see how it ever got to the Supreme Court, if they can't demonstrate any damages that are measurable in terms of money.
Well, who knows? This data is being sold far and wide so it sounds rather likely that this is somewhere right now being used to rob peoples bank accounts or publicizing their illicit affairs to friends and family...
I think there should be a law against large-scale espionage. E.g., collecting, storing and selling of all peoples browsing history should be illegal.
I mean, all this ruling says is that the plaintiffs did not have the data to calculate the financial damage.
It says nothing about the legality of Google’s actions, and furthermore, it does not preclude similar such damages being successful as long as the plaintiffs are able to back up the numbers sufficiently.
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[ 4.3 ms ] story [ 122 ms ] threadIf the government has been set up as a reliable enforcer of the laws then it makes more sense for it to collect the fines -- as with being personally fined for a breach of the law (eg., fined for speeding).
The US is a strange place -- its unclear whether its use of elections "in everything" has caused this partisan distrust of every last elemenet of government -- or whether it would be worse without it.
I tend to see the preference for more direct democracy, as in the US, as corrosive. (And yet, you also have the most tyrannical element of gov: a court supreme over the legislature).
According to such a political philosophy, what are some recommended alternatives to this claimed tyranny?
These responses vary in time scale and impact of course. So you will certainly find scholars who get into the details of how e.g. the Supreme Court's power changes over time.
One would be making a value judgement if they were to claim that, overall, the US Supreme Court is 'more powerful'. Opinions are fine -- just recognize them as such and explain your reasoning -- one's weightings of what matters more and less.
Several maneovers have made the supreme court vastly more powerful than ever envisaged. The SC declaring for itself (in Marbury v. Madison) the right for itself to review the law itself. And subsequent to the civil war, the widening supremacy of federal law (esp. via commerce clause) -- which its own opinions are incorporated in -- and so on.
The "balance of powers" was set up in an essentially pre-federal US. The current US is a system which feels itself "finally answerable" to the at-whim constitution interpretations of nine people. This is a radically different end-state than imagined pre-Madison.
In my view the legislature needs to exercise much more constitutional oversight over the SC, and up-end the last century of scope-creep.
If anything, from an European perspective, what I find odd is that the US Supreme Court is both the final appellate court and the judicial body that determines constitutionality of primary legislation.
The benefit of the legislature being the source of all power is it leads to a tremendously stable system. Tremendous instability arises from the legislature being neutered (as by the courts, or the executive). As popular sentiment is profoundly frustrated, and the legislature absolves itself of responsibility to govern. Almost all the "culture wars" in the US can be traced to the supreme court, as can the civil war -- which in its rebuke against the Missouri compromise caused the civil war!.
"Balance of powers" systems have always ended up in civil wars. The post-civilwar presidential system is the longest such a system has survived: but let's be clear, it failed (ie., there was a civil war). That means of running governments has led to all of them collapsing.
I'd incorporate the constitution as an act of the legislature; and subordinate the supreme court to work like every other: reviewing laws for consistency between themselves -- and not for consisency with "higher principles".
The legislature can then, by any act if it wishes, elaborate or change the constitution to resolve "contradictions" the supreme court points out. This hands power back to the body actually responsible for governing.
(The instability due to Brexit in the UK precisely arose from the legislature stupidly binding itself with the Fixed-Term Parliaments act, which is now being revoked. Had that not been in place, Brexit would have been resolved immediately.
And, incidentally, it is precisely that the EU is a "constitutional order" in the US sense which is causing its internal stress; and why the UK left. )
I get your drift.
It is possible to design a government where a constitution limits a legislature's power without a separate judicial branch. Here are some ways (not mutually exclusive):
1. The legislative branch could have an internal judicial branch
2. The Constitution would guide procedures of the legislature; e.g. different kinds of actions require different thresholds
(a) refusing to fund or enforce some of the court's decisions (this may require action by the executive branch as well)
(b) changing the court's composition
(c) (potentially*) changing funding of the court (I am not an expert, so I could be wrong, but I would guess that there are mechanisms to do so)
Can you please be more specific; take a particular sentence that I wrote (above) and make an argument for why it is or is not 'true' -- and then please explain what you mean by 'true'.
As you point out it’s somewhat arbitrary how much weight to assign to each individual branch of government. But, the judicial branch sure tells the legislative branch no far more often than the reverse (edit: than the legislature tells to judicial branch no.). Hypothetically the ability to modify the constitution is a real power the legislature holds across the state and federal levels, in practice a divided legislature has issues passing via simple majority.
Which adds another layer to these assessments. Does the each branch actually have the powers it should hypothetically have or only those it can actually exercise in practice?
The court does not really interact with the legislature directly, to say Yes or No. The court interprets a body of laws, and won’t have an opinion on the validity of a law except insofar as it is in conflict with another law (such as the Constitution, or state laws in conflict with federal ones, or maybe just one law that’s inconsistent with itself).
Moreover, a the key function of the Supreme Court of the United States specifically is to resolve conflicts in interpretation in law in the lower circuit courts (as is relevant to actual ongoing disputes). If the law is clearly invalid, a lower court can decide that.
So yeah, if the law is obviously valid or uncontroversial, or even if it’s obviously invalid, chances are there’s just not any case brought before the Supreme Court. That’s just the default. They don’t affirm the validity of laws that often because most valid laws aren’t really challenged there.
Not by myself (above), but yes, sometimes others say this
> in practice the idea of the constitution splitting power into three exactly equivalent portions is kind of silly.
I wouldn't use the word 'silly'. I would say that any such design goal of a constitution would be (a) tricky to implement and (b) probably impossible to convince the public that it was 'equivalent' because doing so would require value judgments (norms).
This is only one of many ways to try to quantify the balance of powers between the branches. To make a comprehensive assessment, we'd need to be much more systematic.
Mass action lawsuits are not common under English law, and opt-out mass action lawsuits are only allowed in a small number of legal areas, competition law and data protection being two. I think Merrick vs Mastercard has been one of the biggest and was to do with excessive card fees so is easy to demonstrate what the harm to each victim would be.
The Google case doesn’t sound like it has significantly changed things in this area.
Good outcome.
Let the downvoting begin!
Glad to see some reason exists in the world. To read HN comments, one would think cookies and tracking pixels were robbing peoples’ bank accounts or publicizing their illicit affairs to friends and family.
Yes. Another way to think about it is that we have a situation where people/citizens as a whole are hurt rather than individuals.
It boils down to the argument of whether or not these concerns apply to individuals that have "nothing to hide". I say yes, it does.
What happened with Facebook and Cambridge Analytica is an example of what the future holds. Was any specific individual "hurt" by Facebook and Cambridge Analytica providing massive amounts of information to bad-actors running disinformation campaigns? No. Was democracy as we know it hurt? Yes.
The same infrastructure used to effectively sell us toothpaste and other consumer goods, is something that has been on the wish list of autocratic despots for decades. This stuff is irresistible to them and they will find ways to use it.
Money is not the definite metric by which everything can or should measured.
The most concerning part from the article IMO is this:
> the Supreme Court’s landmark judgment rejects the Claimants’ argument that the loss of control of personal data has an intrinsic value capable of compensation.
If you think the justice system's statement that no evidence was provided is false, then it would be good to know why. Probably in another thread so as to not undermine your point.
This is an extraordinary claim and thus requires extraordinary proof. Speaking for myself, I feel absolutely no loss of freedom or dignity through the presence of cookies, pixels, etc. Quite the opposite, actually. Some of the greatest technology in human history is available to me for free thanks to them. That’s rather liberating.
If you want to, here is a homework assignment: read the excellent book “Privacy is Power” and see if your opinion doesn’t change.
That's the problem, many other voices were disregarded. Being tracked on the internet is not too different from being peeped on in the shower. Some like it, some don't care, and some definitely wouldn't want to consider the possibility. In that spectrum of views someone will feel "absolutely no loss of freedom or dignity".
Your argument can easily be applied to pervasive surveillance, backdoors, tracking malware, etc. (along with the traditional "only criminals should fear it"). I even heard it from people using this "I wouldn't mind if it happened to me" as a defense for sexual harassment. I'm glad it works for you, what about the people for whom it's not working?
At the very least this should have been a real choice. If people aren't bothered then explain the choice and let them make it. Anything else is abuse.
I disagree. Tracking happens very much all the time, everywhere. People know habits of those they're interested in at work, be that their boss or clients, for the benefit of their career. That's tracking. Corner shops track their customers' routine. We call their attention "charm", "nice touch", that make them superior to the big boxes. The subjects in both case certainly aren't aware and it's hard to claim it's antithetical to human dignity and people's freedom.
You may argue that Google do it at scale, and that make them vile, so at which scale does tracking become a problem? Is my little website free to do so? If not, what is different than a little shop with a book that details frequent customers' name, address, birthday, etc.?
Tracking isn't the issue. Using the data against the will or to do harm to people is the issue that needs to be addressed.
More like the Stasi. Stalkers don’t indiscriminately stalk everyone, all the time, everywhere.
(As a privacy fanatic who uses GPDR all the time to get control of his data) sadly, I think that this is the fundamental nature of the technological era that we're living in. This is just how software works, many things that were previously private in an analog era are now explicit somewhere in the code. Do you really think that if various Apple or whomever policies are struck down, the tech that's built in the 2020s & 30s & 40s & the rest of the 21st century somehow won't gather data on people? As someone who's really unhappy about that state of affairs, it just seems inevitable.
Edit to include: I suspect that 'privacy' is going to be viewed as just a brief moment in time for humans. Previously we all lived in small groups or villages with little privacy (I grew up in a small town, I know!), so the 'privacy' era may have just been for urban dwellers for a few centuries
Our current state hasn’t always been the case. It’s just been normalized because lawmakers moved at glacial pace to protect people’s privacy.
It's not. It's just how spyware works, but software doesn't need to be that way. It may right now be, but this doesn't make it right. Or inevitable, like a force of nature.
My free, open source software doesn't silently gather data about me (and if it did, I would patch it). We have a right to run our software on our own machines, on our own terms.
Billions of people cannot afford to be online, the environmental toll of consumer gadgets is catastrophic.
You seem to think this is forever. I wish more engineers had gone into plain old physics. Humanity hardly needed more meandering story tellers emotionally decoupled from the real constraints of our reality.
Physical reality always determines our next steps as that’s what provides the information we have to iterate against.
It is, however, the basis of any damages claim. I don't see how it ever got to the Supreme Court, if they can't demonstrate any damages that are measurable in terms of money.
I think there should be a law against large-scale espionage. E.g., collecting, storing and selling of all peoples browsing history should be illegal.
It says nothing about the legality of Google’s actions, and furthermore, it does not preclude similar such damages being successful as long as the plaintiffs are able to back up the numbers sufficiently.