Complexity as War on the Consumer

There are two ways to cheat consumers. One is to simply lie to them. This method is fraught with peril, however. After all, there are still a few laws around that protect consumers from something called “fraud”, which is a fancy word for “lies”. And nobody likes to be called a liar.

And nobody needs to lie. The second method is safer, and just as effective.

Make it so difficult and annoying to exercise your rights as a consumer (or patient, or citizen) that most people will just give up and go away.

Complexity is your friend. Complexity is your ally. Complexity is a blunt force instrument of such potency that entire industries and professions have sprung up from it’s forehead like the children of Zeus: lawyers.

We see it in everything from operating manuals to software to insurance policies to health care agreements to employment contracts to amusement park disclaimers. We see it in the forms you fill out to claim the “benefits” you are entitled to under insurance policies or government funded entitlements. You even see it on every piece of software you run on your computer– the EULA (End User Legal Agreement) which means nothing to almost every person who clicks on “yes, I agree”. They don’t know what they are agreeing to. It doesn’t matter that they don’t know what they are agreeing to. The point is that there is a lot verbiage in there can be roughly translated as “you have no rights whatsoever”.

It’s a good turf on which to choose your battle. You will always have allies among those who believe the common folk should just pull themselves up by their bootstraps, take a course or two in American law, or lay out $15,000 for lawyers. And you have many other allies among similarly interested corporations and government functionaries who know very well that they might be in the wrong but count on the numbing effect to make you go away.

Some companies even ask you to sign employment agreements that are absolutely illegal because they abridge rights that are guaranteed to every employee under state or provincial law. For example, the organization I work for, Christian Horizons, asks employees to agree that any “wrongful dismissal” issues will be settled by an arbitrator appointed by— guess who?– Christian Horizons. In reality, if you were “wrongfully” dismissed, you retain every right to bring your case to the Labour Relations Board of Ontario, no matter what you signed. I’m not worried because I happen to work for a good, ethical organization, but I still disagree with that provision of the employment agreement.

In this province, you cannot sign an agreement giving your employer a right to cheat you.

Why is there no Greenpeace or World Wildlife Federation or Amnesty International for understandability? We are trying to preserve the environment, unusual species, and the ozone. Why doesn’t someone form an organization to protect language from similar exploitation and abuse?

Complexity is more than a strategy to diminish our rights. It is an assault. To be human is to use language. The highest achievements of humanity, of nation, of history, of culture, is expressed in language. The most intimate human feelings, the great principles of morality and ethics, and even our spiritual aspirations are expressed in language. To pervert, twist, and abuse language, is to abuse humanity.

The strategy of these corporate lawyer hucksters is not really to express complex legal and contractual details. The real purpose is to express nothing, and thus, everything. You might have a right, you might not. The agreement might stand up in court, but more likely, it won’t.

Judges are not entirely stupid. Sometimes they say what everyone thinks: nobody reads those things and nobody understands them. Sometimes, however, they will say, “You should have read the agreement carefully.”

Yes, yes: here on page 59, paragraph 113c, section iii, it says that you accept liability for all damage caused by misuse intentional or not, or actions construed as misuse for the purposes of this agreement as specified in section ii, paragraph 78, notwithstanding any non-specified damages resulting from uses construed to be within specified actionable exceptions deemed applicable”.

But most people don’t know that judges will sometimes rule against these agreements. They assume that if they sign some kind of complex agreement, they are bound to observe the terms. Sometimes they are. It doesn’t matter. The lawyers enter the picture, like a long row of fat, disease-ridden can-can dancers, and the performance begins.

You don’t have to get to court, or to any kind of judgment or agreement. You just have to realize that it will cost you enormous sums of money to even make a contest of it.

The solution is quite simple. There should be a law that specifies that all contractual agreements, warranties, and conditions must be written in plain and understandable English. A panel of grade six teachers should be set up to review any questionable documents. This panel should be empowered to declare null and void any agreement that is not understandable by a reasonable person with a reasonable degree of effort. A consideration will be the fact that the average person is inundated with dozens or hundreds of these agreements every year, and can’t possibly spend every waking hour reviewing them all to see if he or she is in full compliance.

Added May 1, 2003:

The RIAA recently sued four students for facilitating the sharing of pirated music files on their university networks. However, as usual, it is reported that they plan to settle out of court. So they are using the potential complexity and inconvenience of court action to club the students into submission, without actually having to prove their case in court.

Wise decision on their part: they might not win. I have yet to read or hear of a single court case like this in which the RIAA actually won a judicial decision saying that copying of music for personal use is illegal.

I thought, at first, that this would be one– but of course! The inevitable out-of-court settlement!

The Televisionization of the Internet

You probably don’t think of our society as Totalitarian. A Totalitarian society is a society that is rule by a pernicious doctrine to which all societal functions must be subordinated to one exclusive purpose.

By golly, we’re free to live as we choose, in our society. Aren’t we?

Suppose I wanted to come up with a new type of communication network that combined the functionality of the telephone, television, and radio, into one powerful medium, with one small proviso. The proviso is this: no commercial use of the medium is allowed. None whatsoever. No advertising, no selling, no profiteering. The system would be created and run by volunteers only.

There’s a lot of technical obstacles, of course. But probably not as many as you think. But there is one overwhelming obstacle: our society is totalitarian and will not stand for a non-commercial communications network.

Think that analysis is a little extreme? No television network will allow Adbusters to run their advertisements criticizing advertisers and the consumerist lifestyle. They won’t accept the money, they won’t run the ads. You can sell gas-guzzling cars, unproven pharmaceutical products, and booze, and even scantily-clad women, but you can’t challenge the fundamental religion of our society: consumerism.

And now the internet. When it started, it was beautiful, free, clean, and amazing. Have you browsed around the net lately? All you see is advertising, on every single damn site. And if you aren’t seeing advertising on the site itself, you are getting whacked via e-mail, or in the browser frames, or with pop-up windows.

You might think it’s merely a case of a lot of internet users deciding to try to make a few bucks. But that’s not all it is. Why on earth should your browser permit a pop-up ad? Why should it enable such a function? Why should it be difficult or impossible to turn off that function? Microsoft and Netscape design the browsers. They have incorporated features into the browser to guarantee that you will be whacked every time you go on the internet.

And Microsoft has designed the operating system to encourage the user to become a passive drooling idiot, gushing over the little animations and sound effects playing on his computer, while relinquishing control over his eyeballs and ears to the corporate politburos of America.

The internet is the largest single source of pollution. It is so bad, that for the first time since I first went “on-line” way back in the early 1990’s, I am seriously considering getting off.

Supreme Injustices

Leandro Andrade, 37 years old, stole video tapes from K-Mart. He stole 5 tapes and then he stole 4 tapes. These were not Leandro Andrade’s first criminal offenses. Leandro Andrade is incorrigible. He stole and stole again.

He broke into some houses and stole things. He was caught. He went to prison. Ten years went by. Do you think you can escape your past? Not in California. He was caught shoplifting in two different K-Marts, by store employees each time. The goods were recovered.. He was convicted twice.

Leandro Andrade has never committed a violent crime. But he stole 9 tapes worth about $150.00 from K-Mart.  (They actually worth a lot less than that– $150 is what they would sell for– but the real cost to K-Mart and the manufacturer is probably less than a dollar.)

Now he is going to pay for it. He is going to rot in jail for 50 years. There is no possibility of parole. No time off for good behaviour. No early release. He is going to spend the rest of his natural life in prison.

I am not making this up.  I have to say that, because any sensible person would immediately say, “that can’t be true”.

This is essentially the “second most severe” sentence that can be imposed by a court, after death, of course. For stealing video tapes. So, when you think about it, the court, in this case, decided that Andrade was such a threat to society that they should almost execute him. But that would be unreasonable. That would be barbaric. Well, what’s the next most severe possible sentence? Life in prison with no chance of parole.

If Mr. Andrade had been smart, he would have stolen all of those tapes at once. Then, due to a technicality, he would have had only three, not four, offences, and could have served “only” a maximum of 25 years. I’m not kidding.

If he had been really smart, he would have committed only one theft, and then murdered somebody in a rage, without premeditation. Then he could have received a lighter sentence. I’m not kidding. He might have been out of prison in 20 years, at 57.

But no– he had to go and steal some video tapes again. Fifty years. In a nation that probably thinks of itself as “civilized”.  In nation in which a majority of citizens claim they are Christians.   They are not.

According to Justices Sandra Day O’Conner, William H. Rehnquist, Antonin Scalia, Anthony Kennedy, and Clarence Thomas, that is not an unreasonable sentence for an incorrigible criminal who stole 4 video tapes from K-Mart.

The Justices who upheld Andrade’s conviction believe that his crime of stealing the video tapes must not be seen in isolation. He is receiving 50 years for all of his crimes, in a sense. So 50 years in prison is not an unreasonable sentence for several non-violent thefts, according to O’Conner & company.

Even though… even though California prosecutors did not have to charge Mr. Andrade with a felony. His crime could have been classified as a misdemeanor, at the discretion of the state. The state prosecutors, knowing the consequences, chose to charge him with felonies, even though the crimes were not really very serious. They also chose to charge him with the two thefts separately, so that he would have four convictions instead of three, which led to the doubling of the 25-year maximum.

If you think this is a disproportionate sentence– maybe you don’t– consider the case of Mr. Rummel. In 1964, Mr. Rummel was convicted of using a credit card fraudulently to obtain $80.00 worth of goods. In 1969, he forged a check for $28.00. In 1973, he obtained goods worth $120 under false pretenses.

Life sentence.

Yes, life in jail for passing a few bad checks. Have you ever written a bad check? A check that bounced?

I’m not sure if they do things more cheaply in Texas than in New York, but In New York State, it cost about $30,000 a year to keep a man in prison. So the state considers it worthwhile to spend $1.5 million to prevent losses of about $20 a year.  It would save the government $1.5 million to just pay for the tapes and let him go.

In fact, if they had simply fined Mr. Andrade, they would have been ahead on the deal.

One of the arguments offered in defense of this draconian sentence is that the people of California, who voted for the “3 Strikes” law in a referendum and approved it, should have their expressed desires respected. Aside from the question of whether the citizens believed the three-strikes law could be applied to non-violent offenders (you could make a good case that they didn’t), one wonders how far such respect should go. Suppose they wished to introduce flogging for littering? Suppose they wanted to castrate rapists? Suppose they wanted to cut the hands off of pick-pockets? Our noble, enlightened Republican Supreme Court appointees would pronounce, “Yea, for the people hath spoken, let the mutilations begin!”

In fact, if I lived in California, I believe I would start a campaign to introduce a referendum forcing the government to arrest witches.  Just so we can make it clear what kind of people we are.

Insane Justices
Sandra Day O’Conner
William H. Rehnquist
Antonin Scalia
Anthony Kennedy
Clarence Thomas

Sane Justices
David H. Souter
John Paul Stevens
Ruth Bader Ginsburg
Stephen J. Breyer

It’s worth reading about the Supreme Court’s reasoning on the case, especially if you seriously believe the Republican majority is smart and psychologically healthy.  Justice Rehnquist wrote the majority opinion on Rummel and defended the absurd severity of the sentence on the basis of the fact that other states had equally or more severe sentencing requirements.  Give that argument a few minutes and think it over.

This is the Chief Justice of the Supreme Court telling us that Timmy’s mom let’s him swim in the alligator pond.

Balances of Justice: how other criminals, who only stole millions, are treated.