The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Month: September, 2009

BT / Sky throttling

ASA Adjudication British Sky Boardcasting Ltd t/a Sky – 16 September 2009

Sky ran an advert claiming that their customers were not going to face a reduction in speeds at peak times, they said that BT would. Naturally BT complained about this. That is hardly unexpected, they’re allowed to complain to the regulator if they disagree with an advert. The ASA then has to take a look at the advert and decide if it actually goes against any rules.

The ASA have uphead their complaint and Sky are not to run their advert again – despite BT admitting that they throttle users’ connections at peak times. How is this possible?

BT use a Fair Use policy — this is the thing that makes the unlimited internet packages economic for the ISP. If you use the service heavily they will slow you down, if you don’t draw too heavily on the service it comes at you quickly. “Effectively unlimited” is the language used.

Fair use policies are marketed as a fairness issue — they’re to stop certain users hogging it for everyone. The complaint to this is that they’re used to hide the fact that the ISP is trying to spread too limited resources between too many users. Heavy users of P2P software are likely to run into fair use policies at some point but other users may also, depending on the strength of their policy. For example, and this is the sort of thing that Sky was talking about, users on Option 1 have their video streaming throttled at peak time. That’s iplayer,

This is an example of fine distinction – the reason that the advert wasn’t allowed was because that it suggests that every BT user would be throttled at peak times (quite an image) rather than the fact that it says that BT throttles users at all. I think the best response to this would be along the lines of Ryanair’s “Sooo sorry” adverts in which, having been ordered to stop saying they were 5x cheaper than a competitor and to apologise, conceded that they were only roughly 4.5x times cheaper and said sorry. Sometimes the letter of the law is the only way to go.

Economy Gastronomy

Economy Gastronomy is a recessionary BBC food programme which basically has the central principle of “avoid throwing food away.” This is frankly not a bad thing. I think a person really should be looking to avoid wasting all that much food in their life, both to save money and just for ethical living. The case studies they use in their programme are really quite over the top though – with groups of people who really show quite galling wastage of food. I’m not talking about them not going as far as using brains and connective tissue in their food, I’m talking about throwing a quarter of it away. You really do get the sense that they end up saving the people on the show money would be more down to giving the people a right good slap than teaching revolutionary food preparation techniques. I was speechless when one child threw away a three egg omlette because he’d folded it unevenly — that was his dinner

Regardless of what I or anyone else thinks of the particular people involved the principles being taught are extremely worth while. It relies on having access to long term food storage and being able to cook large amounts so it may not be suitable for all students but for people sharing flats with groups of people it might be a sensible way of splitting the expense of food. It’s cheaper to live off shared, home cooked dishes than to keep separate shelves in the fridge and fight over crumbs. It’s not going to be suitable for everyone’s situation and awkward flatmates can ruin this but its advice of planning out meals, using what’s left after a meal to make a new meal instead of throwing it away, processing past prime fruit into smoothies and spritsers and so on is all sound advice

The BBC Food site is available here

Hell is other people?

There’s a fairly straight forward seeming employment law issue brewing in Walmart Arkansas, the law suit argues that a straight up and productive senior consultant was fired into a poor economy with a bad review a little while after after his co-workers didn’t want him to use the company washroom to prepare for his daily prayers. That’s basically the sort of religious discrimination action many would sell children to be able to represent. It seems a pretty hamfisted handling of the situation by Walmart. Regardless, it will run and run, the case is still in early days yet and Walmart has its right of reply and so on. The interesting thing is the sort of reaction these stories get in terms of anonymous comments: http://blogs.houstonpress.com/hairballs/2009/09/wal-mart_deloitte_civil_rights.php

There are two main sides to the discussion in the comments thread. Very few people leaving a comment don’t have some sort of opinion on the topic. There are two lists, one is comments from people who give if definitely not their real or full name and the other are people who give a not a name as their handle. I’m cherry picking for the two lists but I think it’s a trend I’ve noticed by other users anonymous commenting. Remember, all of these people had the choice (and may have) to leave a false name. Why do the people who leave a name not advise that the Muslim worker commit suicide while those who leave a handle do?

I blog anonymously, I really like that I can make infantile, ill-thought out comments on law without a future employer googling my name and discovering that, back in 2007-2008, I knew pretty much nothing about whatever topic. I’m not particularly right wing, if you’re not liberal when you’re young you’ve not got a heart, so it’s not really comparable for my sort of anonymity but my plan is to avoid writing anything on the blog that I can’t defend in real life discussion.

Examples of the first list:

Simon says:
“Wudu is the process where muslims clean themselves up(face,hands, foot, mouth rinse) with water from any dirt or germs that they may have collected during work or any other activity. This entire process takes less than 5 mins. Being a businessman and handling 74 employees i can’t think of any burden/complexity/hardship this process can bring to the employer. Shame on Walmart.”

David Ross says:
“Just terrible. Why can’t Muslims enjoy the same rights and freedoms in America that Christians and Jews enjoy in Saudi Arabia?”

blutenhalbmond says:
“A Muslim prayer is essentially a few minutes (5 minutes max) devoted to gloifying the Lord and he/she emerges after that short experience cleaner, more relaxed relieved of tension, anger and hostility, in short, with a more positive attitude to one’s workplace. This is why the afternoon prayer is ordained and the corporate world should in fact welcome it.

The “wazu” or wudu (former spelling is more common in Non Arabic countries) is a psychological gesture of purification as well as a good reason to clean up. Its a healthy thing to do. We all should at least once in the middle of our work should rinse their hands up to the elbows, splash some cold water on our faces and behind the necks, gargle and clean our throat and noses of junk that may have accumulated therein. A most commendable hygienic habit if you think rationally, laying your angers prejudices aside for a moment.”

Examples of the second list:

kidding? says:

“Kidding right? What if my religious beliefs required me to spend a few minutes upside down each day at work? Or required me to smoke some dope? Or, what if I walked the aisles praying aloud to my God of choice in whispers? What if I chose to wear a dull sword or a light wand to symbolize my religious faith?

This is medieval superstition, pure and simple, whether the guy is a Muslim or evangelical Christian or a devotee of Thor or Wohan. If people want to delude themselves by talking to some non-existent being, they are free to do so at home. Tolerance of religion is not a virtue, it’s a regress into the past. Just like the dumb-ass judge who wanted to hang the 10 Commandments in his courthouse, this foolishness ought to be rewarded with a good-bye, please work elsewhere.”

Good Riddance says:

“I think it’s good he was fired.
Fundamentalism should not be tolerated.
If he is unable to integrate into a secular society(work a whole shift without being disruptive) then he should move to Pakistan.”

US Citizen says:
“His religion prevented him from doing a standard professional job. Walmart should hold its ground here. If they don’t, Walmart will lose my respect.

If he wants to be a Muslim, he can go back home. Or he could kill himself, which would be much better.”

On the internet, no one knows you’re a dog. But they might guess you’re just a tiny bit racist.

This does not affect your statutory rights – parcel labels on delivery

“If this tape is broken or if the package is damaged, check entire contents in front of carrier and sign carrier’s cheet in accordance with actual condition and quantity of contents. It is not sufficient to sign “Unexamined.” Written complaints must be made to the carriers and the senders immediately, otherwise no claim can be entertained.”

No claim can be entertained? Really?

This was written on some packing tape wrapped around a new computing purchase and it caught my eye because I believe it is simply unenforceable. I’ve not given the retailer a right of reply so I won’t identify them here but I thought I’d take the opportunity to give a bit of consumer advice. You have a right of rejection which you only lose at the point you accept the goods. That lets you return the goods for a refund, a replacement or a repair. Acceptance is a legal term which has a legal definition beyond the normal one.

The legislation someone should point to if they’re directed to this sort of sticker is s35 of the Sale of Goods Act 1979. This talks about what acceptance actually means. In particular, point them at subsections (2), (3) and (5) and which gives you, as a consumer, the statutory right of a reasonable time to examine the goods after they are delivered and the protection as a consumer against losing your rights “agreement, waiver or otherwise.” The retailer simply can’t change legislation by putting a message on the parcel, and even if they were trying to, it needs to be very, very clearly pointed out on the parcel. This is slightly different for people who are purchasing in the line of business but you’re still allowed to catch your breath before your right of return expires. If you don’t examine a parcel that’s delivered to you you should write “unexamined” – it’s the truth.

Obviously if your carrier brings a half destroyed, collapsed and burnt box with the tape broken you should check it right there on the door and not sign until you confirm that it was delivered to you in such a sorry state. You should because that protects you from assertions that it was delivered to you fine and you broke it. You don’t need to though, your contract involves the goods inside the package — not the parcel itself and your statutory rights are not affected.

WordPress Footnoting

1: <a name=”1″><a href=”#f1″>[1]</a></a>
2: <a name=”f1″><a href=”#1″>[1]</a></a>

These two lines of awkwardly nested code will provide you with clicky footnotes in HTML pages. It works fine for WordPress posts. It is pretty straight forward HTML but since it appears not to be an automated function in WordPress it needs done manually. I assume this would work in all blogging platforms as it just uses HTML, the markup webpages are written in. You need to be using the HTML view of the WordPress post screen to apply this, otherwise it will convert the greater and less than symbols etc into text rather than code and it will show up in your post instead of links. It’s how I did it in the previous post here and here.

I don’t believe anyone should copy and paste anything into their website/blog/program/terminal/contract/etc without knowing what it does so: The code works in four parts.

The first section of 1, <a name=”1″>, defines the content falling in between it and the </a> as an anchor called “1”. The second section of 1, <a href=”#f1″>, defines the content falling between it and the next </a> as a link to the part of the page defined as f1. This is applied to the superscript number in your body text – so in my previous post: “…at all times<strong>[1]</strong> a vindication…” Clicking this number will take you to the bottom of the post.

The first section of 2, < a name=”f1″>, defines the content falling in between it and then </a> as an anchor called f1. The second section of 2, <a href=”#1>, defines the content falling between it and the next </a> as a link to the part of the page defined as 1. This is applied to the superscript number in your footnotes – so in my previous post: “…<strong>[1]</strong> The arrests” Clicking this number will take your back to its reference number in the body text.

You need to rename each part of the footnote. In this example I’ve used 1 for the reference in the body text and f1 to refer to the footnote. I would increment this to 2 and f2 for the next footnote. I would rename this entirely for the next post, however, because it gets confusing to have links which effectively point to other posts on the main page of your blog. In this case if you put a letter in front of 1 and f1 to create “a1” and “af1”, in the next post you could use “b1” and “bf1” and the two could coincide in full on your main page with no problems.

Feel free to email or comment for clarification. I’m not a technical writer for a reason.

Plane water bombers jailed, bring on the security measures?

The news coverage of the conviction of the people behind the “water bottle bombing” plot has literally used the words “this has vindicated the heightened security measures” (BBC News 24) which were put in place after the plot was uncovered.

Does it really? I’m going to be pedantic here because vindication is a powerful word, here’s what it means:

vindicate

vin·di·cate / ˈvindəˌkāt/ v. [tr.]

  1. clear (someone) of blame or suspicion: hospital staff were vindicated by the inquest verdict.
  2. show or prove to be right, reasonable, or justified: more sober views were vindicated by events.

The Oxford Pocket Dictionary of Current English, 2009

I do appreciate the job that the security services have done in keeping what turned out to be a fairly clever and probably, had it not been detected and watched by the largest surveillance operation the UK had ever seen from an early stage and then immediately stopped once it moved beyond planning ending in the conviction of all but one of the suspects, damaging attack out of the skies over my head. That’s really, really fantastic news. I’m not pro-terrorist, make no mistake, and I’m very glad that the attack was stopped. This is a post on the use of words.

The security measures

My issue is that I do wonder if it really does “vindicate” the fact you couldn’t take enough baby food (baby food is now excepted from the restrictions, thankfully) on a transatlantic flight to feed a baby. Or how it now means that you can no longer bring water that you didn’t buy from the departure lounge onto a plane. Drinks that you pick up in the airport and quietly bring onto the plane unquestioned are clearly more friendly to allies of America than drinks from home that are subject to an x-ray scanner and security checkpoint, obviously. This isn’t as flippant as it seems because the explosive that the plotters planned to use was basically energy drink mixed with cleaning fluid. You can just buy that in the departure lounge.

You could even bring homemade liquid fiery death entirely legally “so long as the items are carried in a clear plastic food storage type bag with a capacity of no more than one quart” remembering that “each individual container must have a capacity of no greater than three ounces (90 ml)” And your friend could also bring his own clear plastic bag of liquid fiery death to top yours up if you wanted a bigger explosion and so on. Are we really safer with little bottles? Can I go out there and suggest that you could put it into a container of baby food which is exempt from the restrictions?

One of the main tricks of the trade when investigating a terrorist attack, or most crimes in fact, is asking the question “who benefits?” because if you know who had an incentive to commit a crime you narrow down the people who were likely to have committed it. By this metric, “who benefits from banning liquids from being taken through the baggage scanner?”, you end up with WHSmiths and Starbucks who get a legally enforced monopoly in the departure lounge shops because, legally, you haven’t got any other option unless you want to end up becoming a terror suspect. Is one textbook, wonderfully well executed police operation that kept us safe from even the slightest chance of harm to our air traffic at all times[1] a vindication of these measures?

Definition 1: to clear (someone) of blame or suspicion

This is probably not what the reporter meant when they dropped the v word. My comments above aside I don’t actually think WHSmith plotted to blow up planes to create a monopoly for their airport shops so it’s probably just commercially convenient rather than actually a dastardly conspiracy. The measures themselves have viewed with no greater and probably some lesser suspicion (I think everyone’s wondered in their heart of hearts if you actually can blow a plane up with a bottle of Oasis outside of a movie) because of this conviction but it is not “cleared” because of the trial and that’s what the definition of vindication requires.

Definition 2: show or prove to be right, reasonable, or justified: more sober views were vindicated by events.

This seems more sensible and probably what the reporter meant. This is what I’m not convinced about, the main problem is that the instant case just doesn’t seem to have needed the actions that were rolled out to protect anyone. Basically the liquids prohibition (now relaxed to pretty awkward restrictions) was just a belt and braces extra on top on a mind bogglingly thorough UK police operation as far as this case was concerned. This case didn’t actually need the prohibition at all.

The prohibition was for other people.

This case only showed the real and present threat of liquid explosives passing through the baggage checking process at airports disguised as other liquids. The restriction on liquids was levied to stop other attempts. The vindication will come when the measures, not the police and intelligence services, stop an attack using liquid explosives disguised as other liquids to defeat pre-“jet plot” baggage checking procedures against a commercial aeroplane. That is the difference. The success or failure of this conviction does not relates to the restrictions at all – the restrictions were never tested by the plotters.

What the trial is is a vindication of the police surveillance operation, not all of them but this one was certainly justified, and also justifies its snooping on email traffic. Admittedly the sort of snooping on email traffic that is justified in this case is that being sent to or coming from a known terrorist mastermind living in Pakistan so it’s still not reasonable to snoop on just everyone’s email because of this trial.

The problem of security precautions is that it’s next to impossible to tell if security measures have stopped an attack. I suppose if we test every 95ml bottle of baby food that’s left at the baggage check for explosive and find some then we know we’ve dodged a bullet. On the other end of the scale if someone manages to blow up a plane regardless then we’ve bought overpriced airport drinks for nothing and that’s the horrible dilemma. We simply can’t tell if the restrictions are sensible or not from this case. We should all celebrate the successful conclusion of a ground-breaking multi disciplinary police operation which has almost certainly saved thousands of lives but at the same time it’s important not to take lessons from it that it’s just not teaching us. The effect of baggage search on anything is irrelevant unless you actually go through a baggage search. I think the police and security services involved in this investigation have kept us very safe and they are to be applauded but throwing away sealed bottles of water at the scanner is still to prove its worth. It certainly hasn’t in this case.


[1] The arrests were sped up when the well known Pakistan based mastermind of the plot was captured, not because the hitherto unknown plotters were suddenly spotted getting on a plane. The UK plotters were had well in hand and under constant surveillance.

Statistics

Statistics are a great tool. It is pretty crucial for a lot of tasks that some very unclear, even indeterminate, things can be drilled down into some very specific figures.

One particularly sensitive statistic is the number of file sharers in the country. Firstly there are obviously two kinds of file sharing – there is legal and illegal file sharing. The legal file sharers are actually the cornerstone of the “information economy” we’re all supposed to be entering into while the illegal file sharers are potentially the worst threat to international peace and commerce ever seen and are pursued accordingly.

The two kinds look very similar but both take place in the legally protected privacy of the home. Without actually being able to put a camera in everyone’s house the only way you can find out if people are sharing, legally or illegally, files is to ask them.

It is well reported that the figures the Government put forward for file sharing are, if not categorically wrong are involved with a lot of guesswork and seem to be estimated at the high end of the range. The report is an amazing piece of statistical reporting which effectively took 136 affirmative responses and decided that people don’t adequately report on illegal file sharing and rounded up to around 7 million. It’s pretty terrifying even for a secret industry report.

Oh yes, the figure came from a secret industry report. That’s probably worth mentioning. The figure is officially cited as coming from a consultancy firm but it actually doesn’t, it’s from an unpublished BPI funded report. This means that the Government figures comes from an industry report that no one can read while telling everyone who reads the published, official report that they come from another source. Nothing can go wrong there.

This discovery was made by the BBC Radio 4 program More or Less, a program basically conceived for this situation – it deals with the “the powerful, sometimes beautiful, often abused but ever ubiquitous world of numbers” and is very good and worth listening to. The episode which revealed the file sharing figures also asked “why do England lose?” to which, of course, my heritage maintains perhaps a less than mathematical explanation.

Legal highs – Not suitable for human consumption

The Wanderings of a Law Student had a look at legal highs following a BBC documentary on them presented by George Lamb and has produced a very interesting report on the rationality of criminalising them. I also saw this program, I found it slightly disheartening as I find all shows which seek out and interview teenagers who smoke drugs in car parks. I don’t exactly think I was better for not spending my teenage years doing this but at the same time that’s basically it.

The main thing that I took from the show was that some people will consume unbelievable substances. I personally won’t eat homemade mayonaise that’s been left out of the fridge so a lot of the products going under the umbrella of legal highs really don’t stand a chance.

WLS divided legal highs into two categories – natural and man made chemicals. I personally prefer to consider legal highs as broadly “serendipitous” or “deliberate” – there are many things which get you high, but some are deliberately sought out, things like salvia, peyote etc,and others just happen to do that while actually being intended for something else. My main issue lies with the proposed criminalisation of these serendipitous legal highs.

Deliberate legal highs do include the changing of chemical structures to produce a molecule with similar effects but falling outside of drug prohibitions. Banning the remixing of narcotics sounds fair enough but I do urge caution in pursuing this too closely, for example this:

DMT

is dimethyltryptamine, it’s a potent psychedelic drug sold under the name “DMT” and is considered a “Class A” substance in Britain. It can be changed to, say:

5MeODMT

5-methoxy-dimethyltryptamine which has much the same effect. This, for colour, is the chemical produced by a certain species of toad and so if you hear of anyone attempting to lick toads (literally, licking toads) this is the substance they’re after. Or maybe they just really like toads. This example is as illegal as all get out in the US but I can’t actually find any reference to it being illegal in the UK, even though regular DMT gets the class A rating. However, this

5hydroxytryptamine
is 5-hydroxytryptamine, it’s a very similar chemical from the same functional group as the previous two- the indole group of alkaloids generally and the tryptamines more specifically. It’s mood altering and in excess can be linked to severe mental illness. The thing is it’s more commonly known as the neurotransmitter serotonin and is naturally found in humans and animals and actually mostly regulates digestive function. I don’t think anyone wants it criminalised.

Serendipitous legal highs are dual use, GBL being quite a good example. GBL is “liquid ecstacy” or, in its day job, an industrial paint stripper. I have great sympathy for the mother of Hester Stewart, the medical student who died after consuming a lethal cocktail of GBL and alcohol, but don’t support her call to have GBL turned into a Class A narcotic. You really shouldn’t be drinking industrial solvents, particularly not as a medical student which just makes it ironic as well as tragic. Stewart’s death sounds more like misadventure to me. She didn’t overdose on drugs, she drank paint stripper. She drank it because it has narcotic effects but that doesn’t change what it is.

WLS and I come to the same conclusion about these products but we differ on the working.

To summarise WLS he argues that drugs (especially these) should not be criminalised, as there is no inherent moral wrong. He makes the claim that criminalisation implies strict moral wrongness and I do not agree — I think many crimes are just bad because we say so. Tax offences, for example, are wrong simply because the tax code says they are. I would be perfectly comfortable considering this as a case of malum prohibitum should the legislation go through even though I don’t agree with the effect, which would include a maximum 2 year custodial sentence for possessing paint stripper. I argue that the fact that something is not inherently morally wrong is no bar to it being criminal. The big crimes are morally wrong, yes, but little crimes disrupt society too.

Physical harm is a fair reason to ban something but I suggest that it should be the harm to other people which is the main determinant. I would see no problem with arresting people attempting to drive under influence of these products even if not necessarily arresting people for having a packet of them in their pocket. This does not take into account possible longer term consequences such as increased NHS demand which is a genuine and dramatic cost on society. The psychological effects are undeniably strong and no one should consider the risk to the public less just because they are not criminalised. Sky diving is not criminal and yet very dangerous. The law doesn’t and shouldn’t eliminate all risk in the world. Part of living in an adult world is avoiding doing things like snorting (as seen on the George Lamb documentary) bath salts. It should be noted that the link shows you a 1 gram packet of bath salts, it will probably make a suspiciously unsatisfying bath but they are balt salts and they shouldn’t be snorted up your nose.

The issue of criminalisation is being driven by some high profile cases – the death of Hester Stewart being the one which appears to have received most visibility. The problem of deciding law based on hard cases raises its head here – the law cannot apply differently to situations which make it to the Daily Telegraph.

My main problem with legal highs, and the same concern I have with herbal medicines, is the lack of testing and consistency. I would much rather have other people explore the risk of unknown compounds before I consume them. Pharmacology is something I know just enough about to know not to mess with.

The mutating hydra of legal highs is a real problem for those using them and unless you are dealing with seriously high quality products in any sphere of industry you are going to experience considerable variation along the line, from competing products and even from within the same wrapper. These are all serious concerns and regulation would start to fix quite a bit of this and I think that’s why it’s a more practical approach. These are legitimate businesses, they aren’t mixing their Columbian pure with gasoline and trying to kill James Bond while pretending to be a religious retreat, and we assume they will respond to regulation. If they didn’t they’d presumably be selling regular drugs.

Lack of consistency is not, however, why I think legal highs should not be criminalised. This is because I believe that if we make legal highs illegal there will be no end to what cannot be considered an illegal narcotic. These products are, perhaps slightly nefariously, sold as air fresheners, bath salts and solvents. They are not suitable for human consumption not due to arbitary packaging guidelines but as an inherent result of what they are.

I am against using legislation to gain some vengeance for mistakes after the event, I think this impinges on the rest of humanity’s right to self determination. If someone is snorting bath salts or smoking pot porurri the problem isn’t drugs, it’s insanity. There are people who drink white spirit and windscreen washer because they’ve got tons of alcohol in them but that’s not enough to make them illicit drugs. It’s a thoroughly illjudged thing to do with your time but it’s not a drug offence.