The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Month: September, 2010

The RPG fallacy

There is an intrinsic human desire to see the world as in some way at least involving you and at least in some way being dramatic. This is why conspiracy theories are so popular – it’s a wonderful feeling to be the only sane man fighting evil. It’s also rarely as simple as that, even if the conspiracy you’ve spotted actually exists. There’s a Mitchell and Webb sketch where one SS officer says to another SS officer, ’are we the baddies?’ It’s suprising because no one thinks they are the baddy because no one wants to be the baddy. Even if you’re doing something bad it’s likely you’re only doing it because you don’t have any other option or to stop something worse happening. It might even be that you’re only killing X because you’re actually a self-sacrificing hero – the SS officers were fighting communists. If you’re the baddy and you know you’re the baddy and you’re ok with that, you’re weird.

It goes further than just the Twin Towers being an inside job – countries like to see themselves as the goodies too. In fact, the Western world as a whole does. NATO didn’t go into Kosovo because it liked to blow stuff up; it was there to rescue the needy. They were, in their own minds at least, bombing for peace. People may have got hurt but it was for a good cause.

The world isn’t a story but the people in the world like stories. People construct narratives to make sense of what is fundamentally an extremely random world. These narratives, naturally, often centre around the person making them. I’m going to call this the RPG fallacy but it’s pretty much the egocentric bias.

That’s a big enough deal if, for example, you’re dealing with individuals seeing patterns in songs or paintings and feeling victimised (the Illuminati are out to get you) but if you’re dealing with life and death decisions about going to war as a country in terms of how awesome and heroic you are that’s especially worrying.

The RPG fallacy

One of the modern day methods of telling a story is the Role Playing Game. In the traditional role playing game interpersonal relationships are not generally very fleshed out – the Non Player Characters (collectively known as NPCs) only react to the Player (PC) who controls what happens in the world. It is only reasonably recently that games even bothered to change the game world beyond the player’s own actions or inactions. You might find that the dragon would destroy some towns but some other hero wouldn’t come along and slay it if you didn’t do it. NPCs are limited to a set range of standard responses and reactions to the player NPCs are just there to make the PC look good. Even the Big Bad is an NPC, the purpose of which is to be the means by which the hero proves that he is heroic.

In a way, so are refugees. The purpose of a refugee is not to grow up, get a job and have a family but to be hungry, needy and suffering on TV so that it can be rescued by the good guys so that the good guys can show how good they are. You don’t sponsor a child for 50p a month because they’re at uni and drugs aren’t cheap; you do it because their country has a famine and they need to eat to survive. People should definitely continue to help people in that situation — they genuinely need our help — but you much more rarely see appeals to help someone in a Third World country fund their PhD. People like that exist but that doesn’t fit the narrative.

Consider where people focus on stuff rogue states get up – for example ’US bombs rogue state’ rather than ’Rogue state is bombed by US’. The difference there is more than just passive voice. The rogue state is big and scary (even this post-Cold War baby thinks the USSR was completely terrifying) but it’s not really the star of that show – it’s there to give the other country something heroic to do.

One of the biggest problems of war is that it requires you to dehumanise the other side. One of the principle signs that a friendship has broken down is when your friend kills you: real friends wouldn’t kill friends (unless they really deserved it). There is no question of gassing cities if you think the people in that city are everyday folks just like you. On the other hand if they’re Enemy sympathisers, then it really stands to reason that these people need gassed. That’s what Enemy is for. Of course, none of this changes the fact that, from the other side, you’re the Enemy that’s there to be gassed and they’re the good guys being put upon by the forces of evil. This, along with general apathy caused by rampant consumption, is one of the reasons put forward that the internet will be good for world peace.

We’ll just have to hope and see about that one but I’ve got my fingers crossed.

The worst thing of all, in rushing into humanitarian crises in the Heroic Narrative, is that the sight of starving orphans being saved and fed by NATO troops is heart warming enough to obscure other relationships between the people and the white knights. It’s pretty cold comfort if the reason that there is a humanitarian crisis in the country in the first place is that unregulated arms trading put guns into the hands of the bad guys. Both arming and ending wars is a morally dubious example of having your cake and eating it.


Life advice from

Many a true word spoken in jest

It should not be a massive surprise to many people that there is a difference between the rules that apply to movies and the rules that apply to real life. There is one particular example: the rules governing romantic gestures.

Twilight gets a mauling for things that seem to be deeply romantic in the movie being a bit creepy if you actually did them in real life. For example I’m yet to meet someone who appreciated being watched from the bushes. In fact, my first exposure to the Twilight series was a Guardian article which pointed out the issues in presenting men and women in quite that way – controlling and domineering relationships are laudable as long as you don’t have sex. have gone and spelled out the things that are really good in movies that you should absolutely not do yourself.

Examples include running through airport security to see someone getting on a plane – this can be a lethal error if you’re unlucky and yet it’s one of the most watched episodes of Friends there was. Thanks to E4 it still is.

The big ones are actually hitting people or poisoning people which is a big deal, despite how funny or apposite it is. The more debilitating whatever you’ve done to someone is, the less likely that the police are going to like you doing it.

What is more remarkable is how many states don’t have rape by fraud laws at all (there have been calls to change that for years). The objection seems to be that once you can convict a guy or girl of lying to get sex, there may not exist enough bricks to build that many prisons. But for now, let’s just say that if you’re in a situation where the girl is only consenting because you’re wearing a mask or she’s wearing a blindfold, stop and rethink your life.


ACS Lulz

ACS Law is one of the controversial law firms which mass mails file sharing cease, desist and pay letters to tens of thousands of people at a time. They often do it with seriously limited information and end up getting a lot, a lot, of false positives. One of the senior employees for the firm put out a tender looking for a program to be written which could sit on bit torrent swarms and record the IP (Internet Protocol) addresses of the people involved – he’s thought to have only paid about £250-£750 for it. They may use that software (they did pay good money for it after all) or they may use different software, no one actually knows how they do it, but they end up with a long list of IP addresses. They then send the screeds of IPs to ISPs (Internet Service Provider) and ask for real world identities of the computers identified in the swarm. They send out letters to the people the ISP identifies asking for money – they average about £900 a letter.

Shockingly, the ISPs generally comply with this. Only two British ISPs – Virgin and TalkTalk – actually insist on you having a court order before they give out personal information. That sounds like a data loss incident in the making.

The IP tracing method is unable to identify a particular computer or particular person. It’s even iffy about how well it can assess the particular time it took place. It certainly cannot tell if you have the file at present. The most common example of why you might be falsely accused is simply because your ISP gave away your IP address to someone else. It’s not your address to keep (unless you make a specific arrangement to keep it) and if you’re not using it someone else could. There are stories of university printers in the US (the little grey box that paper with words on comes out of kind of printer) being served with IP (Intellectual Property this time) infringement litigation because an IP address was identified as being involved with file sharing but now that IP address has been given to a printer.

The long and the short of it is the printer didn’t do it.

The other common way that the IP method fails miserably is if someone is using your wireless connection. In this case it is your IP from your ISP that is downloading the file but you have absolutely nothing to do with it. The problem of proving (even just to the balance of probabilities) that someone you don’t know exists is using your wifi without your knowledge to download files without your permission is a pretty big ask, especially when the cost of defending a copyright infringement action is around £10,000. “A big boy did it and ran away” didn’t work in school and you certainly wouldn’t bet ten grand on it.

Despite the methodical flaws in the system the firm continues sending letters out regardless (is this a case of happily promoting bogus methods a la Singh?). Some of the examples of false positives are both horrifying and darkly funny – the elderly, computerless couple accused of downloading a gay porn movie called “Army Fucking”, for example.

So, they’re a dodgy, greedy company and they have been for ages. Why am I writing about them today?

Well, they’ve been Anon’d. Hard.

Anonymous (big A) is an anonymous (small a) group of internet users who basically troll – that is, annoy – certain people who either deserve it or are funny in some way. They have some horrible moments (there was the time that they decided that a teenager had committed suicide because he had lost his iPod and decided to prank call his grieving parents to tell them so) and some quite impressive moments – Scientology, which for the purposes of French law and South Park is a fairly dangerous way of getting money out of people on the basis of religion, no longer has any web presence worth the name because Anonymous systematically destroyed it.

They have pursued a strategy of distributed denial of service (DDoS) attacks on the websites of groups that fit the deserve it or funny in some way criterion and their current target is Feel free to click that link, if you’re reading this anytime close to when I wrote this it’s not going to work.

A denial of service (DoS) attack simply bombards an internet service with so many requests that it stops working. Sending a fax machine hundreds of 100% black pages until it runs out of paper and toner is a denial of service attack. A distributed denial of service attack is simply getting lots of people to do it so that it is more practicable to do – so rather than you sending the fax machine hundreds of black pages at your expense you get hundreds of people to send one black page each to the machine, splitting the effort but achieving the same result.

That means that the site was taken offline, to protect other people who have sites on the same server, and it then became a rush for ACS Law to get the site back up in a form that let them do business (they are a predominately mail and internet based firm at this point – they’re yet to go to court over one of these file sharing allegations) but in a way that doesn’t get immediately taken back down again.

They did it horribly wrong.

They somehow managed to post up, instead of their company website, a back up of their entire corporate network. Including, notably, their email database. This was rapidly downloaded and is now on bit torrent, just for some extra irony on top. I’m not sure about the specific legality of the files – I suspect that posting your email on the home page of your website means that you’ve effectively waived confidentiality and privilege in terms of the information contained in them but you would need a judge to say for sure.

I suppose they do still own the copyright in them though.

The emails are pretty damaging stuff. They basically show the inner lives of people who basically seem to run their whole lives from their company email (he has fights with his ex-wife in some of the messages). They show that companies that ACS actually works for are uneasy about the sort of coverage the firm is getting. They show that ACS law made warnings towards suing Which? for libel over their coverage of old grannies being sent impossible file sharing letters.

The torrent is about 400MB and has to be one of the top results if you search for ACS law at this point. I’m not really going to read through it all but the extracts are pretty gripping stuff. Torrentfreak is going crazy over it.


Academic Appeals

There is, nominally, an appeals process at my university. I’ve never used it and I’ve never heard of anyone else using it. No matter, this post is not about that kind of appeal.

A Queen’s University Belfast graduate has taken his 2:2 to judicial review, arguing that if he had better supervision he would have left with a 2:1.

Judicial review is a fascinating action, even in its monstrously expensive and slightly anaemic British version, which has implications up and down legal theory, public policy and life in general. Is it right, for example, that a decision to put a child in care can be reviewed by a court instead of childcare experts? Can courts justify intervention into counter terrorism policy? What can a court say about a decision that the people making it couldn’t say?

The classic judicial review is the writ of habeus corpus – you bring the guy into court and you have to adequately explain why you’ve got him. If you’ve not got any good reason to detain him you have to let him go. It’s a beautifully simple example of the rule of law in action – it puts judicial oversight into the process without requiring you to give up executive autonomy. The courts themselves take judicial review extremely seriously, with the extremely high bar before they can step in — generally no less than so irrational that no reasonable body would have made that decision — and that the process rarely turns on what the decision was (something the court is not all that qualified to discuss) but how well it was made. Even after the high standards required for intervention are met generally all that happens is the body in question is sent homeward to think again. There’s no particular block against them turning around, crossing every t and dotting every i, and making pretty much the same decision again.

It seems to me that straight out challenging teaching quality in terms of a judicial review is a bit tenuous. I’d have thought it would be more workable to question their marking quality but even then I’d be waiting for cases where someone who was predicted to get a first gets graded with a fail. In legal terms that’s because it’s irrational that a first class student would be graded so poorly all of a sudden. Saying that if you’d had better teaching you’d have scored better is probably true (just as saying you’d have done better if you’d had a better library) but it’s unclear if there’s a legal remedy unless it’s absolutely obviously not fit for standard, if the university had stocked their library with nothing but Bob The Builder books, for example. On the other hand, arguing that you would have scored marginally better with marginally better teaching is tricky in light of the standards required in judicial review.

The reason that he is using the court, despite it being quite possibly better handled internally at the university, is that they have allegedly refused to review his results because he’s already graduated. Given the vast cost of judicial review actions in Anglo-American jurisdictions I can’t imagine this was his first choice of action.

The case is still in preliminaries with the judge currently taking time to determine if a court is the appropriate forum for it at all.


I’m bad at French horn

Ben Goldacre – best selling author of Bad Science (a good book which I do heartily recommend as a grim, anger inducing read about the venal and selfish side of human nature) – has given an interview for Intelligence Squared. The interview covers the ‘problem’ of media coverage of science.

Goldacre has a really appealing comparator for the way that science is needlessly dumbed down in the media: no one dumbs down snooker for TV. You either know the rules of snooker already or you just don’t understand what’s going on. Science really gets a terrible time of it in the media; it’s morphed into a game where one person says something that he seems awfully sure of for 30 seconds and another person says something that they are equally (if not more) sure of for 30 seconds that makes it sound a lot like the first guy was completely wrong in every way. There’s not really enough time to get beyond the very basics (like “X does/n’t kill you so you are/n’t fine”) so you don’t get to look into possible warning signs with either person’s research (if they have actually done any work on the subject to begin with) or even the reason why either person thinks what they do — that’s called the science bit and that’s a bit complicated.

He makes a good point during the interview about the portrayal of things as science issues to hide your underlying motive, for instance racism has many examples of “scientific fact” being used to justify the prejudices the speaker wanted to hold in the first place. That’s not science being a bad thing, that’s science being misused.

What about the…

All the above is important stuff and I do feel strongly about it, but the thing that really caught my ear is where the interviewer asks the “what about the people who say ‘I don’t know where to go to find the evidence’?” question. Obviously people being unable to integrate with the scientific process because they don’t have access to the source material is a bad thing so that’s a no brainer, bad thing is bad.

Goldacre’s answer is interesting – for the example of climate change evidence he points people towards the IPCC advice to governmental policy makers and calls it a good piece of popular science writing. He talks about the controversy over the melting glacier issue and explains why it doesn’t affect this document. I think that’s a good example.

However, the interviewer then says words to the effect that he doesn’t even know what the letters mean and I think this might be linked to Goldacre going on to give a bright line distinction between people who genuinely don’t know where to find information (people aren’t born knowing this stuff and that is a problem) and those who say it because it sounds better than “I don’t care enough to look it up”. I think the access to information thing has to go both ways, especially if the other party has access to Google. If we’re talking about snooker and I mention a “cue” that’s not necessarily because I’m trying to exclude you with jargon, it just might be that I assumed you knew a wee bit about the basics before entering the conversation.

I’m no good at French horn but that’s because I’ve never even attempted to do it.


The lighter side of libel

I wouldn’t dream of playing down how bad getting sued is for a writer because it’s never happened to me and unless it does you simply can’t relate to having your life interrupted like that.

However the lead up to being sued can be a wholly different matter.

The Art and Craft of Fiction

The business of money, to the writer
is like catching bubbles, to a child.

The publishers formed a guard of honour
at the bar, for the malcontent.
Guinness and wine. Good cop, bad cop.

‘We’ve received a letter, a legal letter,
from lawyers representing a powerful
and influential client. An unhappy woman.’

The author gripped his glass of Guinness
with both hands. ‘Aw, aye?’

‘Their client states that you’ve insulted her,
libelled her, accused her of filth and depravity,
not even bothered to change names and details.
They’re going to sue us for every penny they can.’

The writer picked up the letter,
scrutinised it, passed it back to the publishers,
drew deep from the well.

‘Why didn’t you tell us it was about your ex-wife?’
‘We didn’t even know you had an ex-wife.’
‘It was supposed to be fiction, for fucksake.’
‘There’s rules about what you can and can’t do.’

There was a silence that spoke in many tongues.
Some serious, some not.
‘You must have something to say about it?’

And he did. Just the one word. ‘Bullseye.’
And that was that. Ripples on the pond.

Kevin Williamson

H/T: Extracted from the current edition of Gutter, p113.