2021iv19, Monday: Privacy and the Supremes.

One of the most consequential cases on the law and privacy makes it to the Supreme Court next week. I’ll be watching. And some great stuff on gaming and moral panics.

Short thought: There’s no doubt that arguments about privacy are going to grow, and multiply, for years to come. On so many fronts, the question of what companies and governments can do with data about us affects us – literally – intimately. It’s going to be a central focus for so many areas of law – be it regulatory, public, commercial or otherwise – and we lawyers can’t and shouldn’t ignore it.

Which is why I’m blocking out next Wednesday and Thursday (28th and 29th) in the diary – at least as far as work will allow. Those are the days on which the Supreme Court will be hearing Lloyd v Google, probably the most important data protection and privacy case to make it all the way to the UK’s court of final appeal to date. 

As I’ve written before, the Court of Appeal fundamentally changed the landscape in 2019 when they decided that Richard Lloyd, a privacy campaigner, could issue proceedings against Google in relation to its workaround for Apple’s privacy protections. It’s no surprise that Google took the appeal all the way, since the CoA said (in very, very short) that a person’s control over one’s personal data had value in itself, and that no further harm – not even distress – need be proved for loss to exist. (There are other grounds of appeal too, but this to me is the most fascinating, and wide-ranging in potential effect.)

Next week is only the arguments, of course. Judgment will come – well, no idea. But Lord Leggatt is on the panel. I can’t wait to read what he has to say.

(I’ve had a piece on privacy brewing for some time. I just haven’t had the brainspace to let it out. Perhaps next week. I’ll try.)

Now hear this: I’ve always been rather allergic to team sports. Martial arts, on the other hand, have long been my thing. While I’ve dropped in and out, depending on levels of fitness and family commitments, there’s always been one at least at any given time which has given my joy like no other form of physical activity.

If one nosy trouble-maker had had their way, this would have been nipped in the bud. When I was doing karate in my teens, one clown wrote to my dad – then a canon at St Albans Abbey – claiming that my indulgence in this was Satanic and should stop immediately.

No, I don’t get the reasoning either. Needless to say, my dad treated it with the respect it deserved, and lobbed it into the wastebasket. And on I went, via aikido, tae kwon do and (these days) capoeira. No doubt this last, which I hope to keep doing with my current escola in Southend for as long as my ageing limbs can manage it, would have given the writer even greater conniptions, given that the music often name-checks saints and is thought in some quarters to have connections to candomblé.

But I think the writer missed a trick. Because back then, in the 80s, if he’d known I was a role-playing gamer he’d have been tapping totally into the zeitgeist.

By RPG I’m talking about pen and paper, not gaming. I loved these games; via an initial and very brief encounter with Dungeons & Dragons (2nd edition, for the cognoscenti – it was never really my thing), I found Traveller and Paranoia, and never looked back. It’s been a long while since I played, but my love of them, and conviction that they’re good and valuable, hasn’t dimmed.

These days, these games are pretty mainstream. But in the 80s, particularly in the US, they were the subject of significant, if now in retrospect batshit insane, panic. This panic is beautifully explored by Tim Harford in his podcast, Cautionary Tales. I warmly recommend it. You don’t have to know or care about the games themselves for the story to be engaging and fascinating, as an analysis of how societal panics can grow and evolve into something wholly unmoored from reality from even the most unpromising foundations. And yes, the irony there is palpable. 

(Tim’s a gamer himself of no little repute; I imagine a game GMed by him would be wonderful. But he’s fair on this, I think.)

The whole series is great (the one on Dunning-Kruger is particularly brilliant). Tim’s previous podcasts, in particular 50 Things that Made the Modern Economy, are just as good. And he always makes them relatively short, and scripts them properly. Not for him the 90-minute frustrating meander. Thank goodness.

Warmly recommended.

As an aside: A recent FT piece of Tim’s has just appeared on his own website (as usual, a month after FT publication). It’s superb. Lots of people have linked to it, but it’s good enough to do so again. 

It’s entitled: “What have we learnt from a year of Covid?” His last sentence is one with which I utterly concur:

I’ll remember to trust the competence of the government a little less, to trust mathematical models a little more and to have some respect for the decency of ordinary people.

Read the whole thing.

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2021i27, Wednesday: “The vital importance of audit.”

It’s a complex world, drowning in data. But there are tools to help the brain cut through. And they help litigators, too.

Short-ish thought/someone is right on the internet: An all-in-one today – mostly about thinking tools, but with a legal sting in the tail. (Promise!) When I’m talking to my daughter about the welter of information (and mis- and dis-information) that floods across her perception each day, I struggle – as, I imagine, do most parents – to boil the problem down into strategies anyone can actually make work.

“Check the source” is great – but mostly it’s so far removed it’s not going to be evident. “Check the intention” is better; if you can at least make an educated guess about someone’s motives, it tells you a lot. But it’s still too hard for the everyday.

So I’ve settled on a couple of things. In a way, they mean much the same; but there are subtle and I believe useful distinctions. And I think they work just as well for adults:

  • First, one about delivery: beware of certainty. Certainty usually implies an unwillingness to learn, or a refusal to accept nuance. The HL Mencken line – that “for every complex problem there’s a solution that’s clear, simple and wrong” – is only too true. As is the rueful joke that there ought to be a “You know, it might be a bit more complicated than that” party out there somewhere. Put all that together, and being very careful of stuff told you by people whose presentation of it implies that they KNOW they’re right, they KNOW it’s true, becomes a sound strategy.
  • Second, one about people. A core test for me, and one I try to persuade my daughter to adopt, is to look at the person I’m talking to and try to imagine them saying, “I could be wrong”, and meaning it. If I can, I’ll listen. If I can’t, there’s a problem. The other value of this one, of course, is one can apply it to oneself. Am I being sufficiently humble about my state of knowledge? Or am I trapping myself or misleading others about the risk of inaccuracy? (I used to use this one as a reporter sometimes when interviewing someone about some plan their organisation had. I’d ask them: what could go wrong with this? If I got a sensible, thoughtful answer, I’d tend to feel a lot better about the plan; it seemed, in modern parlance, like someone might have run a pre-mortem. If I didn’t – and goodness knows I very rarely did – the temptation to do a Paxman and ask myself “why is this lying liar lying to me” got an awful lot stronger.)

The other critical one, of course, is an awareness of confirmation bias. There are a million cognitive biases, but this one’s the killer – because it means we test information which confirms our core beliefs with far less care than stuff that doesn’t. 

God knows I fall down on all three of these, every day. But they’re vital tools; and if I can help my daughter adopt them, I’ll have done at least one thing right as a parent.

Hold on a minute, you may say: I thought this was a SIROTI. Where’s the link?

In fact, it’s to something I’ve linked to before, but it’s more important than ever. Dan Davies of D-Squared Digestnotoriety once coined three rules which he said he’d learned in business school and dubbed the “One Minute MBA”. He promulgated them after the Iraq War in relation to (as it turned out) the abject absence of the WMDs which were the ostensible reason for the 2003 Iraq invasion. In short:

  • Good ideas do not need lots of lies told about them in order to gain public acceptance. When anyone handwaves a bunch of deliberate untruths and says that the end justifies the means, walk away. Fast.
  • Fibbers’ forecasts are worthless. Simply put: you can’t fudge or mitigate or moderate forecasts made by a liar. They’re worthless. Ignore them altogether.
  • The vital importance of audit. You need to set the success boundaries for a project before you start – and then you need to check your working afterwards. Anyone who won’t do the first, or seems to fail to want to learn from the second? Again, ignore them if you can. Vote them out if you can’t. They’re dangerous.

I’ve found them enormously effective as a test for all kinds of other things, both political and otherwise. I’ll leave their application to our various current travails as an exercise for the reader. 

The last of these three, the audit bit, is to my mind the really important one – and it chimes back to the original tools. Acknowledging how things actually went – asking the “so how did we do?” question and wanting to know the answer – isn’t just basic intellectual honesty; it’s the most fundamental requirement for doing things better in the future. And checking your working is at the heart of that.

Own your errors. Learn from them. Do better. Anything else, from anyone with any kind of responsibility to others, is a betrayal of that responsibility.

Don’t get me wrong. I’m writing badly if for a second I seem to be falling into the trap of putting all public figures into a big box marked “liar”. Humans lie. It’s what we do. The important thing is how much, when and why. It’s too easy, and ultimately incredibly self-defeating and damaging, to play that political game. 

But the next time some grand plan is espoused, by anyone, listen for the lies told to sell it, the forecasts made, the success metrics. And then watch out later on to see if those metrics are taken seriously – or are handwaved. It’ll tell you a lot about whether you can trust those making the play.

(And now for the legal bit. I’m a great believer, in court, in crafting a narrative. Starting with one’s case theory, it’s vitally important to end up with a story that makes sense. A lot of things can happen during a case, of course, but the team with the most Occam’s Razor-friendly story to tell starts comfortably ahead. 

This is where the One Minute MBA can be really useful. On the one hand, if you can show exaggeration or false forecasts from the other side, that’s a great way to undermine credibility; and if they’ve skirted around anything auditable (or have tried to handwave their promised outcomes later) that, too, is a fantastic lever on which to push.

On the other, of course, if it’s your side that’s got the outlandish predictions and the dodged promises, don’t under any circumstances hope no-one will notice. Your story will have to explain them, rationalise them – if at all possible, find a way of making them sound sensible rather than left-field. Otherwise no-one’s going to live happily ever after.)

Combine a suspicion of certainty, “I could be wrong”, an awareness of confirmation bias, and the One Minute MBA, and that’s a powerful toolbox for dealing with the blizzard of BS in which we all find ourselves. (An appreciation of the difference between lies and BS is useful too.) 

Might be a bit much for a 14 year old, not least because I (like all adults) struggle to put it into effect myself. But I think it’s a start.

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