We are now 23 months past the arrival of Covid-19 in January, 2020,[1] the world is a changed place, and I am happy to see that a good number of my March, 2020 recommendations on how to address this COVID-19 pandemic situation,[2] have made their way into the policies of several governments near and far. Thankfully, though, the mortality rate has not been as high as initially anticipated with the “stronger” suggested steps.[3] Some industries and businesses have done fabulously well, while others have not, and some are only barely still here.[4] But, as workers and consumers, we are ALL still here. Other than essential workers in the food, medical, other services and retail sectors, many of us “office workers” are and have been, working from home.
We do not know whether Covid or “some” sort of Covid will be and become an endemic thing that just does not completely go away. And, we do not know whether we will all be asked to get booter shots against it and them, on a regular basis. One thing is certain, though, and this is the fact that Remote Work (“Remoting”) has taken a solid hold of both the workers and those for whom they work. It is getting better organized, more entrenched, and businesses and governments are rushing to cater to it, grow it, and make it more comfortable. So, what then, are the key requirements for a peaceful, productive, and promotable remoting experience?
THE 5 KEYS TO GOOD AND EFFECTIVE REMOTING –
I would say that there are 5 (“five”) key requirements for a peaceful, productive, and promotable remoting experience, and these are: Systems, Trust, Empathy, Ability, and Mindset, or simply “S-T-E-A-M”.
(i) SYSTEMS (S5/C9):
There are two types of Systems needed, one group for supports and one group for coordination. If the remote workers were hosted at a single secondary site, such as with a sudden office relocation due to a compromise of their original or customary space, then the employer would have been responsible for all 5 (“five”) Supporting Systems for Safety, Security, Sanitation, Sustenance, and Socialization. However, with fully remote workers, the employer is not responsible for any of these, and especially not anyone’s safety and security. Remote workers in their own homes are pretty much responsible for their own safety and security, unless working with tools provided by the employer that are or may be hazardous to their health. That, though, is supposed to be rare, nowadays, with factories and research institutes being better suited.
The systems for coordination, on the other hand, are almost always under the employer’s control, by their nature. These 8 (“eight”) Coordinating Systems are for communications, collaboration, completions, complaints by clients, coaching, compliance of the workers, cybersecurity, and contingencies in general.
(ii) TRUST:
What has become abundantly clear, is that “trust” does not equal “Face Time” or being seen. Good workers in the physical office can still be good workers in their own homes, without micro-managers hovering over their every move. There are, however, cases of employers “digitally” hovering over and monitoring employees, which can range from activity monitoring and logging websites visited, gathering granular productivity data, and taking occasional screenshots, to keystroke logging, live video recording, and voice recording, whether with or without disclosure to the worker.[5] All of that, however, is for another discussion. Suffice it to say, at this point, that employers should certainly consult with their legal advisors before getting into “any” type of monitoring, because what is lawful in the employer’s jurisdiction of organization or control, may not necessarily be lawful where every employee lives. Mass worker actions (standstills, protests, working to rule) and class actions (generally bad for business), really should not be invited-in.
Trust should also arise from having Common Goals. This can be producing widgets, service customers, or other outcomes, depending on what the entity does and values. Ongoing reference to and updating of, such tools as Mission Statements, Project Charters, and Statements of Values, can also serve to publicize the goal, outline the steps to get there, and ensure more widespread buy-in. And finally, another way of ensuring trust, and that goals are both common and being met, is through honest and constructive Feedback, and that would be 2-way feedback, being both from employer to employee, and from employee to employer. There should also be a commonality of goals, and eSupports, or emotional supports for employee health and wellness, such as counseling, holistic remedies, and assorted therapeutics like massage and yoga instructors and providers. And all of this, leads us directly to the third key of good and effective Remoting, which is Empathy.
(iii) EMPATHY:
There are 5 (“five”) elements of empathy, including 4 (“four”) types of care, and these care types are, in no particular order, Kinder Care (child care), Elder Care, Client Care, and Self Care. Then we add-in the “E” to make the equation of Empathy = “MC2”, which stands for the Magnetic Care Square. If you place the worker in the middle of this square, and have one of the care types at each corner of the square, then the job of the employer is to help the worker not “have” to be drawn so long or so closely to any one of those corners, that one or more of the other corners is unduly neglected. It is also the job of the employer to help the worker remain sufficiently engaged with all 4 of these care types, that they are not actually drawn out of the square by one of them, and therefore become effectively disconnected from the rest of the care types. Of course, not every worker will have cares at all corners of the square, but the model holds true.
All of this has required delicate balancing and will continue to do so, along with a requirement that the supervisors and managers “be in the workers’ business” to a somewhat greater degree than they ordinarily were, since they cannot physically see the worker that requires an absence, but will need to have paperwork or a voice or video call performance, that justifies that late start or that urgent absence request. The need to cultivate those managers with more eSkills, being empathy, as opposed to the computer and internet champions who can do hard coding, have clearly become more important. If the workers are not feeling right or cannot focus due to other cares and commitments, then no amount of machines and tools, are likely to make it happen.
(iv) ABILITY:
Remote Workers also need to bring some of their own good qualities to the table, because it is not all or only about the employer. But, at the same time, the employer will need to encourage and even help to build and develop these qualities, as a part of that employment contract, and as an indispensable necessity of doing business, if it intends to “continue” doing business as a going concern. The first quality is Audacity, because people must be willing to try new ways of doing things in this new normal. To stand still without trying is both failing to try, and trying very hard to fail; especially when all of your competitors are jumping through hoops to test new organizational models, new suppliers and supply chains, and hardening and backing up their operations in general against fires,[6] floods,[7] political and social unrest,[8] and hoarding – by consumers and companies, alike.[9] As a direct result of this, Remote workers and Resilient systems are now spoken of in the same sentence, more often than not.
Secondly, the usual Biases must continue to be addressed, even if you cannot see your people or the way they interact (or fail to interact) with one another, under your nose, so to speak. These include the prohibited biases listed in applicable laws and codes, systemic biases that were never honestly discussed and addressed in the past, and the “presence” bias. With this last one, care and steps must be taken to ensure that those workers who actually do work in the office on an occasional or regular basis, due to their roles, are not unduly placed on a faster promotion path than those of their colleagues, equally or even more talented, who are mostly or fully remote.
The third quality is Clarity, and this one must be mutual. To the extent possible, roles and the performance requirements related to those roles should be made clear by the employer, and that clarity should then be confirmed as understood by the worker. I say “to the extent possible”, because we are all living in a very changeable environment, and the actual functions of various roles can change very quickly – both by being added to and by being subtracted from, and hence the need to revisit that skill-fill treadmill every few years, to get and stay current.[10] This is where clarity interacts with Audacity, as both the managers and the managed, must have the audacity to consider and show some agility, whether prompted by situations, or speeches, or sense.
The fourth quality is Digital Literacy, which goes beyond the basic digital literacy of using a computer but having technicians physically present. Although a technical support worker can take remote control of a device almost anywhere in the world, that should be the exception and not the norm. Hence, because those Remote Workers will be spending a good deal of time in the digital domain, which is full of dangers and risks, but still navigable in a relatively safe way, they must be armed with the right tools to do so, and have a good command of the “WEB-DVC”. This acronym stands for:
- Work Programs;
- Email etiquette and Chatiquette;
- Basic troubleshooting;
- Device care and management (at a “basic +” level);
- Version and document controls; and
- Cyber awareness (of phishing, of social engineering, of link and attachment policies).
Having and circulating clear and current Email and Social Media Policies, are indispensable, here. Similarly, while BYOD (bring your own device) ecosystems were tricky even when IT technicians could see and touch those actual devices from time to time, when workers were physically in the office, that whole calculus changes when remote workers can potentially buy and install all sorts of random, conflicting, and potentially corrupted devices and peripherals without any knowledge of IT until something goes wrong. For these reasons, many of the employers who allowed it before, albeit grudgingly, remain exposed to risks and will need to address them, purposefully.[11]
(v) MINDSET:
The fifth and final key to good and effective Remoting, is Mindset. This starts with the employer, but it must be shared with and also taken-on by, the worker. It has 4, “GRCC” components, of Growth, Raft, Continuous Disruption, and Continuous Adaptation, as follows.
The first mindset component, is Growth. The employer needs to believe in training, coaching and mentoring, and providing meaningful and sincere opportunities for people to expand their skills and abilities, try out new work experiences – including shadowing and deployments across units and departments, and give them as broad and as deep an understanding and experience of the employer’s operations as possible. In this way, you develop supervisory and management talent in-house, you combat skill obsolescence in the face of changing and declining roles,[12] and you show true and tangible interest in talent development, building loyalty and easing succession planning.
The next mindset component, is the “RAFT” on which everyone travels, in this new normal of Remoting. It stands for Respect, Accountability, Fairness, and Transparency. With Systems, Trust, Empathy, and Ability having been established already, there should be Respect of the employer for the workers and their concerns through open and honest communication, full disclosure of any monitoring or tracking embedded in employer-owned or supported systems, and respect for the Magnetic Care Square. There should also be respect of the workers for the employer and its needs, through feedback, common goals, and broad-based nurturing of talent.
Accountability, refers to owning one’s decisions and the outcomes of those decisions; thinking things through and being able to explain the reasoning behind the choices one makes; and being a good custodian of employee assets and relationships by following applicable policies and procedures, engaging in employer-sponsored or employer-directed training, and being one on whom others can rely to do what they say, and to be where they are supposed to be, and when.
When it comes to Fairness, this is a confidence at all levels and on both the management and labor side, that the employer’s rules and regulations will be fairly and equitably applied. This means there will be no favouritism, no biases in the allocation of opportunities for growth and promotion, and that any and all suspicions and allegations of wrongdoing will be fully and effectively investigated with no pre-judgement, and a hearing of both sides before any decision.
Finally, Transparency means that to the extent possible, management will not make and implement decisions without communication down the line, and will not take important decisions that impact their workers in a vacuum. For example, worker consultation and input should be sought when hours or tools of work change, when the conditions or location of work changes, and workers should be advised when there are significant personnel movements. This last item could be a change in senior management, the creation of a new unit or group, or when a specific worker is terminated who had seniority, or after a widely known event or investigation.
The mindset must also have an understanding that there WILL be a Continuous Disruption coupled with Continuous Opportunities, and that there MUST, in response, be Continuous Adaptation coupled with Continuous Improvement. Life and business do not follow a straight or uncluttered path. This is the norm, and it is a basic law of existence. New obstacles will arise, and existing but previously unseen ridges and potholes on the road of various sizes, will try to make you stumble. But, with each and every one of these recurring disruptions, is the opportunity to overcome it. Both the employer and the workers must be ready, willing, and able to accept this disruption and the opportunities it presents to adapt and adjust themselves, the way they work, and the way they think, with continuous improvements and the micro or major adjustments in roles, operations, approaches, and responsibilities needed to get their jobs done.
Some inevitable side-effects of the pandemic, are the fact that some were never able to take time off their jobs (essential workers); the fact that some used the time on lockdown to discover how much they really disliked their jobs; the fact that some businesses were able to pivot on the same axis (the sit-down restaurant moving to take out-and delivery only, and the yoga and fitness instructors going more permanently online to deliver their classes); the fact that some personal services workers were also able to pivot into a different line of work (the hairdressers, barbers, and masseuses who started driving for ride hailing services); and the fact that some blue-collar and white-collar workers moved to Gigging, or started new lines of work, as their own bosses.[13] This reinforces the Caveat that nothing will retain those workers who are really set on leaving, and it also re-emphasizes the need for exit interviews to help employers adjust, where needed.
SUMMARY –
And so, there we have it. Remoting is likely here to stay, in one or more forms, and hopefully, the Pandemic is not. Nevertheless, we need to get used to both, as they have worked together to change life and the work life, as we used to know it. Whether acting as legal counsel, or as management and strategic consultants, we can only give reasoned advice and make recommendations, that those hearing and reading, can decide whether and how far, to heed.
Many years of experience and the Covid-coping experience, have shown “us”, that Systems, Trust, Empathy, Ability, and Mindset, should now be your key concerns in worker retention, and in the best practices for maintaining your operations, your resilience, and your market share – especially if you are also managing any remote workers who you do not physically have in the office, and who may or may not return to the office in the near future, according to the ever-shifting pandemic-related regulations of the many different jurisdictions in which they reside.
If you have a better idea that will help you proceed at full steam, go for it, but mind the bumps!
Author:
Ekundayo George is a lawyer and sociologist. He has also studied organizational and micro-organizational behavior, and gained significant experience in programs, policy, regulatory compliance, litigation, and business law and counseling. He has been licensed to practise law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: https://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Energy, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors. He is a published author on the national security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal millieux.
Trained in Legal Project Management (and having organized and managed several complex projects before and while practicing law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams. Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, crisis consulting, and targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: healthcare; education and training; law and regulation; policy and plans; statistics, economics, and evaluations including feasibility studies and business cases; infrastructure; and information technology/information systems (IT/IS) – also sometimes termed information communications technologies (ICT). See, for example: https://www.simprime-ca.com.
Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.
This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein. Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.
[1] AJMC Staff. A Timeline of COVID-19 Developments in 2020. (American Journal of Managed Care). Posted January 1, 2021, on ajmc.com. Online: <https://www.ajmc.com/view/a-timeline-of-covid19-developments-in-2020> The World Health Organization (WHO) announced the discovery of a cluster of pneumonia-like cases in Wuhan, China, on January 9, 2020, and by January 31, 2020, and by January 31, 2020, the Novel Coronavirus had been identified, and the WHO had declared it to be a Global Public Health Emergency.
[2] Ekundayo George. COVID-19: Potential National & Subnational Measures. Posted March 10, 2020, on ogalaws.wordpress.com. Online: <https://ogalaws.wordpress.com/2020/03/10/covid-2019-potential-national-subnational-measures/>
[3] Ibid.
[4] CNN Business Staff. These businesses were the surprise winners of 2020. Posted December 30, 2020, on cnn.com. Online: <https://www.cnn.com/2020/12/30/business/winners-losers-2020-business/index.html>
[5] Matthew Finnegan. The New Normal: When work-from-home means the boss is watching. Posted October 29, 2020 on computerworld.com. Online: <https://www.computerworld.com/article/3586616/the-new-normal-when-work-from-home-means-the-boss-is-watching.html>
[6] MH&L Staff. Factory Fires Top Reason for Supply Chain Disruption in 2020. (Material Handling & Logistics). Posted April 17, 2021 on mhlnews.com. Online: <https://www.mhlnews.com/global-supply-chain/article/21162322/factory-fires-top-reason-for-supply-chain-disruption-in-2020>
[7] Dr. Serasu Duran (University of Calgary) and Dr. Feyza G. Sahinyazan (Simon Fraser University). B.C. floods reveal fragile food supply chains — 4 ways to manage the crisis now and in the future. Posted November 25, 2021 on ucalgary.ca/news. Online: <https://www.ucalgary.ca/news/bc-floods-reveal-fragile-food-supply-chains-4-ways-manage-crisis-now-and-future-0>
[8] Will Green. Firms must adapt to ‘new normal’ of civil unrest. Posted January 16, 2020, on cips.org (The Chartered Institute of Procurement and Supply). Online: <https://www.cips.org/supply-management/news/2020/january/firms-must-adapt-to-new-normal-of-civil-unrest/>
[9] Dr. Yossi Sheffi, MIT CTL. How Companies Can Break the Hoarding Habit. (Massachusetts Institute of Technology, Center for Transportation and Logistics). Posted July 27, 2021, on supplychain247.com. Online: <https://www.supplychain247.com/article/how_companies_can_break_the_hoarding_habit>
[10] Stephanie Kasriel, CEO, Upwork. Skill, re-skill and re-skill again. How to keep up with the future of work. Posted July 31, 2017, on weforum.org. Online: <https://www.weforum.org/agenda/2017/07/skill-reskill-prepare-for-future-of-work/>
[11] iTNews Asia Team. Companies remain exposed to unmanaged BYOD risks during pandemic. Posted June 16, 2021, on itews.Asia. Online: <https://www.itnews.asia/news/companies-remain-exposed-to-unmanaged-byod-risks-during-pandemic-565973?utm_source=feed&utm_medium=rss&utm_campaign=iTnews+Asia+>
[12] Supra, Note 10.
[13] Joanne Lipman. The Pandemic Revealed How Much We Hate Our Jobs. Now We Have a Chance to Reinvent Work. Posted May 27, 2021 on time.com and updated Jun1, 2021. Online: < https://time.com/6051955/work-after-covid-19/>
BREXIT Completed … Um, Are We There Yet?!
September 1, 2021
THE REFERENDUM, PROPER –
On June 23, 2016, the Peoples of the United Kingdom – Englanders, Scots, Welshmen, and Irishmen (men and women, all) and in their millions, voted on the Brexit Referendum. To stay (“remain”) within the European Union or to go (“leave”), that was the question and those were the options.[1] And, as it happened, that United Kingdom or Britain, voted 51.9% to 48.1% ratio in favour of leaving.[2]
There was much speculation on what precise nature the new UK would take, especially with respect to its trading relationships., and diplomatic and security arrangements.[3] However, as those details were being hashed-through, two of her Prime Ministers lost their jobs – first, David Cameron[4] and then, Theresa May.[5]
THAT LINGERING EXIT –
On January 31, 2020, and after much wrangling, many votes in Parliament, and intense negotiations with and deadline extensions granted by, the European Union, the UK finally left the EU block.[6] And, while the UK signed a trade treaty with Australia,[7] the EU entered into a new trade deal with China[8] – both parties had clearly gone their separate ways, but somehow, both of them still looked to the East for their future and sustained growth and prosperity, wholly independent of one another – except for a little UK-EU trade deal that allows for “tariff-free, quota-free access to each other’s markets for goods — but not services — and also covers future competition, fishing rights, and cooperation on matters such as security.”[9]
Hindsight being 20/20, anecdotal evidence suggests that less than 10% (“ten percent”) would now change their “No” to a “Yes”, and less than 10% (“ten percent”) would now change their “Yes” to a “No”, if given the chance to vote again.[10] However, the end result would only become a bare margin majority to Remain, this time at an approximately 51% to 49% ratio.[11] But, suffice it to say that with the UK now out of the driving circle, there is and has been an opportunity for France to raise its profile, and step more boldly into that EU leadership circle with Germany,[12] orchestrating a common defence plan, and joint borrowing to support the European Recovery Fund,[13] which has promised to make available up to €750 billion, to address the impacts of the global Coronavirus Pandemic on the European Union.[14]
With 21 states in that now 27 member Union having submitted their recovery plans by May 28, 2021, it was thought likely that the funds would start to flow, shortly thereafter.[15] However, the disbursement ration of up to €360.0 billion in loans, which will need to be repaid at a national level, and up to €312.5 billion in additional grants, which do not need to be paid back, have led many member states to shy away from requesting those loans.[16] The end-result, therefore, and an assessment of the final impact of this Recovery Fund, remains to be seen and may fall well short of the original expectations of many.
WHERE THINGS STAND –
Now, there is no more free movement between the UK and Europe,[17] and even though the citizens of each who were living in the other prior to Brexit, have “some” rights to be and remain where they are,[18] there was actually a deadline of June 30, 2021, to apply for residency where they found themselves residing at that time.[19] There does also still remain some wrangling over the UK land border with Northern Ireland, as the latter has remained within the EU,[20] but that Northern Ireland Protocol (the so-called “Irish Backstop”) and the broader Trade and Future Cooperation Agreement (TCA) entered into on Christmas Eve, 2020, jointly complete the formal Brexit process … somewhat.[21]
The problem now, is that, the TCA may well be pretty comprehensive on its treatment of Goods traded between the parties, dispute resolution, how to manage trade-distorting subsidies and mismatched regulations, as well as providing for a 5 and one-half year transitionary regime on fishing rights.[22] The trade in Services between the EU and the UK, and especially the trade in Financial Services which is a major component of the UK economy, however, is virtually untouched by the TCA.[23] Furthermore, according to an EU statement, while the UK had no interest in negotiating “Foreign policy, external security and defence cooperation”, which will exclude it from Europol and the European Arrest Warrant,[24] the UK will still remain within the European Convention on Human Rights, and maintain its “scientific” cooperation with the EU, at least for 7 more years.[25]
Implementation of the TCA is to be managed by an EU-UK Joint Partnership Council with the power to independently amend it for minor inconsistencies, and a dispute resolution mechanism that stays out of UK and EU courts, and especially the European Court of Justice.[26] However, with hopes of greater and independent trade ties with the United States and realizing that to maintain 2 concurrent regimes would be prohibitive, the UK may eventually need to decide whether to maintain its existing tight European regulations as it accesses those markets, or loosen-up its standards in order to access U.S. markets.[27] So, while the UK busily spread its wings further afield, the EU was forced to do a lot of ultimately positive, soul-searching, and according to a French Member of the European Parliament (MEP), Nathalie Loiseau:
“It created more common culture of what it means to have a single market, to have a level playing field, and this will play a role in the future in our relations with the rest of the world.”[28]
ESSENTIALLY –
So, to answer the original question of whether or not we are there, regarding completion of the British Exit from the European Union? I would say, “almost” and “yes”, which as you can see, is not really two separate answers, in this rather unique case.
Author:
Ekundayo George is a lawyer and sociologist. He has also taken courses in organizational and micro-organizational behavior, and gained significant experience in programs, policy, regulatory compliance, litigation, and business law and counseling. He has been licensed to practise law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: https://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Energy, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors. He is a published author on the national security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal millieux.
Trained in Legal Project Management (and having organized and managed several complex projects before practicing law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams. Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, crisis consulting, and targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: healthcare; education and training; law and regulation; policy and plans; statistics, economics, and evaluations including feasibility studies and business cases; infrastructure; and information technology/information systems (IT/IS) – also sometimes termed information communications technologies (ICT). See, for example: https://www.simprime-ca.com.
Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.
This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein. Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.
[1] Ekundayo George. Analyzing the 2016 Brexit: A Classically Complex Conundrum. Posted June 30, 2016, on ogalaws.wordpress.com. Web: <https://ogalaws.wordpress.com/2016/06/30/analyzing-the-2016-brexit-a-classically-complex-conundrum/> See also Ekundayo George. Analyzing the 2016 Brexit: The UK Exit Plan is Revealed, Promising a “Hybridized” End-result. Posted January 20, 2017, on ogalaws.wordpress.com. Web: <https://ogalaws.wordpress.com/2017/01/20/analyzing-the-2016-brexit-the-uk-exit-plan-is-revealed-promising-a-hybridized-end-result/> See also Ekundayo George. Calling the Brexit end-result at this point, is a guessing game! Posted March 11, 2019, on ogalaws.wordpress.com. Web: <https://ogalaws.wordpress.com/2019/03/11/calling-the-brexit-end-result-at-this-point-is-a-guessing-game/> See also Ekundayo George. Brexit – What happens after that December 12, 2019 UK Election? Posted November 22, 2019, on ogalaws.wordpress.com. Web: <https://ogalaws.wordpress.com/2019/11/22/brexit-what-happens-after-that-december-12-2019-uk-election/>
[2] Id.
[3] Id.
[4] BBC News. Brexit: David Cameron to quit after UK votes to leave EU. Posted June 24, 2016 on bbc.com. Web: < https://www.bbc.com/news/uk-politics-36615028 >
[5] BBC News. Theresa May resigns over Brexit: What happened? Posted May 24, 2019 on bbc.com. Web: < https://www.bbc.com/news/uk-politics-48379730 >
[6] Reuters. Brexit: Britain’s tortuous journey out of the EU. Posted December 24, 2020 on reuters.com. Web: < https://www.reuters.com/article/us-britain-eu-timeline-idUSKBN28Y1KZ >
[7] Sam Hancock. Brexit anniversary: Let us know how you would vote if the referendum was held today. Posted June 23, 2021 on independent.co.uk. Web: < https://www.independent.co.uk/news/uk/politics/brexit-referendum-anniversary-vote-today-b1871402.html >
[8] Jennifer Rankin. Moving on: why the EU is not missing Britain that much. Published June 23, 2021 on theguardian.com. Web: < https://www.theguardian.com/world/2021/jun/23/moving-on-why-the-eu-is-not-missing-britain-that-much >
[9] Alasdair Sandford. Post-Brexit Guide: Five years since UK vote, where are we now – and how did we get here? Posted June 23, 2021 on euronews.com. < https://www.euronews.com/2021/06/23/brexit-draft-deal-first-of-many-hurdles-to-a-smooth-exit >
[10] Supra note 7.
[11] Id.
[12] Supra note 8.
[13] Id.
[14] Euronews. After months of delay, EU nations finally ratify €750bn recovery fund. Posted May 28, 2021 on euronews.com. Web: < https://www.euronews.com/2021/05/28/after-months-of-delay-eu-nations-finally-ratify-750bn-recovery-fund >
[15] Id.
[16] Id.
[17] Alasdair Sandford. Post-Brexit Guide: Five years since UK vote, where are we now – and how did we get here? Posted June 23, 2021 on euronews.com. < https://www.euronews.com/2021/06/23/brexit-draft-deal-first-of-many-hurdles-to-a-smooth-exit >
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Jennifer Rankin. Moving on: why the EU is not missing Britain that much. Published June 23, 2021 on theguardian.com. Web: < https://www.theguardian.com/world/2021/jun/23/moving-on-why-the-eu-is-not-missing-britain-that-much >
Surging U.S. COVID-19: Only a direct, unified, multi-focal attack will help it to “Mis-am-Ditch”.
July 29, 2020
THE CURRENT SNAPSHOT –
Storming into an unsuspecting world in December, 2019 and January, 2020, this Novel Coronavirus has become a Global Pandemic in “COVID-19”, with more than 650,000 people dead from COVID-19 and now over 16,000,000 cases worldwide, to date.[1] Although close to 9,000,000 people are said to have “recovered from COVID-19”,[2] this description does not always mean clear or comfortable days ahead as significant damage and impairments can occur and linger-on.[3]
Nations have taken many different approaches to battle COVID-19, and some have had more success than others. In fact, many of my initial suggestions for national and sub-national measures have thankfully become routine, like travel restrictions and temperature checks.[4]
However, with national governments starting to face pushback over the staggering levels of COVID-19 spending,[5] subnational governments pleading for fiscal stimulus,[6] the Global Pandemic still very much in our faces,[7] and limited options to make a living for those stuck at home, even after considering many disparate or improbable combinations,[8] it is time for something new.
A NEW APPROACH: “MIS-AM-DITCH” ! –
Whether or not you agree, the COVID-19 is running-off in a way that is so rampant and out of control in many parts of the United States, that over 150 medical professionals called for a total and hard shutdown to stop its spread,[9] in an Open Letter that was publicized on July 24, 2020.[10]
I feel it is now glaringly obvious that the United States of America will absolutely find itself in a ditch, if the following 11-point program of a direct, unified, multi-focal attack on the COVID-19 Pandemic across the nation, is not immediately adopted. Only with this can the nation “MIS-am-DITCH”, as anything less than this exact approach, risks precisely that calamity. These steps are:
M-asks: their usage must be uniform, obeyed, assisted, and rigorously enforced, with constant and consistent reminders to the public in general and especially vulnerable communities and population segments in particular, encouraging (and demonstrating) proper usage.
I-solation: quarantine rules once cases are suspected or discovered, must also be uniform, obeyed, assisted, and rigorously enforced; and these may soon extend significantly beyond 15 days as the virus strengthens and mutates after being left to run rampant in the misguided hope of finding and enhancing some herd immunity. Sadly, and at this point, that isolation may also and of necessity, include a nationwide shutdown with a Stay-at-Home order that must also be uniform, obeyed, assisted and rigorously enforced, this time around.
S-creening: all people entering indoor public spaces must be pre-screened for COVID-19 indicators through active surveillance.
A-lliances of Aptitudes: these 6 (“six”) interested stakeholder groups, must work and coordinate their work, in concert, being – Operators (medical) delivering care and treatments on the front lines; Leadership at the municipal, state, and national levels; Originators of personal protective equipment (PPE); Scientists who are both assisting with epidemiological investigations and searching for an effective vaccine; Laboratories that are both creating and processing tests; and, the Owners and purveyors of those critical enablers of food, academics, shelter, and technology (all being the “OLOSLO” collective).
M-oney: there should definitely and also be money to assist people who are out of work, out of unemployment and medical insurance, and in many cases also out of food, judging by the lines that have been seen at the nation’s outdoor food bank pickup and drive-through pantry locations.[11] To deprive Citizens of a critical fiscal lifeline in order to cajole or even “force” them back to work, while COVID-19 cases and deaths are rising so precipitously nationwide, is not only unwise, but also dangerous and on multiple levels.
D-istancing: there should be clear rules, visible marking and warnings, and easy compliance on physical (social) distancing to hinder the further spread of COVID-19.
I-4: these are information, inclusion, and influence initiatives to make and move effective messages to the public regarding COVID-19, its progression, and the fight against it.
T-esting and Treatment: testing should be available and have results that are timely and therefore useful, and treatment should be available at massively surged, well- and professionally-staffed (into several shifts), and fully stocked and equipped facilities.
C-ontact tracing: this should be responsive, omni-available, accurate, robust, and sustained.
H-ygiene: there must be constant and consistent reminders to the public in general and especially vulnerable communities and population segments in particular, encouraging (and demonstrating) the proper use of gloves, hand sanitizer, and the washing of hands.
THE SUM OF IT –
Web meetings are now widely-available, as have long been the email, fax, text, and phonecalls, all curtailing the need for much business and social travel despite travel and aviation industry losses. “Safe Travel Lists” for persons entering or leaving any nation, or any closely-knit collective of nations that has controlled or seeks to control its COVID-19 rates, should also be discouraged.[12] The alternative risks creating a global Whack-a-Mole mess that may well never, EVER, end.
Speaking at the United States Capitol with Representative Nancy Pelosi on Thursday, July 23, 2020, Senator Charles (Chuck) Schumer described the COVID-19 response of the Trump administration as being severely wanting, stating that “[e]ven after all this time, it appears the Republican legislative response to COVID is on unified, un-serious, unsatisfactory”[13] Senator Schumer also blamed much of the resulting illness, death, and health and economic hardship on a conclusion that “this administration has a no direction, no plan, no straight line of attack.”[14] Be that as it may, I would say that the national response has also been “un-unified, un-serious and un-satisfactory”, and on this point, at least, there can and should be, no argument. Hence, in order to avoid being stuck in a ditch with new daily COVID-19 cases of 50,000 or even 100,000 and more piling-in on top, which would add and include a daily death rate of 1,000 or even up to 5,000 and more, something definitely has to change, and REALLY fast, as that result is a ditch that any nation would be very hard pressed to escape, as new cases and deaths “super-cumulate.” If it would be such a hard task to get out of that ditch with no guarantee of ultimate success, then the most advisable course of action is to miss it, and not let oneself get into it, in the first place.
With the Executive branch fixated on conspiracies and Hydroxychloroquine,[15] and the Congress tied in a gordian partisan knot,[16] – which as I had said several months ago in early March, 2020, would hinder ANY effective, national-level, unified response to the COVID-19 Pandemic in the United States,[17] the Governors need to completely wrest this COVID-19 battle out of federal hands. Awaiting an election to (hopefully) change federal power and policies, risks waiting until COVID-19 deaths in the United States reach and surpass 250,000. There is no guarantee that uniform and credible elections will even take place, or that the end result will be widely accepted if they do. Similarly, judging by rapidly rising outside and in-person temperatures and casualties, and ever more brazen displays of ire, angst, and cabin fever, law and order is likely to break down long before that perilous mortality count is reached. The danger that the United States could devolve into a nuclear failed state with its people balkanized into 5-8 largely autonomous regions, each in different configurations of law or disorder, all with their residents equally barred from travel to better governed jurisdictions, and with each region sharing ultimately similar COVID-19 incidence rates, is a clear and present one, and gains a stronger probability ratio by the day.
Hopefully ……….. someone with authority, somewhere in the nation, is paying close attention.
Good luck; Stay safe; Get serious !
****************************************************************
Author:
Ekundayo George is a lawyer and sociologist. A keen student of organizational and micro-organizational behaviour, he has gained significant experience in programs, policy, regulatory compliance, litigation, and business law and counseling. He has been licensed to practise law in the provinces of Ontario and Alberta, in Canada, as well as in the states of New York and New Jersey, and Washington, D.C., in the United States of America. See, for example: https://www.ogalaws.com. He has studied and worked as an Industrial Safety Officer for the Energy industry (oil, gas, and petrochemical plants), he is a published author on the national security aspects of Environmental Law, he has represented clients in state and federal courts across several jurisdictions and before a number of regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, policy, technological, and societal millieux.
A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Energy, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors.
Trained in Legal Project Management (and having organized and managed several complex projects before practicing law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams. Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, crisis consulting, and targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: healthcare; education and training; law and regulation; policy and plans; statistics, economics, and evaluations including feasibility studies and business cases; infrastructure; and information technology/information systems (IT/IS) – also sometimes termed information communications technologies (ICT). See, for example: https://www.simprime-ca.com.
Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.
This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein. Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.
[1] WORLDOMETER. COVID-19 Coronavirus Pandemic. Visited July 27, 2020. Online: >https://www.worldometers.info/coronavirus/?utm_campaign=homeAdvegas1?<
[2] Ibid.
[3] Stuart Ramsay. Coronavirus warning from Italy: Effects of COVID-19 could be worse than first thought. Posted on sky.com. Visited July 18, 2020. Online: >https://news.sky.com/story/coronavirus-warning-from-italy-effects-of-covid-19-could-be-worse-than-first-thought-12027348<
[4] Ekundayo George. COVID-2019: Potential National & Subnational Measures. Posted March 10, 2020, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2020/03/10/covid-2019-potential-national-subnational-measures/<
[5] Ian McGugan. Pandemic debt: Countries are spending trillions to save the economy from the coronavirus crisis. Can the world afford it? Posted on theglobeandmail, April 3, 2020. Online: >https://www.theglobeandmail.com/business/article-can-the-world-afford-the-cost-of-fighting-covid-19/<
[6] Alex Boutilier and Robert Benzie. Ottawa sending $19B to provinces for COVID-19 aid. Posted on thestar.com, July 16, 2020. Online: >https://www.thestar.com/politics/federal/2020/07/16/ottawa-sending-19b-to-provinces-for-covid-19-aid.html<
[7] The following several examples from around the United States, alone, show that the COVID-19 Pandemic is not ebbing anytime soon. See e.g. Tamara Lush and Terry Spencer. Florida Shatters Daily Record With 15,300 New COVID-19 Cases. Posted July 12, 2020 on nbcmiami.com and updated July 13, 2020. Online: >https://www.nbcmiami.com/news/local/florida-shatters-daily-record-with-over-15000-new-covid-19-cases/2261128/< ; KHOU. CORONAVIRUS. July 14 COVID-19 update: Texas sets new single-day record with 10,745 new cases. Posted July 14, 2020 on khou.com. Online: >https://www.khou.com/article/news/health/coronavirus/july-14-covid-19-case-reports/285-3ec438f0-3d7f-45c4-8c7b-5f65fd3a8652< ; Los Angeles Times. California shatters record with more than 11,000 new coronavirus cases in 1 day. Posted on ktla.com, July 15, 2020. Online: >https://ktla.com/news/california/california-shatters-record-with-more-than-11000-new-coronavirus-cases-in-1-day/< ; Lisa Shumaker. Coronavirus: U.S. breaks daily record with over 77,000 new cases. Posted on globalnews.ca, July 16, 2020. Online: >https://globalnews.ca/news/7187712/coronavirus-us-daily-record/<
[8] Ekundayo Geoge. FINDING AND CATCHING WIND TO SAIL IN A DEAD CALM DOWNTURN (Part 3, Covid-19). Posted July 6, 2020, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2020/07/06/finding-and-catching-wind-to-sail-in-a-dead-calm-downturn-part-3-covid-19/<
[9] Cecelia Smith-Schoenwalder. Over 150 Medical Experts Urge Trump, Congress and States to Shut U.S. Down Again Amid Virus Surge. Posted July 24, 2020, on usnews.com. Online: >https://www.usnews.com/news/health-news/articles/2020-07-24/over-150-medical-experts-urge-trump-congress-and-states-to-shut-us-down-again-amid-coronavirus-surge<
[10] United States Public Interest Research Group (U.S. PIRG). Shut it down, start over, do it right. An open letter to America’s decision makers, on behalf of health professionals across the country. Posted July 6, 2020 on, uspirg.org and last updated and visited July 26, 2020. Online: >https://uspirg.org/resources/usp/shut-it-down-start-over-do-it-right<
[11] Clay LePard. Residents continue to rely on drive-thru food pantries months after being furloughed. Posted July 23, 2020, on clickorlando.com. Online: > https://www.clickorlando.com/news/local/2020/07/23/residents-continue-to-rely-on-drive-thru-food-pantries-months-after-being-furloughed/<
[12] Philip Blenkinsop. EU excludes United States from ‘safe’ travel list. Posted June 30, 2020, on reuters.com. Online: >https://www.reuters.com/article/us-health-coronavirus-eu-travel/eu-excludes-united-states-from-safe-travel-list-idUSKBN2410WJ<
[13] MSNBC. Joint Press Conference from the Capitol of The Honorable Senator (D-NY) Charles Ellis (Chuck) Schumer, and The Honorable Representative Nancy Patricia Pelosi (D-CA), Speaker of the United States House of Representatives. Viewed live, at 11:05 a.m. on Thursday, July 23, 2020, at time stamp 3:14 [sic]. Transcript: >https://www.rev.com/blog/transcripts/speaker-nancy-pelosi-press-conference-transcript-july-23<
[14] Id. Chuck Schumer, at time stamp 11:45 [sic].
[15] Jacob Jarvis. Trump Shares Conspiracy Theory About Hydroxychloroquine and 2020 Election. Posted July 28, 2020, on newsweek.com. Online: >https://www.newsweek.com/donald-trump-hydroxychloroquine-election-1520878<
[16] Pew Research Center. Republicans, Democrats Move Even Further Apart in Coronavirus Concerns. Posted June 25, 2020, on pewresearch.org. Online: >https://www.pewresearch.org/politics/2020/06/25/republicans-democrats-move-even-further-apart-in-coronavirus-concerns/<
[17] Ekundayo George. COVID-2019: Potential National & Subnational Measures. Posted March 10, 2020, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2020/03/10/covid-2019-potential-national-subnational-measures/<
Which is worse – being free to roam without finding work in a great recession[1] or during sustained global economic stagnation,[2] or being on full or partial lockdown in a COVID-19 Global Pandemic situation (hereinafter “Covid”) ?
Each has its own challenges in terms of earning a living. However, with Covid, things are that much tougher because getting too close to others to shake hands or even breath the same air in sequence, can be very bad for you, or for them, or for both of you together – and even deadly. So, what can one do to make some meaningful income while the whole world stands apart for as long as they and we individually, all can, without going stir-crazy, getting precaution-lazy, or surviving, cashless, on dry beans and gravy?
WHAT IS IN THE ECONOMY, ANYWAY? –
Well, as always, start with the basics ………… what is the economy at its barest bones?
We have often heard of the 3 factors of production, being Land, Labor and Capital/Kapital.
Then, we hear of the human condition’s 3 survival basics, being Food, Shelter, and Clothing.
Those are 6 key elements already, but the modern economy adds or splits-out, two more, which are Technology, and Consumables. With these 8, then, we can start to break them down, further categorize, compartmentalize, and strategize.
HOW DO WE SORT THESE 8? –
Put Land, Labor and Technology on one side; Food and Shelter in the middle; and the three Cs (Capital, Clothing, and Consumables) on the other side, then identify them with the rule of 3.
L + L + T –
Land, including land with improvements such as a home, an industrial plant, or a commercial or rental property building, can be any of: (a) under water or fallow land; (b) in a steady state and barely drawing even or simply where you have your own business; or (c) it can be an income property that is actually cash flow positive and producing an income.
In terms of Labor nowadays, you can be: (a) jobless; (b) working from home; or (c) in an essential function or group, and working outside the home. Some jurisdictions, of course, have remobilized their populations and restarted to various degrees, but with varying results, and so we won`t go there right now, and there are also many different definitions of essential, such as health and security workers, grocery store clerks, utility and transportation workers, office workers in a payroll and benefits function, an inventory rotation and maintenance function, or responsible for the care of live animals, so we won’t delve deeper into those terms, either.
Technology is an enabler that helps you with: (a) knowing (which includes communication, advice, entertainment, and basic information retrieval); (b) it can help you with acting on that information; and (c) it can help you with moving – whether as a result of information, to get information, or as a movement enabling technology in its own right through some form of transportation ranging from the scooter, through an Uber, to a plane, train, or simple bicycle. You can also know, act, and move at the same time with Technology in the massive enabling of “telepresence”, through the current super-spike of online video meetings and web-based events, where by attending without moving you really “CAN” be in two places at once.
F + S –
Food (and drink) you can: (a) produce and sell; (b) purchase to consume; or (c) stockpile it for re-sale or later personal use.
Shelter, you can: (a) own; (b) let-out; or (c) yourself rent, whether or not you actually live there; remembering that shelter can be anything from an actual house, through an apartment or hotel room or bed and breakfast arrangement, to a mobility property such as a boat or houseboat, a private aircraft, or a camper or recreational vehicle whether towed or self-propelled.
C + C + C –
Capital can be identified as: (a) income (inflow); (b) expense (outflow); or (c) an investment (sideflow).
Clothing can be: (a) multi-purpose basic ear; (b) general workwear including suits and pantsuits and uniforms; or (c) it can be general- or specific-purpose Personal Protective Equipment (PPE).
Consumables, finally, can be: (a) a variety of services and content; (b) medications; or once again (c) PPE.
ANALYSIS –
You will have noticed that PPE appears twice, which is not surprising, given its importance in the middle of a Global Pandemic. So it is a high demand category that is evident in the initial shortages of things like face masks, gloves, and household cleaning wipes, and their ongoing high rates of usage and sporadic shortages as Covid rages-on.
Without passing judgement on the ethics, legality, or propriety of any of the following, I will give some examples of: (I) same category folding, (II) cross-category pairing, and (III) tri-category bridging, to make things happen.
I. Same Category Folding, was already seen in technology, with teleconferencing that combines moving, with information. On a non-macro-level, it can also be seen with land, where you sublet that un-used portion of a commercial property that you own or let, or with shelter where you let out a portion of the home that you occupy. Similarly with labor, if you are at home on furlough, then you may also be able to start a home based business and work from home to supplement unemployment insurance income or leverage and re-deploy any other funds made available to you during Covid.
II. Cross-Category Pairing, can be seen where one uses a vehicle as technology that they own or control, and combines labor as an essential worker to now drive in a Ridesharing arrangement, or to deliver food, in either case as an essential worker. One can also work from home to produce clothing in the form of masks as PPE, or even another consumable in the form of advice and counseling services.
III. Tri-Category Bridging, was in clear view when some people used their capital in sideflow, to buy and resell large amounts of PPE (clothing or consumables) or food and drink. Knowledge workers can likewise work from home by investing (sideflow) in technology cloud power or production equipment as simple as a few camcorders, and then acting by creating consumables in services or content for larger providers, or even by themselves, such as with a short film, infomercial, or actual YouTube channel.
CONCLUSIONS –
One would have factored-in the ability to liquidate personal goods to generate some quick cashflow. However, the ability of Covid to linger on hard surfaces somewhat discourages those modern garage sales for all but the most hardy. As the above shows, though, using a little ingenuity can help you find those hidden and glaring opportunities.
Most of us can look down and see five fingers or five toes, and those who cannot, have in many cases compensated and still been able to survive and even thrive despite those limitations. So, just look to, and take an honest inventory of:
(i) your Possessions (across the original 8 factors), including what you occupy or control;
(ii) your Abilities (in terms of labour);
(iii) the “Rational” needs of the market (rational as in what “you” can manage to provide in line with the prevailing government medical advice or lockdown status, not what the people “feel” that they need, but that is totally unattainable or otherwise ill-advised for whatever reason or reasons at that time);
(iv) your own Tolerance of risk; and
(v) the many Synergies that you can create through Tri-category bridging, Cross-category pairing, and Same category folding …………… so, go on, take these “parts” and make them – and yourself, whole !
Good luck; Stay safe !
****************************************************************
Author:
Ekundayo George is a lawyer and sociologist. He has also taken courses in organizational and micro-organizational behavior, and gained significant experience in programs, policy, regulatory compliance, litigation, and business law and counseling. He has been licensed to practise law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: https://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Energy, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors. He is a published author on the national security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal millieux.
Trained in Legal Project Management (and having organized and managed several complex projects before practicing law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams. Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, crisis consulting, and targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: healthcare; education and training; law and regulation; policy and plans; statistics, economics, and evaluations including feasibility studies and business cases; infrastructure; and information technology/information systems (IT/IS) – also sometimes termed information communications technologies (ICT). See, for example: https://www.simprime-ca.com.
Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.
This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein. Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.
[1] Ekundayo George. FINDING AND CATCHING WIND TO SAIL IN A DEAD CALM DOWNTURN (Part 1, 2011). Posted September 3, 2011, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/issues-counseling/<
[2] Ekundayo George. FINDING AND CATCHING WIND TO SAIL IN A DEAD CALM DOWNTURN (Part 2, 2013). Posted January 3, 2013, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2013/01/03/finding-and-catching-wind-to-sail-in-a-dead-calm-downturn-part-2/<
COVID-19: Potential National & Subnational Measures.
March 10, 2020
The Novel Coronavirus which originated in Wuhan, Hubei Province, China in late 2019, has become a growing global concern. As such, there are many potential and many proven measures that nations and sub-national units can leverage in an effort to address it. One such far-ranging and quick sketch of a scheme, that I laid-out before the first and partial Italian lockdown of Saturday, March 7, 2020,[1] is what I would call the “TRIPLE TAP-OUT (TTO)“:
DECLARATION & DURATION:
*Declare a national and international health emergency for thrice renewable 250-day periods on the sole authority of the head of government, before re-assessment and any renewal for the same period with or without some wider government input.
LAW ENFORCEMENT & NATIONAL SECURITY APPARATUS (LENS):
*All vacations and leaves canceled.
*All principals and spouses and custodial issue restricted to barracks.
*30 days quarantine, 30 days operational, 30 days recovery on the Triple Tap Out.
*Establish treatment, quarantine, and testing locations and prepare for mass casualties and the safe categorization, handling, and disposal of large amounts of hazardous waste.
*Impress medical and nursing students and cadets into service; have 3 shadows (1 x junior, 2 x students or cadets) to a senior practitioner; 2 shadows (1 x junior, 1 x student or cadet) to a mid-level practitioner, for ease of replacement and continuity of care in case of necessity.
*Consider calling medical and nursing professionals out of retirement, and retraining or re-certification in order to bring them back fully online.
*Secure and store “much more than sufficient” supplies of unexpired safety gear (personal protective equipment), testing and diagnostic kits, and contact-less thermometers.
OVERALL NATIONAL & REGIONAL LEADERSHIP:
Again with Triple Tap-Out (TTO), and on that 30-day operational rotation:
*2 alternating shifts of 8 hours across 1 or 2 physical locations; a third crossover/surge and backup group in a separate location for 2 x 12 hour shifts.
*This ensures continuity of service and government (have 2 x VP, or 2 x Deputy PM in national government as appropriate). All 3 leadership centres would have to be rendered ineffective at the same time or within the same span of time, for the system to collapse on this Triple Tap-Out. A set line of succession is already enshrined in the United States, but many other nations have only 1 Deputy PM or VP. Again, after a very contentious impeachment exercise, some U.S. Republicans may, in an electoral season, balk at the Democratic House Speaker potentially leading the nation under “their” watch and term. Partisanship may continue to hinder a full and effective emergency response.
CLIENT FACING / REGULATORY / UTILITIES:
*Establish the required or permissible lower levels of critical and essential services, and appropriate staffing rates.
*Have staff camped out and segregated (no travel to and from home), with a flat pay rate of 1.5 x regular time, for TTO rotations within each of the 250-day periods.
TRAVEL & SPECIAL POPULATIONS:
*Mandate a 30 day quarantine for all permitted arrivals (which should slow inflows), being disclosed well in advance to be a managed quarantine in designated locations and not a self-quarantine; with related other disclaimers.
*All arriving + departing mass transit and cruise carriers should be mandated to have and show comprehensive and scientifically and demonstrably effective cleaning and disinfecting, or else they will neither embark nor debark passengers in that jurisdiction.
*initiate Six Sick Testing (SST), such that mass transit and cruise carrier crews and passengers must be tested:
(i) before original home port departure,
(ii) in flight/en route incoming,
(iii) before debarking here,
(iv) before re-embarking back,
(v) in flight/en route outgoing, and finally,
(vi) before debarking there at a final destination – that works for a round trip, and can also apply to connecting flights within the subject jurisdiction.
*Consider monitoring or limiting cross-nation travel; expediting trucking, barge/internal waterway, and rail transport, and guarding supply lines.
*Do not neglect the homeless and indigent.
*Do not neglect remote and isolated communities.
*Do not neglect prisons, nursing homes and buildings with senior concentrations.
*Do not neglect convalescent, rehabilitation, or recovery homes and units.
FINANCE:
*Mandate that “ALL” installment payments within the jurisdiction be cut to 50% for 6 month renewable periods during the emergency, without any loss of assets or breach of contract.
*Mandate into force up to 30 days of sick leave (paid at 50%, free of tax + payroll tax), in every 6 month period during the declared emergency, for every employee in the jurisdiction.
*Mandate into force some guarantee or limit on direct patient costs regarding diagnostic testing and treatment in those jurisdictions lacking universal health coverage or the like.
*Mandate into force that all public + private sector payrolls within jurisdiction and for renewable periods of 6 months, be reduced to 50%, free of tax and payroll deductions, adding 7.5% (tax and deductions free) if having and for children, and adding another 7.5% (tax and deductions free) if and for major medical needs, as to be defined (assisted living, mobility aids, special diets, in home care, convalescing from recent surgery, current or recent child birth or maternity leave, and so forth).
*Consider permitting people to leave work on furlough for thrice renewable periods of 90 days, in which they:
(i) work as an activated reserve of civilian, military, or civil defence staff under applicable terms of service;
(ii) work in a volunteer capacity to care for family and friends sickened and otherwise during the emergency; or
(iii) work in a regular employment capacity as additional staff,- such that the entire 90-day furlough can cover a 30-day quarantine into the furlough, the 30 days of work, and a 30 day quarantine back out to the general population.
*Ensure that regular jobs, seniority levels, pensions and benefits of these people are fully protected and available for them at the conclusion of their service in the emergency, as applicable.
INSURANCE:
*Mandate that “ALL” Insurance premiums within the jurisdiction be cut to 50% for 6 month periods renewable during the emergency, without any loss of coverage or breach of contract.
*Mandate into force, including by unilateral force majeure invocation by and on behalf of parties, all selected business interruption provisions (including but not limited to voiding the standard exclusions for war, pandemic, force majeure, and Acts of God), as well as with blue penciling for coverage, duration, and limitations; necessitating consultation with insurers, on:
(1) extension to their non-selecting insureds,
(2) future available and mandatory coverage options and limits, and
(3) current government fiscal support of the industry, or future government fiscal concessions to the industry, or both – with teleconferences advised for any and all such meetings.
*Insurer cash on hand and near-cash reserves may need to be significantly drawn down, with liquidation of near cash equivalents in order to provide the requisite funds and avoid depressing markets with sudden and substantial asset sales, and attempted substantial asset sales where there are no takers.
MASS GATHERING AREAS:
*Suspend all schools and colleges of all levels, all religious gatherings outside families and residential groupings, all mass events like weddings and funerals and conferences, and theatres, and the like.
*Education at all levels should be encouraged to continue where distance learning is both an option, and accessible.
*Restaurants can remain open – take your own drinkware + silverware (paper napkins supplied); fast foods for takeout and pickup only, and delivery where available with no eating in.
*Mandatory 6-point testing and/or temperature checks for all food and public facing workers, as well as all workers not operating from home in a telework capacity, who remain in large or high-occupancy buildings, both public and private:
(i) On waking – called in by the subject;
(ii) On reporting to work;
(iii) At the end of lunch and on returning to work;
(iv) Before leaving the workplace for the day; and
(v) Before sleeping – called in by the subject.
*A sixth spot test and/or temperature check should also be made at a moving random daily time, as well as when any co-worker is reported to have tested positive, or is denied entry or denied any continued work or return to work, due to showing listed symptoms or having a fever.
*Workplaces should also consider their notification and communication plans, cross trained employees, remote work – whether from home or a third contingency plan location, or from both of these as co-branded mutual redundancies.
*Officially encourage all households to stock enough food, water, medication, sanitary and cleaning supplies, garbage bags, and other necessities to last all residents for at least 30 days without restocking or leaving the home, in case a large scale quarantine is suddenly required, certain areas are suddenly deemed off limits or otherwise inaccessible, some or all shopping locations are simply out of stock for those who didn’t act on time as advised, or there is otherwise no set schedule as to when supply lines will reopen with an adequate flow to meet the backlog in pent-up demand and move forwards from there.
PUBLIC:
*If stringently used, the above should waylay or seriously delay the need to quarantine large areas, but large quarantines and mandatory self-quarantines should both be heeded, if needed, with strict penalties for violating orders (courts suspended, but statutes of limitations also suspended on infractions and all other matters; and 3-6 months of medical detention allowed for violating disclosed quarantine, as well as 3-6 months of public or judicial order violator detention allowed – even sequentially.
*If not already done, have landlords take and provide inventory of residents, with government instruction to tenants to comply and give regular updates.
*Start house to house resident registration, medical and medication needs assessments, and regular temperature taking of all inhabitants, by mobile health teams.
*If not already done, prepare to stockpile, secure, and distribute food, water, medication, and cooking and sanitary materials in packages to households.
*Consider mobile health teams taking appropriate temperatures and assessments at places of public transit embarkation (perhaps restricting said locations in number and modifying routes), and outside high occupancy buildings and offices.
*Consider special mobile patient transportation and contact tracing teams pre-positioned at various locations for appropriate purposes and tasking, with supporting entry and extraction security details.
OTHER MEASURES:
*If and as deemed to be, necessary, or advisable, or appurtenant to any or all of the foregoing.
TOTAL MOBILIZATION:
This needs a whole of government and a whole of population approach, with a further specific analytical loop for addressing the situation, that jointly and individually pay homage to the sacrifices of patriots.
The total mobilization is a “WENLIANG“[2] Mobilization, where:
W is workers,
E is the employers,
N is Novices being assistants, students, interns, and apprentices,
L is Landowners and Landlords,
I is Industrialists,
A is Agriculturalists or farmers,
N is Netizens, being GIG Economy players and Nationalists and Patriots not otherwise covered, and
G is Governments at all levels.
Similarly, the loop approach is the “ADADEVOH”[3] Analytical Loop, where the first
A stands for Analyze apparent cases, news articles, and accumulated knowledge;
D is for Deduce the identity, incidence rate and incubation period of the malady; the second
A is for Advise the LENS (the law enforcement and national security apparatus), key principals, constituency leaders, and the general public; and the second
D is for Devise management measures, mobilization needs and levels, and mass messaging. That “A-D-A-D” cycle should be repeated, continually in a loop.
Under each of those 4 loop elements, are nestled, as applicable:
E for Execute on all relevant fronts;
V for the 5 primary Variables to consider, being the 5 modern factors of production in Land, Capital, Technology, Consumables, and Labor;
O for the 9 key Objectives to consider; and
H for the 9 potential Hindrances to consider.
At this point I will refrain from boring you with additional details and minutiae, but Strategic IMPRIME Consulting & Advisory Inc (S’imprime-ca) and its many on-call professionals, remain available for remote engagement at various levels involving Covid-2019, and George Law Offices can also, likewise, advise & counsel remotely on same.
**********************************************************************
Author:
Ekundayo George is a lawyer and sociologist. He has also taken courses in organizational and micro-organizational behavior, and gained significant experience in programs, policy, regulatory compliance, litigation, and business law and counseling. He has been licensed to practise law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: https://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Energy, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors. He is a published author on the national security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal millieux.
Trained in Legal Project Management (and having organized and managed several complex projects before practicing law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams. Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, crisis consulting, and targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: healthcare; education and training; law and regulation; policy and plans; statistics, economics, and evaluations including feasibility studies and business cases; infrastructure; and information technology/information systems (IT/IS) – also sometimes termed information communications technologies (ICT). See, for example: https://www.simprime-ca.com.
Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.
This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein. Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.
[1] Eric Sylvers, Giovanni Legorano. Italy Plans Large-Scale Lockdown in Country’s North to Fight Coronavirus. Posted on msn.com. March 7, 2020. Online: >https://www.msn.com/en-us/news/world/italy-plans-large-scale-lockdown-in-countrys-north-to-fight-coronavirus/ar-BB10SVjj< By Tuesday, 3 days later, that quarantine zone effective to April 3, 2020, had been extended to cover the entire Italian nation. See generally Vanessa Romo & Sylvia Poggioli. Italy Expands Quarantine Measures Nationwide To Stem Spread Of Coronavirus. Posted March 9, 2020 on nprillinois.org. Online: >https://www.nprillinois.org/post/italy-expands-quarantine-measures-nationwide-stem-spread-coronavirus<
[2] Dr. Li Wenliang. Biographical entry. Wikipedia – visited March 9, 2020. Online: >https://en.wikipedia.org/wiki/Li_Wenliang< <
[3] Dr. Mrs. Ameyo Stella Adadevoh. Biographical entry. Wikipedia – visited March 9, 2020. Online: >https://en.wikipedia.org/wiki/Ameyo_Adadevoh<
Brexit – What happens after that December 12, 2019 UK Election?
November 22, 2019
Only very, VERY rarely does a situation result that covers and includes several of the available options, regarding the ways in which it could all have turned out. Brexit is such a situation, and that is why it is such a storm, as the end result (or next installment) can still go in any direction, or in every direction.
In my last post,[1] being number 3 of 4 to date,[2] in this Brexit series, I had summed things up into three alternative options.
First, I had said that there could possibly be a change in UK prime ministers, as well as a second Brexit Referendum.[3] The prime minister did indeed change, with Theresa May being replaced by Boris Johnson,[4] and this pending election for December 12, 2019,[5] will essentially count as a second Brexit Referendum due to PM Johnson’s deep and longstanding commitment to “[…]Get Brexit Done!”,[6] the very public election strategizing of Nigel Farage and his Brexit Party,[7] and the state of public discourse.
Next, I had also said that there could be a Hard Brexit, which PM Johnson also tried to force when Parliament did not give him the votes he wanted.[8] He was, however, sternly rebuked by the UK Supreme Court for trying to usurp the rights of his fellow British lawmakers,[9] and he has now had to accept this December, 2019 general election option as a combined confidence and referendum vote.
Finally, I had said that the Europeans “might” cave-in on the Irish backstop and give the UK some additional concessions.[10] This was an outside possibility [11] and it remains very much outside, because even though the Europeans did give the UK the very minor concession of some additional time to get its Brexit act in order, by extending the deadline for it to leave the EU under Article 51 from (originally May 29, 2019, first to October 31, 2019), and now to January 31, 2020,[12] they are getting quite tired of the UK inability to act decisively one way or another on leaving or staying,[13] and a hard Brexit is still very much an option if the next deadline comes and goes without the acceptance by the UK of a deal already and conclusively negotiated with Europe.[14]
What will the election bring, and will it finally solve the Shakespearean question of whether the UK’s future is “[t]o be, or not to be [in Europe]?”[15] At this point, I will not even hazard a guess on that; but I can say that there tends to be a messy result if you either take roughly 50% of a nation out of the place where they want to stay, or keep roughly 50% of a nation in a place where they do not want to be. You could have incessant and relatively peaceful actions as in France; a slow-rising chaos as in Hong Kong; or a multi-sided outburst of rage that refuses to be sated – whether any or all are sparked by the final Brexit decision itself, or the aftermath of that Brexit decision.
This realization, may well be the true reason why the UK lawmakers do not want to act decisively one way or another. A decision, either way, might lead to unrest – the kind of unrest that the Europeans, whether or not the UK is in Europe (and whether or not the UK asks for assistance), may be forced to act on, so as to restore and maintain order in the British Isles, protect their own citizens there, prevent spillover, or a combination of these.[16] So, a final Brexit move is a proverbial and problem-fraught trigger that nobody wants to pull. However, this constant delay and playing for time will not make it go away, and nerves are fraying all around.[17] The election may finally force the matter, as a continued near stalemate in supporters and opponents of leaving once all ballots are counted, is really quite unlikely.[18]
So, let’s wait to see whether these poll results will lead to the final chapters, or again, a next installment.[19]
**********************************************************************
Author:
Ekundayo George is a lawyer and sociologist. He has also taken courses in organizational and micro-organizational behavior, and gained significant experience in programs, policy, regulatory compliance, litigation, and business law and counseling. He has been licensed to practise law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: https://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Energy, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors. He is a published author on the national security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal millieux.
Trained in Legal Project Management (and having organized and managed several complex projects before practising law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams. Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, crisis consulting, and targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: healthcare; education and training; law and regulation; policy and plans; statistics, economics, and evaluations including feasibility studies and business cases; infrastructure; and information technology/information systems (IT/IS) – also sometimes termed information communications technologies (ICT). See, for example: https://www.simprime-ca.com.
Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.
This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein. Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.
[1] Ekundayo George. Calling the Brexit end-result at this point, is a guessing game! Posted March 11, 2019, on ogalaws.wordpress.com. Web: <https://ogalaws.wordpress.com/2019/03/11/calling-the-brexit-end-result-at-this-point-is-a-guessing-game/>
[2] See e.g. Ekundayo George. Analyzing the 2016 Brexit: A Classically Complex Conundrum. Posted June 30, 2016 on ogalaws.wordpress.com. Web: <https://ogalaws.wordpress.com/2016/06/30/analyzing-the-2016-brexit-a-classically-complex-conundrum/>; See also Ekundayo George. Analyzing the 2016 Brexit: The UK Exit Plan is Revealed, Promising a “Hybridized” End-result. January 20, 2017. Web: <https://ogalaws.wordpress.com/2017/01/20/analyzing-the-2016-brexit-the-uk-exit-plan-is-revealed-promising-a-hybridized-end-result/>
[3] Supra note 1.
[4] Charlie D’Agata / CBS News. Boris Johnson to be next prime minister of UK, replacing Theresa May amid Brexit turmoil. Posted July 23, 019 on cbsnews.com. Web: <https://www.cbsnews.com/news/prime-minister-boris-johnson-amid-brexit-turmoil-boris-johnson-to-be-next-prime-minister-of-uk-replacing-theresa-may/>
[5] David Reid. UK set for a December election as opposition Labour party backs calls. Posted October 28, 2019 on CNBC.com. Web: <https://www.cnbc.com/2019/10/28/boris-johnson-loses-vote-to-hold-uk-general-election-on-december-12.html>
[6] BBC Politics. Bercow warns Johnson against disobeying Brexit law. Posted September 13, 2019 on bbc.com. Web: <https://www.bbc.com/news/uk-politics-49683797>; See also ITV Report. Boris Johnson unveils new battle bus as Tory general election campaign hits the road. Posted November 15, 2019 on itv.com. Web: <https://www.itv.com/news/2019-11-15/well-deliver-greener-vehicles-insists-pm-as-he-unveils-battlebus/>
[7] David Reid. Trump-ally Nigel Farage offers Boris Johnson a Brexit election alliance. Posted November 1, 2019 on cnbc.com. Web: <https://www.cnbc.com/2019/11/01/trump-ally-nigel-farage-offers-boris-johnson-a-brexit-election-alliance.html>
[8] Jill Lawless, The Associated Press. Johnson suspends U.K. Parliament after latest Brexit defeat. Posted September 10, 2019 on thestar.com. Web: <https://www.thestar.com/news/world/europe/2019/09/10/johnson-suspends-uk-parliament-after-latest-brexit-defeat.html>; See also Heather Stewart, Jessica Elgot and Peter Walker. Cornered Boris Johnson suffers triple Commons defeat: MPs block bid to call snap election after vote on bill to prevent a no-deal Brexit. Posted September 4, 2019 on theguardian.com. Web: <https://www.theguardian.com/politics/2019/sep/04/cornered-boris-johnson-suffers-triple-commons-defeat>
[9] Estelle Shirbon and Michael Holden, Reuters. Boris Johnson illegally suspended British parliament, U.K. Supreme Court rules. Posted September 24, 2019, on Nationalpost.com. Web: <https://nationalpost.com/news/world/boris-johnson-illegally-suspended-british-parliament-u-k-supreme-court-ruled>
[10] Ekundayo George. Calling the Brexit end-result at this point, is a guessing game! Posted March 11, 2019, on ogalaws.wordpress.com. Web: <https://ogalaws.wordpress.com/2019/03/11/calling-the-brexit-end-result-at-this-point-is-a-guessing-game/>
[11] See Infra, note 13.
[12] Silvia Amaro. EU agrees to give the UK a Brexit extension until January 31. Posted October 28, 2019 on cnbc.com. Web: <https://www.cnbc.com/2019/10/28/the-eu-discusses-three-month-brexit-extension.html>
[13] Ibid. This extension, giving extra time to finally gain proper Brexit approval by the UK parliament, was only granted on the condition that the UK “actually” leave the EU based “solely” on the deal already negotiated with the EU by prime minister Theresa May (the Withdrawal Agreement), and which includes that already highly contentious deal to split the Irish mainland (leaving the Republic of Ireland in the EU but also keeping Northern Ireland – after Brexit – still beholden to EU customs rules and thereby complicating the efforts of an otherwise freestanding UK to negotiate its own trade agreements elsewhere), in case the EU and UK cannot timely reach a post-Brexit customs deal. Considering everything, that may or may not, be the end result we actually see.
[14] Id.
[15] William Shakespeare. Hamlet. Act 3, Scene 1, line 57. (emphasis added).
[16] Indeed, Article 3 of the North Atlantic Treaty may simply be interspersed with the Responsibility to Protect (as a purely pre-emptive act under the last clause of its paragraph 39), so as to enable an armed incursion under Article 4 of that same North Atlantic Treaty, and whether with or without the request or consent of any standing, barely standing, or exiled UK government at that time.
The North Atlantic Treaty
Washington D.C. – 4 April 1949
Article 3
In order more effectively to achieve the objectives of this Treaty, the Parties, separately and jointly, by means of continuous and effective self-help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack.
Article 4
The Parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened.
See The North Atlantic Treaty Organization (NATO). The North Atlantic Treaty. Visited November 18, 2019. Web: <https://www.nato.int/cps/en/natohq/official_texts_17120.htm>
Responsibility to Protect:
138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.
139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.
140. We fully support the mission of the Special Adviser of the Secretary-General on the Prevention of Genocide.
See The United Nations Organization (UN). The United Nations Office on Genocide Prevention and the Responsibility to Protect. Visited November 18, 2019. Web: <https://www.un.org/en/genocideprevention/about-responsibility-to-protect.shtml>; See also Andrew Sparrow. Former MI6 boss says Brexit makes UK more vulnerable to attacks like Russian novichok poisoning – Politics Live. Posted October 19, 2018 on theguardian.com. Web: <https://www.theguardian.com/politics/blog/live/2018/oct/19/brexit-may-summit-tory-brexiters-would-vote-down-extra-payments-to-eu-for-longer-transition-says-rees-mogg-politics-live>
[17] Ray O’Hanlon. Irish nerves frayed amid little reassurance from Washington. Posted September 6, 2019 on irishecho.com. Web: ..<https://www.irishecho.com/2019/09/irish-nerves-frayed-amid-little-reassurance-from-washington/> The government and citizens of the Republic of Ireland remain concerned about being “forced out of” the EU after a chaotic Brexit, due to a perceived inability to control their borders with Northern Ireland so as to prevent illicit and customs-flouting trade from the UK. But see contra, supra note 13. The government and citizens of the UK are likewise concerned about Northern Ireland being “forced to remain within” the EU after an orderly Brexit, due to interim imposition of the Irish Backstop on delayed trade negotiations with the EU.
Also fraying nerves, of course, and all around, is that little “Yellowhammer” matter. See generally, Reality Check team BBC News. Brexit: What does Yellowhammer say about no-deal impact? Posted September 12, 2019 on bbc.com. Web: <https://www.bbc.com/news/uk-politics-47652280>
[18] Rather than clarity on the path forward, this election may actually add unquantifiable additional complications, such as if there now develops a 3-way power split as Conservative supporters tired of Brexit delays, vote in large numbers for the Brexit Party. At that point, Conservatives (including those previously resigning or rejected from the caucus) will be forced to choose between the hard Brexit of Mr. Farage, the orderly Brexit of Mr. Johnson (assuming Mr. Johnson not only retains his own seat, but also remains as prime minister), or be overcome by an outright cancellation of the whole Brexit exercise if the Labour Party gains or assembles a Parliamentary majority – maybe with or maybe without yet another Referendum and pleas or attempts, for even more re-negotiations with the EU. See e.g. Election 2019. Labour Party manifesto 2019: 12 key policies explained. Posted November 21, 2019 on bbc.com. Web: <https://www.bbc.com/news/election-2019-50501411> For the second of these twelve points listed, a victorious Labour Party intends to “renegotiate a new Brexit deal within three months, and hold a referendum on the deal or Remain within six months.” One must remember, however, that the EU is under no obligation whatsoever to let every successive British political leader, or British political party “have a go” at remaking that existing Brexit deal after riling-up the public and highlighting perceived flaws in the most recent version. Eventually, they will just say no.
[19] – Reserved –
Monopolies and Market Dominance in the “GIG” eConomy: Regulatory Rumblings Rattle the Ranks!
July 7, 2019
INTRODUCTION:
I had initially looked at the FAAAN group (Facebook, Amazon, Alphabet/Google, Apple and Netflix), and shown how the prevailing view of Antitrust and Monopoly analysis did not fit their activities in the classical sense, but required a new paradigm that focused on the Gig eConomy, and I presented that model in some depth.[1] Then, I singled-out Amazon as the most likely member of this group to first feel the impact of a push to break-up, due to its constant expansion into new “physical” areas in addition to the “virtual”, and the ever-greater number of competitors that these incursions invariably disrupted.[2]
Now, however, after reading Virginia Senator Mark Warner’s draft paper on Big Tech. regulation,[3] and after a review of his proposed bipartisan bill with Nebraska Senator Deb Fischer aimed at curbing what some feel has been the default “culture and conduct” of the more notorious of these online giants,[4] as well as other developments described below, I think the first target will more likely be one of the “data ‘gators” (aggregators and disseminators) – either Facebook or Alphabet/Google, or perhaps both … but this does not mean Amazon is entirely out of the limelight.
Why? Let me explain.
FACEBOOK –
Historic allegations of “collusion”[5] and the use of Facebook by certain parties to carry-out foreign interference in the 2016 United States federal election campaign[6] (which saw the election of Donald J. Trump on November 9, 2019),[7] and criminal indictments issued against several Russian nationals as the aforementioned parties;[8] as well as prison sentences for several U.S. Citizens on a diversity of charges stemming from the recently concluded Mueller investigation of Russian election interference,[9] coupled with the Cambridge Analytica affair which originally broke on March 17, 2018,[10] have all kept Facebook in the public headlights – bobbing, weaving, playing whack-a-mole, and collecting hard body blows.[11]
In a public opinion piece, Mark Zuckerberg, the Facebook CEO, tried to address some of these concerns and dispel some of that public and regulatory ire, by saying:
“I believe we need a more active role for governments and regulators. After focusing on these issues for the past two years, I think it’s important to define what roles we want companies and governments to play. By updating the rules for the internet, we can preserve what’s best about it — the freedom for people to express themselves and entrepreneurs to build new things — while also protecting society from broader harms.”
“From what I’ve learnt, I believe we need new regulation in four areas: harmful content, election integrity, privacy and data portability.”[12]
In further pleading for a single global regulatory standard for online privacy and conduct as opposed to disparate and perhaps even conflicting rules – all competing for their own extraterritorial primacy – that might even fracture and fragment the Internet (and therefore the influence, global reach, relevance, market shares and market capitalizations of Facebook and the other online giants here listed), Mr. Zuckerberg writes, “[i] believe Facebook has a responsibility to help address these issues and I am looking forward to discussing them with lawmakers around the world.”[13] But then, he has also been a no-show in response to the invitations to talk, of more than one group of lawmakers.[14]
In contrast, while calling for a breakup of Facebook, Chris Hughes, the company co-founder, opines over it in light of recent and ongoing events involving, and revolving around, Facebook, in lamenting that:
“The company’s mistakes — the sloppy privacy practices that dropped tens of millions of users’ data into a political consulting firm’s lap; the slow response to Russian agents, violent rhetoric and fake news; and the unbounded drive to capture ever more of our time and attention — dominate the headlines.”[15]
Facebook also has dual, leading roles as both a host platform publishing the posts, news, streams and feeds of others, and a publisher in choosing what does or does not get out, at one and the same time.[16]
ALPHABET/GOOGLE –
Alphabet/Google, for its part, also had its own running battles with bad publicity, most notably in Europe,[17] where the focus has ranged from antitrust and privacy, through the EU Right to be Forgotten, to emerging views on copyright laws, illegal content,[18] and consideration of the revenue potential in taxing search engines and other internet services[19] in an effort to avoid the tax base erosion of the type used by large and sophisticated, highly-profitable entities that end up paying little to no taxes[20] – all whether before or after breaking these entities up.[21]
AMAZON –
Amazon has been drawing serial regulatory scrutiny like a magnet in Europe – from the EU itself, Germany, Austria, France, and most recently, Italy.[22] These cases all revolve around accusations of use of a dominant position to favour one’s own and related offerings, over those of rivals, preferential delivery fullfilment, vendor obligations to disclose pricing, and a direct complaint by France over Amazon terms of service in general – all due to Amazon’s dual and leading roles as both host marketplace for the wares of others and marketer for its own and related wares, at one and the same time.[23] There have also been breaches at Amazon Web Services (AWS), exposing customer data and impacting privacy.[24]
APPLE –
Apart from some taxing queries,[25] Apple had for a long time, mostly steered clear of data scandals and unwanted regulatory scrutiny. However, revelation of the FaceTime application vulnerability, which allowed callers to hear audio and access video feeds from certain subjects before they even answered those incoming calls;[26] coupled with the well-publicized practice of slowing down older versions of its flagship iPhone,[27] and a recent ruling by the United States Supreme Court that gave Apple App Store users the right to sue Apple directly – not as an intermediary – for monopolistic practices in the sale of applications for its platform and the distribution of system updates,[28] threw Apple right into the heart of the dual spotlights on data privacy and abusive market dominance, where the company met its above three peers: Amazon, Alphabet/Google, and Facebook, already sweating from the heat. As a result, the Apple CEO has engaged in his own exercise of bobbing and weaving, as he asks for comprehensive regulation[29] of the data, social media, online search and online marketplace industries with four guiding principles:
“First, the right to have personal data minimized. Companies should challenge themselves to strip identifying information from customer data or avoid collecting it in the first place. Second, the right to knowledge—to know what data is being collected and why. Third, the right to access. Companies should make it easy for you to access, correct and delete your personal data. And fourth, the right to data security, without which trust is impossible.”[30] [Emphasis added].
He further suggested that the Federal Trade Commission (FTC) establish a “data-broker clearinghouse” where all data brokers would have to register, and at and through which people could exercise their privacy rights, and especially under the third of his four principles.[31]
NETFLIX –
Netflix has been growing by leaps and bounds and now has some 130 million subscribers worldwide, in over 190 nations.[32] While most subscribers are too busy enjoying what they are watching (actually, often “binge”-watching with all of its drawbacks),[33] to complain too much (if at all), there have been troubling allegations of insensitivity to mass casualty disaster footage,[34] and at least one comparison of the growing global footprint of Netflix content, to the similarly expansive British and French colonialism of yore, in its broad and deep reach through our eyes, directly into our hearts and minds.[35]
“As a huge and powerful company, similar in scale to the Facebooks of the world, the mistakes that Netflix makes have global implications. Through the stories Netflix decides to tell and promote, this company shapes how we decide to be. A show, movie or documentary can change our beliefs about life itself.”[36]
Admittedly, achieving this current lead in the over the top (OTT) space was no cakewalk, as there were allegations of throttling (slowing the content stream) on some platforms while leaving others alone, by exploiting a rather large regulatory loophole that did not specifically prohibit that practice for entities like Netflix;[37] and major regulatory hurdles in its early Asian expansion, ranging from a shortage of local language content and local payment options, through delays due to a need for age-appropriate ratings, to criticisms for displaying prohibited violence or sexual content.[38] Similarly, just as with its FAAAN peers here listed, Netflix also had its own European problems, in allegations from European cinema associations that it was benefitting from public funding, lax regulation, and even more loopholes, such as receiving UK tax rebates but paying no UK business taxes.[39]
TERRAIN AND TECHNIQUES:
Adding to this generalized agitation amongst the four (excluding Netflix) entities dominating this BigData online terrain, a concerted effort by regulators in 9 countries[40] to understand and address their shortcomings, had started to take shape in 2018, known as the International Grand Committee on Disinformation and Fake News (or the “International Grand Committee”, for short), with its inaugural evidentiary meeting held at the House of Parliament in London, England, on November 27, 2018.[41] Faced with the repeated unwillingness and/or inability of Mark Zuckerberg to be present and answer International Grand Committee questions, the committee had accepted the attendance of Richard Allan, Vice President of Policy Solutions at Facebook, in his stead; still believing that “Mark Zuckerberg is the appropriate person to answer important questions about data privacy, safety, security and sharing.”[42]
A second, 2019 meeting of the International Grand Committee in Ottawa, Canada, hosted by the House of Commons Standing Committee on Access to Information, Privacy and Ethics at the House of Parliament, saw 5 additional nation-states sending representatives,[43]and this time, both Mark Zuckerberg and Cheryl Sandberg of Facebook, were subpoenaed, but did not attend in person or give video evidence; which latter option had also been offered.[44] The assembled parliamentarians and their witnesses were not at all shy in expressing their frustrations and views regarding the absence of and need for social media privacy protections, Facebook in general, and its two invited but absent executives, in particular.[45] The Committee has, however, developed 5 guiding principles to, inter alia, counter disinformation, keep personal data safe online, and more efficiently and effectively, and speedily identify and remove terrorist and violent extremist online content;[46] which are:
“(1) The internet is global and law relating to it must derive from globally agreed principles;
(2) The deliberate spreading of disinformation and division is a credible threat to the continuation and growth of democracy and a civilizing global dialogue;
(3) Global technology firms must recognize their great power and demonstrate their readiness to accept their great responsibility as holders of influence;
(4) Social media companies should be held liable if they fail to comply with a judicial, statutory or regulatory order to remove harmful and misleading content from their platforms, and should be regulated to ensure they comply with this requirement;
(5) Technology companies must demonstrate their accountability to users by making themselves fully answerable to national legislatures and other organs of representative democracy.”[47][Emphasis added]
So it is, that within the highest government circles in the United States, itself, from whence these Internet and Gig eConomy giants hail, there is an increasing realization that if their nation does not “at the very least” have a seat at the table, then its champion creations will be subjected to the regulations of everyone other than itself; and so both U.S. legislators and regulators have met this challenge, with:
- Democratic Senator Mark R. Warner (VA) and Republican Senator Deb Fischer (NE) introducing the Deceptive Experiences To Online Users Reduction (“DETOUR”) Act;[48]
- In the House of Representatives, the House Judiciary Committee, through its Subcommittee on Antitrust, Commercial and Administrative Law, launched a bipartisan initiative to “investigate the rise and use of market power online and assess the adequacy of existing antitrust laws and current enforcement levels”;[49] and
- Due to the size and scope of these modern internet giants and the “significant” federal resources needed to thoroughly review their business practices, an alleged gentleman’s agreement among the U.S. chief regulators on these hotly contested digital terrains and techniques has meant that the Department of Justice (DOJ) will focus on and review the practices of Apple and Alphabet/Google, while the Federal Trade Commission (FTC) will focus on and review the practices of Amazon and Facebook.[50]
Now ….. with all this attention on these above four behemoths, one would THINK, that tip-toeing around for the meantime would not be such a bad practise for them to quickly adopt, right? Well …..
- On Tuesday, June 18, 2019, Facebook announced that it planned to roll out a cryptocurrency (Libra) in 2020, adding customer financial information and purchasing habits to the customer personal data and browsing and sharing habits that it was under scrutiny for …. managing?![51]
- Also on Tuesday, June 18, 2019, Amazon announced that it would partner with Mastercard and TD Bank Group to offer a new branded, loyalty credit card in Canada – earning both cash back, and points that would be “automatically” redeemed as an Amazon gift card upon reaching a certain level; and thereby pushing Amazon further into the banking realm.[52]
Understandably, the reaction to Facebook’s announcement was the louder and the most widespread.[53]
INSTIGATING THE INVESTIGATORS:
“Google, Facebook, and their cousins Apple and Amazon have grown so vast that they have aroused the ire of the entire political establishment. And they aren’t only transforming journalism but also politics, retail, and virtually all commerce. The regulation, or even the breakup, of these companies is a long way off, and it’s not clear what form it would take. But the journey has begun.”[54]
Let us consider the domestic scope of these entities, to better understand why the regulators are so incentivized and why the tech giants cannot help BUT further instigate the investigators with every step.
- In 2017, search engines generated $59.7 billion in U.S. revenues alone, with a combined 97% of that domestic market share held by Alphabet/Google (91%) and Microsoft (6%) – leaving 3% to all of their domestic competitors;[55]
- In 2018, social networking sites generated $34 billion in U.S. revenues alone, with a combined 85% of that domestic market share held by Facebook (70%), LinkedIn (10%), and Twitter (5%) – leaving 11% to all of their domestic competitors;[56]
- In 2018, the eCommerce industry generated $525.9 billion in U.S. revenues alone, with a combined 56% of that domestic market share held by Amazon (49%) and eBay (7%) – leaving 44% to all of their domestic competitors.[57]
- Without even discussing revenues, the 3 top smartphone operating system manufacturers in the United States in 2012 had a combined 94% of that domestic market share, being Google (49%), Apple (30%), and Blackberry (15%) – leaving 6% to all of their domestic competitors;[58] but by 2018 – a mere 6 years later – Blackberry no longer made smartphone operating systems at all, Google had 54% and Apple had 45% of the domestic market share, and all of their domestic competitors combined to control a mere 1% of that market.[59]
Not only do the listed companies have these revenues and control (or dominate) these market shares, they also control an increasing amount of the related[60] and (at least previously) unrelated[61] space around them, as I have shown in earlier posts. Facebook, for example, controls Messenger, Instagram, WhatsApp, Oculus VR, and Masquerade;[62] Alphabet’s most notable offerings are Google Play, Maps, and Search, Google Cloud, Android, YouTube, and Waymo,[63] but it ultimately owns and controls over 200 separate companies;[64] Apple is already well known for its iPhone and other leading businesses of Siri, iCloud, and Beats Electronics, but it also owns and controls Shazam, Emagic, Anobit Technologies, PrimeSense, and NeXT, Inc.;[65] and while Amazon’s reputation leads with Alexa, Echo, Kindle, Whole Foods Market, and Amazon Web Services (AWS), the company also owns and controls Audible, Kiva Systems, Twitch Interactive, Ring, Zappos, and PillPack, Inc.[66]
“Mark’s influence is staggering, far beyond that of anyone else in the private sector or in government. He controls three core communications platforms — Facebook, Instagram and WhatsApp — that billions of people use every day. Facebook’s board works more like an advisory committee than an overseer, because Mark controls around 60 percent of voting shares. Mark alone can decide how to configure Facebook’s algorithms to determine what people see in their News Feeds, what privacy settings they can use and even which messages get delivered. He sets the rules for how to distinguish violent and incendiary speech from the merely offensive, and he can choose to shut down a competitor by acquiring, blocking or copying it.”[67]
In that quotation, Chris Hughes, the co-founder of Facebook, speaks of the sheer concentration of power in Facebook’s leader. This shows that monopoly and market dominance do not have to mean a constant commission of intentional bad acts because that kind of latent power, alone, can be sufficiently prohibitive of and harmful to, competition. When coupled with the other above examples, is it any surprise, then, that these relentlessly acquisitive (and “disruptive” to incumbent businesses and business models) parent companies have instigated the investigators and attracted so much attention?
LEGAL:
Returning to some of the resurgent legalities, Senator Warner’s social media regulation proposals,[68] and his bipartisan bill with Senator Fischer,[69] both focus on addressing and deterring cases of demonstrated misconduct, restoring trust and confidence in the services offered and in the privacy of personal data online, and re-asserting the supremacy of at least one state (the apparent home state, or at least the state of claimed origin) over these borderless and relentless non-state actors.
POLICY PROPOSALS –
Senator Warner’s policy proposals identified the following three focal areas for policymakers:
- “(…) understanding the capacity for communications technologies to promote disinformation that undermines trust in our institutions, democracy, free press, and markets;”[70]
- “(…) consumer protection in the digital age;”[71]
- “(…) the rise of a few dominant platforms poses key problems for long-term competition and innovation across multiple markets, including digital advertising markets (which support much of the Internet economy), future markets driven by machine-learning and artificial intelligence, and communications technology markets.”[72]
Proposals to counter online disinformation, included the labeling of bots, authentication of accounts and knowing the origin of posts, identifying fake accounts, imposing platform liability for state law torts such as defamation, a public interest right of data access, establishing an interagency taskforce to counter asymmetric threats to democracy, required disclosures for online political advertising, a media literacy campaign for the public, and creating a true deterrent against foreign manipulation online.[73]
Proposals to enhance online privacy and protect online data, included statutory classification and regulation of certain online providers as “information fiduciaries”, granting authority to the Federal Trade Commission to enact Rules on privacy, a comprehensive federal data protection legislation, first party consent to data collection as linked to addressing dark patterns, and fairness and transparency in algorithmic decision-making.[74]
Proposals to ensure long-term competition and innovation despite a growing concentration threat, included a data transparency bill, a “data as portable property” bill, interoperability, permitting academic researchers and qualified (smaller) businesses to access federal datasets and collections, and prescribing a base of sheer size or market share, or a level of dependence by others, at which a core function or application or platform becomes an “essential facility” with certain mandatory duties.[75]
At the heart of all of these problems, however, were dark patterns, which he wanted “statutorily determined” to be unfair and deceptive trade practices – a direct progenitor for his proposed Bill:
“Dark patterns are user interfaces that have been intentionally designed to sway (or trick) users towards taking actions they would otherwise not take under effective, informed consent. Often, these interfaces exploit the power of defaults – framing a user choice as agreeing with a skewed default option (which benefits the service provider) and minimizing alternative options available to the user.”[76]
DETOUR ACT –
And then, adding real, tangible weight to those thoughts, Senator Warner joined with Senator Fischer,[77] to introduce the “Deceptive Experiences To Online Users Reduction (DETOUR) Act” on April 9, 2019.[78] Actual examples of dark patterns include default privacy settings set to maximum sharing, consents buried deep within long and complex terms of service, spamming contacts with invitations to join once those contacts have been shared with a platform, auto-play videos that encourage compulsive usage and other addictive behaviour in serial viewing – especially in those under the age of 13, un-announced behavioural and psychological experiments and research –often conducted without informed consent, and other mechanisms and manipulative user interfaces that make it easy to sign-up for a service and very hard to cancel it and leave.[79]
Apart from targeting compulsive usage (“any response stimulated by external factors that causes an individual to engage in repetitive purposeful, and intentional behavior causing psychological distress, loss of control, anxiety, depression, or harmful stress responses”),[80] and calling for more informed consent by research subjects (who must be over the age of 13),[81] with “clear, conspicuous, context-appropriate, and easily-accessible”[82] routine research disclosures no less often then every 90-days,[83] the proposed Act also restricts its application to large online operators with “more than 100,000,000 authenticated users of an online service in any 30-day period”,[84] and calls for independent review boards to oversee behavioural or psychological research[85] and themselves register with the United States Federal Trade Commission (FTC).[86] The Act would see some limited self-regulation through professional standards bodies of associated online operators[87] which developed bright line rules and safe harbors for member conduct that did not infringe the Act’s provisions, but all would remain subject to the FTC if the conduct rose to be or constitute such unfair or deceptive acts or practices as the FTC shall or may from time to time define.[88]
CONCLUSION:
Suspicions and sanctions regarding these entities for behaviours falling short of, equating, and going beyond mere dark patterns[89] to constitute sharp business practices, at the very least, have been around for quite some time …. and names were named. Examples of these alleged behaviours, have included:
- User profiling and contact mining to better target them for advertising campaigns and contact list growth (Alphabet/ Google, LinkedIn);[90]
- Copying the most popular offerings of vendors, as the marketplace host (Amazon); [91]
- Preferring one’s own offerings and limiting the visibility or the functionality of the offerings of others (Amazon, Alphabet/Google, Apple);[92]
- Liberally borrowing features from competitor sites (Facebook, WhatsApp, Instagram);[93]
Hughes further writes:
“As a result of all this, would-be competitors can’t raise the money to take on Facebook. Investors realize that if a company gets traction, Facebook will copy its innovations, shut it down or acquire it for a relatively modest sum. So despite an extended economic expansion, increasing interest in high-tech start-ups, an explosion of venture capital and growing public distaste for Facebook, no major social networking company has been founded since the fall of 2011.”
“As markets become more concentrated, the number of new start-up businesses declines. This holds true in other high-tech areas dominated by single companies, like search (controlled by Google) and e-commerce (taken over by Amazon). Meanwhile, there has been plenty of innovation in areas where there is no monopolistic domination, such as in workplace productivity (Slack, Trello, Asana), urban transportation (Lyft, Uber, Lime, Bird) and cryptocurrency exchanges (Ripple, Coinbase, Circle).”[94]
- Most recently (or should we say, “most recently noticed and publicized”), is the deployment and use in brick and mortar retail locations, of customer tracking Bluetooth beacons …. [95] implying that the lessons of all these earlier run-ins with assorted regulators, just didn’t stick.[96]
But, as belligerent parties increase the tempo to gain that extra ground or that extra piece of negotiating leverage in the waning days of an armed conflict, with the ceasefire date looming, so too in this mirror universe, with U.S. tech giants finding themselves “at the eve of the end” of absent to light touch U.S. regulation – due to the fact that other nations have taken-up that slack, [97] and somewhat embarrassed the U.S. into action [98]– these tech giants are now furiously expanding in all directions as far as they can and as fast as they can, in the hope that something tangible and worth branding will still be viable and left standing, once related and unrelated businesses and even the core business intestines, have all been regulatorily wrangled and disentangled, and well-whittled away – all to the lasting benefit of the consuming public, as Chris Hughes further writes:
“But the biggest winners would be the American people. Imagine a competitive market in which they could choose among one network that offered higher privacy standards, another that cost a fee to join but had little advertising and another that would allow users to customize and tweak their feeds as they saw fit. No one knows exactly what Facebook’s competitors would offer to differentiate themselves. That’s exactly the point.”[99]
In addition to the above regulatory rumblings, now that the incumbent republican President Donald J. Trump,[100] a true maverick, has “for targeting only” joined democratic senator and presidential candidate Elizabeth Warren,[101] another true maverick, to call for lawsuits against big tech. and even for breaking them up (albeit for different reasons),[102] and especially Facebook, star of the most heated current media and regulatory attention – but not to the exclusion of Amazon, Twitter, and Alphabet/Google … that breakup hammer in this pre-season for the Q4 2020 U.S. presidential election, could fall at any time.
As another commentator has lamented, “[n]o existing regulatory framework exists or has been conceived for a global company holding personal data on one-third of the planet’s population. Just as importantly, the commercial model driving social media is inconsistent with a ‘privacy first’ approach. And both those factors will now lead into a back and forth on regulation and sanctions across the world.“[103]
Around the world, however, some businesses are already working under and creating solutions to stay within, the E.U. General Data Protection Regulation (GDPR) by giving data subjects more control of their own personal data and operations or analytics regarding that personal data,[104] while others still struggle to comply with that and other new and evolving stringent privacy provisions.[105]
So, let us keep watching this U.S. prize fight (or grand mélée, as ever more of the competitive landscape is co-opted into the dance around the eye of this ever-growing storm) with the data (aggre)-gators – Facebook, Amazon, and Alphabet/Google, as they serenade and parade for, trade shots with, evade the dragnets of, and are potentially flayed and dismayed on full public and permanent display by, their own assorted and sundry “local” regulators.[106]
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Author:
Ekundayo George is a lawyer and sociologist. He has also taken courses in organizational and micro-organizational behavior, and gained significant experience in regulatory compliance, litigation, and business law and counseling. He has been licensed to practise law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: https://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Energy, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors. He is a published author on the national security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal millieux.
Trained in Legal Project Management (and having organized and managed several complex projects before practising law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams. Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, crisis consulting, and targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: healthcare; education and training; law and regulation; policy and plans; statistics, economics, and evaluations including feasibility studies and business cases; infrastructure; and information technology/information systems (IT/IS) – also sometimes termed information communications technologies (ICT). See, for example: https://www.simprime-ca.com.
Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.
[1] Ekundayo George. Monopolies and Market Dominance in the “GIG” eConomy: What Might These Look Like / Are We There Yet? Posted July 16, 2017 on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2017/07/16/monopolies-and-market-dominance-in-the-gig-e-conomy-what-might-this-look-like-are-we-there-yet/<
[2] Ekundayo George. Monopolies and Market Dominance in the “GIG” eConomy? We are Getting There! Posted February 19, 2018 on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2018/02/19/monopolies-and-market-dominance-in-the-gig-economy-we-are-getting-there/<
[3] United States Senator Mark R. Warner (D-VA), Vice-Chairman, Senate Intelligence Committee, United States Senate. White Paper (DRAFT). Potential Policy Proposals for Regulation of Social Media and Technology Companies. Visited June 6, 2019 and posted on scribd.com. Online: >https://www.scribd.com/document/385137394/MRW-Social-Media-Regulation-Proposals-Developed#from_embed<
[4] United States Senator Warner, Mark R. [D-VA]; United States Senator Fischer, Deb [R-NE], Co-sponsors. S.1084 –Deceptive Experiences To Online Users Reduction Act. Introduced April 9, 2019 in the 116th Congress, 1st Session (2019-2020). Visited June 19, 2019 and posted on congress.gov. Online: >https://www.congress.gov/bill/116th-congress/senate-bill/1084/text?q=%7B%22search%22%3A%5B%22congressId%3A116+AND+billStatus%3A%5C%22Introduced%5C%22%22%5D%7D&r=17&s=1<
[5] For a deep dive into the collusion, issue, See e.g. Ryan Goodman. Guide to the Mueller Report’s Findings on “Collusion”. Posted April 29, 2019 on justsecurity.org. Online: >https://www.justsecurity.org/63838/guide-to-the-mueller-reports-findings-on-collusion/<
[6] Issie Lapowski. How Russian Facebook Ads Divided and Targeted US Voters Before the 2016 Election. Posted April 16, 2018 on wired.com. Online: >https://www.wired.com/story/russian-facebook-ads-targeted-us-voters-before-2016-election/<
[7] BBC. US election 2016 result: Trump beats Clinton to take White House. Posted November 9, 2016 on bbc.com. Online: >https://www.bbc.com/news/election-us-2016-37920175<
[8] United States Federal Bureau of Investigation (FBI). RUSSIAN INTERFERENCE IN 2016 U.S. ELECTIONS – CONSPIRACY TO COMMIT AN OFFENSE AGAINST THE UNITED STATES; FALSE REGISTRATION OF A DOMAIN NAME; AGGRAVATED IDENTITY THEFT; CONSPIRACY TO COMMIT MONEY LAUNDERING. Posted on fbi.gov and visited June 16, 2019. Online: >https://www.fbi.gov/wanted/cyber/russian-interference-in-2016-u-s-elections<
[9] Amy Sherman. All of the people facing charges from Mueller’s investigation into Russian meddling. Posted March 25, 2019 on politifact.com. Online: >https://www.politifact.com/truth-o-meter/article/2019/mar/25/who-has-already-been-indicted-russia-investigation/< See also Alex Boutilier, Craig Silverman, Jane Lytvynenko. Canadians are being targeted by foreign influence campaigns, CSIS says. Posted July 2, 2019 on thestar.com. Online: >https://www.thestar.com/politics/federal/2019/07/02/canadas-voters-being-targeted-by-foreign-influence-campaigns-spy-agency-says.html< Canada is preparing for its fall 2019 federal elections, with some trepidation. See infra note 96 and accompanying text (The Canadian Press: Canada’s electoral integrity).
[10] Issie Lapowski. How Cambridge Analytica Sparked the Great Privacy Awakening. Posted March 17, 2019 on wired.com. Online: >https://www.wired.com/story/cambridge-analytica-facebook-privacy-awakening/< See also Catharine Tunney · CBC News. A year after Cambridge Analytica scandal, calls for a national data strategy grow. Posted March 17, 2019 on cbc.ca. Online: >https://www.cbc.ca/news/politics/cambridge-analytica-data-strategy-1.5054943<
[11] Id.; See also supra, note 6.
[12] Mark Zuckerberg. Mark Zuckerberg: ‘Yes, we need regulation – but we can’t do it on our own’. Posted March 30, 2019 on independent.ie. Online: >https://www.independent.ie/ca/business/technology/mark-zuckerberg-yes-we-need-regulation-but-we-cant-do-it-on-our-own-37967115.html<
[13] Ibid.
[14] See e.g. notes 42, 44, and 45 and accompanying text for mentions of Mr. Zuckerberg’s unavailability.
[15] Chris Hughes. Opinion. The Privacy Project. It’s Time to Break Up Facebook. Posted May 9, 2019 on nytimes.com. Online: >https://www.nytimes.com/2019/05/09/opinion/sunday/chris-hughes-facebook-zuckerberg.html?<
[16] Ibid.
“Mark used to insist that Facebook was just a “social utility,” a neutral platform for people to communicate what they wished. Now he recognizes that Facebook is both a platform and a publisher and that it is inevitably making decisions about values. The company’s own lawyers have argued in court that Facebook is a publisher and thus entitled to First Amendment protection.”
“No one at Facebook headquarters is choosing what single news story everyone in America wakes up to, of course. But they do decide whether it will be an article from a reputable outlet or a clip from “The Daily Show,” a photo from a friend’s wedding or an incendiary call to kill others.”
[17] Ivana Kottasová, CNN Business. How Europe is forcing Google to change. Posted March 20, 2019 on cnn.com. Online: >https://www.cnn.com/2019/03/20/tech/eu-antitrust-google/index.html<
[18] Id.
[19] Reuters. UK proposes a 2% tax on tech giants like Google, Amazon and Facebook for profits they make in the country. Posted October 29, 2018 on cnbc.com. Online: >https://www.cnbc.com/2018/10/29/britain-to-target-online-giants-with-new-digital-services-tax.html< See also The Associated Press. French lawmakers approve 3% tax on online giants. Posted July 4, 2019 on coastreporter.com. Online: >https://www.coastreporter.net/french-lawmakers-approve-3-tax-on-online-giants-1.23875825< This online tax in France has passed the lower house or National Assembly, and awaits a vote in the nation’s upper house of legislators, the Senate.
[20] Nick Statt. Apple agrees to pay Ireland $15.4 billion in back taxes to appease EU. Posted December 4, 2017 on theverge.com. Online: >https://www.theverge.com/2017/12/4/16736114/apple-ireland-european-union-order-back-taxes-agreement<
[21] Ben Fox Rubin, Marguerite Reardon. Momentum grows to break up big tech, as Amazon, Facebook, Google and Apple face scrutiny. Posted June 11, 2019 and updated June 14, 2019 on cnet.com. Online: >https://www.cnet.com/news/momentum-grows-to-break-up-big-tech-as-amazon-facebook-google-and-apple-face-scrutiny/<
[22] Thibault Larger. Italy competition watchdog opens probe into Amazon, adding to EU list. The European Commission, the Austrian and German authorities have also been looking into the company. Posted April 16, 2019 and updated April 17, 2019 on politico.eu. Online: >https://www.politico.eu/article/italy-competition-watchdog-opens-probe-into-amazon-adding-to-eu-list/<
[23] Id. See also Boris Groendahl. Amazon’s Legal Woes Grow as Austria Probes Online Giant. Posted February 14, 2019 on bloomberg.com. Online: >https://www.bloomberg.com/news/articles/2019-02-14/amazon-s-legal-woes-grow-in-eu-as-austria-opens-antitrust-probe<
[24] Catalin Cimpanu for Zero Day. Contractor’s AWS S3 server leaks data from Fortune 100 companies: Ford, Netflix, TD Bank. Posted June 28, 2019 and updated June 30, 2019 on zdnet.com. Online: >https://www.zdnet.com/article/contractors-aws-s3-server-leaks-data-from-fortune-100-companies-ford-netflix-td-bank/< See also Mark Ward Technology correspondent, BBC News. Exposed Amazon cloud storage clients get tip-off alerts. Posted February 20, 2018 on bbc.com. Online: >https://www.bbc.com/news/technology-42839462< See also Becky Peterson. Forget stealing data — these hackers hijacked Amazon cloud accounts to mine bitcoin. Posted October 8, 2017 on businessinsider.com. Online: >https://www.businessinsider.com/hackers-broke-into-amazon-cloud-to-mine-bitcoin-2017-10<
[25] Supra note 20.
[26] Davey Winder. Contributor. Apple Confirms iPhone FaceTime Eavesdropping Exploit — Here’s What To Do. Posted January 29, 2019 on forbes.com. Online: >https://www.forbes.com/sites/daveywinder/2019/01/29/apple-confirms-iphone-facetime-eavesdropping-exploit-heres-what-to-do/#77affa26745b< See contra Malcolm Owen. ‘Celebgate’ iCloud hack perpetrator sentenced to 34 months in prison. Posted March 1, 2019 on appleinsider.com. Online: >https://appleinsider.com/articles/19/03/01/celebgate-icloud-hack-perpetrator-sentenced-to-34-months-in-prison< Apple was initially blamed for this, but internal and police investigations showed that the company was not at fault.
[27] Michelle Toh, Ben Geier and Ivana Kottasová. Global backlash spreads over Apple slowing down iPhones. Posted February 1, 2018 on cnn.com. Online: >https://money.cnn.com/2018/01/12/technology/apple-iphone-slow-battery-lawsuit/index.html<
[28] See Apple Inc. v. Pepper et al., No. 17-204, Slip op. (S. Ct., 2019), 587 U.S. ___ (2019), Argued November 26, 2018—Decided May 13, 2019. Online: > https://www.supremecourt.gov/opinions/18pdf/17-204_bq7d.pdf<
[29] Tim Cook. You Deserve Privacy Online. Here’s How You Could Actually Get It. Visited June 17, 2019 and posted on time.com. Online: >https://time.com/collection/davos-2019/5502591/tim-cook-data-privacy/<
[30] Ibid.
[31] Ibid.
[32] Jo Ellison. Is Netflix’s global dominance a force for good or bad? Posted December 27, 2018 on ft.com. Online: >https://www.ft.com/content/13078a02-0465-11e9-99df-6183d3002ee1< See also Louis Brennan. How Netflix Expanded to 190 Countries in 7 Years. Posted October 12, 2018 on nbr.org. Online: >https://hbr.org/2018/10/how-netflix-expanded-to-190-countries-in-7-years<
[33] Joanna Clay. Health. Science/Technology. Is Netflix bad for you? How binge-watching could hurt your health. Posted December 15, 2017 on usc.edu. Online: >https://news.usc.edu/131981/is-netflix-bad-for-you-how-binge-watching-could-hurt-your-health-amazon-hulu-tv/<
[34] The Canadian Press. CBC president compares Netflix influence to colonialism. Posted and last updated January 31, 2019 on cbc.ca. Online: >https://www.cbc.ca/news/entertainment/tait-netflix-colonialism-analogy-1.5000657<
[35] Ibid.
[36] Todd Van Luling. HuffPost US. Why Netflix Should Scare You More Than It Does – Facebook can influence elections, but Netflix can influence hearts and minds. Posted October 10, 2018 on huffingtonpost.ca. Online: >https://www.huffingtonpost.ca/entry/netflix-scared-bad_n_5bbcd832e4b01470d055d4b3< There have also been allegations of factually inaccurate and otherwise problematic documentaries being presented as the truth or reality, when they are not quite so.
[37] Mike Wendy. Netflix: Do as I say, not as I do. Posted April 26, 2016 on washingtonexaminer.com. Online: >https://www.washingtonexaminer.com/netflix-do-as-i-say-not-as-i-do<
[38] Nataly Pak, Eveline Danubrata. In Asia, Netflix trips on regulation, content, and competition. Posted April 21, 2016 on reuters.com. Online: >https://www.reuters.com/article/us-netflix-asia/in-asia-netflix-trips-on-regulation-content-and-competition-idUSKCN0XJ0BZ<
[39] Andreas Wiseman. Germany’s Largest Cinema Org Issues Netflix Warning As Streamer Encounters Growing Euro Heat. Posted September 18, 2018 on deadline.com. Online: >https://deadline.com/2018/09/netflix-germany-berlin-film-festival-hdf-kino-eu-1202465672/<
[40] U.K. Parliament, Select Committee on Digital, Culture, Media and Sport. Parliamentarians from across the world to question Richard Allan of Facebook, and the Information Commissioner at inaugural hearing of ‘international grand committee’ on Disinformation and ‘fake news’. Posted on parliament.uk on September 23, 2018. Online: >https://www.parliament.uk/business/committees/committees-a-z/commons-select/digital-culture-media-and-sport-committee/news/grand-committee-evidence-17-19/< The 9 nation-state members of the International Grand Committee on Disinformation and Fake News, were Argentina, Belgium, Brazil, Canada, France, Ireland, Latvia, Singapore and members of the UK’s Digital, Culture, Media and Sport Committee.
[41] Ibid.
[42] Ibid.
[43] Jesse Hirsh. What You Need to Know about the Grand Committee on Big Data, Privacy and Democracy. Posted May 29, 2019 on cigionline.org. Online: >https://www.cigionline.org/articles/what-you-need-know-about-grand-committee-big-data-privacy-and-democracy< The 5 additional nation-states represented at this second meeting, were Ecuador, Estonia, Mexico, Morocco, and Trinidad and Tobago.
[44] Id.
[45] See generally Mike Blanchfield, The Canadian Press. Big data committee blasts Mark Zuckerberg, Sheryl Sandberg for ignoring Parliament’s subpoena. Posted May 28, 2019 on ctvnews.ca. Online: >https://www.ctvnews.ca/politics/big-data-committee-blasts-mark-zuckerberg-sheryl-sandberg-for-ignoring-parliament-s-subpoena-1.4440295<
[46] Howard Solomon. Social media giants focus of three-day parliamentary hearing in Ottawa. Posted May 27th, 2019 on itworldcanada.com. Online: >https://www.itworldcanada.com/article/social-media-giants-focus-of-three-day-parliamentary-hearing-in-ottawa/418387<
[47] Ibid.; See also infra, note 96, and Twitter’s censorship action in apparent subscription to and compliance with, principles 2 and 5.
[48] Press Release. Office of Senator Mark R. Warner (Democrat, Virginia). Senators Introduce Bipartisan Legislation to Ban Manipulative ‘Dark Patterns’. Posted April 9, 2019 on warner.senate.gov. Online: >https://www.warner.senate.gov/public/index.cfm/2019/4/senators-introduce-bipartisan-legislation-to-ban-manipulative-dark-patterns< See also Press Release. Office of Senator Deb Fischer (Republican, Nebraska). SENATORS INTRODUCE BIPARTISAN LEGISLATION TO BAN MANIPULATIVE ‘DARK PATTERNS’. Posted April 9, 2019 on fischer.senate.gov. Online: >https://www.fischer.senate.gov/public/index.cfm/2019/4/senators-introduce-bipartisan-legislation-to-ban-manipulative-dark-patterns<
Senator Warner, as a Virginia Democrat, serves on the Senate Banking, Budget, Finance, and Rules Committees, as well as the Senate Select Committee on Intelligence where he is the Vice-chairman. He was also a single-term Governor of the state of Virginia (2002-6) and an early investor and longtime executive in the company that would become Nextel Communications and then merge with Sprint Corporation, a mobile telephony provider. He is therefore well-versed in the evolving terrain and techniques of privacy and responsible data management. See e.g. The Office of Senator Mark R. Warner. Biography. Visited June 18, 2019. Online: >https://www.warner.senate.gov/public/index.cfm/biography<
On her part, Senator Fischer, as a Nebraska Republican, serves on the Senate Agriculture Committee; the Senate Commerce, Science, and Transportation Committee, where she is chairman of the Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety and Security; and she also chairs the Senate Armed Services Subcommittee on Strategic Forces. Senator Fischer has further served in the Nebraska legislature where she was a member of the Revenue Committee, the Natural Resources Committee and the Executive Board, and she is similarly well-versed in the in the evolving terrain and techniques of privacy and responsible data management, from having also chaired the Nebraska Legislature’s Transportation and Telecommunication Committee. See e.g. The Office of Senator Deb Fischer. Biography. About Deb. Visited June 18, 2019. Online: >https://www.fischer.senate.gov/public/index.cfm/biography<
[49] U.S. House Committee on the Judiciary, Press Release 116th Congress. House Judiciary Committee Launches Bipartisan Investigation into Competition in Digital Markets. Posted June 3, 2019 on judiciary.house.gov. Online: >https://judiciary.house.gov/news/press-releases/house-judiciary-committee-launches-bipartisan-investigation-competition-digital<
[50] Seth Fiegerman, CNN Business. Google, Facebook and Apple could face US antitrust probes as regulators divide up tech territory. Posted and updated June 3, 2019 on cnn.com. Online: >https://www.cnn.com/2019/06/03/tech/facebook-google-amazon-antitrust-ftc/index.html< See also Anna Edgerton / Bloomberg. House Judiciary Committee Opens Bipartisan Probe of Competition in Tech Industry. Posted June 3, 2019 on time.com. Online: >https://time.com/5600218/congress-bipartisan-probe-tech-industry/<
[51] Nick Statt. Facebook confirms it will launch a cryptocurrency called Libra in 2020. Posted June 18, 2019 on theverge.com. Online: > https://www.theverge.com/2019/6/18/18682290/facebook-libra-cryptocurrency-visa-mastercard-digital-currency-calibra-wallet-announce< Financial institution and financial intermediary data breaches such as the events at Desjardins (and cash or coin captures such as the events at QuadrigaCX) are not new, but they still cause widespread shockwaves when they occur, and the risk of the world seeing ever more of them is very real, indeed. See e.g. Howard Solomon. Huge data theft by employee at Canadian credit union. Posted June 21, 2019 on itworldcanada.com. Online: >https://www.itworldcanada.com/article/huge-data-theft-at-canadian-credit-union/419264< See also Theron Mohamed. Experts finally tracked down the digital wallets of the crypto CEO who died with sole access to millions. They say the money’s gone. Posted March 6, 2019 on businessinsider.com. Online: >https://markets.businessinsider.com/currencies/news/crypto-ceo-died-with-passwords-to-137-million-but-the-money-is-gone-2019-3-1028009684< This is not to downplay the risk of bad acts resulting from giving insiders too much access to personal customer data, or not properly questioning and monitoring an employee’s claimed “need to know”. See e.g. Zak Doffman. U.S. Authorities Target Zuckerberg As Facebook ‘Buries’ Huge Instagram Password Breach. Posted April 19, 2019 on forbes.com. Online: >https://www.forbes.com/sites/zakdoffman/2019/04/19/u-s-authorities-target-zuckerberg-as-instagram-security-breach-hits-millions/#5f87ea965062< In fact, social media alone, before adding-in any cryptocurrency tagalong application, has already been identified as a prime and massive enabler of cybercrime. See e.g. Helpnet Security. Social media-enabled cybercrime is generating $3.25 billion a year. Posted February 27, 2019 on helpnetsecurity.com. Online: >https://www.helpnetsecurity.com/2019/02/27/social-media-enabled-cybercrime/<
[52] RTTNews. Amazon Canada, TD Bank, Mastercard Unveil Amazon.ca Rewards Mastercard. Posted June 18, 2019 on businessinsider.com. Online: >https://markets.businessinsider.com/news/stocks/amazon-canada-td-bank-mastercard-unveil-amazon-ca-rewards-mastercard-1028286383<
[53] Kate Rooney. Facebook’s ambitious cryptocurrency plan is met by a wall of regulatory and data concerns. Posted and updated June 19, 2019 on cnbc.com. Online: > https://www.cnbc.com/2019/06/19/facebooks-ambitious-cryptocurrency-plan-greeted-by-wall-of-regulatory-and-data-concerns.html<
[54] Jeffrey Toobin. The House Judiciary Committee Considers Antitrust Law, the Tech Giants, and the Future of News. Posted June 14, 2019 on newyorker.com. Online: >https://www.newyorker.com/news/daily-comment/the-house-judiciary-committee-considers-antitrust-law-the-tech-giants-and-the-future-of-news<
[55] Open Markets Institute. America’s Concentration Crisis. An Open Markets Institute Report. Posted 2019 on openmarketsinstitute.org and visited June 16, 2019. Online: https://concentrationcrisis.openmarketsinstitute.org/< See e.g. Social Networking Sites. >https://concentrationcrisis.openmarketsinstitute.org/industry/social-networking-sites/<
[56] Id. at Search Engines. >https://concentrationcrisis.openmarketsinstitute.org/industry/search-engines/<
[57] Supra note 55 at E-commerce. >https://concentrationcrisis.openmarketsinstitute.org/industry/e-commerce/<
[58] Supra note 55 at Smartphone Operating Systems (Show Historical Data). >https://concentrationcrisis.openmarketsinstitute.org/industry/smartphone-operating-systems/<
[59] Supra note 55 at Smartphone Operating Systems (Show Current Data). >https://concentrationcrisis.openmarketsinstitute.org/industry/smartphone-operating-systems/<
[60] Ekundayo George. Monopolies and Market Dominance in the “GIG” eConomy: What Might These Look Like / Are We There Yet? Posted July 16, 2017 on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2017/07/16/monopolies-and-market-dominance-in-the-gig-e-conomy-what-might-this-look-like-are-we-there-yet/<
[61] Ekundayo George. Monopolies and Market Dominance in the “GIG” eConomy? We are Getting There! Posted February 19, 2018 on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2018/02/19/monopolies-and-market-dominance-in-the-gig-economy-we-are-getting-there/<
[62] Nina Godlewski. What Company Owns Instagram? Five Companies Owned by Facebook and How They Use Your Information. Posted March 26, 2018 on newsweek.com. Online: >https://www.newsweek.com/facebook-own-instagram-does-companies-apps-data-860732<
[63] mattallen1998. The Structure of Alphabet and Google. Posted February 11, 2019 on bcsheatechtrek.com (Boston College Carroll School of Management, Tech Trek). Online: > https://bcsheatechtrek.com/2019/02/11/the-structure-of-alphabet-and-google/<
[64] Kevin B. Johnston. Top 4 Companies Owned by Google. Last updated June 3, 2019 and posted on investopedia.com. Online: >https://www.investopedia.com/investing/companies-owned-by-google/<
[65] Nathan Reiff. Top 7 Companies Owned By Apple. Last updated May 16, 2019 on investopedia.com. Online: >https://www.investopedia.com/investing/top-companies-owned-apple/<
[66] Nathan Reiff. Top 7 Companies Owned by Amazon. Last updated May 18, 2019 on investopedia.com. Online: >https://www.investopedia.com/articles/markets/102115/top-10-companies-owned-amazon.asp<
[67] Chris Hughes. Opinion. The Privacy Project. It’s Time to Break Up Facebook. Posted May 9, 2019 on nytimes.com. Online: >https://www.nytimes.com/2019/05/09/opinion/sunday/chris-hughes-facebook-zuckerberg.html?<
[68] United States Senator Mark R. Warner (D-VA), Vice-Chairman, Senate Intelligence Committee, United States Senate. White Paper (DRAFT). Potential Policy Proposals for Regulation of Social Media and Technology Companies. Visited June 6, 2019 and posted on scribd.com. Online: >https://www.scribd.com/document/385137394/MRW-Social-Media-Regulation-Proposals-Developed#from_embed<
[69] United States Senator Warner, Mark R. [D-VA]; United States Senator Fischer, Deb [R-NE], Co-sponsors. S.1084 –Deceptive Experiences To Online Users Reduction Act. Introduced April 9, 2019 in the 116th Congress, 1st Session (2019-2020). Visited June 19, 2019 and posted on congress.gov. Online: >https://www.congress.gov/bill/116th-congress/senate-bill/1084/text?q=%7B%22search%22%3A%5B%22congressId%3A116+AND+billStatus%3A%5C%22Introduced%5C%22%22%5D%7D&r=17&s=1<
[70] Supra note 68 at p 1.
[71] Id. at page p 3.
[72] Id. at p 4.
[73] United States Senator Mark R. Warner (D-VA), Vice-Chairman, Senate Intelligence Committee, United States Senate. White Paper (DRAFT). Potential Policy Proposals for Regulation of Social Media and Technology Companies, at pp 6-14. Visited June 6, 2019 and posted on scribd.com. Online: >https://www.scribd.com/document/385137394/MRW-Social-Media-Regulation-Proposals-Developed#from_embed<
[74] Id. at pp 14-19.
[75] Id. at pp 19-23.
[76] Id. at p 17.
[77] Press Release. Office of Senator Mark R. Warner (Democrat, Virginia). Senators Introduce Bipartisan Legislation to Ban Manipulative ‘Dark Patterns’. Posted April 9, 2019 on warner.senate.gov. Online: >https://www.warner.senate.gov/public/index.cfm/2019/4/senators-introduce-bipartisan-legislation-to-ban-manipulative-dark-patterns< See also Press Release. Office of Senator Deb Fischer (Republican, Nebraska). SENATORS INTRODUCE BIPARTISAN LEGISLATION TO BAN MANIPULATIVE ‘DARK PATTERNS’. Posted April 9, 2019 on fischer.senate.gov. Online: >https://www.fischer.senate.gov/public/index.cfm/2019/4/senators-introduce-bipartisan-legislation-to-ban-manipulative-dark-patterns<
[78] Nicole Lindsey. New Senate Bill Targets Dark Patterns Used by Big Tech Giants. Posted April 25, 2019 on cpomagazine.com. Online: >https://www.cpomagazine.com/data-protection/new-senate-bill-targets-dark-patterns-used-by-big-tech-giants/<
[79] Id.
[80] United States Senator Warner, Mark R. [D-VA]; United States Senator Fischer, Deb [R-NE], Co-sponsors. S.1084 –Deceptive Experiences To Online Users Reduction Act, at §2(3) Definitions: Compulsive Usage. Introduced April 9, 2019 in the 116th Congress, 1st Session (2019-2020). Visited June 19, 2019 and posted on congress.gov. Online: >https://www.congress.gov/bill/116th-congress/senate-bill/1084/text?q=%7B%22search%22%3A%5B%22congressId%3A116+AND+billStatus%3A%5C%22Introduced%5C%22%22%5D%7D&r=17&s=1<
[81] Id. at §2(5) Definitions: Informed Consent.
[82] Id. at §3(b)(3)(A).
[83] Id. at §(3)(b).
[84] Id. at §2(6) Definitions: Large Online Operator.
[85] United States Senator Warner, Mark R. [D-VA]; United States Senator Fischer, Deb [R-NE], Co-sponsors. S.1084 –Deceptive Experiences To Online Users Reduction Act, at §2(4) Definitions: Independent Review Board; §3(b)(4)-(5). Introduced April 9, 2019 in the 116th Congress, 1st Session (2019-2020). Visited June 19, 2019 and posted on congress.gov. Online: >https://www.congress.gov/bill/116th-congress/senate-bill/1084/text?q=%7B%22search%22%3A%5B%22congressId%3A116+AND+billStatus%3A%5C%22Introduced%5C%22%22%5D%7D&r=17&s=1<
[86] Ibid.
[87] Supra note 85 at §3(c).
[88] Id. at §3(d).
[89] For a very deep dive on the meaning and usage (in Europe) of dark patterns, see e.g. The Norwegian Consumer Council (ForbrukerRådet). DECEIVED BY DESIGN: How tech companies use dark patterns to discourage us from exercising our rights to privacy. Posted June 27, 2018 on forbrukerradet.no. Online: >https://fil.forbrukerradet.no/wp-content/uploads/2018/06/2018-06-27-deceived-by-design-final.pdf<
[90] Olivia Solon. Google’s ad tracking is as creepy as Facebook’s. Here’s how to disable it. Posted October 21, 2016 on theguardian.com. Online: >https://www.theguardian.com/technology/2016/oct/21/how-to-disable-google-ad-tracking-gmail-youtube-browser-history< See also John Brownlee. Evidence. After Lawsuit Settlement, LinkedIn’s Dishonest Design Is Now A $13 Million Problem. Posted October 5, 2015 on fastcompany.com. Online: >https://www.fastcompany.com/3051906/after-lawsuit-settlement-linkedins-dishonest-design-is-now-a-13-million-problem<
[91] Michal Addady. Merchants Say Amazon Is Copying Their Products. Posted April 20, 2016 on fortune.com. Online: >http://fortune.com/2016/04/20/amazon-copies-merchants/<
[92] Foo Yun Chee. Business News. Apple in Dutch antitrust spotlight for allegedly promoting own apps. Posted April 11, 2019 on reuters.com. Online: >https://www.reuters.com/article/us-apple-antitrust-netherlands/apple-in-dutch-antitrust-spotlight-for-allegedly-promoting-own-apps-idUSKCN1RN215< See also Jack Nicas. Google Uses Its Search Engine to Hawk Its Products. Posted January 19, 2017 on wsj.com. Online: >https://www.wsj.com/articles/google-uses-its-search-engine-to-hawk-its-products-1484827203< See also Eugene Kim. Amazon has been promoting its own products at the bottom of competitors’ listings. Posted October 2, 2018 and Updated March 18, 2019 on cnbc.com. Online: > https://www.cnbc.com/2018/10/02/amazon-is-testing-a-new-feature-that-promotes-its-private-label-brands-inside-a-competitors-product-listing.html< See also Steven J. Vaughan-Nichols for Linux and Open Source. MariaDB CEO accuses large cloud vendors of strip-mining open source. Posted February 27, 2019 on zdnet.com. Online: >https://www.zdnet.com/article/mariadb-ceo-accuses-large-cloud-vendors-of-strip-mining-open-source/< Quoting and paraphrasing Michael Howard, CEO of the database server open source collaboration, MariaDB. “Howard doesn’t have much against AWS promoting its own brands. “”That’s just merchandising. They’re welcome to do that. I don’t think it’s the right thing to do. Right. But I’m not gonna I’m not going to be really super critical of that. Like, when you go into a pharmacy, they generally have sales on their own native things.’” But, if AWS’s going out of its way to make a rival service look inferior to its own, well, Howard’s not happy about that.” [Emphasis added].
[93] Mehvish. Snapchat features borrowed by Facebook, WhatsApp and Instagram. Posted April 5, 2017 on theandroidsoul.com. Online: > https://www.theandroidsoul.com/snapchat-features-borrowed-by-facebook-whatsapp-and-instagram/<
[94] Chris Hughes. Opinion. The Privacy Project. It’s Time to Break Up Facebook. Posted May 9, 2019 on nytimes.com. Online: >https://www.nytimes.com/2019/05/09/opinion/sunday/chris-hughes-facebook-zuckerberg.html?< Chris Hughes, the co-founder of Facebook, speaks of Facebook’s sheer dominance and a fear of its incumbency, stymying competition and investment in those startups that might one day grow to compete with it (if allowed to even exist for more than an instant, before being bought-up or otherwise curtailed); and he says that this sequence of events replicates in other dominated fields, but not in those that are free of dominance.
[95] Michael Kwet. Opinion. The Privacy Project. In Stores, Secret Surveillance Tracks Your Every Move. Posted June 14, 2019 on nytimes.com. Online: >https://www.nytimes.com/interactive/2019/06/14/opinion/bluetooth-wireless-tracking-privacy.html<
[96] Dave Lee North America technology reporter. Facebook may be ‘pivoting’ to something worse. Posted July 2, 2019 on bbc.com. Online: >https://www.bbc.com/news/technology-48835250< This article decries the increasing prevalence of private Facebook “Groups” that are hard to monitor, harder to find, and that can feed on ever more disinformation and fake news in silos of isolation, potentially making members ever more radical and extreme. But see contra. The Canadian Press. Some tech giants sign onto Canada’s declaration on electoral integrity. Posted May 27, 2019 on timescolonist.com. Online: > https://www.timescolonist.com/some-tech-giants-sign-onto-canada-s-declaration-on-electoral-integrity-1.23834687< Facebook, Alphabet/Google, and Microsoft joined on a declaration to protect the integrity of this year’s (Q3/Q4 2019) pending Canadian federal elections. See also contra Sara Carter. Breaking: Twitter Confirms New Policy to ‘Hide Tweets’ but Claims It’s “In the Public Interest”. Posted June 27, 2019 on saracarter.com. Online: >https://saraacarter.com/breaking-twitter-confirms-new-policy-to-hide-tweets-but-claims-its-in-the-public-interest/< See further Twitter Safety. Defining public interest on Twitter. Posted June 27, 2019 on twitter.com. Online: >https://blog.twitter.com/en_us/topics/company/2019/publicinterest.html< Twitter also appears to have gotten the message to get serious about dealing with some of the online negativity spread by those most widely-followed “Internet Influencers” of our times. See also supra, note 47 and accompanying text (at 5 Principles).
[97] Chris Hughes. Opinion. The Privacy Project. It’s Time to Break Up Facebook. Posted May 9, 2019 on nytimes.com. Online: >https://www.nytimes.com/2019/05/09/opinion/sunday/chris-hughes-facebook-zuckerberg.html?< Chris Hughes, the co-founder of Facebook, speaks of how U.S. lawmakers were slow to move partly because they were in awe of Facebook and its colleagues in big tech, such as Amazon and Netflix, and partly because the American public did not see those lawmakers as “hip enough” to meet (or even understand) the modern task of technology regulation, let alone the tech. landscape.
“For too long, lawmakers have marveled at Facebook’s explosive growth and overlooked their responsibility to ensure that Americans are protected and markets are competitive. (…). After Mark’s congressional testimony last year, there should have been calls for him to truly reckon with his mistakes. Instead the legislators who questioned him were derided as too old and out of touch to understand how tech works. That’s the impression Mark wanted Americans to have, because it means little will change.”
In addition to the European experiences and fines regarding big U.S. tech, and despite a home nation that champions freedom of speech and is really not at all in favor of generalized censorship, India and Saudi Arabia have now acted to restrict Netflix. See e.g. India Today Web Desk. SC issues notice to Centre to regulate Netflix, Amazon Prime content. Posted May 10, 2019 on indiatoday.in. Online: >https://www.indiatoday.in/television/top-stories/story/sc-issues-notice-to-centre-to-regulate-netflix-amazon-prime-video-content-1521635-2019-05-10< See also Emily Dreyfuss. Culture. Saudi Arabia Won’t Be the Last Country to Censor Netflix. Posted January 3, 2019 on wired.com. Online: >https://www.wired.com/story/saudi-arabia-netflix-censorship/<
[98] See supra, notes 48, 49, and 50 and accompanying text for some of these recent U.S. Regulator actions
[99] Chris Hughes. Opinion. The Privacy Project. It’s Time to Break Up Facebook. Posted May 9, 2019 on nytimes.com. Online: >https://www.nytimes.com/2019/05/09/opinion/sunday/chris-hughes-facebook-zuckerberg.html?< Chris Hughes, the co-founder of Facebook, speaks on the potential benefits of innovation for the creative public, in competition for the consuming public, and for commerce itself, if Facebook were broken-up.
[100] Joe Williams. Trump: US should sue Google for ‘trying to rig’ the 2020 elections. Posted June 26, 2019 on foxbusiness.com. Online: >https://www.foxbusiness.com/technology/trump-us-should-sue-google-facebook<
[101] Elizabeth Warren. Here’s how we can break up Big Tech. Posted March 8, 2019 on medium.com. Online: >https://medium.com/@teamwarren/heres-how-we-can-break-up-big-tech-9ad9e0da324c<
[102] Id.; Supra, note 100.
[103] Zak Doffman. U.S. Authorities Target Zuckerberg As Facebook ‘Buries’ Huge Instagram Password Breach. Posted April 19, 2019 on forbes.com. Online: >https://www.forbes.com/sites/zakdoffman/2019/04/19/u-s-authorities-target-zuckerberg-as-instagram-security-breach-hits-millions/#5f87ea965062< As it was revealed, Facebook had not properly revealed a breach, in the fact that its own employees had near unfettered access to (and did, serially so access), customer data, and the author cites to sources stating that “some 2,000 engineers or developers made approximately nine million internal queries for data elements that contained plain text user passwords.” There is also no global law or remedy to control how privacy is to be managed or policed on dominant global platforms.
[104] Bill Thompson, Rhianne Jones. BBC Research and Development. Introducing the BBC Box. Posted June 18, 2019 and last updated July 2, 2019 on bbc.com. Online: >https://www.bbc.co.uk/rd/blog/2019-06-bbc-box-personal-data-privacy<
[105] Thomson Reuters. Businesses Struggling with GDPR After One Year, Says Thomson Reuters Survey. Posted May 22, 2019 on thomsonreuters.com. Online: >https://www.thomsonreuters.com/en/press-releases/2019/may/businesses-struggling-with-gdpr-after-one-year-says-thomson-reuters-survey.html<
[106] – RESERVED –
I have been watching the Brexit issue for quite some time, with an initial post,[1] a follow-up,[2] and ongoing monitoring of developments and the commentary on same – both by people with and without a clue as to what they were talking about.
Now, however, as the deadline of March 29, 2019 looms, I think calling the end result, with all the twists and turns to date, is a guessing game.
I would make two guesses and say that allowing for the UK[3] to have additional negotiating time is an outside possibility, with the more likely result being a second Referendum, a change in prime minister, and the eventual demise of Brexit on what will likely be described as sober second thoughts, or the like. Of course, this would not go down too well with the “Yes/Leaver” voters.
In my second “alternative” guess, there would be a Hard Brexit (being the least-favoured result), and Britain would muddle-on from there to negotiate and secure its own individualized and strategic trade and security partnerships. Again, this would not go down too well with the “No/Remainer” voters.
One least likely option – far into the outside possibility zone, is for the Europeans to cave-in at the last minute and give the Brits the sweeter deal that they want. This is quite unlikely, due to the fact that it might well encourage other E.U. members to leave, and it would doubtless cause some protests and instability in parts of Europe that remain within Europe, or that also have vocal and dedicated elements, or even persistent groups – (not unlike the French Yellow Vest protest movement),[4] who want to leave the E.U. and follow the U.K. lead, or who have other gripes. This, however, is not one of my guesses.
I really do not see any way that a period of some instability can be avoided in the U.K., and I would hazard a guess that some highly visible and tangible security measures and “precautionary restrictions” will be put into place as the March 29, 2019 date emerges; doubtless to charges of fascism that would speed a change of prime minister.
Of course, I could be entirely wrong on both guesses, and even that “outside chance” third case. But, there are 18 more nail-biting days of votes and twists and turns to go. So, let’s count them down![5]
************************************************************************
Author:
Ekundayo George is a lawyer and sociologist. He has also taken courses in organizational and micro-organizational behavior, and gained significant experience in regulatory compliance, litigation, and business law and counseling. He is licensed to practise law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux. Trained in Legal Project Management (and having organized and managed several complex projects before practising law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams. Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: healthcare; education and training; law and regulation; policy and plans; statistics, economics, and evaluations including feasibility studies; infrastructure; and information technology/information systems (IT/IS) – also sometimes termed information communications technologies (ICT). See, for example: http://www.simprime-ca.com.
Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.
This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein. Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.
[1] Ekundayo George. Analyzing the 2016 Brexit: A Classically Complex Conundrum. Posted June 30, 2016 on ogalaws.wordpress.com. Web: <https://ogalaws.wordpress.com/2016/06/30/analyzing-the-2016-brexit-a-classically-complex-conundrum/>
[2] Ekundayo George. Analyzing the 2016 Brexit: The UK Exit Plan is Revealed, Promising a “Hybridized” End-result. January 20, 2017. Web: <https://ogalaws.wordpress.com/2017/01/20/analyzing-the-2016-brexit-the-uk-exit-plan-is-revealed-promising-a-hybridized-end-result/>
[3] Britain and the U.K. are used interchangeably, here.
[4] France 24 Press. French Yellow Vest protesters hold 17th weekend of marches. Posted March 9, 2019 on france24.com. <https://www.france24.com/en/20190309-Yellow-Vests-find-new-ways-protest-Act-17>
[5] Ekundayo George. Brexit – What happens after that December 12, 2019 UK Election? Posted November 22, 2019, on ogalaws.wordpress.com. Web: <https://ogalaws.wordpress.com/2019/11/21/brexit-what-happens-after-that-december-12-2019-uk-election/>
REVIEW –
In mid-July of last year (A.D. 2017), I wrote a piece on monopolies and market dominance in the Gig eConomy, and concluded that there wasn’t any “traditional” comparability between the old and new economies, but through a hybridized analysis I did concede that monopoly and market dominance were possible, and could be easily seen when they appeared or threatened to appear.[1] I will now go out on a limb and state that I think one particular entity may well be approaching that line …. Amazon!
SCHEMA –
With specific focus on the FAAAN group of Facebook, Amazon, Alphabet/Google, Apple, and Netflix,[2] I had looked at the standard market sectors and Monopoly / Antitrust analytical frameworks and mixed the old with the new to devise a total of 5 (“five”) hybrid sectors that covered everything from farming, through manufacturing and eCommerce, to such gig economy staples as food delivery, ride-hailing, and cloud services. These 5 sectors (with each one also having several sub-sectors), were as follows:
(1) General Goods and Services Sector;
(2) Specialized Goods and Services Sector;
(3) Digital Tools, Applications, and Services Sector;
(4) Social infotainment Sector;
(5) Gig eConomy Sector.[3]
Next, selecting the Specialized Goods and Services Sector, I had included 8 (“eight”) sub-sectors as follows:
(i) Conglomerates;
(ii) Financial Services;
(iii) Food;
(iv) Health and Wellness;
(v) Information Communications Technologies;
(vi) Information Data Technologies;
(vii) Personal Services;
(viii) Shelter.[4]
ANALYSIS –
Amazon is already a conglomerate, offering Information Communications Technologies (Amazon Web Services); Information and Data Technologies (such as Amazon Echo); other Services (order fulfillment for food and beverages through Fresh and Amazon Restaurants, and for consumer products and general goods through the Amazon.com marketplace); and operating in technology, industry, and manufacturing through the many Amazon and non-Amazon branded products that it owns and regarding which it conducts research and development as through Annapurna Labs for example, or that it otherwise makes available through AmazonBasics and Amazon Private Label),[5] amongst others.[6]
One could always have suspected, but not predicted as to when, that Amazon would expand into other areas. However, within less than 8 (“eight”) months to date, we have heard or seen Amazon’s expansion announcements: further into Transportation, with its own fleet of trucks, planes, and drones destined to pickup and deliver parcels and other goods for both itself and other vendors through Shipping with Amazon (SWA);[7] further into Food, with its purchase of the organic grocer, Whole Foods Market;[8] and initially into Health and Wellness, with its announcement to partner with Berkshire Hathaway and JPMorgan Chase in establishing a healthcare entity to “create solutions that benefit our U.S. employees, their families and, potentially, all Americans.”[9]
It being the case that transportation was already a line item (“Leisure, Property, and Transportation”) within Conglomerates,[10] and because there is no standalone category for it, Amazon gets a pass on that “existing service, line-item”. However, the Whole Foods Market purchase and the healthcare initiative represent new, “standalone divisions” under the schema, and therefore expansions into further sub-sectors under General Goods and Services, as shown.
When one considers the existing ownership by Mr. Bezos of the Washington Post newspaper,[11] under Information Communications Technologies (publishing and printed media), the presence of Amazon Echo within Personal services (virtual assistants), and Amazon Web Services, itself (Information and Data Technologies), we can more clearly see that Amazon and its Chief Executive are now substantially present in 6 (“six”) of the 8 (“eight”) subsectors for Specialized Goods and Services.
Those substantially untouched subsectors, are: (ii) Financial Services; and (viii) Shelter.
If Amazon were to delve further into (or grow its volume or revenue substantially in) banking than its payment services and debit cards (Amazon Cash), or its small business loans that surpassed $3 billion in 2017;[12] or if it bought an established “brick and mortar” or “online” financial services entity outright in the United States or Canada;[13] or if it leveraged block chain technology to form a standalone financial services entity – whether by itself or with one or more partners and regardless of whether it was in the United States or Canada,[14] it would have become firmly and undeniably entrenched in that financial services sector.
Also, if Amazon were, for example, to purchase a major builder or cruise and travel operator, a major hotelier or landlord, or a major building services and maintenance provider,[15] it would have become firmly and undeniably entrenched in that shelter subsector.
Hence, we would see complete sector presence, “sector octo-occupation”, or “sector octopedence”, and the potential for a monopoly – or at the very least a modern Chaebol,[16] Keiretsu,[17] or perhaps even something more.[18]
SUMMARY –
As I had said in the July, 2017 article:
“It is only if, and when, well-funded market operators start to occupy whole sectors (in the new schema laid out here) … that we should start to worry about abuse of dominant positions, monopolies, and over-concentration in the control of personal data”.[19]
Some readers may ask how mere presence in a subsector can equate to monopoly or lead to a dominant market position and its abuse? The answer is that the whole is greater than the sum of its parts, and when a small, mid-size, or large entity is supported by a parent company’s constantly renewable cash hoard, raw analytical and computing power, intimate knowledge of consumer tastes and purchase histories, ancillary and mutually supporting businesses, and a first mover advantage in synergizing all of these, you may have a monopoly right from the gate if others cannot compete with their pricing and service terms, enter the market with a fighting chance, or nimbly adapt and persist once it moves to match or better them at what they do, and what they did, and how.
PREDICTION –
Admittedly, as one notable commentator has said, traditional economic analysis will still find no monopoly or antitrust red flags, or market dominance in the FAAAN entities, as yet,[20] and some readers may disagree with my analysis and conclusions. But, let’s watch this space and see whether or not Amazon and its CEO make decisive and deeper moves into either or both of “Finance” and “Shelter” as outlined above, and sometime within the next 4-6 months, or at least before the close of calendar 2018.
I really think and predict, that we will see such a decisive move or moves from Mr. Bezos and Amazon. But, only time will tell, for certain.[21]
**********************************************************************
Author:
Ekundayo George is a lawyer and sociologist. He has also taken courses in organizational and micro-organizational behavior, and gained significant experience in regulatory compliance, litigation, and business law and counseling. He has been licensed to practise law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.
Trained in Legal Project Management (and having organized and managed several complex projects before practising law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams. Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: healthcare; education and training; law and regulation; policy and plans; statistics, economics, and evaluations including feasibility studies and business cases; infrastructure; and information technology/information systems (IT/IS) – also sometimes termed information communications technologies (ICT). See, for example: http://www.simprime-ca.com.
Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.
This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein. Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.
**********************************************************************
[1] Ekundayo George. Monopolies and Market Dominance in the “GIG” eConomy: What Might These Look Like / Are We There Yet? Posted July 16, 2017 on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2017/07/16/monopolies-and-market-dominance-in-the-gig-e-conomy-what-might-this-look-like-are-we-there-yet/<
[2] Id, at Introduction.
[3] Id, at Sectors (Specialized Goods and Services Sector).
[4] Id, at Specialized Goods and Services Sector (Subsectors).
[5] Ibid. Under this schema, Amazon has therefore occupied all 5 of the conglomerate sub-elements or variants. See e.g. Shareen Pathak. In 2018, Amazon will turn to private label goods. Posted December 29, 2017 on digiday.com. Online: >https://digiday.com/marketing/2018-brand-amazon-will-turn-private-label/< See also Leon Doitscher. Why Amazon Paid $350 Million for Annapurna Labs. Posted January 26, 2015 on medium.com. Online: >https://medium.com/chasing-buzzwords/why-amazon-paid-350-million-for-annapurna-labs-9026527d3fb9<
[6] Tara Johnson. The Complete List of Amazon’s Private Label Brands. Posted July 5, 2017 on cpcstrategy.com. Online: >http://www.cpcstrategy.com/blog/2017/07/amazons-private-label-brands/<
[7] Jack Roberts. Amazon Moves to Launch Its Own Delivery Fleet. Posted February 12, 2018 on truckinginfo.com. Online: >http://www.truckinginfo.com/channel/fleet-management/news/story/2018/02/reports-amazon-moves-to-launch-its-own-p-d-fleet.aspx<
[8] Sarah Butler and Zoe Wood. Amazon to buy Whole Foods Market in $13.7bn deal. Posted June 16, 2017 on theguardian.com. Online: >https://www.theguardian.com/business/2017/jun/16/amazon-buy-whole-foods-market-organic-food-fresh<
[9] Tom Murphy – The Associated Press. Amazon to create new health-care company with Berkshire Hathaway, JPMorgan. Posted January 30, 2018 on thestar.com. Online: >https://www.thestar.com/business/2018/01/30/amazon-to-create-new-health-care-company-with-berkshire-hathaway-jpmorgan.html< This quotation in the article headline was attributed to Jamie Dimon, the Chairman and CEO of JP Morgan Chase. Also according to the article, these three companies have a combined U.S. workforce of approximately 1 million, and the U.S. employer-sponsored healthcare market covers some 167 million employees.
[10] Ekundayo George. Monopolies and Market Dominance in the “GIG” eConomy: What Might These Look Like / Are We There Yet? Posted July 16, 2017 on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2017/07/16/monopolies-and-market-dominance-in-the-gig-e-conomy-what-might-this-look-like-are-we-there-yet/<
[11] Monica Nickelsburg. Washington Post profitable and growing for two years under Jeff Bezos’ ownership. Posted January 9, 2018 on geekwire.com. Online: >https://www.geekwire.com/2018/washington-post-profitable-growing-two-years-jeff-bezos-ownership/<
[12] By Jeffry Pilcher. Amazon Bank: Will Banking’s Worst Nightmare Come True in 2018? Posted January 2, 2018 on thefinancialbrand.com. Online: https://thefinancialbrand.com/69436/amazon-bank/<
[13] Ibid.
[14] See generally World Economic Forum. Beyond Fintech: A Pragmatic Assessment Of Disruptive Potential In Financial Services. Published August 22, 2017 on weforum.org. Online: >https://www.weforum.org/reports/beyond-fintech-a-pragmatic-assessment-of-disruptive-potential-in-financial-services<
[15] Amazon Hub, is actually a locker system that Amazon pays landlords to host with a one-time fee, as a means of facilitating and further securing its package deliveries to customers. Should the payments be reversed and become an “As a Service” offering or otherwise require some periodic fee to Amazon, then yes, Amazon will become the landlord for that limited purpose. See generally Laura Kusisto. Amazon and Big Apartment Landlords Strike Deals on Package Delivery. Posted October 17, 2017 on foxbusiness.com. Online: >http://www.foxbusiness.com/features/2017/10/17/amazon-and-big-apartment-landlords-strike-deals-on-package-delivery-update.html<
[16] Wikipedia. Chaebol. Posted on Wikipedia.com. Online: >https://en.wikipedia.org/wiki/Chaebol<
[17] Wikipedia. Keiretsu. Posted on Wikipedia.com. Online: >https://en.wikipedia.org/wiki/Keiretsu<
[18] I am toying with the words “NeoRetsu” (new age Keiretsu), or “IchiBol”, because “ichi” means “number one”, in Japanese, and IchiBol just so happens to combine both the Korean and Japanese languages, and both business concepts: the Chaebol as a family-owned business with centralized management by family members, and the Keiretsu as a family of businesses with professional managers, centred on a core bank (or a money machine).
[19] Ekundayo George. Monopolies and Market Dominance in the “GIG” eConomy: What Might These Look Like / Are We There Yet? Posted July 16, 2017 on ogalaws.wordpress.com at “Summary” Online: >https://ogalaws.wordpress.com/2017/07/16/monopolies-and-market-dominance-in-the-gig-e-conomy-what-might-this-look-like-are-we-there-yet/< at Summary.
[20] Greg Ip. The Antitrust Case Against Facebook, Google and Amazon. Posted January 16, 2018 on wsj.com. Online: >https://www.wsj.com/articles/the-antitrust-case-against-facebook-google-amazon-and-apple-1516121561<
[21] Ekundayo George. Monopolies and Market Dominance in the “GIG” eConomy: Regulatory Rumblings Rattle the Ranks. Posted July 7, 2019 on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2019/07/07/monopolies-and-market-dominance-in-the-gig-economy-regulatory-rumblings-rattle-the-ranks/<
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