Law

12. Richter, Political Theory of Montesquieu (2 July)

by kurto

An extended survey of Montesquieu’s works and selections from the most famous, notably Persian Letters and Spirit of the Laws.

    Survey
Causes of Rome
Rome fell because wealth became despised by the populace, so the patricians ceded their privileges in hopes of retaining access to power
More states have perished from corruption of moeurs than lawbreaking
Whenever in a republic all is tranquil, the state is no longer free. True harmony includes dissonance
Spirit
Solon divided the classes not to determine eligibility to vote but to hold office
In a tyranny, religion is the depository of moeurs and fundamental laws because the judiciary is unreliable
In monarchies, free speech is not on behalf of truth but because candor indicates power
Since everything human must end, so virtuous government must end, usually when the legislature becomes more corrupt than the executive. In a democracy, first comes corruption, then the laws are no longer executed. Once principles are corrupted, even good laws work against the state. Corrupt republics rarely do great things: only a people with simple moeurs establish societies, cities, laws.
In a democracy, power is the chief characteristic of the people; liberty is its effect, but not the source of power. Liberty is tranquility derived from personal security. However, the greater the apparent advantages of liberty, the nearer the republic is to losing it. First comes the petty tyrants, then the single dictator.
True equality is far from extreme equality. True equality is not that everyone or no one commands; but that we command or obey only equals. Citizens whose condition is so weak may be considered to have no will of their own: they are incapable of taking part in the execution of society’s ends.
Republics succeed in small geographies. In large ones, the state’s resources corrupt officeholders: the public good recedes from view. Sparta persisted because its sole end was liberty.
Harrington explore how far a state’s constitution may carry liberty, but forgot liberty’s essence. As Tacitus observed, it’s extraordinary that corrupt Roman conquerors led Germanic barbarians to solidify those moeurs which led to English constitutionalism.
There are two types of tyranny, the real and violent, and tyranny of opinion, when those who govern institute things contrary to the nation’s moeurs.
Political vices are not necessarily moral vices and vice versa, a reasonwhy laws against the spirit of society are tenuous. Means exist for preventing crimes (penalties), and can serve to change moeurs. To assert that laws or religion do not always restrain society is to overlook that frequently they do. Civility is superior to politeness: the former prevents us from displaying our own vices. The more people in a nation, the more evident and necessary are both.

13. Millard, Cloud Computing Law (7 July 2023)

by kurto

Limns core and emerging concepts of legislation, jurisprudence, and policy regarding software, platform, and infrastructure as IT services, focusing on the European Union and United Kingdom circa 2020. To this reader, the most pertinent topics may be divided as operations, commercial matters, and taxation.

Operations:
• Cloud services, for purposes of governance, are fundamentally different from outsourcing in terms of design and control and geographic nexus
• PaaS is indicated by large degree of client control over specification or complexity of usage
• Security
o Security by nature entails risk management, as rules can never encompass all use cases; risk management is well suited to principle-based regulation (common in UK and Australia). For this reason, insurance is commonly part of risk management
o Misconfigurations are the largest internal threat to security
o To establish one’s services as a ‘trusted execution environment’, one should encourage the client to consider whether the vendor’s security setup is better or worse than the client’s own systems
• Data transfers
o across international borders may be governed by any of several mechanism (e.g., Privacy Shield, Standard Contractual Clauses, approved bespoke certifications)
o The acceptability of the SCCs to the EU is premised on the former’s compliance with the recipient country’s standards (e.g., the Australian Privacy Principles)
• Privacy: data sharing (e.g., among companies) is a controller-to-controller sequence; conversely, controller-to-processor is provision and instructed use. See chart p. 311 (which further demonstrates that Jacobi’s control of platform security, etc., make it at least a joint controller)

Commercial matters:
• The most negotiated clauses are liability (12 months’ fees being standard) including carveouts; service levels including availability; security and privacy; lock-in, portability, and exit; and intellectual property rights
• An estimated 1/3d of negotiations fail over the transparency of using subcontractors
• Data residency and indemnification for 3d-party claims are frequently client imperatives, increasingly joined by transition plans. APIs have come to be seen as acceptable means of interoperability or portage
• Pre-commercial procurements (PCP) are a means for public buyers (government) purchasing and then sharing emerging technologies without violating state-aid strictures of GATT

Taxation
• The most fluid question is re-establishing consensus of jurisdiction: where is value created? The residence of a provider’s 3d-party infrastructure does not create nexus (because the provider does not control hardware); however the location of the end user (the client) might. There is dispute among OECD and UN principles,
• Cloud fees (including PaaS) are generally taxed business profits not royalties
• A service that is linked (i.e., not separable) is likely to be singularly taxed, rather than as separate products or business lines