Sermon 54 - Liability and Negligence
Proverbs 24:11-12 Rescue those being led away to death; hold back those staggering toward slaughter. If you say, "But we knew nothing about this," does not he who weighs the heart perceive it? Does not he who guards your life know it? Will he not repay everyone according to what they have done?
For a quarter of a century I have been facilitating seminars for people who are going for their professional certification in information security. None of this, of course, is of any interest to you. But part of what I have to cover in the seminars is about law. Now, I am not a lawyer. I don't even play one on TV, as the saying goes. But, in order to deal with the material in these seminars, I have had to study quite a bit about law, and, particularly, legal principles. I have to concentrate on legal principles, because, in information security, the perpetrator may be in one jurisdiction, and the victim in another jurisdiction, and the system used to perpetrate a crime may be in yet a third jurisdiction. And that's possibly the very *simplest* case involved in legal matters on the Internet. So we have to deal with principles that are commonly accepted by pretty much all jurisdictions, rather than individual laws in one particular jurisdiction.
One of the issues that is common to pretty much every legal jurisdiction and system is that of liability. Generally speaking, just simply the fact that something bad happens is not enough to say that someone is guilty of a crime. We also have to show that this individual, or enterprise, or other party, is somehow responsible for either the crime, or the fact that a crime happened. If you have a law that says that someone who does something specific is guilty of a crime, well, that's one thing. But very often the law also says that, in certain cases, if you don't do something, and someone is harmed, or injured, or suffers a loss, and you had the power to take action to have prevented that loss or harm, and you *didn't* take that action, then you were negligent. You can be guilty of doing a crime, or you can be guilty of not doing something which prevented a harm. That is negligence.
And, for a quarter of a century, I have been telling stories to illustrate these twin ideas of liability and negligence. And so I'm going to tell a couple of them to you now. I know that, when you write a sermon, you are supposed to have three points and an illustration. I apologize for failing to stick to the formula. In the case of this particular sermon, I have one point, and two illustrations.
Actually, the reason that I'm telling you these stories is a little bit different from the reason that I tell the seminars these stories. The reason that I tell the seminars this story is because of something called precedent. In Canada, we are under what is known as the Common Law legal system. The Common Law legal system is actually relatively *un*common. It comes from the British legal system. And one of the principles in the Common Law legal system is that, when a court has made a decision, the reason for that decision becomes a precedent. This means that previous cases, cases that have been decided prior to the one that you are working on, give you guidance as to how you should decide the case that you are currently working on. The precedents in prior legal cases become, in a sense, legal principles themselves. This is not the case in many other legal systems around the world, under what is known as a civil law legal system. Under a civil law legal system, if you don't have a law against what somebody has done, then what they have done is not a crime.
Which is all very interesting if you are studying to deal with the law, but most of you aren't. As a matter of fact, I think I can probably say that pretty much none of you are. So we will go on with the story, and I'll get to the point of the story a bit later.
Once upon a time, roughly a century ago (in case you want to know), there was a shipping company. I believe that, in this particular case, it was operating someplace on the Great Lakes. On one particular trip they had a ship towing a barge, and the barge was full of contents being shipped from one place to another. On this particular trip, a storm blew up. This happens quite often on the Great Lakes. You may have heard Gordon Lightfoot's song about "The Wreck of the Edmund Fitzgerald." It was that kind of storm, and, while the ship survived, the barge, and the contents of the barge, went down.
The shipping company had insurance. And so, they made a claim on their insurance, since they, as the shippers, were responsible not only for the fact that they had lost a very expensive barge, but also for all the expensive contents that had been put on the barge.
The insurance company refused to pay. Now, I know that there may be some of you who think that that's what we are talking about here: the evils of evil insurance companies who do not pay out insurance. But that's not quite what we're talking about here.
Because the insurance company refused to pay, all of this ended up in court. And, in court, the insurance company said that if the shipping company had had a radio on the ship that was towing the barge, the people in charge of the ship would have had some warning of the storm, and would have pulled into port in order to ride out the storm. Therefore, since the shipping company had no radio on the towing ship, or the barge, they were, in fact, negligent, and therefore liable for the loss, and therefore the insurance company did not have to pay.
I have said that this story takes place a while ago. From nearer to the time of the sinking of the Titanic. And, when the Titanic went down, it, of course, radioed to other ships that it was sinking. And, in fact, other ships did respond. But it took them many hours to get there. There was a ship that was considerably closer than the other ships that attempted to respond. The closer ship didn't respond, even though it had a radio, because, at that time, radios were expensive, and specialized, and they weren't used around the clock. Radios, in those days, were often only on ships because first class passengers, mostly big businessmen, might want to send orders to their businesses, and pay for the privilege. So, while this ship had a radio, and a radio operator, the radio operator had gone off duty because it was considered that, at that point, none of the first class passengers would be interested in sending messages, and pay for the privilege. That ship could have got to the Titanic much faster. That ship might have saved many more lives, but it wasn't considered commercially feasible to have the radio staffed around the clock.
So, that is what the shipping card company argued in court. They said that radios were new, and that people had to be trained to use them, and that, in fact, almost none of the other shipping companies had radio operators on their ships. Therefore, to make an argument that they were responsible, and liable, for the damages, and the loss of the barge and content, was unreasonable.
The court decided for the insurance company, and against the shipping company. The court held that the technology existed. And that, although radios were expensive, and even though having radio specialists on board between would have added to the expense, the extra expense was, in fact, nothing in comparison to the loss of the barge and the contents. And therefore the shipping company was liable, and negligent, in not having a radio, and the insurance company didn't have to pay.
Now that is one thing about liability. And that is now a precedent in common law. If a protection exists, even if it is an added expense or trouble, if it is not too expensive relative to what you are protecting, you are responsible for putting the protection in place.
Okay, that is one story. Now to the other story.
This story is about a shoe company. They were a big shoe company. They had plants and factories that made shoes. And they had various materials that went into the processing of leather, and the making of shoes. So in addition to having property where their factories, and even their stores, were located, they had other properties where they stored materials that went into the making of shoes, and the treating of leather. And, indeed, they had still other properties where they stored the leftovers, and the discards, and items that remained, after they had dealt with treating the leather, and after they had made the shoes.
Now, this story takes place quite a while after the story about the shipping company. By this time, governments had started to look at companies, and what they were doing, and how safely they were doing it, and what they were storing on various properties, and whether it was, in fact, safe to store those materials, in the way they were being stored.
So, once upon a time, once again a while ago (but this time not *quite* so long ago), some government inspectors came to a property that was held by the shoe company. And they identified themselves, and said that they were there to look around the property, and see what was there. And the supervisor of that particular site took them around. And answered questions about what materials were stored there. And, at one point, they came across some steel drums, containing liquid. And the inspectors asked what was being stored in those steel drums. And the supervisor said, well, gee, I don't know. They were here when I got here. And I never have known what was in them.
And so the inspectors got somebody to look at what was in the steel drums. What was in the steel drums was, in fact, particularly nasty. And, in fact, it was leaking out of the drums.
And so the supervisor called up the company, and they got out various people, and various pieces of equipment, and backhoes, and dump trucks, and people who could check what had happened with that material leaking into the ground. And all of this activity was very expensive. And, in the end, after finding a safe place to which to take the liquid, and deal with it, and, after digging up the soil that seemed to have been contaminated, and finding a safe place to put that soil, and to deal with it, and after having tested and ensured that none of the material had, in fact, leaked into the groundwater, and then into streams and other places where it might have spread, well, what with all of that, and other things, it came to a lot of money.
And then the inspectors came back. And they got information about what had been done with the material, and the soil, and what had been done on the site where it had been stored, and all the work that had been done. And they said, this is very nice. This is commendable. You have done a really great job. Here is a fine for $300,000.
And the shoe company said, wait a minute, we didn't even *know* about this! As soon as we *did* know, we fixed it! You even said we did a great job! Even the supervisor at the site didn't know about this! Why do we have to pay this fine? And it went to court. And the court said, even though you didn't know about it, and even though the supervisor didn't know about it, this was nasty stuff. You *should* have known about it. And, yes, you have to pay the fine. And, in fact, the supervisor is *personally* responsible for $50,000 of that fine. The site supervisor was, in fact, within 4 months of retirement. A $50,000 fine is going to put a heck of a crimp into your 401k, or RRSP.
So, in both of those stories, both the shipping company, and the shoe company, and even the site supervisor, were all liable. They were all held to be negligent. In the case of the shoe company, and the supervisor, they haven't even actually done something that was criminally wrong. They had just failed to do something that would have kept other people safe. And, in the case of the shoe company, and the supervisor, it wasn't even as if a harm *had* been done to other people. As soon as they were informed; as soon as they knew that there was a problem; they took steps to remediate it, to mitigate it, to make it right, and make sure that nobody got hurt. They did the right things. When they found out.
But the courts, in both cases, basically said, you should have known. It is not enough to say that we didn't know.
And the Bible sides with the courts, in these cases. The Bible says, it's not enough to follow the Ten Commandments, and not do bad things. You have to make sure that you are doing the *right* thing. In the books of the law, the Bible doesn't just say don't steal. The Bible says if your neighbour's animal wanders away, and you find it, you have to bring it back to your neighbor. Or you have to let your neighbor know that you found it. It's not enough to say, oh well, he should have known that his animal was straying. No, when you see something that could harm your neighbour, you have to fix it. Or, you have to take steps to make sure your neighbour fixes it. Even if your neighbour is your enemy, rather than a friend. If you see something, say something.
The Bible goes further than that. It says rescue those who are being led away to death. And it goes on to say, quite specifically, that you can't get off by saying well, we didn't know about that! The Bible says that you are liable for your neighbour's hurt, or harm, or injury, or distress, even if all you see is a bunch of people being led away. Or being led astray.
So I have *another* story to tell you. This story is, once again, about information technology. It's a little bit more technical. On a network, when you want to communicate with another machine, or device, on the network, you send it a SYN packet. That is spelled S Y N. It's the beginning of the word "synchronize." That's what you want to do. You want to synchronize communications on the network so that you can communicate with that particular node or device. Now, notice, you haven't actually said anything. You haven't actually communicated anything, other than your desire for communication. And the device to which you have sent the SYN request responds with an ACK. That stands for "acknowledge." It means that the node, that you want to communicate with, is acknowledging that you want to communicate with it, and that it is ready to communicate.
So, even when you have sent the SYN, and got the ACK, you will notice that no communication has actually taken place. It's just I want to communicate, I am ready to communicate. That's all.
The reason that I bring this up is that we have a SYN/ACK that we use, pretty much every day, probably more than once a day. You have probably used it in church already this morning, and you have probably used it multiple times.
That SYN/ACK is, "how are you?" We don't really care how the other person is. I know that. I know that for a *fact*. Because I can have someone say to me, "how are you," and I will reply "terrible." And the person will, most often, laugh. Is that person, in fact, laughing at my pain and distress? Well, no. That person just didn't expect me to say terrible. I have broken the protocol. That person said how are you, which is basically just SYN. That person doesn't really care, not really, how I am. They just want to start a conversation. My part of the protocol is to respond with, "fine." That is the ACK part of the protocol. Whether or not I *am* fine, doesn't matter. Because the person who said "how are you," doesn't really care how I am. That's how I know that this is just a protocol, rather than an actual attempt at communication.
As I say, I mess with the protocol. When I say "terrible," the number one response is the laugh. One time, somebody asked how I was, and I said terrible, and the person said, and this is a *literal* quote, "just the way you like it!" How can you possibly say that? I am a grieving widower. And I am a depressive. My life sucks. And I *live* in a town where, when somebody asks how I am, and I respond terrible, they can respond, "just the way you like it!" How is it possible that "just the way you like it" is the proper response to "I am terrible!"
Now, mostly we come to church, not to learn about the Bible, not necessarily to praise God, and not to find out whether anybody else in church is in trouble. Mostly we come to church to socialize. And we get a chance to socialize before the service starts. (If, that is, you are not from Port Alberni, and you actually show up early for anything.) And then we build in time during the service, for us to greet each other, and to do a bit more socializing, possibly with different people than when we socialize with, before the service. And there are a couple of churches, here in the city, that actually have their coffee time *during* the service, so that there is an *additional* opportunity to socialize, possibly with yet another, different, group of people. And then there is the period after the service is over, and we have heard the sermon, and we have been blessed, and we are sent on our way, and we can socialize yet again, possibly with yet another, different, group of people.
So, we have multiple opportunities to talk to people. And, now, what I am about to suggest to you, is, I know, unwelcome. I am going to break your regular protocol, once again. I suggest that, during any, or indeed, *all*, of those times of socialization, you don't just do SYN/ACK. I suggest that you ask someone, even if you ask them how they are, and they say fine, I suggest you ask them, how they *really* are. And I particularly suggest that you do this with someone that you regularly do not socialize with. That you do not socialize with on a regular basis. Someone that you do not know.
I know. I know. You don't want to do this. For one thing, you don't want to talk to someone that you don't know. Who *knows* what trouble that can cause! You may be talking to someone who has never been to your church before. You may, horror of horrors, speak to someone who has been to your church, multiple times, and nobody from your church has actually ever *talked* to them! And, very worst of all, even if it is someone you know, maybe *especially* if it is someone whom you know, and with whom you have had many SYN/ACK conversations over the years, they may *not* be fine! They may be in trouble! They may be in pain! They may be in distress! And, absolutely worst of all, it may be the kind of trouble that you cannot fix in seventeen seconds with a cliche! What the heck are you going to do now?
Well, since *I* have created the problem, *I* will give you a suggestion. Listen. Don't try to fix the problem. Don't try to fix the pain. Don't think that you, with a cliche, or a Bible proof text, have the answer to their distress, and you can just drop that verse into the conversation, a verse which they probably know as well as you do, and everything will magically be all right. (If you know anything about me you know that I *hate* magical thinking.)
Or, you can do what I know most of you are going to do. And that is to ignore this entire sermon, and the suggestion, and you can pretend that everything is fine, and that nobody has any problems. And that if anyone has any problems, those problems are not your responsibility.
You can just go back to being negligent.
