MoviePass settles FTC allegations that they limited usage, exposed user data

> Unless they can prove it was a specific bad actor, and that their policies didn't encourage illegal behavior, and that they weren't negligent in discovering and stopping said behavior.

Asking someone to prove a negative is almost impossible. Asking them to disprove 3 is crazy. The prosecution should have the responsibility to demonstrate that the company had a systemic issue that was causing illegal behavior, either as a result of intentional pushes by someone with control, or as a result of wilful or reckless negligence.

How do you prove your policies don't encourage illegal behavior? The only way I can think of is to remove or invert the policy and demonstrate that illegal behavior is unchanged or potentially higher with the reversed policy. Which, incidentally, would be a violation of the law itself. Without an intent component, well-meaning policies that accidentally increase illegal behavior become illegal. Add driver tracking software to ensure people don't speed, but because of poor design the drivers fidget with it while driving? That's a violation. The counter-side is that adding intent makes it much harder to prosecute.

> and that they weren't negligent in discovering and stopping said behavior.

Again, how do you demonstrate that you weren't negligent? Hind-sight will almost always show that there was something you could have done to prevent an incident. Someone will have to create some kind of criteria for determining whether an action/inaction is negligent or not. It makes far more sense to have the prosecution demonstrate that you were negligent by failing to meet such and such criteria than for you to go on a rambling speech about what you did do, and then let the prosecution pick something arbitrary that you didn't do.

Just imagine that you're driving down a dark, unlit, windy country road. You come around a bend, there's a person crossing the road in all-black and you hit them. In court, you are then asked to demonstrate that you weren't negligent. Even if you were following the law, with the benefit of hindsight there are of course things you could have done. You could have driven slower; visibility was low. Maybe you shouldn't have been driving late at night; if you had just woken up, maybe a split-second in reaction time might have made a difference. Maybe if you had been scanning a little wider you would have seen them on the other side of the bend as you were coming up. Now you have to justify why you made each of those decisions, and any slip-up is a guilty sentence.

Other than that, I'm on board. I just don't like pushing the burden of proof onto the accused. It's an end-run around the 4th Amendment. It makes the right against self-incrimination pointless, because refusing to testify makes you guilty and lying is a crime.

It also significantly increases the power imbalance between prosecution and defense. It costs the government almost nothing to prosecute; they don't have to prove anything, so they don't need any investigators or evidence. All those costs are shifted on to the defendant, whose costs have just gone up an order of magnitude. The defendant used to need enough evidence to refute a single material point in the prosecution. If the prosecution says I was negligent because I failed to meet X requirement, I just need to prove I met that requirement or that it doesn't apply to me. If I have to prove I wasn't negligent, I now have to prove that I meet all the requirements. If I fail to pay for enough lawyers to prove each point, the prosecution can simply point to that one as the one I failed.

I have some complicated feelings on this, because on the one hand it really makes sense to punish these people and companies and stop this behavior from continuing, and on the other it would suck to be some low level worker and have some bullshit from a CEO cause you to immediately lose your job, and it would also suck as a customer of some non-screwy service of the company to have something you rely on forced to stop.

Perhaps a complete replacement of all upper level management over 6 months and possibly a moratorium on board involvement for a time period for board members if it was bad enough would be sufficient? In the "a corporation is a person" analogy that's about the same as some other mind taking over the body, so that might be sufficient. You might have to have some laws that provide some bite for people that want to just jump ship immediately knowing there severance is in danger even if they stay, but it's not like what I'm proposing could happen without new legislation anyway.

As long as the payment of severance was handled by new management explicitly, and all replacements happened under explicit notice that the prior employee was being removed for compliance in an illegal activity (so they could fight against paying the severance), I think that would be a fairly good deterrence of bad behavior, since it would affect both employment of themselves and others, it has a good chance of affecting payouts when fired, and it effectively wipes the slate clean while doing what it can to preserve services and employment for as many as possible.

That's cause this idea is completely immoral

And this here is the sad reason why these schemes will always happen.

It's simply more profitable for them to pay the negligible fines/fees.

I'd bet dollars to donuts this would change immediately if there were criminal liabilities involved.

But since corporations are rich people who face no repercussions and who can limitlessly lobby to craft laws bespoke to them, I don't see that happening any time soon.

It's not the same at all.

Insurance protects people financially from unlikely and *undesirable* events they don't want to happen. Nobody in good faith wants to get in a car accident or have a medical emergency. Insurance "works" by assuming most people won't have to or want to use it.

MoviePass is doing exactly the opposite, though. They're selling a desirable product for much cheaper than normal while paying full price themselves and hoping people won't actually take advantage.