Mediation Advocacy: Bringing Balance to the Scales of Justice in a Revolutionized Civil Law System

The law is all encompassing. Its protective mantle extends to every human being regardless of race, color, religion, gender, and social status. Its voice should therefore be heard by everyone and its guiding light should be readily accessible especially to those who need it the most. Mindful of this principle, one is easily inspired by the efforts students, barristers, and solicitors are putting into the Street Law Project. Spreading the word of justice to the lay people at the grass roots level is not only a challenging endeavor but is also a greatly rewarding experience.

In line with the UK’s Street Law program, some schools include mediation assistance as one of their activities through the Mediation Friends Project. This is a pioneering initiative in which students are trained in mediation so they can provide free support to otherwise unrepresented parties in mediation. The project’s goals are to provide assistance to the unrepresented parties and to promote the use of mediation as a form of alternative dispute resolution.

This undertaking is probably one of the most important aspects of legal advocacy that must make its solid mark on public awareness especially with the birth of the Woolf reforms which revolutionized the civil law system in England and Wales. These reforms paved the way for the promotion of the Alternative Dispute Resolution which includes Mediation as one of its primary measures.

Mediation, as an alternative dispute resolution scheme, is the legal system at its most practical application. It brings the law straight into the heart of the community and by doing so, introduces a new image often unseen by the public. By providing venue for the people to settle their disputes amicably, mediation has transformed the spectator into an actual participant in the administration of justice and in order to satisfy its ends, assistance from the learned therefore becomes necessary.

Sadly, the law with its vast complexity is viewed by many as a punitive fault-finding mechanism which favours the rich and the powerful more than the ignorant and the underprivileged. More often, people tend to avoid litigation due to the financial burden and too much time required by the process even if it means sacrificing their very own rights and interests. It is for this very reason that the Alternative Dispute Resolution (ADR) is encouraged by the courts as a matter of course pursuant to the legislative mandate enshrined in the Civil Procedure Rules. Though it does not involve extensive knowledge of the law, disputing parties are still entitled to sufficient advice and guidance for the protection of their rights. Mediation and the other forms of ADR never guarantee fair settlement if a party is unaware of his options and the lawful extent of his claim. An abusive party could easily tilt the process in his favour absent any legal and informational support for the other specially with the prodding of an enterprising lawyer.

Unrepresented parties are likened to a litigant in person who is seen by most judges as a problem. According to the Judicial Studies Board Journal Issue 15 published in 2002, litigants in person often jeopardize their own rights due to lack of knowledge of procedures and legal remedies available in their case. They may make point, which to lay people appear “right”, but which have no foundation in law.

Through extending assistance to the unrepresented, the Mediation Friends volunteers have leveled the playing fields thus ensuring fair settlements among parties in dispute. Consequently, they have also contributed to the much-needed de-congestion of court dockets thereby giving more opportunity for the courts to attend to more pressing matters not otherwise subject to settlement or such other cases no longer falling within the ADR. As future officers of the court, law students are no stranger to the idea that the management of cases do not lie exclusively in the hands of the judges. Lawyers are indispensable players in the whole legal drama. It becomes an integral part of their role to assist the court in advancing justice in a less burdensome and less costly manner. As such, the Civil Procedure Rules urges the court, and of course its officers, to encourage the use of alternative settlement of disputes.

Mediation covers almost all areas of day to day human activity including personal, commercial, and business relations among members of society. As such, failure to satisfy its goal, does not only entail economic damage but it also brings about societal dysfunction. Businesses against their clients, employers against their employees, members of the family not seeing eye to eye. All due to disputes which can be settled in a manner less adversarial and more akin to the philosophy of man as a social being. Not only do the volunteers contribute to the front-line delivery of justice but they also share in the struggle to save the community from the economic, financial, and sociological strains of avoidable litigation.

The Paths to Justice Scotland research, reported the findings of a large-scale survey exploring the public’s preferences and motivations in taking action when experiencing a large range of everyday problems. This research indicated ‘a widespread feeling of ignorance about legal rights that exists across most social groups’. For example, while only 3 per cent of respondents who had experienced a problem did nothing to resolve it, the survey found that over half of those taking no action did so because they thought nothing could be done. In addition, of the 32 per cent who ‘self-helped’, that is who took some action to resolve their problem but without outside help, one in four considered seeking advice, but chose not to. The most commonly cited reasons for not seeking help were that the respondent did not think anything could be done or that advisers would not be able to help them.

The Mediation Friends project thereby offers a unique opportunity to would be litigants. Aside from providing information and options, it opens the door of hope in the complex arena of civil procedure. However, there are still a lot of things to be done considering that the project is still at a very early stage. Training in mediation and actual practice through free public assistance is indeed a big step forward.

According to an article written by Michael Frisby and ZoĆ« Morrison published in the 2008 issue of the Commercial Litigation Journal, ‘The introduction of pre-action protocols and a greater willingness by the courts to penalise parties that resort to court action other than as a matter of last resort has greatly changed the way disputes are handled. With the emphasis on front loading of costs and early preparation leading to early settlement negotiations coupled with Par 36 offers, the reforms have been very successful in promoting early settlement of disputes, often without proceedings being issued.’

In the context of commercial litigation, the ADR has been successful so far. However, due to recession and the economic downturn, it is observed that litigation has become a more attractive prospect for some. The article continues to say that ‘during previous downturns in market conditions, litigation has been a source of increased activity in law firms as businesses fight to hold onto what they have or utilize it as a cash flow tool to avoid paying money out.’ From these observations, it is clear that mediation advocacy is put to the test during periods of economic anxiety. It is during these hard times that the volunteers’ dedication to the cause has become indispensable.

In the workplace, disputes are a common occurrence and according to Bettina Rigg, partner, Bond Pearce LLP and accredited mediator, ADR Group, and Eve Pienaar, senior workplace mediator, ADR Group, in their article “Workplace mediation: an overlooked method of dispute resolution”, ‘the use of mediation to resolve workplace disputes has not yet come of age’.’ Undoubtedly resistance by employers is a key reason. There is still a feeling that mediation is a ‘last resort’ before litigation. This is based on the experience of commercial mediation, where mediation is increasingly embedded in the post-proceedings stage of litigation. Some employers also feel that mediation is in some way a soft option, allowing an employee to string out grievances further.’ ‘There is also resistance by employees. Most neither understand that mediation is outside the HR process nor that it is available to them. For many employees the prospect of going into a workplace mediation, usually unrepresented and having to bare and confront highly emotional and personal matters, is frightening and stressful.’ On this account, the benefits of mediation have been undermined mainly by lack of information and apparent misconception as to its nature. Again, the importance of the mediation volunteers is put into play.

In England and Wales, the ADR has not yet gained enough popularity and people need to be informed of its nature and benefits. Civil law experts such as Hazel Genn claim that ‘despite the encouragement of pre-action protocols, civil procedure rules, and the Funding Code, the use of ADR has not increased in the way that was anticipated. The voluntary pilot mediation scheme at the Central London County Court (CLCC) only had a take-up rate of 4% before 1999. Between 1999 and 2003, when the effect of the Woolf reforms was beginning to be felt, there was an increase in the take-up of this scheme, but a decrease in settlement rates from 62% to 40%.’ She further hypothesises that ‘the Woolf reforms have led parties to mediate in order to avoid cost penalties, and in order to appear to cooperate with judicial direction, but they may be only “half-hearted” in their attempt to negotiate a settlement.’

Though some experts say that out of court dispute resolution in the UK is not yet as efficient and as well-known compared to other countries such as the US, Canada, and even developing countries as far as the Philippines, the Mediation Friends Project has done the first step in ushering a new era where petty differences are extinguished before it grows to a full blown conflict that takes much of our resources and putting strain to the already problem-ridden society.

The Benefits of Group/Class Actions in the Insurance Arena

It can be difficult to decide whether or not to take part in a legal group action case. The advantages are discussed below and should be carefully considered by each group member prior to joining a group action lawsuit so that if you are considering becoming a group member you will have a realistic idea of the possible good and not-so-good outcomes of joining a group action. The claims on behalf of each claimant need to be similar, though not identical, so that it is more practical for one lawsuit to resolve them than numerous lawsuits. This involves determining similar sets of facts or similar questions of law. This way, insurance claims can all be handled together. It should not be necessary for the court to have to hear each individual claim in order to separate out minor differences among them. This concept is referred to as commonality.

Group/representative action settlements or verdicts affect many people and often the defendant itself, in this case the insurer. All of the plaintiff group members and defendants in a single group action are affected but, so too is the reputation and future of the defendant’s insurance business, and the business of similarly situated insurance companies, and ultimately policyholders as a whole. Group action litigation has a long history of changing the way businesses do business and of protecting the rights of a country’s citizens. This has been particularly so in the USA where some of the major class actions have had a major impact on the rights of American citizens with many decisions having produced major social and legal change.

Here are some of the benefits of Group Action.

  • Lower litigation costs as the litigation costs will be divided and dispersed among group members. In this way it is more feasible for claimants to be able to afford to litigate the case. The larger the number of group members in the plaintiff group, the lower costs tend to be as larger groups will provide a bigger shared expense benefit to each individual group member;
  • Provides the opportunity to litigate, even if each individual claim does not involve that much money, a class action lawsuit allows plaintiffs to pursue a worthy cause. For example, a telecommunications company may be adding hidden fees to consumer bills. While it may not be worth thousands of dollars in legal fees for one plaintiff to pursue a claim for a few hundred dollars, a class action allows such litigants to seek justice, often at a national level;
  • A Greater Degree of Uniformity, for the plaintiffs. Group action lawsuits allow similarly-situated plaintiffs to recover in a similar manner, as there is only one decision by one judge, or one settlement, plaintiffs’ recoveries should be consistent, though varying by the amount of their individual claim;
  • Defendants ‘benefit’ from class action lawsuits in that they know that many similar claims have been resolved at the end of a trial or settlement, leading to faster settlements;
  • Higher Likelihood of Financial Recovery. A judgment against the defendant may mean that the plaintiffs will actually receive the money that they are awarded. If other plaintiffs sue the defendant around the same time, the earlier plaintiffs may be the only ones who receive damages if the defendant or business declares bankruptcy. Group actions help ensure that damages are spread amongst plaintiffs. This could be particularly important with the likes of the Earthquake Commission and Southern Response (where it is clear that government funding is an issue and spread over a long time period) or with any insurer that may be in financial difficulty;
  • Verdict has a flow on effect to other defendants (insurance companies) and businesses that are similar to those insurance companies are likely to be greatly affected by group action lawsuit outcomes. Group action verdicts can be expensive for defendants. In order to prevent future litigation, defendants often make broad changes to policy;
  • Group settlements and verdicts often have a significant impact on the law and have the ability to encourage Governments to legislate as a consequence of the verdict. New Zealand is very light on insurance legislation by comparison with other countries;
  • Defendants often make broad changes to their procedures, policies, or products to make sure that their entire business complies with a group action decision because it less expensive to make the changes than to risk repeated future litigation. Similar businesses, government agencies, or groups very often follow suit for the same reason. So group action has the ability to address some of the gaping holes that policyholders have been seriously affected by over the last five years;
  • Often appealed to the final stages. These actions are often defended solidly by the defendant, in this instance the insurer or the government. Thus, class action lawsuits that are litigated are often appealed to the final stage and the finality of the class action decision is well respected in legal precedent.
  • Group action settlements are often available as public information. Individual lawsuit settlements typically do not have detailed written approvals by the court and can be confidential, thus not making them valuable precedent;
  • Group action provides a more powerful litigation posture for the class representative – this is because of the greatly expanded exposure to liability for group damages (damages to potentially thousands of individuals), as opposed to the damages suffered by a single litigant. A defendant is much more likely to treat the litigation seriously from the standpoint of defense or settlement than would likely be the case in an individual litigation;
  • More experienced legal representation, group actions require experienced lawyers. A case may involve thousands of pages of documents, expensive expert witness fees and time to develop the case. Group action lawsuits tend to be handled by more experienced and competent lawyers who have gone through similar cases in the past. This allows plaintiffs to be able to have expensive representation that they may not have had if they pursued the claim on their own;
  • The opportunity for plaintiffs to seek relief for small amounts of money, the lower litigation costs allow plaintiffs to seek relief when it would not have been financially prudent to do so via a traditional lawsuit;
  • Greater judicial efficiency, – a group action lawsuit is decided by one judge in one court. Thus, the litigation will take up less cumulative court time and involve fewer judges and expense;
  • Group actions also benefit the judicial system. The case is determined by one judge in one court, so inconsistent verdicts do not become an issue. One claim will generally take less time than many similar claims tried at different times. The alternative would be to clog up court schedules with individual cases making it harder for other individuals to receive their day in court;
  • Greater uniformity for defendants, one decision or one settlement benefit also creates greater certainty for defendants. A defendant is not left wondering about how precedent may follow law because only one decision was delivered;
  • The opportunity for all plaintiffs to receive damages, if a defendant is facing multiple lawsuits then the defendant may not have the ability to pay all of the plaintiffs. That means that earlier filing plaintiffs may well receive greater compensation than do later filing plaintiffs. A group action eliminates this risk and allows affected parties to recover damages at the same time and in proportion to their injuries.

Some actions are more appropriate for representative cases – insurance issues on the scale that they are emerging in Christchurch, New Zealand after the earthquakes of 2010-2012, are typical of cases that lend themselves well to this approach.

The Justice Inbuilt in Injustice

“How often do the few spoil it for the many?”

Goal posts shift frequently in life and most people claim it to be unfair. The truth is most of the time the rules change because some person, people group or situation found a loophole that was always there. At other times, there’s a trend toward not reaching the previously established standards and hence the few spoil it for the many to come after.

The legislated systems philosophy is really about narrowing the odds and reducing variation, making results almost computer-like predictable. This helps ensure the system is efficient. Sometimes ‘the system,’ however–with human fingerprints all over it, overcompensates and the rules become overly stringent. The impression is left that it is unfair.

The misbehavior or lack of diligence that highlighted the loophole somehow leaves a taint on the impression of those coming through to use the more stringent system, yet there are always natural forces present to ensure the system remains workable.

If the system doesn’t work for a while, those very same forces collude to produce revolutionary change so as to make the system workable again.

“Justice is balance.”-Henri Ducard played by Liam Neeson (Batman Begins, 2005).

And we ought to remember this. Moves towards injustice, whatever comes, are always rectified by the universal laws in place that have worked since before the dawn of time.

And this is where our faith is tested. Can we see the overall plan at play? Can we step back and see aright despite our personal leanings and inklings? The universal laws are constructed in a way that they favor no one, so how can we pretend they go against us deliberately? That thinking is nonsensical.

We are better to take a distant, third person, view when our hearts and minds are convoluted over issues in this world.

This is what the logical mind was designed for; to help us distance ourselves from the emotion, and the personal risks of loss, so we can make the best decisions.

Keeping the Black Man Down

Black people after slavery who attempted to get work, even in the liberal North, would find discrimination against them at almost every turn. Anyone who stepped beyond the special “boundaries” enforced by whites was subject to lynching, or being hung by the neck until dead. Usually done as a cowardly act by “lynch mobs” out in the boondocks, this has happened to black people as late as 1981, when 18-year-old black college student Michael McDonald was murdered by the KKK in Alabama.

The Southern Poverty Law Center (SPLC) in Montgomery, Alabama, led by Jewish attorney Morris Dees, brought justice to the McDonald family after several years. Most of the Klan’s assets were awarded to Mrs. McDonald, Michael’s mother, although she died prior to collecting them. However, it bankrupted the Klan, at least for awhile. The southern-based group which helped investigate the Klan is called Klanwatch; it was formed in 1981 specifically to solve this case. The SPLC now offers training to help law enforcement officials and human rights groups to combat racism.

In 1994, they uncovered links between white supremacy organizations and emerging anti-government “patriot” movements. The SPLC also is monitoring militias and other extremist groups. They keep track of more than 800 “hate groups” across the nation, and put out a quarterly report providing updates to law enforcement agencies, the media and the general public about these groups. The FBI monitors these hate groups’ activities, along with those of the Mafia. Ever since the Civil Rights Movement of the 1960s, it has become a role function for the Bureau to monitor hate groups.

Aside from lynchings and whippings, there have been many other murders and punishments for those who dare to believe that interracial people are not “subhuman.” These mainly continued in the South, under the auspices of the Klan and some of the authorities, until the beginnings of the death of segregation in the 1960s. This was due largely to the efforts of black civil rights workers, such as Dr. Martin Luther King, Jr. Although it had been heavily promoted by white southerners, segregation was finally seen as a prolonged evil.

This “experiment” in the stark isolation of peoples inevitably failed, as many Americans would oppose the Klan and white southern racism, and the “Jim Crow” laws of white America, standing against them with their lives. Dr. King once said he asked God to let him live “for a few years” in the latter part of the 1900s, so that he could oppose racism “for at least a little while.” What he helped do was end racial segregation in the Deep South in the 1960s, solving this problem just before his death through assassination on April 4, 1968, almost exactly 100 years after the “death” of American slavery in 1865.

Read the next article in this series, “The America Civil War – Begins in 1861” and the other articles in this long article series about why racism was and is so prevalent in the American South.

Interview With Jon Praed From Internet Law Group

Jon Praed is a total stud!  He spends his time tracking down hard-core spammers.  The kind that run illegal viagra, casino, porn and phishing spam.

A lot of guys have made money in “grey” areas of internet marketing.  Jon explains how gradually people are being forced to choose sides and that all the aggressive stuff is slowly going away.

If you want to get an overall understanding on where the internet is going long term, this is the interview to check out.  It was one of the most powerful and fascinating ones I’ve done.

I think you’ll find this interview worth listening to yourself.

Adrian: I’m here with Jon Praed from the Internet Law Group. Jon is a pretty interesting guy who has spent a lot of years tracking down hard-core Internet spammers and bringing them to justice. He does this on behalf of companies like Verizon and AOL and has won some pretty important lawsuits and decent-sized judgments. Jon, thanks for joining us. Could you start by telling us a bit about who you are?

Jon: Thank you for having me Adrian. I’m a Midwestern boy, born and raised in Indianapolis, Indiana. I now live in the suburbs of Washington, D.C. I went to college at Northwestern with a major in political science and then graduated from Yale Law.

Right out of law school, I clerked for district court judge John Tinder, who’s recently been elevated to the Seventh Circuit, and then for Indiana Supreme Court Chief Justice, Randy Shepard. After my clerkships, I was in private practice as a lawyer with Latham & Watkins in both California and Washington, D.C. I also spent two years working on Capitol Hill as chief council to a House subcommittee dealing with regulatory affairs.

I’ve been doing cyber litigation work for about the past 10 years. I got into it when some ISPs reached out to Latham to take on this newfangled problem called spam. At that time, no one really understood how big it would become and what sort of a precursor it would be into the entire world of cyber crime. I was assigned to the case, quickly fell in love with it and came up with some innovative ways to service the client by marrying our ability to crunch a tremendous amount of data with our ability to bring legal services to bear on the problem.

I left Latham & Watkins to start Internet Law Group where we represent any sort of corporate victim of substantial, systemic, serial cyber fraud whether it’s a counterfeiting problem with drug companies, phishers going after bank customers, or mail companies that are trying to deal with inbound or outbound spam problems. In a nutshell, we look for ways to bring strategic actions against cyber criminals and go after any sort of fraudulent Internet activity.

Cyber crime over the past 10 years has really transformed from petty crime, and largely Americans who were kind of geeks gone bad, into an extremely sophisticated international criminal network. The bad guys we are chasing are extremely talented and go to great lengths to hide their activity.

They also take advantage of the inefficiencies that arise from international boundaries. They’re moving their physical bodies, their computers and their connectivity to places that are difficult for us in the West to touch and extradite from. They are also moving their money to places where it is difficult for us to freeze.

Adrian: What are some of the big cyber crime cases you’ve been involved with?

Jon: We’ve had a number of cases that have been litigated and produced published opinions that have impacted the world of cyber crime. In 2001, we had a published decision in a case we brought for America Online against an Adult Web site called Cyber Entertainment Network in 1999.

AOL had sued Cyber Entertainment Network based on the principle of negligent enablement and negligent hiring and retention. The lawsuit said that they had retained affiliates they either knew or should have known were engaged in spam to advertise their Web sites. On that basis, Cyber Entertainment Network could be held liable.

We used some fairly aggressive technology to grab the data we needed and establish the fact that a large volume of the adult content spam AOL was seeing at the time was attributable to spammers advertising one of a handful of Adult Web sites controlled by Cyber Entertainment Network.

Adrian: There’s been a perception that affiliate marketing isn’t legitimate. I know profoundly that it’s a vital part of Internet commerce. Where do you stand on that issue?

Jon: A properly-run affiliate program can be extremely powerful, but it has to be run effectively. You have to recognise that there are opportunities for abuse and that you are effectively outsourcing your advertising. You have to do so with clear standards in mind, and you have to enforce those standards.

The public injunction that was entered in the AOL versus CEN case remains the best model I’ve ever seen on how an affiliate program needs to be run. That injunction, which is public, lays out the rules that Cyber Entertainment agreed to follow in the course of the outcome of that litigation.

Those simple standards are to get identity from affiliates, establish rules, have a mechanism to receive complaints from the public, investigate those complaints, report back to the public on the outcome of the investigation and terminate when necessary. If you do those things, you will have a clean affiliate program.

Adrian: What’s going on in the area of phishing?

Jon: The phishing problem is really integrated within the overall cyber crime problem. We’re chasing some cyber criminals who are engaged in phishing, cashing out of stolen credit cards and at the same time are merchants that are part of a nationwide and international credit card system.

They’re authorised to take credit cards over the Internet. They are successfully processing cards from consumers, selling them product and getting credit cards. The path that connects their phishing activities with their merchant credit card activities is an extremely long path, and it takes a tremendous amount of data and sophistication to connect the dots.

A number of reporting Web sites take in phishing-type data. We operate where we receive reports primarily about phish but also about spam and other types of fraudulent acts that can be reported to us. You can also register at that Web site and get a unique e-mail address that can then be used to forward your particular reports to us so they are tagged as coming from each registered user.

Adrian: What are your viewpoints on filtering?

Jon: The problem with the block-it, filter-it strategy that we’ve largely adopted today is that the bad guys only have to get through one time in order to win. If you block them 99 times, they’ll do it 100 times. You’re in a constant arms race in the technology space that inevitably we’re going to lose.

We have also been too reliant for too long on the technology without recognising how legal process can reinforce what technology is capable of doing. We may be able to fix one component but three new exploits open up constantly. The overall spam volume on the Internet is still growing, and I don’t see that trend reversing itself for a long time.

It goes well beyond spam. The number of new viruses, exploits, keystroke loggers and whatnot are simply getting larger. The criminal enterprise behind it is getting more sophisticated and adept at finding a way to monetise the data that they’re able to capture through these sorts of exploits.

Adrian: You mentioned the cyber criminals are moving offshore. What are they doing?

Jon: Many of the most sophisticated ones are moving to places where they are physically insulated from law enforcement. They’re looking for places where they can pay off local authorities to provide them protection from criminal enforcers and from extradition.

A lot of our work comes down to tying identity to these Internet data points and then marrying that up against pre-existing laws that make these cyber crimes criminal. They’re all violating tax laws. They’re breaking money laundering laws. They’re breaking all sorts of laws on importation of goods. It’s not hard to find something illegal that they’re doing. The trick is knowing who they are.

In essence, what we’re trying to do as a world view is create borders, whether they’re technical or physical, that allow us an opportunity to inspect, whether its Internet cyber packets or money transactions.

You can tighten up the border and ultimately cut off the border completely. Over the next decade, we’re going to be more frequently facing a real blacklist with certain types of traffic, whether it’s flow of humans, money or information. There are going to be borders that simply aren’t porous and don’t let information through.

Adrian: The concept that a country’s Internet traffic would just be blocked is almost a little bit hard to believe. Do you think it will come to that standpoint where the U.S. says, “Dominican Republic, we are shutting you off the Internet until you make sure your country is completely cleaned up, and as soon as you’re cleaned up then we’ll let you back on.”

Jon: Sure.The binary decision of turning the valve completely off will happen at the margin but in between all open and all closed, you have an entire spectrum of controls that you can put in place. A lot of that is designed to simply put the cost and obligation to fix the problem on those people who are best-positioned to fix the problem.

The post-9/11 world makes everyone as a consumer and as a citizen realise, “I can’t wait for my government to fix all of the problems out there.” As individuals, we have an obligation, a duty, the right and the ability to step up and fix these problems.

I don’t know if it will just be a binary decision out of the cold to either fix it immediately or go dark, but there will be those pressures of isolating the problem and putting responsibility on the people who control those access points to clean up their act. It’s just like cleaning up the affiliate model.

We couldn’t go after Cyber Entertainment Network until we knew that the Web sites ultimately being advertised were all in one way or another controlled by Cyber Entertainment Network. Once you make that connection, it’s relatively easy to find the ultimate owner and say, “You have a problem. You have to fix it.”

Adrian: It’s hard to hear that because these are so many good people here in the Dominican Republic and some of them are just in poverty. This is the kind of stuff that pushes them down even further, but I can see why you do it too.

Jon: You can view it as pushing them down, but you can also view it as empowering them. It gives them the power to control their own destiny and the obligation to do it. What we have to avoid is creating systemic mechanisms that encourage and reward races to the bottom, and I’m a little afraid that the Internet as a whole, given the power of anonymity and the ability to do things in an automated fashion, creates at some level, a race to the bottom.

For example, good companies are dependent on legal mechanisms to give them the ability to invest hundreds of millions of dollars to develop a new drug, but if they can’t recoup that cost, we’re not going to get new drugs developed. Right now, they are being challenged by bad guys who are selling counterfeits, knockoffs or generics made out of countries that don’t recognise patent rights. These counterfeiters, who before had to sell their goods from the back of a truck, now have access through spam and other types of advertising to billions of eyeballs throughout the world.

If you have a systemic problem that is the race to the bottom, you have to find other mechanisms that corkscrew it the other way as races to the top. You have to create jurisdictions that are defined by borders where the borders are defensible and you have to create those jurisdictions with rules that encourage races to the top.

Then we defend those systems that serve as a counterweight against these races to the bottom, segregate those jurisdictions that do suffer from races to the bottom, and isolate their problems within themselves so that they are incentivised to clean themselves up to be able to rejoin the rest of the world.

Adrian: That’s a fascinating idea. That concept of race to the top is one of the most profound ideas I’ve heard. Where can I learn more about that?

Jon: A classmate of mine, Jack Goldsmith, wrote a book called Who Controls the Internet? It provides a refreshing and realistic perspective on how jurisdictions retain power over the dirt they control. It is refreshing to see that even the Internet is subject to those sorts of real politic notions of power and control. There are also some books being written about the economics of cyber security and cyber relationships, such as The Law & Economics of Cyber Security ,Mark Grady ed. 2005. that will drive a lot of this because a lot of these systemic problems are going to be “How can we monetise the value that’s inherent in the Internet?” The Internet may be new, but the concept of trying to build systems that encourage a race to the top and not the bottom is not new.

Adrian: Back to your company, how do you specifically help a company?

Jon: We use our technology to grab the data. We also have feeds from public and private sector clients that tell us about Web sites and ads. Then we spider the Web to grab all the data we need to get identity. We triage that data and look for commonalities. Then through undercover buys, informal investigative efforts and formal discovery efforts, we obtain real identity on the bad guys and those who are enabling them.

It’s designed to work our way towards hard identity on who these bad guys are. We may identify their real names, their real bank accounts, and the real domains they’re using. We identify the merchant accounts that they’re using to process credit cards, and we do that generic triage work on a flat-fee basis for our clients.

For example, for X dollars a month, we will acquire the data about a particular drug being advertised in spam, provide to the client our analysis of the top fingerprints that we see in that mass of data and show them a path they can take to identify the responsible persons. They can then hire us to do the additional work required to chase that to its conclusion.

As part of our standard fee, we also provide access to all the other information we’ve acquired through any other work. Our clients agree that we can share data we acquire about bad guys with all our clients regardless of which client we acquire it on behalf of. Our clients recognise and agree that cyber crime is a common enemy and that they are best protected when they share information about their enemy across the space.

The identity of clients remains sacrosanct. We don’t identify clients publicly except when we’re required to do so in filing lawsuits or through other means. We may tell Client X that Client Y was victimised by the same serial fraudster on the same day and approximately the same time so that Client X and Y can know that there’s someone else interested in catching this person.

They then can each make the decision whether they want to join hands through us and either remain anonymous or actually identify themselves to each other and, by combining resources, come up with a strategic solution to the problem far faster than they could ever do on their own.