Imagine, if you will, a world where criminals go unpunished for their actions. Now, imagine if law-breakers could choose the people who were assigned to watch over their actions in the future. For those with little imagination, you don’t have to imagine, because we have an example right here in the US.
In the Microsoft antitrust settlement OK’d by Judge Colleen Kollar-Kotelly earlier this month, one of the provisions included an oversight board whose job would be to make sure Microsoft was in compliance with the settlement. While one of the changes asked for by the nine dissenting states in the case was an independent board free of Microsoft control, Judge Kollar-Kotelly elected to leave the oversight board jointly controlled by the DoJ and Microsoft itself, the convicted monopolist.
According to ZDNet, the first two candidates for the three member oversight board have been picked. The way this works is that the DoJ picks one candidate, while Microsoft picks a second. Once those two candidates are approved by Judge Kollar-Kotelly, they will in turn nominate the third member.
The DoJ picked Network General founder Harry Saal. Network General was one of the early network security companies, and it was eventually sold to Network Associates. For its part, Microsoft actually picked a former Microsoft employee to be its nominee, one Franklin Fite. From the ZDNet article:
If Kollar-Kotelly approves the appointments, Fite and Saal would pick the third member of the committee.
Legal experts saw nothing overtly wrong with Microsoft choosing a former employee.
"It’s not as unusual as you would think," said Rich Gray, a Menlo Park, Calif.-based attorney closely watching the Microsoft case. "If you take arbitration panels as an example, it’s quite common for each party to choose a member."
In fact, Gray said, the arbitration model in some ways makes sense given that enforcement would be of a settlement agreed to by parties sitting on opposite sides of the table.
"It’s not unusual for parties to pick arbitrators that are favorable to their position," Gray said. "What Microsoft has done is not in my view objectionable."
You can read the full article at ZDNet’s Web site.
The Mac Observer Spin:
You know what, Mr. Gray? This isn’t a bloody arbitration panel, it’s an oversight board. The problem isn’t that Microsoft picked a ringer for its nominee; given the chance, so would most other people and corporations. The problem is that they got to pick anyone in the first place!
Just in case this isn’t clear: The DoJ picked a man with business ties to a company whose livelihood is based on problem-ridden Microsoft products to help make sure Microsoft doesn’t violate the toothless settlement in place. Microsoft, in its turn, nominated a former employee to help the first guy out. Together, these two people will pick a third henchman to round out the team.
We are not trying to say anything bad about Messrs. Fite and Saal. They are no doubt outstanding individuals, and we want to stress our sincerity on that. The problem is that neither of them has any real independent credentials, even if they can, in actuality, perform their jobs on this board in a fair and unbiased manner. It is the appearance of conflict that presents the problem. Perhaps "fair and unbiased" aren’t pertinent issues to the settlement agreement itself, but the whole thing arrangement away what little credibility the agreement had clinging to it.
This settlement is a joke, but the joke is on us. Those who handed it to us — the DoJ, Microsoft, the 9 states that agreed to it, and Judge Kollar-Kotelly — should be ashamed.