Free As In Health Care

This is to some extent a thought experiment.

The video below shows what’s called a “frontal offset crash test” – your garden variety driver-side head-on collision – between a 2009 Chevrolet Malibu and a 1959 Chevrolet Bel Air. I’m about to use this video to make a protracted argument about software licenses, standards organizations, and the definition of freedom. It may not interest you all that much but if it’s ever crossed your mind that older cars are safer because they’re heavier or “solid” or had “real” bumpers or something you should watch this video. In particular, pay attention to what they consider a “fortunate outcome” for everyone involved. Lucky, for the driver in the Malibu, is avoiding a broken ankle. A Bel Air driver would be lucky if all the parts of him make it into the same casket.

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Like most thought experiments this started with a question: what is freedom?

The author of the eighteenth-century tract “Cato’s Letters” expressed the point succinctly: “Liberty is to live upon one’s own Term; Slavery is to live at the mere Mercy of another.” The refrain was taken up with particular emphasis later in the eighteenth century, when it was echoed by the leaders and champions of the American Revolution.’ The antonym of liberty has ceased to be subjugation or domination – has ceased to be defenseless susceptibility to interference by another – and has come to be actual interference, instead. There is no loss of liberty without actual interference, according to most contemporary thought: no loss of liberty in just being susceptible to interference. And there is no actual interference – no interference, even, by a non-subjugating rule of law – without some loss of liberty; “All restraint, qua restraint, is evil,” as John Stuart Mill expressed the emerging orthodoxy.

– Philip Pettit, Freedom As Anti-Power, 1996

Most of our debates define freedom in terms of “freedom to” now, and the arguments are about the limitations placed on those freedoms. If you’re really lucky, like Malibu-driver lucky, the discussions you’re involved in are nuanced enough to involve “freedom from”, but even that’s pretty rare.

I’d like you to consider the possibility that that’s not enough.

What if we agreed to expand what freedom could mean, and what it could be. Not just “freedom to” but a positive defense of opportunities to; not just “freedom from”, but freedom from the possibility of.

Indulge me for a bit but keep that in mind while you exercise one of those freedoms, get in a car and go for a drive. Freedom of movement, right? Get in and go.

Before you can do that a few things have to happen first. For example: your car needs to have been manufactured.

Put aside everything that needs to have happened for the plant making your car to operate safely and correctly. That’s a lot, I know, but consider only the end product.

Here is a chart of the set of legislated standards that vehicle must meet in order to be considered roadworthy in Canada – the full text of CRC c.1038, the Motor Vehicle Safety Regulations section of the Consolidated Regulations of Canada runs a full megabyte, and contains passages such as:

H-point means the mechanically hinged hip point of a manikin that simulates the actual pivot centre of the human torso and thigh, described in SAE Standard J826, Devices for Use in Defining and Measuring Vehicle Seating Accommodation (July 1995); (point H)

H-V axis means the characteristic axis of the light pattern of a lamp, passing through the centre of the light source, used as the direction of reference (H = 0°, V = 0°) for photometric measurements and for the design of the installation of a lamp on a vehicle; (axe H-V)

… and

Windshield Wiping and Washing System

104 (1) In this section,

areas A, B and C means the areas referred to in Column I of Tables I, II, III and IV to this section when established as shown in Figures 1 and 2 of SAE Recommended Practice J903a Passenger Car Windshield Wiper Systems, (May 1966), using the angles specified in Columns III to VI of the above Tables; (zones A, B et C)

daylight opening means the maximum unobstructed opening through the glazing surface as defined in paragraph 2.3.12 of Section E, Ground Vehicle Practice, SAE Aerospace-Automotive Drawing Standards, (September 1963); (ouverture de jour)

glazing surface reference line means the intersection of the glazing surface and a horizontal plane 635 mm above the seating reference point, as shown in Figure 1 of SAE Recommended Practice J903a (May 1966); (ligne de référence de la surface vitrée)

… and that mind-numbing tedium you’re experiencing right now is just barely a taste; a different set of regulations exists for crash safety testing, another for emissions testing, the list goes very far on. This 23 page PDF of Canada’s Motor Vehicle Tire Safety Regulations – that’s just the tires, not the brakes or axles or rims, just the rubber that meets the road – should give you a sense of it.

That’s the car. Next you need roads.

The Ontario Provincial Standards for Roads & Public Works consists of eight volumes. The first of them, General And Construction Specifications, is 1358 pages long. Collectively they detail how roads you’ll be driving on must be built, illuminated, made safe and maintained.

You can read them over if you like, but you can see where I’m going with this. Cars and roads built to these standards don’t so much enable freedom of motion and freedom from harm as they delimit in excruciating detail the space – on what road, at what speeds, under what circumstances – where people must be free from the possibility of specific kinds of harm, where their motion must be free from the possibility of specific kinds of restriction or risk.

But suppose we move away from the opposition to bare interference in terms of which contemporary thinkers tend to understand freedom. Suppose we take up the older opposition to servitude, subjugation, or domination as the key to construing liberty. Suppose we understand liberty not as noninterference but as antipower. What happens then?

– Philip Pettit, ibid.

Let me give away the punchline here: if your definition of freedom includes not just freedom from harassment and subjugation but from the possibility of harassment and subjugation, then software licenses and cryptography have as much to do with real digital rights and freedoms as your driver’s license has to do with your freedom of mobility. Which is to say, almost nothing.

We should be well past talking about the minutia of licenses and the comparative strengths of cryptographic algorithms at this point. The fact that we’re not is a clear sign that privacy, safety and security on the internet are not “real rights” in any meaningful sense. Not only because the state does not meaningfully defend them but because it does not mandate in protracted detail how they should be secured, fund institutions to secure that mandate and give the force of law to the consequences of failure.

The conversation we should be having at this point is not about is not what a license permits, it’s about the set of standards and practices that constitutes a minimum bar to clear in not being professionally negligent.

The challenge here is that dollar sign. Right now the tech sector is roughly where the automotive sector was in the late fifties. You almost certainly know or know of somebody on Twitter having a very 1959 Bel-Air Frontal-Offset Collision experience right now, and the time for us to stop blaming the driver for that is long past. But if there’s a single grain of good news here’s it’s how far off your diminishing returns are. We don’t need detailed standards about the glazing surface reference line of automotive glass, we need standard seatbelts and gas tanks that reliably don’t explode.

But that dollars sign, and those standards, are why I think free software is facing an existential crisis right now.

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I think it’s fair to say that the only way that standards have teeth is if there’s liability associated with them. We know from the automotive industry that the invisible hand of the free market is no substitute for liability in driving improvement; when the costs of failure are externalized, diffuse or hidden, those costs can easily be ignored.

According to the FSF, the “Four Freedoms” that define what constitutes Free Software are:

  • The freedom to run the program as you wish, for any purpose (freedom 0).
  • The freedom to study how the program works, and change it so it does your computing as you wish (freedom 1). Access to the source code is a precondition for this.
  • The freedom to redistribute copies so you can help your neighbor (freedom 2).
  • The freedom to distribute copies of your modified versions to others (freedom 3). By doing this you can give the whole community a chance to benefit from your changes. Access to the source code is a precondition for this.

The cannier among you will already have noted – and scarred Linux veterans can definitely attest to the fact – that there’s no mention at all of freedom-from in there. The FSF’s unstated position has always been that anyone who wants to be free from indignities like an opaque contraption of a user experience, buggy drivers and nonexistent vendor support in their software, not to mention the casual sexism and racism of the free software movement itself, well. Those people can go pound sand all the way to the Apple store. (Which is what everyone did, but let’s put that aside for the moment.)

Let’s go back to that car analogy for a moment:

Toyota Motor Corp has recalled 3.37 million cars worldwide over possible defects involving air bags and emissions control units.

The automaker on Wednesday said it was recalling 2.87 million cars over a possible fault in emissions control units. That followed an announcement late on Tuesday that 1.43 million cars needed repairs over a separate issue involving air bag inflators.

About 930,000 cars are affected by both potential defects, Toyota said. Because of that overlap, it said the total number of vehicles recalled was 3.37 million.

No injuries have been linked to either issue.

Potential defects.

I think the critical insight here is that Stallman’s vision of software freedom dates to a time when software was contained. You could walk away from that PDP-11 and the choices you made there didn’t follow you home in your pocket or give a world full of bored assholes an attack surface for your entire life. Software wasn’t everywhere, not just pushing text around a screen but everywhere and in everything from mediating our social lives and credit ratings to pumping our drinking water, insulin and anti-lock brakes.

Another way to say that is: software existed in a well-understood context. And it was that context that made it, for the most part, free from the possibility of causing real human damage, and consequently liability for that damage was a non-question. But that context matters: Toyota doesn’t issue that recall because the brakes failed on the chopped-up fifteen year old Corolla you’ve welded to a bathtub and used as rally car, it’s for the safety of day to day drivers doing day to day driving.

I should quit dancing around the point here and just lay it out:  If your definition of freedom includes freedom from the possibility of interference, it follows that “free as in beer” and “free as in freedom” can only coexist in the absence of liability.

This is only going to get more important as the Internet ends up in more and more Things, and your right – and totally reasonable expectation – to live a life free from arbitrary harassment enabled by the software around you becomes a life-or-death issue.

If we believe in an expansive definition of human freedom and agency in a world full of software making decisions then I think we have three problems, two practical and one fundamental.

The practical ones are straightforward. The first is that the underpinnings of the free-as-in-beer economic model that lets Google, Twitter and Facebook exist are fighting a two-ocean war against failing ad services and liability avoidance. The notion that a click-through non-contract can absolve any organization of their responsibility is not long for this world, and the nasty habit advertising and social networks have of periodically turning into semi-autonomous, weaponized misery-delivery platforms makes it harder to justify letting their outputs talk to your inputs every day.

The second one is the industry prisoner’s dilemma around, if not liability, then at a bare minimum responsibility. There’s a battery of high-caliber first-mover-disadvantages pointed at the first open source developer willing to say “if these tools are used under the following conditions, by users with the following user stories, then we can and should be held responsible for their failures”.

Neither of these problems are insoluble – alternative financial models exist, coalitions can be built, and so forth. It’ll be an upheaval, but not a catastrophic or even sudden one. But anyone whose business model relies on ads should be thinking about transitions five to ten years out, and your cannier nation-states are likely to start sneaking phrases like “auditable and replaceable firmware” in their trade agreements in the next three to five.

The fundamental problem is harder: we need a definition of freedom that encompasses the notion of software freedom and human agency, in which the software itself is just an implementation detail.

We don’t have a definition of freedom that’s both expansive in its understanding of what freedom and agency are, and that speaks to a world where the line between data security and bodily autonomy is very blurry, where people can delegate their agency to and gain agency from a construct that’s both an idea and a machine. A freedom for which a positive defense of the scope of the possible isn’t some weird semitangible idea, but a moral imperative and a hill worth dying on.

I don’t know what that looks like yet; I can see the rough outlines of the place it should be but isn’t. I can see the seeds of it in the quantified-self stuff, copyleft pushback and the idea that crypto is a munition. It’s crystal clear that a programmer clinging to the idea that algorithms are apolitical or that software is divorced from human bias or personal responsibility is a physicist holding to the aetheric model or phlogiston when other people are fuelling their rockets. The line between software freedom and personal freedom is meaningless now, and the way we’ve defined “software freedom” just about guarantees its irrelevancy. It’s just freedom now, and at the very least if our definition of what freedom is – and our debate about what freedom could be –  isn’t as vast and wide-ranging and weird and wonderful and diverse and inclusive and scary as it could possibly be, then the freedom we end up with won’t be either.

And I feel like a world full of the possible would be a hell of a thing to lose.


  1. kats
    Posted August 29, 2016 at 8:58 pm | Permalink

    Interesting food for thought, thanks for posting! (I just wish you had fewer colorful metaphors in your writing – they are great when you’re speaking in person but tend to distract from the point in text)

  2. mhoye
    Posted August 29, 2016 at 10:24 pm | Permalink

    They’re kind of my thing, sorry.

  3. Bob Webber
    Posted August 30, 2016 at 1:13 pm | Permalink

    It’s not that the problems of open software were unknown or different in the past, I think, as the available targets for attack were mostly cis-male white guys with university educations, who generally did not sexually harass each other in blunt and obvious ways. The attacks were generally less vicious, the targets were likely to be less vulnerable as likely not in a visibly marginalized group. I suspect there was a lot of intimidation of gay men that I was deaf too or that happened in private.

    Another model for normalization of software as part of everybody’s daily life could be inspections of laces where food is handled, stored, and prepared. Freedom from rat faeces and ptomaine poisoning!

  4. Anonymous
    Posted August 30, 2016 at 3:23 pm | Permalink

    Content sounded interesting, but you design & layout choices make it almost impossible to read. Consider ditching the reversed type & text boxes, or get a designer. Alternatively, publish your content to Medium – where it will at least be readable. Not trolling you…constructive critique.

  5. mhoye
    Posted August 30, 2016 at 3:28 pm | Permalink

    You seriously got to the end of that and the most important thought in your head was “I wish the text was a different color?”

  6. Rodger
    Posted August 30, 2016 at 4:45 pm | Permalink

    I think this is really getting at a separate kind of issue than free software. Free software is essentially the issue of free speech about source code. In other words, we don’t ask a physicist to prove that the article she publishes in a journal will not cause harm, but we do ask that of the appliance manufacturer or vendor selling a product that happens to apply such a principle.

    There is room for free software that comes without liability in the same world as software that is distributed with liability and guarantees. On the other hand, your point is well taken about a need for liability on the part of certain consumer services. I just think this is a separate issue that does not need to compete for importance with the free speech meaning of free software.

  7. Posted August 31, 2016 at 10:08 pm | Permalink

    >>…and the most important thought in your head was “I wish the text was a different color?”

    He’s not wrong; the white-on-black can hurt after a while. I occasionally have to disable CSS here when I start going cross-eyed.

    This is the afterimage I see on everything for a minute after reading one of your longforms:

  8. William
    Posted September 3, 2016 at 8:47 am | Permalink

    Interesting food for thought. I suspect that there will always be room for FSF-flavoured Free software despite the (hopefully soon) introduction of liability being applied to purchased software, including software in Things of Internet.

    The real friction will come with public liability: who pays when the free software I’m using for my own purposes causes someone else (that I don’t have a contractual relationship with) a loss? The traditional model has been certification: your car must be certified roadworthy to be on a public road, but that model breaks pretty quickly when tort-via-internet crosses a bunch of different and inconsistent jurisdictions.

    Hell, we can’t even agree to prevent international fraud and money-laundering most of the time. Your computer wasn’t resilient to the negligent failures of my computer? Tough cookies, probably.

  9. Kris Alman
    Posted September 4, 2016 at 9:30 am | Permalink

    As a physician who has been has seen how deregulatory loopholes in HIPAA FERPA and COPPA allow BIG DATA to destroy privacy and confidentiality in health care and education, I equate growing income and wealth inequality with the widening information gap. How did we become prosumers?

    The knowledge economy exploits an attention deficit to the liabilities you so well explain. The irony is that “free” apps and content are a Faustian bargain. The cat videos and Facebook postings entrap us into becoming insular, distracted and on the spectrum. Bread and circuses of the 21st Century.

    I’ve experienced Internet car crashes without any of the protections and remedies that we need: tax identity theft and OPM data breach–all in one year. Cyberwarfare will cripple our economy if there are no sheriffs and jails for offenses in the Wild West Web.