September 11, 2019

Duty Of Care

A colleague asked me what I thought of this Medium article by Owen Bennett on the application of the UK’s Duty of Care laws to software. I’d had… quite a bit of coffee at that point, and this (lightly edited) was my answer:

I think the point Bennett makes early about the shortcomings of analogy is an important one, that however critical analogy is as a conceptual bridge it is not a valuable endpoint. To some extent analogies are all we have when something is new; this is true ever since the first person who saw fire had to explain to somebody else, it warms like the sun but it is not the sun, it stings like a spear but it is not a spear, it eats like an animal but it is not an animal. But after we have seen fire, once we know fire we can say, we can cage it like an animal, like so, we can warm ourselves by it like the sun like so. “Analogy” moves from conceptual, where it is only temporarily useful, to functional and structural where the utility endures.

I keep coming back to something Bryan Cantrill said in the beginning of an old DTrace talk – – (even before he gets into the dtrace implementation details, the first 10 minutes or so of this talk are amazing) – that analogies between software and literally everything else eventually breaks down. Is software an idea, or is it a machine? It’s both. Unlike almost everything else.

(Great line from that talk – “Does it bother you that none of this actually exists?”)

But: The UK has some concepts that really do have critical roles as functional- and structural-analogy endpoints for this transition. What is your duty of care here as a developer, and an organization? Is this software fit for purpose?

Given the enormous potential reach of software, those concepts absolutely do need to survive as analogies that are meaningful and enforceable in software-afflicted outcomes, even if the actual text of (the inevitable) regulation of software needs to recognize software as being its own, separate thing, that in the wrong context can be more dangerous than unconstrained fire.

With that in mind, and particularly bearing in mind that the other places the broad “duty of care” analogy extends go well beyond beyond immediate action, and covers stuff like industrial standards, food safety, water quality and the million other things that make modern society work at all, I think Bennett’s argument that “Unlike the situation for ‘offline’ spaces subject to a duty of care, it is rarely the case that the operator’s act or omission is the direct cause of harm accruing to a user — harm is almost always grounded in another user’s actions” is incorrectly omitting an enormous swath of industrial standards and societal norms that have already made the functional analogy leap so effectively as to be presently invisible.

Put differently, when Toyota recalls hundreds of thousands of cars for potential defects in which exactly zero people were harmed, we consider that responsible stewardship of their product. And when the people working at Uber straight up murder a person with an autonomous vehicle, they’re allowed to say “but software”. Because much of software as an industry, I think, has been pushing relentlessly against the notion that the industry and people in it can or should be held accountable for the consequences of their actions, which is another way of saying that we don’t have and desperately need a clear sense of what a “duty of care” means in the software context.

I think that the concluding paragraph – “To do so would twist the law of negligence in a wholly new direction; an extremely risky endeavour given the context and precedent-dependent nature of negligence and the fact that the ‘harms’ under consideration are so qualitatively different than those subject to ‘traditional’ duties.” – reflects a deep genuflection to present day conceptual structures, and their specific manifestations as text-on-the-page-today, that is (I suppose inevitably, in the presence of this Very New Thing) profoundly at odds with the larger – and far more noble than this article admits – social and societal goals of those structures.

But maybe that’s just a superficial reading; I’ll read it over a few times and give it some more thought.

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