Saturday, December 3, 2016

What duties to software developers owe to users?

I was reading this blog post, entitled "The code I’m still ashamed of". 

TL; DR: back in 2000 the poster, Bill Sourour, was employed to write a web questionnaire aimed at teenage girls that purported to advise the user about their need for a particular drug. In reality unless you said you were allergic to it, the questionnaire always concluded that the user needed the drug. Shortly after, Sourour read about a teenage girl who had possibly committed suicide due to side effects of this drug. He is still troubled by this.

Nothing the poster or his employer did was illegal. It may not even have been unethical, depending on exactly which set of professional ethics you subscribe to. But it seems clear to me that there is something wrong in a program that purports to provide impartial advice while actually trying to trick you into buying medication you don't need. Bill Sourour clearly agrees.

Out in meatspace we have a clearly defined set of rules for this kind of situation. Details vary between countries, but if you consult someone about legal, financial or medical matters then they are generally held to have a "fiduciary duty" to you. The term derives from the Latin for "faithful". If X has a fiduciary duty to Y, then X is bound at all times to act in the best interests of Y. In such a case X is said to be "the fiduciary" while Y is the "beneficiary".

In many cases fiduciary duties arise in clearly defined contexts and have clear bodies of law or other rules associated with them. If you are the director of a company then you have a fiduciary duty to the shareholders, and most jurisdictions have a specific law for that case. But courts can also find fiduciary duties in other circumstances. In English law the general principle is as follows:
"A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence."
It seems clear to me that this describes precisely the relationship between a software developer and a user. The user is not in a position to create the program they require, so they use one developed by someone else. The program acts as directed by the developer, but on behalf of the user. The user has to trust that the program will do what it promises, and in many cases the program will have access to confidential information which could be disclosed to others against the user's wishes.

These are not theoretical concerns. "Malware" is a very common category of software, defined as:
any software used to disrupt computer or mobile operations, gather sensitive information, gain access to private computer systems, or display unwanted advertising.
Sometimes malware is illicitly introduced by hacking, but in many cases the user is induced to run the malware by promises that it will do something that the user wants. In that case, software that acts against the interests of the user is an abuse of the trust placed in the developer by the user. In particular, the potential for software to "gather sensitive information" and "gain access to private computer systems" clearly shows that the user must have a "relationship of trust and confidence" with the developer, even if they have never met.

One argument against my thesis came up when I posted a question about this to Legal forum on Stack Exchange. The answer I got from Dale M argued that:

Engineers (including software engineers) do not have this [relationship of confidence] and AFAIK a fiduciary duty between an engineer and their client has never been found, even where the work is a one-on-one commission.
I agree that, unlike a software developer, all current examples of a fiduciary duty involve a relationship in which the fiduciary is acting directly. The fiduciary has immediate knowledge of the circumstances of the particular beneficiary, and decides from moment to moment to take actions that may or may not be in the beneficiary's best interest. In contrast a software developer is separated in time from the user, and may have little or no knowledge of the user's situation.

I didn't argue with Dale M because Stack Exchange is for questions and answers, not debates. However I don't think that the distinction drawn by Dale M holds for software. An engineer designing a bridge is not in a position to learn the private information of those who cross the bridge, but a software engineer is often in a position to learn a great deal about the users of their product. It seems to me that this leads inescapably to the conclusion that software engineers do have a relationship of confidence with the user, and that this therefore creates a fiduciary duty.

Of course, as Dale M points out, nobody has ever persuaded a judge that software developers owe a fiduciary duty, and its likely that in practice its going to be a hard sell. But to go back to the example at the top, I think that Bill Sourer, or his employer, did owe a fiduciary duty to those people who ran the questionnaire software he wrote, because they disclosed private information in the expectation of getting honest advice, and the fact that they disclosed it to a program instead of a human makes no difference at all.

Addendum: Scope of duty

This section looks at exactly what the scope of the fiduciary duty is. It doesn't fit within the main text of this essay, so I've put it here.

Fortunately there is no need for a change in the law regarding fiduciary duty. The existence of a fiduciary duty is based on the nature of the relationship between principal and agent, although in some countries specific cases such as company directors are covered by more detailed laws.

First it is necessary to determine exactly who the fiduciary is. So far I have talked about "the software developer", but in practice software is rarely written by a single individual. We have to look at the authority that is directing the effort and deciding what functions will be implemented. If the software is produced by a company then treating the company as the fiduciary would seem to be the best approach, although it might be more appropriate to hold a senior manager liable if they have exceeded their authority.

As for the scope, I'm going to consider the scope of the fiduciary duty imposed on company directors and consider whether an analogous duty should apply to a software developer:

  • Duty of care: for directors this is the duty to inform themselves and take due thought before making a decision.  One might argue that a software developer should have a similar duty of care when writing software, but this is already handled through normal negligence. Elevating the application of normal professional skill to a fiduciary duty is not going to make life better for the users. However there is one area where this might be applied: lack of motive to produce secure software is widely recognised as a significant problem, and is also an area where the "confidence" aspect of fiduciary duty overlaps with a duty of care. Therefore developers who negligently fail to consider security aspects of their software should be considered to have failed in their fiduciary duty.
  • Duty of loyalty: for directors this is the duty not to use their position to further their private interests. For a software developer this is straightforward: the developer should not use their privileged access to the user's computer to further their private interests. So downloading information from the users computer (unless the user explicitly instructs this to happen) should be a breach of fiduciary duty. So would using the processing power or bandwidth owned by the user for the developers own purposes, for instance by mining bitcoins or sending spam.
  • Duty of good faith: the developer should write code that will advance the user's interests and act in accordance with the user's wishes at all times.
  • Duty of confidentiality: if the developer is entrusted with user information, for example because the software interfaces with cloud storage, then this should be held as confidential and not disclosed for the developer's benefit.
  • Duty of prudence: This does not map onto software development.
  • Duty of disclosure: for a director this providing all relevant information to the shareholders. For a software developer, it means completely and honestly documenting what the software does, and particularly drawing attention to any features which a user might reasonably consider against their interests.  Merely putting some general clauses in the license is not sufficient; anything that could reasonably be considered to be contrary to the user's interests should be prominently indicated in a way that enables the user to prevent it.
One gray area in this is software that is provided in exchange for personal data. Many "free" apps are paid for by advertisers who, in addition to the opportunity to advertise to the user, also pay for data about the users. On one hand, this involves the uploading of personal data that the user may not wish to share, but on the other hand it is done as part of an exchange that the user may be happy with. This comes under the duty of disclosure. The software should inform the user that personal data will be uploaded, and should also provide a detailed log of exactly what has been sent. Thus users can make informed decisions about the value of the information they are sending, and possibly alter their behavior when they know it is being monitored.


Derek Elkins said...

If you read a few sentences further on the Wikipedia page you link, you'll find the following sentence: "In such a relation good conscience requires the fiduciary to act at all times for the sole benefit and interest of the one who trusts." (my emphasis) A bit further, you have this: "A fiduciary [...] is expected to be extremely loyal to the person to whom he owes the duty[...]: such that there must be no conflict of duty between fiduciary and principal, and the fiduciary must not profit from his position as a fiduciary (unless the principal consents)." My understanding is that these are the import of legislated forms of fiduciary duty. I'd be hard pressed to believe that you believe that these sentences describe the relationship between a software developer and an end-user.

Being a fiduciary is an extremely strong relationship. Quoting the Cornell site you link: "If an individual breaches the fiduciary duties, he or she would need to account for the ill-gotten profit. His or her beneficiaries are entitled to damages, even if they suffered no harm." Paraphrasing from

In practical terms, there are two ways a fiduciary can breach its duty: being in a position of a conflict of interest, or making an improper gain from its position. A person is in a position of conflict if "a reasonable man looking at the relevant facts ... would think that there was a real sensible possibility of conflict". Fraud, dishonesty or bad faith are irrelevant. Conflict may arise between duties owed to different principals. An improper gain is any sort of gain and is prohibited, regardless of whether it harmed the principal, whether it was even available to the principal or, whether it actually benefited the principal as well. The only defence available to the fiduciary who has breached its duty is that it did so with the informed consent of the principal. (their emphasis)

I think it is clear that this is completely untenable. As an example, you could argue that a software developer marking a bug as WONTFIX because the costs don't outweigh the benefits in adoption/retention would be a breach of fiduciary duty regardless of the bug and regardless if that actually allowed more work to be done improving the product in other ways, unless (presumably all) end-users gave informed consent to make that decision. Also, as far as I can tell, virtually all employed software developers would be in a conflict of interest.

I'm not necessarily saying nothing should be done, but the notion of fiduciary duty is extremely unlikely to be the tool you want to achieve your desired ends.

Dave Turner said...

To me it seems that the relationship between a software developer and a user is more like that between a director of a company and its customers, not its shareholders.

Their interests align often enough, but where there is a conflict it's the customers who lose.