Budish, Gasser & Eigen on German Digital Council: An ‘Inside-Out’ Case Study

Ryan Budish (Harvard University – Berkman Klein Center for Internet & Society), Urs Gasser (Harvard University – Berkman Klein Center for Internet & Society), and Melyssa Eigen (Harvard Law School; Berkman Klein Center) have posted “German Digital Council: An ‘Inside-Out’ Case Study” on SSRN. Here is the abstract:

In 2018, German Chancellor Dr. Angela Merkel appointed a group of nine scholars and practitioners, including BKC’s Urs Gasser, to the German Digital Council (GDC). The GDC was formed with the unusual mission to ask both critical and constructive questions about government projects from a digital perspective, to alert the government to new technical and economic developments, and operate as a symbol for ‘digitalization’ during its interactions with the government.

While the GDC has made significant contributions since its founding, its operation has been fairly opaque; this opacity was an intentional part of the GDC’s operational strategy. As a consequence, the basic design, structure, operation, and impact of the GDC have not been easily accessible beyond a relatively small group of involved parties.

At the same time, the unusual mission, composition, and mode of operation of the GDC have been met with interest from governments around the world and other stakeholders that are confronted with the question of how to bring outside expertise into the workings of a government.

This case study is an attempt to bridge this knowledge gap by documenting and sharing some of the important and, thus far, undocumented details about the formation and operation of the GDC. The insights shared are based on a series of group and individual interviews that the authors conducted with members of the GDC and members of the Chancellery that worked closely with the GDC.

Choi on Software Professionals, Malpractice Law, and Codes of Ethics

Bryan H. Choi (Ohio State University (OSU) – Michael E. Moritz College of Law; Information Society Project, Yale Law School) has posted “Software Professionals, Malpractice Law, and Codes of Ethics” (Communications of the ACM 2021) on SSRN. Here is the abstract:

We all know what a professional is—or do we? For years, ACM has proclaimed that its members are part of a computing profession. But is it really a profession? Many people describe themselves as “professionals” in the colloquial sense of being paid to perform some specialized skill. Yet, only a few occupations are regarded as professions in the legal sense. Courts do not consider athletes or chefs to be professionals the way doctors and lawyers are. Likewise, courts have consistently excluded software developers from that select group.

To understand why U.S. law does not recognize computing as a profession—and whether that classification could be changed—calls for a fresh look at the law of professions. Why does the law distinguish professionals from nonprofessionals such as mechanics or pilots? What would happen if courts treated software developers like doctors or lawyers? What are professionals’ legal duties of care and how do they differ from ethical codes of conduct? Can one bootstrap the other?

Much of the computing community has assumed that a more robust commitment to ethics is a prerequisite for legal recognition as a profession. That assumption is exactly backward. Professional malpractice law is needed to catalyze a robust code of ethics. The lesson is this: the best way for ACM’s Code of Ethics to make a meaningful difference in changing software development practices is for courts to recognize software as a profession.