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.