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Like the Bush lawyers and the torture enabling memos? Or the DoJ lawyers filing uncontested FISA warrants for inappropriate things? I know! You must mean the

Like the Bush lawyers and the torture enabling memos? Or the DoJ lawyers filing uncontested FISA warrants for inappropriate things? I know! You must mean the federal prosecutors who overcharge as a matter of course to have negotiating leverage for plea deals. Or maybe the patent trolls? Upstanding folks those are! Lawyers definitely don't (categorically) do anything besides what their client wants, externalities and ethics be damned.

dmourati 10y ago
My constitutional law professor Ron Rotunda got himself entwined in those torture memos, at least as far as being mentioned in connection with their authoring. What exactly his role is remains unclear but that shook me pretty deeply: https://www.emptywheel.net/2010/03/09/ronald-rotunda-yoo-sent-email-to-someone-else/ https://www.emptywheel.net/2010/03/09/ronald-rotunda-yoo-sen...
gregwtmtno 10y ago
It seems like you disagree with me. Can you please state your argument without the sarcasm?
- SomeStupidPoint 10y ago
  Your proposed solution doesn't address the stated problem in the field you're discussing (law), why would it solve it in a different field (tech/software)? It just so transparently doesn't work in that field it's hard to even take the proposal as in good faith, since it has to ignore newsmaking and routine behavior. Rather, it comes across as a self-righteous comment: we have ethical standards (even if we routinely don't adhere to them and do terrible things as a matter of course) so clearly those engineers would be better if they were more like us! The sarcasm likely wasn't constructive, so I'll apologize for that.
  - gregwtmtno 10y ago
    I'll certainly agree that the rules of professional conduct in the legal profession don't prevent all unethical conduct, but that doesn't mean that they are completely ineffective. Having enforceable rules may improve ethical standards in the field without solving the problem entirely. I'd also like to point out that I did not propose a solution. I think it should be considered, but I'm a long way from supporting the idea fully. There are a lot of negatives that come with license requirements that attorneys have.
    - SomeStupidPoint 10y ago
      They're so ineffective that they might as well not exist. The only rules I've seen applied to lawyers with any regularity are those governing decorum (eg, don't be an ass in court) or client obligations (ie, don't be a shitty contractor) or those that are also criminal (eg, if you commit fraud, we'll yank your license too). Technology could do better there. But to call out government surveillance or cyber warfare, which are both overseen by legal departments that work diligently to inventively authorize the acticity? Or dark patterns and data collection, where lawyers go through contortions to authorize it in "agreements"? I would say all four of your chosen examples are more failings of lawyers than engineers. (Though both bear some responsibility.) It just seems strange to suggest professional rules for engineers would've stopped something that clearly professional rules for lawyers did not.
- skolsuper 10y ago
  Their argument is pretty clear.
- jaclaz 10y ago
  Maybe I can help. Among the various professions that do have an ethical code of conduct, generally speaking lawyers/solicitors are not seen by a large amount of people as being particularly compliant with it. Now of course it is very possible that it is a wrong perception by the masses, but it is in my opinion quite unlikely that at the moment the argument "engineers lack a code of conduct, they should take lawyers as an example" will gain much popularity.
- dsp1234 10y ago
  implementing some kind of rules for professional conduct and an organization to enforce it like the lawyers have. The rules for professional conduct, and the organization to enforce it for lawyers, did not prevent the NSA/DOJ lawyers from determining that mass surveillance was legal, and could be implemented legally. In the face of that, what rules for professional conduct and an organization to enforce it like lawyers have, could engineers have implemented that would have prevented those engineers from building that system?
  - tonyarkles 10y ago
    I'm not convinced that what the NSA/DOJ lawyers did here was unethical. One of a lawyer's roles is to answer the question: "Is what I'm about to do legal? On what grounds?" Here, they analyzed existing laws and determined an approach to doing mass surveillance that, they believed, would be legal. They didn't build the surveillance system, nor did they pass the laws in the first place that would allow for such a system to be legally built. Regarding the engineers here, it's not black and white. Looking at the ACM code of ethics, #1 is "Software engineers shall act consistently with the public interest." Is building a mass surveillance system "in the public interest?" That's grey. My personal opinion is "no", but I can see the point of view of "Protecting my country from terrorists is in the public interest." If we're going to look at the NSA surveillance systems, the first place to look is at the legislators. If we want to prevent the government from building such systems, step 0 is to make these systems illegal. That ripples down all the way through this: the lawyers' analysis would have come up negative instead of positive, and it's clearly not in the public interest to build systems that have been democratically-determined to be negative.
    - dsp1234 10y ago
      Yes, having legislators not make laws that are against the public interest should be step 0, but that isn't really relative to a professional code of conduct for software engineers. Note that I specifically mentioned mass surveillance because the original poster pointed it out as "field that enables mass government surveillance", then wonders about the implementation of a "rules of conduct". The natural implication being that those rules of conduct would have helped stop the enabling of mass government surveillance. I'm not convinced that what the NSA/DOJ lawyers did here was unethical. One of a lawyer's roles is to answer the question: "Is what I'm about to do legal? On what grounds?" The lawyer says, "This is legal, here are the grounds for believing it is so. I'll go into court and defend it". The engineer says, "This is technically possible, there are the grounds for believing it is so. I'll build it and maintain it". What is the reasoning for saying then that a lawyer has acted ethically (even though mass surveillance is not in the public interest), but the engineer has acted unethically (because mass surveillance is not in the public interest)? What is the quintessential concept that allows lawyers to ignore the public interest, but precludes the engineer from doing so? And if there is nothing that we can point to that differentiates lawyers and engineers in this manner, then how would a professional code of conduct (like lawyers have) prevent the actions that the original poster specifically highlights.
- CrystalLangUser 10y ago
  Maybe you ought to respond. Sarcasm or not their point was crystal clear, it seems like you're deliberately avoiding an answer.
wpietri 10y ago
It is true that some lawyers do bad things. But what you're ignoring is the great number of bad things that lawyers don't do because either a) they are afraid of the professional consequences, b) they can get their clients to easily back off because they say, "professional ethics!" and people know it's a real thing, or c) they get disbarred and can't act as a lawyer any more. As an example, look at the Prenda Law guy, who was basically using his status as a lawyer to run a high-tech extortion scam. He's had his license suspended, and will surely be disbarred: https://arstechnica.com/tech-policy/2016/09/prenda-lawyer-paul-hansmeier-has-his-law-license-suspended/ https://arstechnica.com/tech-policy/2016/09/prenda-lawyer-pa... Or look at Jack Thompson, famous hater of video games, who got disbarred for making "defamatory, false statements and attempted to humiliate, embarrass, harass or intimidate" people: https://en.wikipedia.org/wiki/Jack_Thompson_(activist) https://en.wikipedia.org/wiki/Jack_Thompson_(activist) And of course there are plenty of people who have been disbarred for cheating and abusing clients. I too would like the legal ethics to be stronger on the "do no harm to society" side. But there's no denying that legal ethics have real teeth. Our industry could learn something from them.
- SomeStupidPoint 10y ago
  Sure, lawyer rules have a great deal of influence as to obligations of a contractor and the decorum they're supposed to operate with. Programmers could do better there. That's not what the post I was responding to was talking about. It was talking about "all immoral or unethical activity", and specifically about surveillance, dark patterns, data aggregation, and cyber warfare. Lawyers have signed off on all of those behaviors at their organizations (particularly the surveillance and cyber warfare ones). They've done contortions to get them "approved" in contracts. If the lawyers at those organizations okayed it, it's fascicle to pretend engineering ethics would've stopped it. Further, when talking about "all immoral or unethical activity" it's entirely germain to point out lawyers routinely engage in both without consequence. tl;dr: Lawyer rules are about professional standards, not conduct. You can represent the devil in his suit to rule the world, you just need to be polite and bill fairly.
- dpark 10y ago
  > But what you're ignoring is the great number of bad things that lawyers don't do because either a) they are afraid of the professional consequences, b) they can get their clients to easily back off because they say, "professional ethics!" and people know it's a real thing, or c) they get disbarred and can't act as a lawyer any more. Most lawyers don't do bad things because they're decent people. Ethics codes don't stop unethical behavior any more than laws stop crimes. There is some small percentage of the population who will shy away from a crime specifically because of the potential punishment, but most people wouldn't steal or murder regardless of the law. Ditto for lawyers.
derf_ 10y ago
As you might expect, lawyers have a fairly crisply defined set of rules about what their ethical (sorry, "professional") responsibilities are [1]. On the Multi-state Professional Responsibility Exam (part of the bar exam required to practice law), there are questions where you are penalized for selecting an answer that is too ethical (i.e., where you may believe it to be the right thing to do, but where the Code of Professional Responsibility imposes no such duty on you). [1] https://www.law.cornell.edu/ethics/ny/code/NY_CODE.HTM https://www.law.cornell.edu/ethics/ny/code/NY_CODE.HTM

dmourati 10y ago

My constitutional law professor Ron Rotunda got himself entwined in those torture memos, at least as far as being mentioned in connection with their authoring. What exactly his role is remains unclear but that shook me pretty deeply: https://www.emptywheel.net/2010/03/09/ronald-rotunda-yoo-sent-email-to-someone-else/ https://www.emptywheel.net/2010/03/09/ronald-rotunda-yoo-sen...

gregwtmtno 10y ago

It seems like you disagree with me. Can you please state your argument without the sarcasm?

SomeStupidPoint 10y ago
Your proposed solution doesn't address the stated problem in the field you're discussing (law), why would it solve it in a different field (tech/software)? It just so transparently doesn't work in that field it's hard to even take the proposal as in good faith, since it has to ignore newsmaking and routine behavior. Rather, it comes across as a self-righteous comment: we have ethical standards (even if we routinely don't adhere to them and do terrible things as a matter of course) so clearly those engineers would be better if they were more like us! The sarcasm likely wasn't constructive, so I'll apologize for that.
- gregwtmtno 10y ago
  I'll certainly agree that the rules of professional conduct in the legal profession don't prevent all unethical conduct, but that doesn't mean that they are completely ineffective. Having enforceable rules may improve ethical standards in the field without solving the problem entirely. I'd also like to point out that I did not propose a solution. I think it should be considered, but I'm a long way from supporting the idea fully. There are a lot of negatives that come with license requirements that attorneys have.
  - SomeStupidPoint 10y ago
    They're so ineffective that they might as well not exist. The only rules I've seen applied to lawyers with any regularity are those governing decorum (eg, don't be an ass in court) or client obligations (ie, don't be a shitty contractor) or those that are also criminal (eg, if you commit fraud, we'll yank your license too). Technology could do better there. But to call out government surveillance or cyber warfare, which are both overseen by legal departments that work diligently to inventively authorize the acticity? Or dark patterns and data collection, where lawyers go through contortions to authorize it in "agreements"? I would say all four of your chosen examples are more failings of lawyers than engineers. (Though both bear some responsibility.) It just seems strange to suggest professional rules for engineers would've stopped something that clearly professional rules for lawyers did not.
skolsuper 10y ago
Their argument is pretty clear.
jaclaz 10y ago
Maybe I can help. Among the various professions that do have an ethical code of conduct, generally speaking lawyers/solicitors are not seen by a large amount of people as being particularly compliant with it. Now of course it is very possible that it is a wrong perception by the masses, but it is in my opinion quite unlikely that at the moment the argument "engineers lack a code of conduct, they should take lawyers as an example" will gain much popularity.
dsp1234 10y ago
implementing some kind of rules for professional conduct and an organization to enforce it like the lawyers have. The rules for professional conduct, and the organization to enforce it for lawyers, did not prevent the NSA/DOJ lawyers from determining that mass surveillance was legal, and could be implemented legally. In the face of that, what rules for professional conduct and an organization to enforce it like lawyers have, could engineers have implemented that would have prevented those engineers from building that system?
- tonyarkles 10y ago
  I'm not convinced that what the NSA/DOJ lawyers did here was unethical. One of a lawyer's roles is to answer the question: "Is what I'm about to do legal? On what grounds?" Here, they analyzed existing laws and determined an approach to doing mass surveillance that, they believed, would be legal. They didn't build the surveillance system, nor did they pass the laws in the first place that would allow for such a system to be legally built. Regarding the engineers here, it's not black and white. Looking at the ACM code of ethics, #1 is "Software engineers shall act consistently with the public interest." Is building a mass surveillance system "in the public interest?" That's grey. My personal opinion is "no", but I can see the point of view of "Protecting my country from terrorists is in the public interest." If we're going to look at the NSA surveillance systems, the first place to look is at the legislators. If we want to prevent the government from building such systems, step 0 is to make these systems illegal. That ripples down all the way through this: the lawyers' analysis would have come up negative instead of positive, and it's clearly not in the public interest to build systems that have been democratically-determined to be negative.
  - dsp1234 10y ago
    Yes, having legislators not make laws that are against the public interest should be step 0, but that isn't really relative to a professional code of conduct for software engineers. Note that I specifically mentioned mass surveillance because the original poster pointed it out as "field that enables mass government surveillance", then wonders about the implementation of a "rules of conduct". The natural implication being that those rules of conduct would have helped stop the enabling of mass government surveillance. I'm not convinced that what the NSA/DOJ lawyers did here was unethical. One of a lawyer's roles is to answer the question: "Is what I'm about to do legal? On what grounds?" The lawyer says, "This is legal, here are the grounds for believing it is so. I'll go into court and defend it". The engineer says, "This is technically possible, there are the grounds for believing it is so. I'll build it and maintain it". What is the reasoning for saying then that a lawyer has acted ethically (even though mass surveillance is not in the public interest), but the engineer has acted unethically (because mass surveillance is not in the public interest)? What is the quintessential concept that allows lawyers to ignore the public interest, but precludes the engineer from doing so? And if there is nothing that we can point to that differentiates lawyers and engineers in this manner, then how would a professional code of conduct (like lawyers have) prevent the actions that the original poster specifically highlights.
CrystalLangUser 10y ago
Maybe you ought to respond. Sarcasm or not their point was crystal clear, it seems like you're deliberately avoiding an answer.

wpietri 10y ago

It is true that some lawyers do bad things. But what you're ignoring is the great number of bad things that lawyers don't do because either a) they are afraid of the professional consequences, b) they can get their clients to easily back off because they say, "professional ethics!" and people know it's a real thing, or c) they get disbarred and can't act as a lawyer any more. As an example, look at the Prenda Law guy, who was basically using his status as a lawyer to run a high-tech extortion scam. He's had his license suspended, and will surely be disbarred: https://arstechnica.com/tech-policy/2016/09/prenda-lawyer-paul-hansmeier-has-his-law-license-suspended/ https://arstechnica.com/tech-policy/2016/09/prenda-lawyer-pa... Or look at Jack Thompson, famous hater of video games, who got disbarred for making "defamatory, false statements and attempted to humiliate, embarrass, harass or intimidate" people: https://en.wikipedia.org/wiki/Jack_Thompson_(activist) https://en.wikipedia.org/wiki/Jack_Thompson_(activist) And of course there are plenty of people who have been disbarred for cheating and abusing clients. I too would like the legal ethics to be stronger on the "do no harm to society" side. But there's no denying that legal ethics have real teeth. Our industry could learn something from them.

SomeStupidPoint 10y ago
Sure, lawyer rules have a great deal of influence as to obligations of a contractor and the decorum they're supposed to operate with. Programmers could do better there. That's not what the post I was responding to was talking about. It was talking about "all immoral or unethical activity", and specifically about surveillance, dark patterns, data aggregation, and cyber warfare. Lawyers have signed off on all of those behaviors at their organizations (particularly the surveillance and cyber warfare ones). They've done contortions to get them "approved" in contracts. If the lawyers at those organizations okayed it, it's fascicle to pretend engineering ethics would've stopped it. Further, when talking about "all immoral or unethical activity" it's entirely germain to point out lawyers routinely engage in both without consequence. tl;dr: Lawyer rules are about professional standards, not conduct. You can represent the devil in his suit to rule the world, you just need to be polite and bill fairly.
dpark 10y ago
> But what you're ignoring is the great number of bad things that lawyers don't do because either a) they are afraid of the professional consequences, b) they can get their clients to easily back off because they say, "professional ethics!" and people know it's a real thing, or c) they get disbarred and can't act as a lawyer any more. Most lawyers don't do bad things because they're decent people. Ethics codes don't stop unethical behavior any more than laws stop crimes. There is some small percentage of the population who will shy away from a crime specifically because of the potential punishment, but most people wouldn't steal or murder regardless of the law. Ditto for lawyers.

derf_ 10y ago

As you might expect, lawyers have a fairly crisply defined set of rules about what their ethical (sorry, "professional") responsibilities are [1]. On the Multi-state Professional Responsibility Exam (part of the bar exam required to practice law), there are questions where you are penalized for selecting an answer that is too ethical (i.e., where you may believe it to be the right thing to do, but where the Code of Professional Responsibility imposes no such duty on you). [1] https://www.law.cornell.edu/ethics/ny/code/NY_CODE.HTM https://www.law.cornell.edu/ethics/ny/code/NY_CODE.HTM