See, click, wrap.
NO WARRANTY. THE SITE, APPLICATIONS, AND ALL MATERIALS, DOCUMENTS OR FORMS PROVIDED ON OR THROUGH YOUR USE OF THE SITE OR APPLICATIONS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
WE MAKE NO WARRANTY THAT: (A) THE SITE, APPLICATIONS, OR THE MATERIALS WILL MEET YOUR REQUIREMENTS; (B) THE SITE, APPLICATIONS, OR THE MATERIALS WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, APPLICATIONS, OR ANY MATERIALS OFFERED THROUGH THE SITE OR APPLICATIONS, WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE, APPLICATIONS, OR IN RELIANCE ON THE MATERIALS WILL MEET YOUR EXPECTATIONS.
OBTAINING ANY MATERIALS THROUGH THE USE OF THE SITE OR APPLICATIONS IS DONE AT YOUR OWN DISCRETION AND AT YOUR OWN RISK. WE SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY CONTENT, MATERIALS, INFORMATION OR SOFTWARE.
Not to be too flip, but this basically says "rely on us at your peril". Not all software has this disclaimer (enterprise software often come with uptime guarantees, for instance). But this is close to the norm. It’s basically the equivalent of this XKCD comic: if you rely on us for something important, everyone will die.
So this is the norm, with almost every piece of software or web service that someone interacts with. Users EXPECT to sign their lives away to a website and maybe, I don't know, sue their way out of it later if someone actually shows up to collect one day. Or—perhaps more likely—they don't give those agreements a second thought.
But what if we wanted them to do something different?
And sure, some of that trust-building will happen if a service is delivered as promised (or perceived to be—more on that at a later date). But another part depends on this elevated responsibility between fiduciary and client and the client actually knowing that they've got some special set of rights. And this matters when monitoring professional responsibility in fields like law and health relies at least in part on clients reporting issues. For this to work, a client needs to know 1) that they have some right and 2) where to go to remedy a suspected violation of that right. I should note here that this problem isn't really confined to software—relying on clients to recognize and identify issues is a recipe for underreporting. But as fiduciary relationships of all types go digital, helping people identify, understand, and trust a fiduciary relationship remains an unsolved problem.
The temptation here might be to mandate some sort of disclosure and call it a day. But at worst, leaving implementation up to individual providers could encourage the type of deliberately confusing interfaces we see to manage cookies in a post-GDPR world. The problem seems to cry out for standardization, even just within a single field, especially if the goal is to set some new norm or expectation for users of digital advice tools. Call it a fiduciary label. It might describe the particular attributes of a given fiduciary relationship (the type of advice you're getting and not getting; what you can rely on this software for, etc.), the user's rights, and where they can go to report issues.
In regulated professions, regulators—state/provincial bars—could act as standard-setters: maintaining fiduciary labels and setting design standards. (It's a project I'd love to see in the next wave of legal regulatory sandboxes.) From a technical perspective, they could even host the labels themselves—you could imagine a software provider configuring a label for their service and embedding it on their own site in the same way they would a Twitter embed. The label itself could include links to report issues or get more information about the provider. A sort of employee poster for the digital age, if you will. The goal isn't to create another regulatory hurdle for its own sake, but to help service providers reframe something like terms of service in a way that builds collective confidence in the legal system (or healthcare, or some other fiduciary).
We rely on fiduciaries to function in society—to resolve legal issues, to get health advice, to protect our money. For all the excitement about how software can change the delivery of fiduciary services, service providers need to spend more time thinking about how to demonstrate their trustworthiness and heightened obligations toward their clients. Thousands of words of unread fine print probably won't do the trick.
What I’m reading
There's a lovely article in The Atlantic about measuring the cost of government services in time. This feels like a good approach for measuring the impact of legal services (for good or ill)—you could also imagine translating income into time, to factor in the time someone needs to work to make up for a paid fee, for instance.
On the flip side, the New York Times has some absolutely infuriating reporting about healthcare pricing, and hospitals and insurers continuing to dodge price transparency requirements. Insurers are negotiating prices on behalf of their customers, then keeping those prices a secret via NDA. Either way, you’re paying.