If a fiduciary grows in the forest, will anyone notice?

See, click, wrap.

Here's an American legal innovation: getting people to agree to contracts they haven't read and will never read, and making that behavior completely normal. Terms of use are user-hostile, illegible, and absurd. This week, thousands of law students are starting to learn about contracts and how they need consideration, an offer, acceptance, or lol sure whatever someone can check a box that they agree to everything written behind a link they haven't clicked on.

The absurdity of terms of use is well documented elsewhere, and this isn't a piece about trying to wish them out of existence. The more interesting question is: if someone—say, a fiduciary—wanted to actually help a user understand their rights, would anyone notice?

If I were to put my "proper lawyer" hat on, I might say that software companies use terms of use to minimize or manage responsibility and liability for what users do with their software. Take a typical "AS IS" clause. They usually look like this (I adapted this one from Upsolve, but these are pretty cookie-cutter):

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.

And maybe this is fine for like, my Instagram account. It's sort of hilarious that the terms of use and attached policies for sharing photos of my dog is longer than the rental contract for my apartment. Haha, late-stage capitalism, as the kids say.

It's not really as haha funny when these same terms of use show up in applications that provide legal help, or other sorts of advice. More of a gloomy irony: that a tool designed to help someone navigate a legal issue without a lawyer has a terms of use so labyrinthine that it needs a lawyer to decipher.

At least in law, some of this verbal contortion is to avoid running afoul of state rules limiting who can dispense "legal advice". But you see it in software tools in adjacent fields, like health. It's a sort of doubletalk, where the text a user reads (the marketing copy) invites them to rely on a tool or service for something they really need, while the text they don't read (the terms of use) empties that invitation of most of its content. "If you answer these questions, a form will be generated! Maybe you can file that form in a court to stave off an eviction or get child support or navigate bankruptcy! Or maybe it won't be! Who knows, life is a great mystery! Thanks for spending your time clicking on our website."

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?

I said earlier that terms of use are often used to manage or minimize responsibility. But sometimes we want responsibility. If a future someone uses software to deliver, derive, or mediate legal advice (or health advice, etc), we'll probably want to establish a fiduciary relationship between provider and user—similar to the type of relationship a(n offline) lawyer or doctor would have with a client or patient. We also probably don't want someone to set the expectation of a fiduciary relationship and then disclaim it with a terms of use.

How would we communicate that to a user? Sure, we've got great marketing copy, puffery for days. But so does everyone else. And if we're just writing a really favorable terms of use—a welcome mat in front of our wall of legalese—it's unlikely that a user will actually notice, let alone know how to assert their rights as a beneficiary. We're not actually demonstrating trustworthiness to or building trust with a user—why we have fiduciary relationships in the first place.

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.

images (counterclockwise from top-left): Creative Commons (via Critical Tech), Data Nutrition Project, Department of Labor

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.

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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.

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