Who Pays the Price of Computer Software Failure?
Perlman, Daniel T., Rutgers Computer & Technology Law Journal
Computers and their accompanying software are omnipresent in today's society. Over a relatively short period of time, computers have developed into important and necessary tools of modern living.(1) An ever increasing number of people deal with and, to some degree, rely on computers in their everyday lives. In fact, it has been suggested that it would be hard to imagine that any electronic device in the near future would be independent of computer technology.(2) Moreover, the emergence of the Internet has been heralded as "eventually bring[ing] global information and computing to most homes, schools, businesses, and other institutions."(3) Consequently, computers and the once exotic use of computer programs are now an essential part of modern day business everywhere.(4)
Additionally, the use of computers by professionals has become virtually essential in order to keep pace with their clients' needs and expectations. For instance, clients expect designers to keep pace with the fast-moving world of computers by using design-based computer software programs that reduce the amount of time required to perform certain design tasks. While professional designers, such as architects and various established disciplines of engineers, are aware of the time-saving benefits offered by computer programs, they also recognize that the licenses that they hold in their respective fields subject them to a professional standard of care.(5)
This Note sets forth the rationale for holding computer software engineers(6) liable to the higher standard of care for professionals. Specifically, this Note argues for the licensing of software engineers. Software engineering requires extraordinary technical competence; consequently, the public deserves a way to discern properly trained professional programmers from hackers, so as to be better insulated from possible incompetence, dishonesty, and fraud.(7) The licensing of software engineers as professionals will provide the needed redress against such wrongful actions.(8) Moreover, licensure provides for industry standards through the enforcement of statutory penalties, such as revocation of the license, and aids in the communication of scientific and technological developments to licensees practicing within the field.(9)
In modern times, an argument for licensure rooted in public policy is a bit unconventional. It is more common for a demand for state licensure to come from within an industry as a way to obtain desirable regulatory legislation for their own advancement and protection, rather than from a public response to a perceived or proven need.(10) Industries often seek regulation because "[c]oncomitant with licensing comes a certain amount of prestige and restriction of entry into the occupation."(11)
The universal application of computers in modern society bespeaks a dependence upon the use of computer technology, and it is important to note that "the computer is powerless without programming."(12) Computer software is currently responsible for many important societal functions, including counting electoral votes for political offices, monitoring the well being of hospital patients, and balancing the assets of major corporations.(13) The general public, including those involved in the areas of use just mentioned, "may fail to distinguish between incompetence and competence, between honorable and dishonorable programmers, or to recognize fraud. The public clearly needs protection of its health, safety and well being. As the sheer computing powers of society increase, so does the resulting danger."(14)
Previously, proponents of licensing have argued for licensure of all individuals involved in any programming process that may "critically" affect the public.(15) This Note promotes a less rigorous approach that would require licensure of only those software engineers who direct, plan, or supervise systems created for managing certain critical areas, but does not go so far as to suggest that licensure is necessary for those acting in the capacity of system analysts who merely perform routine functions on such "critical" computer systems. …