Microserf Proposes Solving Tech Problems With Medieval Law

Tech folks often have their eye on the future, but when it comes to dealing with issues of culpability and liability in computing, some are arguing that it's time to start looking to the past.

When it comes to holding those responsible for complex systems accountable when something goes wrong, at least one Mircoserf suggests that we bring bring back medieval law. The legal revival isn't quite the "if she floats, she's a witch!" attribution of blame, however.

Can the Deodand Hold Technology Accountable?

Kate Crawford, of Microsoft Research, proposed bring back the medieval concept of the deodand at the recent Theorizing the Web conference, according to New Scientist. Under English common law, circa William the Conqueror, the deodand was property forfeited "to God" -- but really, the crown -- when it had caused another's death. If your dog attacked a child or your house collapsed on a visitor, you would forfeit that property or its cash equivalent to the monarchy, who was then supposed to use it for a holy purpose. The practice was revived in the 1830s to make railways answerable for train deaths, but was killed off by Parliament shortly after.

Crawford posits that the deodand could be brought back to hold technology companies accountable when something goes wrong. Crawford believes companies shouldn't be able to "use unseeable complexity as a reason to wash their hands when things go awry," explains New Scientist. As Gizmodo interprets it, if an algorithm goes wrong, a deodand theory of liability would require that the value of the algorithm be "stumped up," presumably to the government but perhaps to the injured party.

No Knight in Shining Armor

It's a novel theory, but one that's unlikely to get much traction. For one, what Crawford proposes is essentially a new system of determining damages or fines. If a company's algorithm leads to data loss, accidentally puts you under NSA surveillance, or otherwise messes up your life, that company would pay the value of the responsible algorithm (which presumably would be low, now that it's known to be full of errors). But the deodand is being proposed as a away to prevent companies from "washing their hands" when something goes wrong. That's a question of liability, not punishment.

While complex systems can make establishing liability more difficult, it's unlikely that a deodand system would change this. Besides, there's plenty of cooler Medieval laws to revive -- Forest Law perhaps?

Related Resources:

• Tesla Thinks Turn Signals Will Solve Liability in Semi-autonomous Cars (Endgadget)
• 3 Questions in Determining Liability in #Twittergate (FindLaw's Technologist)
• Can I Get Busted For Someone Else's Cyber Attack? (FindLaw's Technologist)
• New Book Tracks History of Habeas Corpus in America (FindLaw's U.S. Supreme Court Blog)