July 12, 1999
Dear Commissioner:
I am writing to you as President of the Association for Computing Machinery to urge you to oppose adoption of the proposed Uniform Computer Information Transactions Act (UCITA). ACM's Public Policy Committee has been following UCC 2B/UCITA for some time. In October of last year we sent letters to Carlyle C. Ring, Jr., Chairman of the NCCUSL Article 2B Drafting Committee, and Professor Geoffrey Hazard, Jr., Director of the American Law Institute, urging that the re-drafting Article 2B be tabled. The concerns we raised then have not been addressed in UCITA.
The development of reliable software is one of the central aims of the ACM. Through our conferences, publications, and research, the ACM works to promote the development of excellent software products and computer services. Our 80,000 members honor a Code of Ethics that states, "The computing professional must strive to achieve quality and to be cognizant of the serious negative consequences that may result from poor quality in a system." The UCITA will hinder this pursuit, and result in possible harm to the general public.
UCITA makes it too easy for software publishers to avoid facing any legal consequences for defective software. Perhaps this is appropriate for some defects, but not for the ones the publisher knew about when it sold the product. Customers can't discover most of these defects with quick trials of the program - it takes skill to find them during pre-use testing. By reducing the responsibility of software publishers to detect and eliminate problems before the product is released to the public, UCITA will result in the lowering of standards in our profession.
Additionally, UCITA threatens normal engineering activities, especially reverse engineering. UCITA allows publishers to ban reverse engineering by means of contractual use restrictions. The only limits on these bans require litigation of each and every use that a computer researcher might reasonably pursue to improve a product or correct a flaw in a program. Software developers can freely reverse engineer mass-market products under current law. Without extensive litigation, over a span of many years, this right will be clouded by UCITA.
Reverse engineering is a widespread, standard, critically important activity in the software engineering and research communities. How else could we detect and investigate security risks? How else could we develop programs that impede the spread of viruses?
How else could we make products interoperable? Many of the Y2K bug fixes have required reverse engineering. It is hard enough to solve the technical problems without the creation of additional legal hurdles. By allowing the establishment of legal restrictions on reverse engineering, UCITA will have real-world effects. It will impede computer research and potentially threaten public safety as the problems with Y2K, computer viruses, and software bugs become more widespread.
Another problem with UCITA is the odd definition of "published information content". UCITA defines "information content" as information that is intended to be communicated to or perceived by an individual in the ordinary use of the information, or the equivalent of that information. The term does not include computer instructions that control the interaction of a computer program with other computer programs or with a machine or device. It then continues:
In later sections, it treats "published information content" as if this included the type of information that you would find in books and newspapers, and adopts special limitations on liability. For example, express warranties are created for software, but not for the published informational content in software.
This has implications for the manner in which UCITA deals with user interface errors. Such errors are part of the program. In fact, one of the important components of ACM is our Special Interest Group on Computer-Human Interaction (SIGCHI). The researchers and product developers in this group devise scientific theory and engineering guidelines for producing reliable and usable software products. Good thoughtful user interfaces are an important component of sound engineering design. It would be a serious mistake to classify user interface errors as equivalent to errors in the content of a newspaper article, which is how UCITA treats them today.
Commissioner, the Association for Computing Machinery has a long-standing interest in ensuring the development of computer products and services that are well designed and do not endanger public safety. It is critical to our profession that legal rules not discourage reliable software or make it more difficult to detect and correct software problems. Therefore, we urge you to oppose UCITA.
Sincerely,
Barbara Simons
President, ACM