Sibylla Bostoniensis

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0.

The topic of professional ethics in software development is circulating on social media again, this time precipitated by AI.

As a psychotherapist, I am subject to professional ethics; in my long ago training in engineering, I also brushed up against the professional ethics of engineering. Furthermore, I've been taking an interest in comparative professional ethics for some time.

I think that the field of software development having professional ethics is an excellent idea. I am strongly in favor. But this present discussion, like all previous iterations, reveals that most people have a grave misunderstanding of how professional ethics work, or what they even really are. Professional ethics don't work the way most people think they do. Especially the way most people who work in software think they do.

( The first thing to understand is that professional and personal ethics are very different things. (Read more [5,530 Words]) )

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I saw a thing over on Reddit, a sentiment I've now heard in a bunch of places, along the lines of, "What's the point in all the sacrifices we've made – the lockdowns, the mask-wearing, the hyper-sanitation, and all the rest – if other people aren't making them too?" Or as the Reddit commenter put it, as best I now recall, "I feel like I did back in school, when I did all my work for a group project, but we're flunking anyway."

I want to address this here. I suspect my readership probably doesn't need to be told the following, given why it is so many of you are here, but if that's the case, perhaps it would help you to have a handy post to which to point others.

When I initially posted about the imminent pandemic, Jan 30th ("So Maybe We're Having a Pandemic"), I didn't exhort my readers to do things for the sake of others. It wasn't a rallying call to some sort of collective action or proposed social movement to save the world. I wrote what I did, plainly and obviously, to tell you how to save your own life, and the lives of your loved ones. And how to save not just your lives: your standard of living, and possibly even your livelihoods, where possible.

The time to protect a society from a tsunami is long before it hits. Once the sea pulls back from the shore, everybody's got to run for the high ground themselves.

( Pandemics, I am learning, have an astonishing moral simplicity to them. [2,950 Words] )

This post brought to you by the 177 readers who funded my writing it – thank you all so much! You can see who they are at my Patreon page. If you're not one of them, and would be willing to chip in so I can write more things like this, please do so there.

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Because I am a big ol' dork technophile, I am working on a project for my professional organization (US-based) regarding therapist use of technology, and just what the ethics that pertain thereto should be.

So I wanted to solicit your opinions.

About therapist use of text messages, i.e. SMS and MMS. Read on, if interested.

i.

Do you think therapists should use text messages with their clients? Like at all?

There are therapists who don't and think therapists shouldn't. I am a therapist who does use text messaging; think text messaging, while it has risks and challenges, is invaluable to coordinating with clients. If a client is running late, if they need to get a hold of me at a time I am seeing other clients or on the road, I vastly prefer an SMS to a call. I can check texts much faster than listen to voice mail; I can't freely respond vocally to calls coming in from clients when I'm in public, say on the bus ride in.

Also, I have used text to send URLs to clients, including in session. Particularly clients who don't have email, but have smart phones. If they ask me for a referral to, say, a psychiatrist or a couples counselor, I can send them a link to the professional's website.

One of the problems with this is that most text messaging is insecure. There are things like Signal, but it requires the client to also have a smart phone and also be able/willing to install Signal on it, and use it correctly. No use for people on feature phones.

More fundamentally, Signal is not secure against a kind of idiocy I've already encountered twice in the wild with my own patients: patients lending their phones to third parties, and giving the third parties the passwords.

I've had the experience of texting an appointment reminder to a client's phone, getting back a confirmation, and then, when the client doesn't show up and I call them, finding out that at the time I texted the client, the phone had been in the custody of the client's adolescent daughter. Thank goodness I didn't say anything more substantive.

Unlike the situation where a patient of mine who was being physically abused texted me about what was going on, and I exhorted them to get to safety, and their abuser snatched the phone out of their hands and saw who they were texting with and what I had said. Yeah, that also happened.

The failure modes, where confidentiality is concerned, of text messaging can be pretty epic.

ii.

One of the issues is that a lot of thought about therapists and text messaging revolves around the idea, "Well, it's okay, so long as nobody says anything substantive and personal in text message, since it's generaly unencrypted. But discussing what time to book an appointment is fine."

As I point out above, encryption only goes so far, anyways. But there's two other problems.

First there's the assumption that if patients aren't discussing Super Private Therapy Contents Disclosures in text – if they're just saying they're running late – that that isn't highly confidential information.

The fact that someone is a therapist's patient is highly confidential information (even though it is widely, especially by healthcare IT, not treated as such!) If someone is stalking a patient, their knowing who the patient's therapist is allows them to identify a location where the patient is likely to go; if someone knows when their regular appointments are, e.g. "Tuesday at 4pm", they know a time to be there to accost, harass, or assault the client. That combination can get somebody killed.

Furthermore, the only way a client can prevent their therapist from being subpoenaed, in any of the (entire too many) circumstances in which it is legal to subpoena a therapist to force the therapist to testify to the detriment of their client (e.g. discrediting the client as a witness), is to prevent third parties who might want to do that from finding out who their therapist is.

Past text messages from one's therapist thereby present an attack surface – admittedly a modest one – whereby that information could be acquired by antagonists. We can imagine a scenario in which one spouse who intends to divorce the other and engage in a custody battle for their children (in MA we can be subpoenaed in custody disputes) gets a look at the other spouse's cell phone and learns the identity of their spouses therapist – and handing that info to their laywer.

That's one problem. Another problem is how on earth is a therapist to keep patients from divulging Super Confidential Therapy Disclosure Material in text message?

I mean, sure, you can ask nicely. But let's be clear: on one of my very first days on the job at the clinic that hired me fresh out of grad school, a patient who had previously met with me once, announced to the entire damned waiting room when I came to fetch her for her appointment, "OH THANK GOODNESS, SIDEREA, I'VE BEEN FEELING LIKE KILLING MYSELF ALL DAY." Patients, man, they will do – and say – the damnest things under the damnedest circumstances. Including in text message. And we have no way to stop them.

And I'm not even convinced that we should try.

I once had a patient text me that she was actively suicidal and very agitated. The patient was phone phobic - that's why she used text message all but exclusively. She was, unsurprisingly, unwilling to take a voice call. She was an hour away by car, not at her home, by the side of some random road where she had pulled over to cry; I had no idea where to send emergency responders to find her. I spent an hour texting with her, de-escalating her and engaging her in safety planning. It's generally widely understood among therapists that doing therapy in text message is terrible because of the lack of encryption and security. My alternative was... what? Telling her to call 911 and refusing to respond to further text messages? Telling her that if she didn't speak to me by voice, I wouldn't talk to her? Sounds like dicing with her life, to me.

There are those – one of my bosses leaps to mind – who would tell me that I should never have given a patient a text-capable number at all, for exactly this reason. That if the patient had never been given a way to text me, I would never have been in that situation. Indeed, that is true. And what situation would the patient have been in? She would still have been crying at the side of the road, planning on killing herself, only without a way to reach out to someone she trusts.

I actually like what happened better than that scenario. I would actually much prefer my patients reach out to me if they feel they're a danger to themselves. I prefer to be given the opportunity to try to keep them alive.

So I'm pretty philosophical about the supposed distinction between using text messaging just for coordinating treatment and using text messaging for Important Personal Confidential Therapy Disclosures. I figure that the moment you (a therapist) give your client a phone number, you have forfeited the only control you had over how that client uses it, which was to forbid them using it all together by keeping it secret from them. The day you give your cell number to a client is the day you sign up to be texted, later on down the road, "Hey, feeling suicidal here".

And, further, I think taking the line, "Oh, well, you can't help what the patients do, but therapists are responsible for telling patients not to transmit personal disclosures in an unencrypted medium", is at odds with patient safety as in the above situation.

So it seems to me that it really boils down to something quite binary: either a therapist is using texting with a client or they aren't. Differentiating how they're using it (how they think they're using it) with that client doesn't really doesn't pragmatically matter.

iii.

Right now, there are in various states (jurisdictions) and in some therapists' ethical codes (per their professional organizations official Codes of Ethics) rules that if a therapist texts with a patient they have to somehow print out those text messages and put them in the patient's chart (clinical file). Or if the chart is digital, cut and paste them in somehow.

And this is true even if it's just, "Hey, running 5 min late, traffic."

As far as I know, none of you who are not therapists know that therapists do this.

In fairness, approximately 100% of the therapists I personally know, including myself, to whom such rules apply and who use text messaging with patients, fail to do this. In fact, I bet a bunch of you who are therapists don't know about this, either, much less do it.

Some ethical codes and some law/regulations say we (or some of us) are required to do this. But completely aside from what is ethically or legally required of therapists, it is in the best interests of therapists to do this.

This is called "risk prevention" and what it means is prevention (or rather mitigation) of legal risks to the therapist. Should the therapist ever be hauled up on the stand in court – or before their licensure board – the last thing the therapist wants is for a patient or other plaintiff to have a complete record of every SMS conversation with the therapist and the therapist not to.

You can imagine a situation in which a therapist is being accused by a patient's survivors of failing to provide appropriate care to a suicidal patient who subsequently killed themselves, in which the therapist's responses to the patient's texted requests for appointments were entered as evidence in the suit. That's not something the therapist and their legal team want to be surprised by in open court. Worse, if the therapist didn't retain their own original copies for legal reference, well, if the plaintiffs altered or faked any of that proposed evidence to make the therapist look negligent, how would the therapist catch them?

It's in the best interests of therapists to do this – but that's not at all the same as in the best interests of the patients.

We have other rules and other parts of our ethical codes, which minimize the records we keep. For instance, the code of my org specifies that if recordings are made of a therapy session, they are destroyed promptly after their intended use – because hanging on to those things just increases the risk that they'll be subpoenaed or stolen, or otherwise the confidentiality of the recorded sessions is breeched.

Of course, such a recording could be exonerating of a therapist facing a civil suit or a challenge to their license - the logic under which keeping text messages in the client chart is a good idea for the therapist. But we don't allow it in the case of recordings of sessions. Contrariwise, we not only allow it, we mandate it, in the case of SMS.

There is a conflict of principles here. We (as a profession) recognize that unnecessary keeping recordings of therapy sessions is an unacceptable risk to our clients, so forbids it; however we require the keeping of what amount to be transcripts of text message conversations, whole, in the record, which could be a similar risk to the client.

(Now, there's an obvious distinction here which I think doesn't actually matter: the example of recordings of sessions is different from text messages because (presumably) the recordings are of the therapy and presumably contain highly confidential personal disclosures of precisely the sort therapist-patient legal privilege is supposed to protect, while text messages (presumably) only contain at most logistical, coordinative information about the therapy and does not (presumably) have highly confidential disclosures in it. I already addressed that above, in part ii. We could say that therapists are only required to keep the verbatim text record of conversations when it doesn't contain personal disclosures – that therapists are required to store only the texts that ostensibly aren't clinically significant, but then why are we doing this?)

I am somewhat skeeved out by the realization that therapists are (if any are actually in compliance here) storing what amount transcripts of conversations with clients – those via text message – without clients knowing or being informed that those communications are being stored. I don't know that it's occurred to any therapists that this is something that requires Informed Consent, I don't know that any therapists are doing Informed Consent about the storage of text message conversations, I don't know that any therapists are asking patients to sign that they consent to it; I don't think the public at large know that this is a thing, so we can't assume that members of the public would just reasonably surmise this is a thing that happens in the ordinary course of therapy (like we do assume about note-taking).

Do you think therapists should be required to keep all text messages with a client in the client's chart? Or forbidden to? Or only some? Or... what? What do you think the rules and the norms around this should be?

(And why?)

ETA: Ah, I knew I was forgetting something! Two somethings:

iiii.

One of the wrinkles here is that it's not necessarily possible to get the text messages off a phone. I have a Motorola Razr V3xx from the depths of time, and damned if I can figure out how to get text messages off it. I can get my photos and other files off by syncing, but apparently not my text messages. Even if I could, it only really stores incoming messages (to me) not outgoing messages (from me); it has a very small buffer for the latter, and autodeletes them rapidly.

If therapists have some ethical responsibility to preserve text messages to patient charts, does that mean therapists can only engage in text message conversation from phones (or other text systems) which support downloading the whole conversation? Do therapists have an ehtical responsibility to only have certain cell phones? Or to use a text message service which facilitates this sort of archiving?

Which brings us to...

v.

Nobody has a HIPAA BAA with their cell phone company. But the cell phone company/ies involved – yours (you being a therapist), the client's – may have some record of the text messages sent between you. I'm unclear on how long ATT (my cell company) keeps the full contents of text messages around, but they keep the metadata on calls – and maybe text messages? – for months. I know this because I got my call records from ATT on an occasion to help me sort of the timeline of some patient calls and calls with related collaterals.

Similarly, nobody has a HIPAA BAA with Twilio or Google Voice or any other technological system they might be running text messages over. These systems may also keep records of text messages – I seem to recall Twilio keeps whole text messages approximately forever, or at least as long as you keep your account paid up? The implication would be that if you're using a text message system built on top of Twilio, whoever runs that system can log into their Twilio account and read back through ever text message ever sent across their system. (I'll try to check on this.)

(I've thought of developing a text message system for clinics, built on Twilio, so they could have patients contact the clinic via text message, for all the reasons text message accessibility is good for patients.)

If these records exist, well, they can be subpoenaed.

If somebody tries to subpoena a therapist, the first thing the therapist is supposed to do is call their malpractice insurance company and ask to speak to a lawyer, because there are ways to fight this, and we are supposed to try to fight against being coerced into breaking patient confidentiality.

ATT is just going to roll over and divulge the records. There is no phone company that won't. Google and Twilio have no interest in protecting therapist-patient privilege, and they're not going to suddenly stand up for that principle by counterproposing an in camerata review. They're just going to sing on command.

Also, if the records exist, they could be compromised illegally, too. Spearfishing, key loggers, inside jobs, even social engineering to commandeer either the patient's or the therapist's telephone account. (I wonder if text-message repositories of relevant companies have been targetted for inside-job thefts the way credit card numbers and email addresses and passwords and SSNs have been, and whether such compilations of text messages are sold on the black market.)

Last week, there was an international summit of scientists to discuss the ethics and regulation of editing human DNA (h/t Metafilter).

Which means "Gattaca" (1997) is in the public discourse again.

( Read more [2,140 Words] )

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Someone (maybe on metafilter? I've lost the source) pointed me at this article: Let's Make A Deal. It explains:

Imagine you’re browsing at Bloomingdale’s when a security guard taps you on the shoulder and accuses you of shoplifting. He takes you to a private room, sits you down, and runs your name through a database to see if you have any outstanding warrants. Then he tells you that you have two options. The first involves him calling the police, who might arrest you and take you to jail. The second allows you to walk out of the store immediately, no questions asked—right after you sign an admission of guilt and agree to pay $320 to take an online course designed to make you never want to steal again.

Which would you choose?

Over the past four years, about 20,000 people around the country have faced versions of this dilemma and chosen to pay up instead of taking their chances with the criminal justice system. Collecting their money and administering the course is a Utah-based outfit called Corrective Education Company (CEC), which was started by a pair of Harvard Business School graduates in 2010.

It goes on to explain that this is pretty controversial. One the one hand, as explained by the CEO:

It saves retailers time that they would have to spend dealing with the police; it frees up law enforcement resources that could be spent on higher priority cases; it reduces the likelihood that a shoplifter will come back to the store to steal again; and it gives second chances to offenders who would otherwise be saddled with a criminal record for life.

On the other hand,

“There’s no judicial oversight, there are no constitutional protections, there’s no due process,” said Susannah Karlsson, an attorney with the Brooklyn Defender Services, which provides free legal help to people who can’t afford it.

On the third hand, that's not actually true. There's just as much judicial oversight, constitutional protections, and due process as there ever is -- if the accused opts for them by refusing the alternative offer and requesting the traditional wheels of justice start turning on their behalf, starting with having the cops called:

“It’s all voluntary,” Huntsman told me. “If someone started to take the course and paid for it—if they change their mind and they want to get their day in court, we’ll refund their money and put the case back in the retailer’s hands. They’ve got multiple opportunities to step back from this.”

Huntsman added that when offenders are apprehended, they are shown a brief video about CEC before they’re sent home, which tells them that if they believe they are innocent, they should obtain legal counsel and fight whatever charges may come. But according to Caffaro, more than 90 percent of people who have been offered the course during CEC’s four years in business have elected to take it.

So what's not to love?

“It’s very, very troubling,” said Karteron, referring to the practice of offering suspects the chance to avoid prosecution in exchange for money. “How are they figuring out who is a suspected shoplifter? Do they have criteria for figuring that out? Whoever they target, they’re going to induce into admitting their guilt by saying ‘we’ll call the cops,’ and that is very worrisome if there are not standards in place to make sure their suspicion is founded in fact, rather than just a hunch.”

So here's the crux of the problem that that Slate article entirely fails to confront: that the words "we'll call the cops" has come to be such a threat that people will pay extortion to have it not happen. That the system of legal protections that are supposed to protect those accused of a crime is embedded in a larger system which is renown for its racism and injustice and generally terrible life-destroying ways. "Hey, why don't we invoke the criminal justice system to make sure you get your day in court?" is entirely likely to get a response, "Hey, how about I pay $320 and we don't?"

If someone accuses me of shoplifting falsely, I'm going to invite them to call the cops because as a ~white, college-educated woman I can get away with doing that and probably not have my life destroyed, and then take advantage of those protections. If for some bizarre reason I was shoplifting, and I got caught, I'd take the $320 deal in a heart beat. Are you kidding me? No criminal record, no court costs, no incarceration, no probation, no hassle, no months of stress with charges hanging over me: oh hell yes.

After all, it's just a more extreme form of pleading out. By taking this opportunity to admit it upfront and accept private punishment, before the criminal justice system gets involved, one is just doing a more extreme version of pleading guilty in hopes of a lighter sentence, or accepting a plea bargain.

So if you think it's likely that you're going to be convicted (or otherwise have a bad outcome like getting killed in a holding cell), regardless of whether that's because you think you are guilty and can't beat the rap or whether you figure your race, sex, prior record, etc. will be held against you, this is frankly a godsend.

I am open to the argument that this is terrible, but so far I don't at all feel the case has been made. To the contrary -- and contrariwise to what is apparently the liberal position here -- it sounds like a mercy. Anybody want to argue me into disapproving to it?

I had thought I'd written this one up before, but when I went to reference it, I couldn't find it, just a mention in another post that the topic was worth a post of its own. So here we go.

Fault and responsibility aren't the same thing. Fault is who owns the moral evaluation of the thing happening in the first place. Responsibility is who owns the moral evaluation of responding to the thing that happened.

Allow me to unpack that.

If you lend a friend your car, and while your friend is in a Dunkin's with the car properly parked in a Dunkin's parking lot, it's struck by lightning, your car being struck by lightning is clearly not your friend's fault. But dealing with the lightning-struck car -- calling 911 to put out the engine fire, notifying you, calling AAA for assistance, etc. -- is your friend's responsibility.

We can imagine a scenario in which your "friend's" response to the car being struck by lightning was simply to take his joe to go, and when you begin to wonder where your car is, you call him up, and are like, "Hey, dude, I need my car back", and he's like, "Oh, yeah, about that. I think it's at that towing place in Brighton", and you're like, "...what." and he's like, "It was struck by lightning, so I walked home," and you're like, "LIGHTNING!? BUT WHAT HAPPENED WITH MY CAR?" and he's like, "How should I know?" and you're like, "YOU MEAN YOU JUST LEFT IT THERE?" and he's like, "Hey, chill out, it's not like your car getting struck by lightning was my fault."

This last is, btw, an attempt to confuse the issue by conflating fault and responsibility, and if it stymies you, then it worked.

Also as a side note, when people say that addicts make a lot of excuses, this is usually what they're referring to: the logic that because thing 1 was not my fault, thing 2 was no longer my responsibility. This is also the origin and necessity of hardassedness in substance abuse counselors: they get pretty relentless about saying, "I don't care that wasn't your fault, this is still your responsibility." It's what can make them seem shockingly unsympathetic to third parties. I have no idea why this particular headgame is so endemic to addicts, but apparently it is.

Perhaps it's a substance-related outgrowth of a more general phenomenon: an awful lot of people get themselves hung up on the idea that the party who is at fault Should be the party to be responsible. "I'm not the one who broke it, I shouldn't have to clean it up!"

It's a nice prescriptive principle for organizing morality, ethics, and law: where it can be implemented it makes the world more fair.

However, it's also a profoundly erroneous description of how the world actually operates and can be dealt with, and if you somehow manage to cling to this belief into adulthood, it's not going to survive much past the birth of your first child: when your precious tyke industriously scales what you thought was an unscalable height to upend a bowl of cereal all over themselves and the kitchen while laughing with glee, there is absolutely no question who is at fault for there being milk and cheerios all over the floor, absolutely no question who is responsible for cleaning it all up, and they are not the same person.

It would be nice if it were the case that the party at fault will always be able to be the party held responsible, and don't for a moment think that I'm saying we should let scoundrels use this as an excuse to get away with evading responsibility for that which is their fault.

But we don't live in a world like that. One of the fundamental facts of human existence is that you're going to take responsibility for a lot of things that aren't your fault. In fact, the vast majority of things you are responsible for in your life are not going to be your fault, but, nevertheless, you will be responsible for them.

That can sound like a big bummer -- I won't kid you, it can be -- but it does come with one serious up-side. Taking responsibility for things reduces how helpless one feels. Taking responsibility is the answer to the question, "What could I do about it?" When we evade or decline responsibility, we feel that much less in power over our own outcomes: we feel that much more helpless in our lives. People who chronically don't take responsibility for things that are not their fault find themselves in a headspace of feeling trapped in their lives, with all the attendent depression and anxiety that brings. Their refrain is, "What choice did I have?" If the story you tell yourself is that things happen to you for reasons outside your control (whether malice or accident) and then therefore there's nothing for you to do about them, then that story you're living becomes a horror story pretty fast. Humans don't tolerate helplessness well.

Taking responsibility feels good because it's empowering. Because it makes you feel less impotent against the vagaries of life. In fact, it feels so good, some people wind up taking too much responsibility, such as codependents on a loved one's addiction, taking responsibility for preserving the addict's lifestyle, or over-protective parents trying to sheild their kids from every averse experience in life, or the battery victim who takes on responsibility for molifying their abuser. It's important not to take too much -- or the wrong -- responsibility, either.

It can be hard to figure out how much responsibility to take, and which responsibility to take, especially if one grew up with people who were bad at it, or deliberately obfuscated issues of fault and responsibility to get away with things (and there is a whole post worth on the topic of what we in the pshrink biz call "parentification" of children and its relationship to assuming inappropriate responsibility.)

Something that makes it much, much harder to figure out is being confused about fault and responsibility. This is another advantage to getting clear on the difference: it becomes a lot easier to reason about them, and to reason about the morality and ethics of situations. Understanding that they're two different things means you can consider them separately, and that makes a lot of otherwise stuck situations come unstuck.

It's helpful in another way, too. Going through life waiting on others to take responsibility (for making things right) for things they did (to one) that are their fault not only puts the very people who have wronged you in enormous power over you (to withhold the solution or satisfaction one craves), it is an incubator for additional resentment and rage -- the particular sort of rage that flares when one is both wronged and helpess to right the wrong. Even worse is going through life with an attitude that some unspecified other is responsible for fixing the things that happen to one that aren't one's fault. One gets all the resentful rage of the previous case, but it's not even aimed at an actual person, but at the nature of life itself. Theists in this situation typically wind up feeling resentful rage at their God(s), for that is who they see as at fault for this way things are, and then feeling incredibly guilty about it.

Letting go of the fervent sense that one is entitled to something that one is never going to get is a step towards a more peaceful life. Serenity, as they say, is the accepting of what you cannot change. One can still believe the world ought to be other than as it is, and one can still work where one can towards making the world more just, while letting go of attitude that if only one demands it hard enough, long enough, one will get what one has coming: somebody else, somebody at fault, to take responsibility for making right what was wrong.

In fact, I don't think there's any other way to engage with injustice in the long haul. Waiting on the parties doing wrong to come to their senses and take responsibility for making things right is a lot like holding your breath and waiting for someone else to faint. It's unfair, but it's generally the case that the wronged party is the party stuck with fixing the wrong. Getting hung up on the unfairness of it is the fast track to burnout; if those waters close over one's head, one will start drowning.

Huh. This was very interesting. Via makinglight, an interview with Martha C. Nussbaum, who argues against the "wisdom of disgust" position of cultcons, from interesting psychological grounds. But not only that, she really comes across in the interview as a very lovely person, smart, generous, engaged, and warm.