Ed Foster just died.
Ed was one of the great journalists of Silicon Valley. He listened. He read. He asked probing questions. He changed his mind when the evidence proved him wrong. He understood the computer and information industries from (at least) a dozen perspectives. And he could explain their perspectives to each other.
Ed was part of the heart of Silicon Valley in the early years of the small computer revolution. He was a whirlwind of well-informed enthusiasm. He taught us about the culture and the values of the Valley. Consumers, hackers, publishers, marketers were all entertained and informed by him. Directly and indirectly, he shaped our thinking about the potential of this new technology and the responsibilities of these new technologists within the technology-enthusiast society and the broader American society.
I think I first met Ed in the 1980’s at one of the trade shows, but I didn’t have the privilege of talking with him in depth, then of collaborating with him, until the mid-1990’s.
Ed was the first journalist to publicize a series of projects to rewrite the commercial laws governing computers and software.
These new laws were being presented to people, mainly to the broad legal community (no one else was listening in those early days)(well, almost no one–Ed was listening) as if they were a careful balance of the rights of consumers, small business customers, small software developers, the open source community, and bigger software publishers and hardware makers. On the surface, they looked that way. Beneath that surface was a new legal regime designed to give software publishers, database publishers and large software consulting firms a panoply of new rights and defenses.
I was a newly-graduated lawyer when Ed’s comments alerted me to the new stuff on the horizon. I went to school intending to work on the law of software quality. Following up Ed’s leads shaped my career.
As Ed (with some help from me) caught a glimmer of the scope and significance of these proposals, Ed got to work. He read voraciously. He came to meetings. He interviewed and interviewed and interviewed people. He checked facts. He checked his assumptions and conclusions. He took advice from people who disagreed with him as well as from those who agreed. He wrote with care and credibility. His leadership brought dozens of other journalists into coverage of the nuts and bolts of development of highly technical commercial law–something almost never covered by the press. He helped them understand what they were seeing. He was A Force To Be Reckoned With, not because he represented people with power or money but because he did his homework and knew how to explain what he knew to ordinary readers. The most visible bills of this group were the Uniform Computer Information Transactions Act (which was ultimately rejected by 48 of 50 States) and the Uniform Electronic Transactions Act (which improved tremendously under the bright light of public scrutiny. You might know it better under its federal name, ESIGN. It governs electronic commerce in every State). Without Ed, neither result would have happened.
One of the proposals that Ed embraced with passion was the idea that software companies should be required to disclose their known defects. There’s a natural justice in the idea that a company who knows about a bug but won’t tell its customers about it should be responsible to those customers for any losses caused by the known bug. You can’t find every bug. But if you honestly and effectively disclose, your customers can at least work around the bugs you know about (or buy a product whose bugs are less serious). Ed could make this natural justice clear and obvious. The implementation of the idea (writing it into a set of laws) is complex–you can easily get lost in the difficult details–but Ed could stand above that and remind people why the implementation was worth the effort. I was initially a skeptic–I favored the idea but saw other matters as more critical. Ed turned my priorities around, leading me gradually to understand that there is no real competition and no hope for justice in a marketplace that allows vendors to hide fundamental information from the people who most need it.
The UCITA drafters dismissed this as naive, unreasonable, excessively burdensome, or impossible to do. But now that UCITA has failed, a major new drafting project (the American Law Institute’s Principles of the Law of Software Contracting) has picked up the idea. It will probably appear in serious legislation in 2012 or so, almost twenty years after Ed started explaining it to people. I am sad that Ed will miss seeing this come to fruition. Among his many gifts to American society, this is an important one.
In this decade, Ed has been one of this industry’s extremely few consumer advocates. Since 2000, when consumer protection at the Federal level went dark and State-level protection continued to vanish in the never ending waves of tax cuts and litigation “reforms,” I have learned more about the pulse of consumer problems from Ed’s alerts than from any other source.
I teach courses on computer law and ethics these days, to budding software engineers. Ed’s work provided perfect starting points for many students. Some probably learned more about professionalism and ethics from Ed’s writing than from anything in their textbooks or my lectures.
Ed wrote as a voice of the conscience of an industry that needs to find its conscience.
I am writing through tears as I say that he will be missed
— Cem Kaner