Compromised machines liable for damage?
Steven M. Bellovin
smb at cs.columbia.edu
Tue Dec 27 13:03:18 UTC 2005
In message <80632326218FE74899BDD48BB836421A03300F at Dul1wnexmb04.vcorp.ad.vrsn.c
om>, "Hannigan, Martin" writes:
>
>In the general sense, possibly, but where there are lawyers there is =
>always discoragement.
>
>Suing people with no money is easy, but it does stop them from =
>contributing in most cases. There are always a few who like getting =
>sued. RIAA has shown companies will widescale sue so your argument is =
>suspect, IMO..
>
I've spent a *lot* of time talking to lawyers about this. In fact, a few
years ago I (together with an attorney I know) tried to organize a "moot
court" liability trial of a major vendor for a security flaw. (It
ended up being a conference on the issue.)
The reason there have not been any lawsuits against vendors is because
of license agreements -- every software license I've ever read,
including the GPL, disclaims all warranties, liability, etc. It's not
clear to me that that would stand up with a consumer plaintiff, as opposed
to a business; that hasn't been litigated. I tried to get around that
problem for the moot court by looking at third parties who were injured
by a problem in a software package they hadn't licensed -- think
Slammer, for example, which took out the Internet for everyone.
The issue of liability based on operational practices is untested. As
I concluded in that book chapter from 1994, I (and the attorneys who
helped me (a lot) with it) felt that there may very well be cause for a
lawsuit. However, to the best of my knowledge there have been no court
rulings on this issue. Unless and until that happens, we're just
guessing. I'll give two short quotes that illustrate why I'm concerned.
This one is from a standard textbook on tort law:
The standard of conduct imposed by the law is an external one,
based upon what society demands generally of its members,
rather than upon the actor's personal morality or individual
sense of right and wrong. A failure to conform to the standard
is negligence, therefore, even if it is due to clumsiness,
stupidity, forgetfulness, an excitable temperament, or even
sheer ignorance. An honest blunder, or a mistaken belief that
no damage will result, may absolve the actor from moral blame,
but the harm to others is still as great, and the actor's
individual standards must give way in this area of the law to
those of the public. In other words, society may require of a
person not to be awkward or a fool.
The second, a quote from a 1932 (U.S.) Court of Appeals opinion, was
for a case where some barges sank because the tugboat pulling them had
no radio receivers, and hence didn't know the weather forecast:
Indeed in most cases reasonable prudence is in face common
prudence; but strictly it is never its measure; a whole
calling may have unduly lagged in the adoption of new and available
devices. It may never set its own tests, however persuasive be its
usages. Courts must in the end say what is required; there are
precautions so imperative that even their universal disregard will
not excuse their omission. ... But here there was no custom at all
as to receiving sets; some had them, some did not; the most that
can be urged is that they had not yet become general.
Certainly in such a case we need not pause; when some have thought
a device necessary, at least we may say that they were
right, and the others too slack.
...
We hold [against] the tugs therefore because [if] they had been
properly equipped, they would have got the Arlington [weather]
reports. The injury was a direct consequence of this
unseaworthiness.
Again, though, this has never been litigated for ISP-type issues.
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