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Re: Compromised machines liable for damage?

  • From: Marshall Eubanks
  • Date: Tue Dec 27 09:20:36 2005

There was a lot of discussion about this in the music / technology / legal community
at the time of the Sony root exploit CD's - which
I and others thought fully opened Sony for liability for 2nd party attacks. (I.e., if a hacker uses the Sony
root kit to exploit your machine, then Sony is probably liable, regardless of the EULA. They put
it in there; they made the attack possible.) IANAL, but I believe that if a vendor has even a
partial liability, they can be liable for the whole.

I suspect that eventually EULA's will prove to be weak reeds, in much the same way that manufacturers may be
liable when bad things happen, even if the product is being grossly misused. My intuition says that
unfortunately somebody is going to have to die to establish this, as part of a wrongful death suit.
With the explosion in VOIP use, this is probably only a matter of time.

Regards
Marshall Eubanks


On Dec 27, 2005, at 8:55 AM, Owen DeLong wrote:



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.




Yes, I think this is the only way it will work. Plaintiffs that
are not

subject to the EULA will have to sue the manufacturer of vulnerable

software installed on remote systems that attack their site.
Otherwise,

the liability waivers they signed make it much harder. Of course,
interestingly,

automobile manufacturers cannot get around having to build cars that

meet safety standards regardless of waivers customers may sign.
Perhaps

what we need first is a consortium to agree on a set of standards for

software security followed by someone like Ralph Nader doing the

"Unsafe at any clockspeed" campaign.




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:




Yep... I think that is true. However, unless and until someone
steps up

and actually does it (and frankly, I think the effective strategy here

would be coordinating a large number of injured parties in small
offices

and residences to sue in small claims court at roughly the same time),

all we'll be able to do is guess.




 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.




So, does that mean that if most of society is ignorant enough to
tolerate

insecure buggy software, we must accept that as the standard for
software

performance? That is an unfortunately low barrier indeed for a
profession

like software development. In general, professional liability is
different

from general civil liability. Once money changes hands, you have a
much

greater "duty to care" about the potential harm caused by your
"product"

than an individual citizen.



For example, a guy that pours gasoline into his gopher holes and
lights

it is an idiot. However, as long as everything he blows up is his own

and he harms noone else, he's still just an idiot, but, not liable.



However, if he packages gas cans and matches together and sells them

with instructions as a "Gopher Eradication Kit", he gets to be liable

for the damage to all the houses of all the people dumb enough to

use his product, and, any neighbors unfortunate enough to live within

the blast radii.



Let's face it, some software vendors are selling the moral equivalent

of a minivan with no seatbelts and no airbags.




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.



Those will be interesting cases as well if they are ever tested,
but, I

think they will actually be more complex than injured third parties

suing software VENDORS over vulnerable software which later caused

harm. Again, I think that the David v. Goliath nature of the majority

of injured parties v. software vendors means that a large highly

visible class action or high-profile suit is unlikely to meet with

much success. However, given the relatively low risks associated

with filing in small claims court in most jurisdictions and

extremely low filing costs associated, I think it would be very

interesting to see a coordinated attack of this nature played out

in the small claims courts across the country. Even if the software

vendors were able to win each and every case, the costs of fighting

them would be impressive and would send a pretty clear message that

we, as a society, are fed up and won't take it any more.



Owen