Torts and New Technologies
An Internet of Torts: IoT-Enabled Privatized Perfect Enforcement and Physical Harms
103 Cornell L. Rev. (forthcoming 2018)
The Sony and DNC hacks exposed a significant gap in the international law of cyberspace: there is no mechanism for holding states accountable for the injuries associated with their costly and invasive cyberoperations. International law lacks a vocabulary for certain kinds of harmful acts in cyberspace, and in the absence of appropriate terminology and legal guidelines, victim states have few effective and non-escalatory responses to these increasingly common and harmful cyberoperations.
This article constructs a comprehensive regime of state accountability for harmful actions in cyberspace, grounded in both state liability for acts with injurious consequences and in state responsibility for internationally wrongful acts. First, this Article identifies a new class of cyberoperations—transnational cybertorts—and distinguishes them from transnational cybercrime, cyberespionage, and cyberwarfare based on the nature and scope of their respective harms. Second, it discusses the special case of cyberintervention and the importance of developing cyber-specific rules regarding the age-old prohibition on coercive interference. In addition to permitting the construction of tailored and non-escalatory remedies, this approach suggests new solutions to long-vexing issues, such as how to categorize data destruction attacks and better deter cyberespionage.
War Torts: Accountability for Autonomous Weapons
164 U. Pa. L. Rev. 1347 (2016)
Unlike conventional weapons or remotely operated drones, autonomous weapon systems can independently select and engage targets. As a result, they may take actions that look like war crimes without any individual acting intentionally or recklessly. Absent such willful action, no one can be held criminally liable under existing international law.
Criminal law aims to prohibit certain actions, and individual criminal liability allows for the evaluation of whether someone is guilty of a moral wrong. Given that a successful ban on autonomous weapon systems is unlikely (and possibly even detrimental), what is needed is a complementary legal regime that holds states accountable for the injurious wrongs that are the side effects of employing these uniquely effective but inherently unpredictable and dangerous weapons. Just as the Industrial Revolution fostered the development of modern tort law, autonomous weapon systems highlight the need for “war torts”: serious violations of international humanitarian law that give rise to state responsibility.