Torts and New Technologies
An Internet of Torts
The proliferating internet-connected devices that constitute the “Internet of Things” (IoT) grant companies unprecedented control over consumers’ use of property, often at the expense of consumer safety. Companies can now remotely alter or deactivate items, a practice that foreseeably causes harm when an otherwise operational car, alarm system, or medical device abruptly ceases to function.
Even as the potential for harm escalates, contract and tort law work in tandem to shield companies from liability. Exculpatory clauses and liability restrictions limit damages; disclaimers and express warranties displace warranty claims; and contractual notice of remote interference precludes common law tort suits. Meanwhile, absent a better understanding of how IoT-enabled injuries operate, judges are likely to apply products liability and negligence standards in ways that relieve IoT companies of liability. In short, this 21st century version of harmful remote action is not adequately addressed by our 20th century civil liability regime.
But while this modern problem may appear novel, the story fits a larger, familiar pattern of new technologies that alter social and power relations between industry and individuals, provoking legal evolution. Civil liability standards regularly change in the wake of technological development: the Industrial Revolution and the associated rise of “stranger cases” prompted courts to broaden the definition of negligence; the rise of mass production and newly-attenuated seller/buyer relationships helped spur the products liability revolution. Similarly, this Article proposes reforms to unconscionability, duty, and causation standards to increase accountability, limit industry overreach, and advance efficiency and fairness. Once again, it is necessary to expand civil liability to address new technologically-enabled conduct and to correct an attendant power imbalance.
Accountability for the Internet of Torts
Law & Political Economy (July 17, 2018)
Introducing the Internet of Torts
Law & Political Economy (July 16, 2018)
103 Cornell L. Rev. 565 (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.