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- Title
THE TORT OF NEGLIGENT ENABLEMENT OF CYBERCRIME.
- Authors
Rustad, Michael L.; Koenig, Thomas H.
- Abstract
Michael L. Rustad and Thomas H. Koenig propose a new tort of negligent enablement which will hold software vendors accountable for defective products and services that pave the way for third party cybercriminals who exploit known vulnerabilities. At present, the software industry has externalized the costs of making code safe for its intended environment of use onto its end users through one-sided mass market agreements. The proposed negligent enablement tort fills the void left by the failure of contract law to give meaningful remedies for the unacceptably high levels of risk of computer intrusions due to defective software. The public policy rationale for imposing secondary tort liability on" software publishers who aid and abet cybercriminals is to reduce the rate of cybercrime. The proposed negligent enablement tort draws upon well-established principles of the Uniform Commercial Code (UCC) Article 2 warranties, premises liability, and negligence-based product liability to construct a modified duty of care to produce safe software suitable for its environment of use. This Article examines the elements of duty, breach, causation, and damages for the proposed negligent enablement tort as well as defenses, procedure, and possible policy-based objections.
- Subjects
COMPUTER crimes; TORTS; CONTRACTS; COMPUTER software industry; COMPUTER security
- Publication
Berkeley Technology Law Journal, 2005, Vol 20, Issue 4, p1553
- ISSN
1086-3818
- Publication type
Article