Section 1 of this paper sets the stage by briefly describing the problem to be solved. Section 2 canvasses the different fields of law (warranty, negligence, products liability, and certification) that could provide a starting point for what would have to be legislative action establishing a system of software liability. The conclusion is that all of these fields would face the same question: How buggy is too buggy? Section 3 explains why existing software development frameworks do not provide a sufficiently definitive basis for legal liability. They focus on process, while a liability regime should begin with a focus on the product—­that is, on outcomes. Expanding on the idea of building codes for building code, Section 4 shows some examples of product-focused standards from other fields. Section 5 notes that already there have been definitive expressions of software defects that can be drawn together to form the minimum legal standard of security. It specifically calls out the list of common software weaknesses tracked by the MITRE Corporation under a government contract. Section 6 considers how to define flaws above the minimum floor and how to limit that liability with a safe harbor...

Smart Device Manufacturer Liability and Redress for Third-Party Cyberattack Victims

Abstract: Smart devices are used to facilitate cyberattacks against both their users and third parties. While users are generally able to seek redress following a cyberattack via data protection legislation, there is no equivalent pathway available to third-party victims who suffer harm at the hands of a cyberattacker. Given how these cyberattacks are usually conducted by exploiting a publicly known and yet un-remediated bug in the smart device’s code, this lacuna is unreasonable. This paper scrutinises recent judgments from both the Supreme Court of the United Kingdom and the Supreme Court of the Republic of Ireland to ascertain whether these rulings pave the way for third-party victims to pursue negligence claims against the manufacturers of smart devices. From this analysis, a narrow pathway, which outlines how given a limited set of circumstances, a duty of care can be established between the third-party victim and the manufacturer of the smart device is proposed...

One of the provisions getting the most attention is a move to shift liability to software vendors, something I’ve been advocating for since at least 2003...

Any computer brings with it the risk of hacking. This is true of our computers and phones, and it’s also true about all of the Internet-of-Things devices that are increasingly part of our lives. These large and small appliances, cars, medical devices, toys and — yes — exercise machines are all computers at their core, and they’re all just as vulnerable. Presidents face special risks when it comes to the IoT, but Biden has the NSA to help him handle them...