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Over on Lawfare, Jim Dempsey published a really interesting proposal for software liability: “Standard for Software Liability: Focus on the Product for Liability, Focus on the Process for Safe Harbor.”
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.
Full paper here.
Dempsey basically creates three buckets of software vulnerabilities: easy stuff that the vendor should have found and fixed, hard-to-find stuff that the vendor couldn’t be reasonably expected to find, and the stuff in the middle. He draws from other fields—consumer products, building codes, automobile design—to show that courts can deal with the stuff in the middle.
I have long been a fan of software liability as a policy mechanism for improving cybersecurity. And, yes, software is complicated, but we shouldn’t let the perfect be the enemy of the good.
In 2003, I wrote:
Clearly this isn’t all or nothing. There are many parties involved in a typical software attack. There’s the company who sold the software with the vulnerability in the first place. There’s the person who wrote the attack tool. There’s the attacker himself, who used the tool to break into a network. There’s the owner of the network, who was entrusted with defending that network. One hundred percent of the liability shouldn’t fall on the shoulders of the software vendor, just as one hundred percent shouldn’t fall on the attacker or the network owner. But today one hundred percent of the cost falls on the network owner, and that just has to stop.
Courts can adjudicate these complex liability issues, and have figured this thing out in other areas. Automobile accidents involve multiple drivers, multiple cars, road design, weather conditions, and so on. Accidental restaurant poisonings involve suppliers, cooks, refrigeration, sanitary conditions, and so on. We don’t let the fact that no restaurant can possibly fix all of the food-safety vulnerabilities lead us to the conclusion that restaurants shouldn’t be responsible for any food-safety vulnerabilities, yet I hear that line of reasoning regarding software vulnerabilities all of the time.
