Title: Proposing a Legislative Framework for Software Liability: Focus on the Product for Liability, Focus on the Process for Safe Harbor
In a recent article published on Lawfare, Jim Dempsey puts forth a thought-provoking proposal for software liability titled “Standard for Software Liability: Focus on the Product for Liability, Focus on the Process for Safe Harbor.” This proposal aims to establish a legislative system that addresses the issue of software vulnerabilities and their associated liabilities. Dempsey argues that the current focus on the software development process fails to provide a definitive basis for legal liability, emphasizing the need to shift the focus towards the product itself. Drawing inspiration from various fields, Dempsey suggests that courts can effectively handle software liability cases, similar to how they adjudicate complex liability issues in other sectors.
The Three Buckets of Software Vulnerabilities:
Dempsey divides software vulnerabilities into three categories: easy-to-find issues that vendors should have addressed, hard-to-find vulnerabilities that vendors could not have reasonably anticipated, and vulnerabilities that fall within the middle ground. To support this categorization, Dempsey looks to examples from consumer products, building codes, and automobile design to demonstrate that courts have successfully navigated similar scenarios. By doing so, he challenges the notion that software vulnerabilities are unmanageable and should absolve software vendors of any liability.
Advocating for Software Liability:
The concept of software liability as a policy mechanism for enhancing cybersecurity has gained support among experts in the field. Acknowledging the complexities of software development, Dempsey argues that striving for perfection should not hinder the pursuit of a good solution. He emphasizes the need to distribute liability among various parties involved in software attacks, such as software vendors, attackers, and network owners, rather than placing the entire burden on the latter. Dempsey believes that courts possess the necessary expertise to adjudicate these intricate liability issues, drawing parallels with their handling of multifaceted cases in other domains.
Applying Lessons from Other Industries:
Dempsey highlights the comparability of software vulnerabilities to other types of liabilities, such as automobile accidents and accidental restaurant poisonings. In these industries, multiple factors contribute to the occurrence of incidents, involving various stakeholders and complex circumstances. However, this does not absolve these industries from their responsibilities. Similarly, software vendors should be held accountable for the vulnerabilities in their products. By examining the successful resolution of liability disputes in other sectors, Dempsey challenges the prevailing notion that software vendors cannot be held liable for all software vulnerabilities.
Jim Dempsey’s proposal for software liability calls for a legislative framework that prioritizes the product’s outcomes rather than the development process. By categorizing vulnerabilities and drawing from other industries’ liability models, Dempsey aims to establish a fair and effective system to address software vulnerabilities. While software development is undoubtedly complex, it should not serve as an excuse to evade liability. The introduction of software liability can incentivize vendors to prioritize security and ultimately contribute to the improvement of cybersecurity.