Not Insurance, Liability [LWN.net]

Not Insurance, Liability

Posted Oct 19, 2017 16:09 UTC (Thu) by kh (guest, #19413)
In reply to: Insurance by tialaramex
Parent article: KRACK, ROCA, and device insecurity

Product Liability law is the real fix. If you sell hardware that cannot get security updates, you should be held liable.

https://blog.valbonne-consulting.com/2015/07/24/cybersecu...

Dan Greer's talk on software liability - excerpt, quoted text below:

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"[Software vendors]... must live with normal product liability, just like manufactures of cars, blenders, chain-saws and hot coffee.

How dire the consequences, and what constitutes "used normally" is for your legislature and courts to decide, but let us put up a strawman example:

A sales-person from one of your long time vendors visits and delivers new product documentation on a USB key, you plug the USB key into your computer and copy the files onto the computer.

This is "used normally" and it should never cause your computer to become part of a botnet, transmit your credit card number to Elbonia, or copy all your design documents to the vendor. If it does, your computer's operating system is defective."

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3. Source code liability -- CHOICE

Nat Howard said that "Security will always be exactly as bad as it can possibly be while allowing everything to still function," but with each passing day, that "and still function" clause requires a higher standard. As Ken Thompson told us in his Turing Award lecture, there is no technical escape; in strict mathematical terms you neither trust a program nor a house unless you created it 100% yourself, but in reality most of us will trust a house built by a suitably skilled professional, usually we will trust it more than one we had built ourselves, and this even if we have never met the builder, or even if he is long since dead.

The reason for this trust is that shoddy building work has had that crucial "or else ..." clause for more than 3700 years:

If a builder builds a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then the builder shall be put to death.
-- Code of Hammurabi, approx 1750 B.C.

Today the relevant legal concept is "product liability" and the fundamental formula is "If you make money selling something, then you better do it well, or you will be held responsible for the trouble it causes." For better or poorer, the only two products not covered by product liability today are religion and software, and software should not escape for much longer. Poul-Henning Kamp and I have a strawman proposal for how software liability regulation could be structured....

to post comments

Not Insurance, Liability

Posted Oct 20, 2017 13:45 UTC (Fri) by jospoortvliet (guest, #33164) [Link] (4 responses)

Liability is useless if the company goes bankrupt. And bankruptcy is an often used way to get out of liability that even bigger companies use - put the liability on a small subsidiary, and done.

So it would help, a bit, against Microsoft and other large companies, though THEY of course can extend court cases far beyond what a small business or home user could sustain - again leaving those without recourse.

Last but not least, it is becoming common practice to put enforced arbitrage in contracts and unless the courts step up against that (most don't) this kills any serious liability risks.

I don't disagree that adding liability to software is a good idea. I just don't think it solves all problems ;-)

Not Insurance, Liability

Posted Oct 22, 2017 1:29 UTC (Sun) by ssmith32 (subscriber, #72404) [Link] (2 responses)

Yeah, but that's just because the way the law is structured, you can avoid all kinds of personal responsibility by incorporating. The solution would be personal liability, not corporate liability.

Not Insurance, Liability

Posted Dec 14, 2017 0:46 UTC (Thu) by immibis (subscriber, #105511) [Link] (1 responses)

That's dangerous territory too.

Personal liability means that, if the damages work out to many hundreds of thousands of dollars, the government can take away my house to pay them. Under those conditions you'll find a lot less people willing to release software. Or the price will massively increase to cover the required insurance. Free software would not be a thing either.

Not Insurance, Liability

Posted Dec 14, 2017 15:51 UTC (Thu) by raven667 (subscriber, #5198) [Link]

> Personal liability means that ... you'll find a lot less people willing to release software ... Free software would not be a thing

There would have to be standards and licencing, so that there would be clear expectations on _both_ sides of what is acceptable practice, but if you are responsible for causing someone harm is it really a bad thing to have liability for your actions. The devils are in the details though because nothing is without boundaries, you can't have infinite liability and the user has some responsibility to use the tools properly, just like in Civil Engineering practice. Free software may not be impossible in that environment but it depends on the exact rules and policies which make that environment happen.

Not Insurance, Liability

Posted Oct 26, 2017 8:35 UTC (Thu) by Wol (subscriber, #4433) [Link]

> Last but not least, it is becoming common practice to put enforced arbitrage in contracts and unless the courts step up against that (most don't) this kills any serious liability risks.

In the UK (and Europe) this is one-sided :-) The company *must* abide by the arbitrage, unless the customer decides to sue instead. (And we've also got "unfair terms and conditions" so if the arbitrager or Judge thinks the arbitrage is loaded in favour of the company they can just ignore the contract ... :-)

Cheers,
Wol