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Holding Internet Service Providers Accountable
Douglas Lichtman University of California, Los Angeles - School of Law Eric A. Posner University of Chicago - Law School July 2004 U Chicago Law & Economics, Olin Working Paper No. 217 Abstract: Internet service providers are today largely immune from liability for their role in the creation and propagation of worms, viruses, and other forms of malicious computer code. In this Essay, we question that state of affairs. Our purpose is not to weigh in on the details - for example, whether liability should sound in negligence or strict liability, or whether liability is in this instance best implemented by statute or via gradual common law development. Rather, our aim is to challenge the recent trend in the courts and Congress away from liability and toward complete immunity for Internet service providers. In our view, such immunity is difficult to defend on policy grounds, and sharply inconsistent with conventional tort law principles. Internet service providers control the gateway through which Internet pests enter and reenter the public computer system. They should therefore bear some responsibility for stopping these pests before they spread and for helping to identify individuals who originate malicious code in the first place.
Keywords: Tort law, virus, worm, Internet, strict liability, negligence, cyberspace Working Paper SeriesDate posted: August 09, 2004 ; Last revised: March 19, 2009Suggested CitationContact Information
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