Hidden Engines of Destruction

Abstract:     
This article explores whether a duty to warn should exist in the context of digital products. It argues in favor of creating a "reasonable expectation of code safety." Section I explains the dominant ways that digital products can harm consumers through their code and not their content, focusing on functionality and information security harms. Section II reviews existing regulation of digital products and highlights their focus on improving information parity and consumer control over digital product relationships. Section II then sets forth the scope of the duty to warn and protect from harms in real space owed by possessors of land to their business visitors upon it and argues in favor of importing these concepts into the digital consumer protection context. Finally, Section II proposes a "reasonable expectation of code safety," comprised of a duty of code inspection, a duty to warn of code harms and a duty to repair code promptly. It also proposes a three-tiered framework inspired by systems theory and the land-based duty to warn and repair. Section III considers the primary challenge against the proposed framework - on First Amendment grounds - and finds the framework to fully comport with First Amendment protections.

Number of Pages in PDF File: 49

Keywords: information security, technology, internet, First Amendment, speech, identity theft, spam, communication

JEL Classification: K10, K19

Accepted Paper Series