Holding Internet Service Providers Accountable

51 Pages Posted: 9 Aug 2004  

Douglas Lichtman

University of California, Los Angeles (UCLA) - School of Law

Eric A. Posner

University of Chicago - Law School

Date Written: July 2004

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

Suggested Citation

Lichtman, Douglas and Posner, Eric A., Holding Internet Service Providers Accountable (July 2004). U Chicago Law & Economics, Olin Working Paper No. 217. Available at SSRN: https://ssrn.com/abstract=573502 or http://dx.doi.org/10.2139/ssrn.573502

Douglas Gary Lichtman (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-267-4617 (Phone)

Eric A. Posner

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0425 (Phone)
773-702-0730 (Fax)

HOME PAGE: http://www.law.uchicago.edu/faculty/posner-e/

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