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Can Hackers Be Sued

18,534 bytes added, 12 August
Created page with "<pre> Journal: Communications of the ACM June 1989 v32 n6 p666(4) * Full Text COPYRIGHT Assn. for Computing Machinery, Inc. 1989. -------------------------------..."
<pre>
Journal: Communications of the ACM June 1989 v32 n6 p666(4)
* Full Text COPYRIGHT Assn. for Computing Machinery, Inc. 1989.
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Title: Can hackers be sued for damages caused by computer viruses?
(column)
Author: Samuelson, Pamela.

Summary: Computer viruses damage computer systems in many ways, including
destroying programs and data, causing lost computing time and
necessitating expensive cleanup procedures and increased security
measures. If the damage caused by such a virus is extensive, it
would seem appealing to sue the author for restitution. Careful
consideration must be paid to the facts in the case, however, to
determine whether or not a beneficial resolution is possible
through legal action. Two problems stand in the way of a
favorable resolution. First, there are few laws on the books
which set clearly applicable precedents for the right to legal
relief in virus-related cases. Second, since hackers tend to work
by themselves, the cost of a lawsuit may be more than can
reasonably be recovered from the defendant. The legal
ramifications of the virus problem are discussed in detail.
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</pre>

Can Hackers Be Sued for Damages Caused by Computer Viruses? The law can be a
rather blunt instrument with which to attack a hacker whose virus has caused
damage in a computer system. Among the kinds of damage that can be caused by
computer viruses are the following: destroyed programs or data, lost
computing time, the cost of system cleanup, and the cost of installing new
security measures to guard against a recurrence of the virus, just to name a
few. The more extensive and expensive the damage is, the more appealing (at
least initially) will be the prospect of a lawsuit to seek compensation for
the losses incurred. But even when the damage done is considerable,
sometimes it may not be worthwhile to bring a lawsuit against the hacker
whose virus has damaged the system. Careful thought should be given to
making a realistic appraisal of the chances for a meaningful, beneficial
outcome to the case before a lawsuit is filed.

This appraisal must take into account the significant legal-theory and
practical difficulties with bringing a lawsuit as a way of dealing with the
harm caused by a hacker's virus. This column will discuss both kinds of
difficulties. A brief synopsis of each type of problem may be helpful before
going into detail about each. The legal theory problem is essentially this:
There may not yet be a law on the books or clearly applicable legal
precedents that can readily be used to establish a right to legal relief in
computer virus situations. The law has lots of experience with lawsuits
claiming a right to compensation for damage to persons or to tangible
property. But questions may arise if someone seeks to adapt or extend legal
rules to the more intangible nature of electronically stored information.
The practical difficulties with using the law to get some remedy for harm
caused by a hacker's virus can be even more daunting than the legal theory
problems. Chief among the practical difficulties is the fact that the
lawsuit alone can cost more than can ever be recovered from the
hacker-defendant.

To understand the nature of the legal theory problems with suing a hacker for
damage caused by his or her virus, it may help to understand a few basic
things about how the law works. One is that the law has often evolved to
deal with new situations, and evolution of this sort is more likely when
fairness seems to require it. Another is that the law generally recognizes
only already established categories of legal claims, and each of the
categories of legal claims has its own particular pattern to it, which must
be matched in order to win a lawsuit based on it. While judges are sometimes
willing to stretch the legal category a little to reach a fair result, they
are rarely willing to create entirely new categories of law or stretch an
existing category to the breaking point. Because of this, much of what
lawyers do is pattern-matching and arguing by analogy: taking a given set of
facts relevant to a client's circumstances, sorting through various possible
categories of legal claims to determine which of them might apply to the
facts at hand, and then developing arguments to show that this case matches
the pattern of this legal category or is analogous to it.

Whenever there is no specific law passed by the legislature to deal with a
specific issue, such as damages caused by computer viruses, lawyers look to
more general categories of legal claims to try to find one that matches a
particular client's situation. "Tort" is the name used by lawyers to refer
to a category of lawsuits that aim to get money damages to compensate an
injured party for harm caused by another person's wrongful conduct. Some
torts are intentional (libel, for example, or fraud). Some are
unintentional. (Negligence is a good example of this type of lawsuit.) The
harm caused by the wrongful conduct may be to the victim's person (as where
someone's negligence causes the victim to break a leg) or property (as where
a negligent driver smashes into another car, causing it to be "totaled"), or
may be more purely economic losses (as where the victim has to incur the
expense of renting another car after his or her car has been destroyed by a
negligent driver). In general, tort law permits a victim to recover money
damages for all three types of injuries so long as they are reasonably
foreseeable by the person who causes them. (Some economic losses, however,
are too remote to be recoverable.)

Among the categories of traditional torts that might be worth considering as
the basis of a lawsuit seeking compensation for losses caused by a computer
virus is the law of trespass. Though we ordinarily think of trespass in
connection with unlawful entry onto another's land, the tort of trespass
applies to more situations than this. Intentional interference with
someone's use of his or her property can be a trespass as well. A potential
problem with the use of trespass for computer virus situations, however,
might be in persuading a judge to conceive of a virus as a physical invasion
of a computer system. A defendant might argue that he or she was in another
state and never came anywhere near the plaintiff's computer system to show
that the trespass pattern had not been established. The plaintiff would have
to counter by arguing that the virus physically invaded the system, and was
an extension of the defendant who was responsible for planting it.

Another tort to consider would be the law of conversion. Someone who
unlawfully "converts" someone else's property to his or her own use in a
manner that interferes with the ability of the rightful owner to make use of
it can be sued for damages by the rightful owner. (Conversion is the tort
pattern that can be used to recover damages for theft; theft itself is more
of a criminal law term.) As with trespass, the law of conversion is more
used to dealing with interferences with use of tangible items of property,
such as a car. But there would seem to be a good argument that when a virus
ties up the computing resources of a firm or university, it is even more a
conversion of the computing facility than if some component of the system
(such as a terminal) was physically removed from the premises.

Even if a claim, such as conversion, could be established to get damages for
lost computer time, that wouldn't necessarily cover all of the kinds of
losses that might have been caused by the virus. Suppose, for example, that
a virus invaded individual accounts in a computer system and sent out
libelous messages masquerading as messages from the account's owner or
exposed on a computer bulletin board all of the account owner's computer mail
messages. Libel would be a separate tort for a separate kind of injury.
Similarly, a claim might be made for invasion of privacy and intentional
misrepresentation to get damages for injuries resulting from these aspects of
the virus as well.

So far we have been talking mostly about intentional torts. A hacker might
think that he or she could not be found liable for an intentional tort
because he or she did not intend to cause the specific harm that resulted
from the virus, but that is not how tort law works. All that is generally
necessary to establish an intentional tort is that the person intended to do
the conduct that caused the harm, and that the harm was of a sort that the
person knew or should have known would be reasonably certain to happen as a
consequence of his or her actions. Still, some hackers might think that if
the harm from their viruses was accidental, as when an "experiment" goes
awry, they might not be legally responsible for the harm. That is not so.
The law of negligence allows victims of accidental injury to sue to obtain
compensation for losses caused by another's negligence.

Negligence might be a more difficult legal claim to win in a computer virus
case because it may be unclear exactly who had what responsibilities toward
whom under the circumstances. In general, someone can be sued for damages
resulting from negligence when he or she has a duty to act in accordance with
a standard of care appropriate to the circumstances, and fails to act in
accordance with that standard of care in a particular situation. Standards
of care are often not codified anywhere, but depend on an assessment of what
a reasonable person would do in the same set of circumstances. A programmer,
for example, would seem to have a duty to act with reasonable care in writing
programs to run on a computing system and a duty not to impose unreasonable
risks of harm on others by his or her programming. But the owner of the
computing system would also have a duty of care to create reasonable
safeguards against unauthorized access to the computing system or to some
parts of the computer system because the penchant of hackers to seek
unauthorized entry is well-known in the computing community. The focus in a
negligence lawsuit, then, might not be just on what the hacker did, but on
what the injured party did to guard against injury of this sort.

Sometimes legislatures pass special laws to deal with new situations such as
computer viruses. If a legislature was to consider passing a law to provide
remedies for damages caused by computer viruses, there would be a number of
different kinds of approaches it could take to formulate such a law. It is a
tricker task than one might initially suppose to draft a law with a fine
enough mesh to catch the fish one is seeking to catch without creating a mesh
so fine that one catches too many other fish, including many that one doesn't
want to catch.

Different legislative approaches have different pros and cons. Probably the
best of these approaches, from a plaintiff's standpoint, would be that which
focuses on unauthorized entry or abuse of access privileges because it limits
the issue of wrongful conduct by the defendant to access privileges,
something that may be relatively easy to prove. Intentional disruption of
normal functioning would be a somewhat more demanding standard, but would
still reach a wide array of virus-related conduct. A law requiring proof of
damage to data or programs would, again from a plaintiff's standpoint, be
less desirable because it would have stiffer proof requirements and would not
reach viruses that merely disrupted functioning without destroying data or
programs. The problem of crafting the right law to cover the right problem
(and only the right problem) is yet another aspect of the legal theory
problems posed by computer viruses.

Apart from the difficulties with fitting computer virus situations in
existing legal categories or devising new legal categories to reach computer
viruses, there are a set of practical difficulties that should be considered
before undertaking legal pursuit of hackers whose viruses cause damage to
computer systems.

Perhaps the most important set of practical difficulties with suing a hacker
for virus damages is that which concerns the legal remedy one can
realistically get if one wins. That is, even if a lawyer is able to identify
an appropriate legal claim that can be effectively maintained against a
hacker, and even assuming the lawyer can surmount the considerable
evidentiary problems that might be associated with winning such a lawsuit,
the critically important question which must be answered before any lawsuit
is begun is what will one realistically be able to recover if one wins.

There are three sets of issues of concern here. One set relates to the costs
of bringing and prosecuting the lawsuit. Lawsuits don't come cheap (and not
all of the expenses are due to high attorney fees). Another relates to the
amount of damages or other cost recoveries that can be obtained if one wins
the lawsuit. It's fairly rare to be able to get an award of attorney's fees
or punitive damages, for example, but a lawsuit becomes more attractive as an
option if these remedies are available. Also, where the virus has spread to
a number of different computer systems on a network, for example, the
collective damage done by the hacker may be substantial, but the damage to
any one entity within the network system may be sufficiently small that,
again, it may not be economically feasible to maintain individual lawsuits
and the collectivity may not have sufficiently uniform interests to support a
single lawsuit on behalf of all network members.

But the third and most significant concern will most often be the ability of
the defendant to write a good check to pay the damages that might be awarded
in a judgment. Having a judgment for one million dollars won't do you any
good if it cost you $10,000 to get it and the defendant's only asset is a
used computer with a market value of $500. In such an instance, you might as
well have cut your losses and not brought the lawsuit in the first place.
Lawyers refer to defendants of this sort as "judgment-proof."

While these comments might suggest that no lawsuit should ever be brought
against a young hacker unless he or she has recently come into a major
inheritance, it is worth pointing out the law does allow someone who has
obtained a judgment against another person to renew the judgment periodically
to await "executing" on it until the hacker has gotten a well-paying job or
some other major asset which can be seized to satisfy the judgment. If one
has enough patience and enough confidence in the hacker's future (or a strong
enough desire for revenge against the hacker), there may be a way to get some
compensation eventually from the defendant.

Proof problems may also plague any effort to bring a successful lawsuit for
damages against a computer hacker. Few lawsuits are easy to prove, but those
that involve live witnesses and paper records are likely to be easier than
those involving a shadowy trail of electronic signals through a computer
system, especially when an effort is made to disguise the identity of the
person responsible for the virus and the guilty person has not confessed his
or her responsibility. Log files, for example, are constantly truncated or
overwritten, so that whatever evidence might once have existed with which to
track down who was logged onto a system when the virus was planted may have
ceased to exist.

Causation issues too can become very murky when part of the damage is due to
an unexpected way in which the virus program interacted with some other parts
of the system. And even proving the extent of damages can be difficult. If
the system crashes as a result of the virus, it may be possible to estimate
the value of the lost computing time. If specific programs with an
established market value are destroyed, the value of the program may be easy
to prove. But much of the damage caused by a virus may be more elusive to
establish. Can one, for example, recover damages for economic losses
attributable to delayed processing, for lost accounts receivable when
computerized data files are erased and no backup paper record was kept of the
transactions? Or can one recover for the cost of designing new security
procedures so that the system is better protected against viruses of this
sort? All in all, proof issues can be especially vexing in a computer virus
case.

In thinking about the role of the law in dealing with computer virus
situations, it is worth considering whether hackers are the sorts of people
likely to be deterred from computer virus activities by fear of lawsuits for
money damages. Criminal prosecution is likely to be a more powerful legal
deterrent to a hacker than a civil suit is. But even criminal liability may
be sufficiently remote a prospect that a hacker would be unlikely to forego
an experiment involving a virus because of it. In some cases, the prospect
of criminal liability may even add zest to the risk-taking that is involved
in putting a virus in a system.

Probably more important than new laws or criminal prosecutions in deterring
hackers from virus-related conduct would be a stronger and more effective
ethical code among computer professional and better internal policies at
private firms, universities, and governmental institutions to regulate usage
of computing resources. If hackers cannot win the admiration of their
colleagues when they succeed at their clever stunts, they may be less likely
to do them in the first place. And if owners of computer facilities make
clear (and vigorously enforce) rules about what is acceptable and
unacceptable conduct when using the system, this too may cut down on the
incidence of virus experiments.

Still, if these measures do not succeed in stopping all computer viruses,
there is probably a way to use the law to seek some remedy for damages caused
by a hacker's virus. The law may not be the most precisely sharpened
instrument with which to strike back at a hacker for damages caused by
computer viruses, but sometimes blunt instruments do an adequate job, and
sometimes lawsuits for damages from viruses will be worth the effort of
bringing them.


[[Category:Essays]]

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