Improving Software Security: A Discussion of Liability for Unreasonably Insecure Software

SECURING PRIVACY IN THE INTERNET AGE, Stanford University Press, 2006

Posted: 29 Oct 2004

See all articles by Jennifer A. Chandler

Jennifer A. Chandler

University of Ottawa - Common Law Section

Abstract

One of the recurring themes in discussions of the cybersecurity problem is the importance of improving software security. Mass-market software is commonly released containing multiple vulnerabilities. Attempts are then made to patch these vulnerabilities in the widely deployed software. The process is expensive and inadequate.

It is likely that, for various reasons, the market is not able to generate the optimal balance of price and quality (including security-related attributes) for mass-market software. The market for key pieces of software may not be perfectly competitive. Second, the market is characterized by various information failures. Third, software security presents an economic externality problem. The insecurity of one user's computer imposes additional costs on others, beyond those suffered by the user. Furthermore, it appears that the incentives facing software developers are such that they focus on speed to market and the development of new features rather than on the security-related aspects of quality.

This paper builds on previous work suggesting that the victim of a distributed denial of service attack (DDOS) is well placed to sue the vendor of unreasonably insecure software. This lawsuit would be based on negligence case law establishing that a defendant may be held responsible for exposing a plaintiff to an unreasonable risk of harm at the hands of third parties (namely those who launch the DDOS attack).

This paper further develops this hypothetical negligence lawsuit, addressing the standard of care that should be demanded of software developers. Various classes of errors exist, ranging from well-known and fairly easily avoided coding errors to more high-level design problems. While the existence of the former types of errors may be argued to constitute negligence, the latter are less clear. As knowledge about secure design principles matures, it will be possible to include design errors within the scope of negligence. Nevertheless, it would be helpful for liability to serve as a spur to increase the attention paid to secure design so that better secure design techniques may be created and adopted. As a result, courts should require evidence that software developers have made a bona fide effort to include security considerations at all stages of the software development lifecycle.

Keywords: Cybersecurity, software, negligence

Suggested Citation

Chandler, Jennifer A., Improving Software Security: A Discussion of Liability for Unreasonably Insecure Software. SECURING PRIVACY IN THE INTERNET AGE, Stanford University Press, 2006, Available at SSRN: https://ssrn.com/abstract=610041

Jennifer A. Chandler (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada
613-562-5800 ext. 3286 (Phone)
613-562-5124 (Fax)

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