Wednesday, November 30, 2016
Mike Rustad and Tom Koenig have published "Rebooting Cybertorts for the Internet of Things" in The Harvard Law Record. A sample:
This unbalanced cybertort jurisprudence has the effect of padlocking the courthouse door to most Internet-related injuries. After Concepcion and Italian Colors, expect even more one-sided consumer arbitration agreements. Such TOU would be rejected in the European Union, which gives consumers the right to pursue justice in their home courts. These mandatory arbitration agreements are essentially an anti-remedy for Internet users because the cost of arbitration will almost always exceed the monetary amount that is at stake. Plus, with class action waivers, there is no aggregation of claims.
It is time for Congress to step in and protect consumers in cyberspace from a new generation of defective products—driverless cars and other connected devices that are part of the Internet of Things.
Cybertort remedies need to evolve further to provide consumers remedies for runaway cars, inadequate security, and misuses of big data. Driverless cars have the potential to all but eliminate driver error. However, connected cars also raise numerous privacy and security concerns. If a car manufacturer assembles massive amounts of data, there is an increased risk that this big data may be misused, compromising the privacy of consumers. Security vulnerabilities in autonomous cars may enable attacks on sensors that notify drivers of dangerous road conditions or could be used to disable the vehicles’ steering and brakes. A compromised vehicle could be used to launch denial of service attacks on other vehicles.