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7 - Holding Internet Service Providers Accountable

Published online by Cambridge University Press:  18 August 2009

Doug Lichtman
Affiliation:
Professor of Law, University of Chicago, Law School
Eric P. Posner
Affiliation:
Kirkland and Ellis Professor of Law, University of Chicago, Law School
Mark F. Grady
Affiliation:
University of California, Los Angeles
Francesco Parisi
Affiliation:
George Mason University, Virginia
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Summary

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 network. Service providers should therefore bear some responsibility not only for stopping malicious code but also for helping to identify those individuals who originate it.

Computer viruses and related strains of Internet contagion impose a significant cost on the many individuals and entities that rely on Internet access for commerce, research, and communication. The U.S. government has responded to this problem with efforts to identify and deter those who create and propagate Internet pests. Thus, for example, both the Federal Bureau of Investigation and the Department of Homeland Security allocate substantial resources to the battle against cybercrime, and Congress has passed a number of criminal statutes designed to target the troublemakers who create Internet viruses and other forms of malicious computer code.

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Chapter
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Publisher: Cambridge University Press
Print publication year: 2005

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References

Arlen, Jennifer. 1994. The Potentially Perverse Effects of Corporate Criminal Liability. Journal of Legal Studies 23:833CrossRefGoogle Scholar
Benjamin, Stuart M., Lichtman, Douglas G., and Howard, A. Shelanski. 2001. Telecommunications Law and Policy. Durham, NC: Carolina Academic PressGoogle Scholar
Chu, C. Y. Cyrus, and Qian, Yingyi. 1995. Vicarious Liability under a Negligence Rule. International Review of Law and Economics 15:205Google Scholar
Dobbs, Dan B. 2000. The Law of Torts. Eagan, MN: WestGoogle Scholar
Hamdani, Assaf. 2002. Who's Liable for Cyberwrongs?Cornell Law Review 87:901Google Scholar
Katyal, Neal Kumar. 2001. Criminal Law in Cyberspace. University of Pennsylvania Law Review 149:1003CrossRefGoogle Scholar
Kraakman, Reinier. 1986. Gatekeepers: The Anatomy of a Third-Party Enforcement Strategy. Journal of Law and Economics 2:53Google Scholar
Kraakman, Reinier. 1998. Third Party Liability. In The New Palgrave Dictionary of Economics and the Law, ed. Newman, Peter, 583. New York: Palgrave MacmillanCrossRefGoogle Scholar
Ku, Ray. 2001. Irreconcilable Differences? Congressional Treatment of Internet Service Providers as Speakers. Vanderbilt Journal of Entertainment Law and Practice 3:70Google Scholar
Lemley, Mark A., and Reese, R. Anthony. 2004. Reducing Digital Copyright Infringement without Reducing Innovation. Stanford Law Review 56:1345Google Scholar
Lichtman, Douglas. 2000. Property Rights in Emerging Platform Technologies. Journal of Legal Studies 29:615CrossRefGoogle Scholar
Lichtman, Douglas, and Landes, William. 2003. Indirect Liability in Copyright: An Economic Perspective. Harvard Journal of Law and Technology 16:395Google Scholar
Lidsky, Lyrissa. 2000. Silencing John Doe: Defamation and Discourse in Cyberspace. Duke Law Journal 49:855CrossRefGoogle Scholar
McManus, Brian. 2001. Rethinking Defamation Liability for Internet Service Providers. Suffolk University Law Review 35:647Google Scholar
Netanel, Neil. 2003. Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing. Harvard Journal of Law and Technology 17:1Google Scholar
Schruers, Matthews. 2002. The History and Economics of ISP Liability for Third Party Content. Virginia Law Review 88:206CrossRefGoogle Scholar
Shavell, Steven. 1987. Economic Analysis of Accident Law. Cambridge, MA: Harvard University PressCrossRefGoogle Scholar
Sheridan, David. 1997. Zeran v. AOL and the Effect of Section 230 of the Communications Decency Act upon Liability for Defamation on the Internet. Albany Law Review 61:147Google Scholar
Sykes, Alan. 1981. An Efficiency Analysis of Vicarious Liability under the Law of Agency. Yale Law Journal 91:168Google Scholar
Sykes, Alan. 1984. The Economics of Vicarious Liability. Yale Law Journal 93:1231CrossRefGoogle Scholar
Sykes, Alan. 1988. The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines. Harvard Law Review 101: 563.CrossRefGoogle Scholar
Sykes, Alan. 1998. Vicarious Liability. In The New Palgrave Dictionary of Economics and the Law, ed. Newman, Peter, 673. New York: Palgrave MacmillanCrossRefGoogle Scholar

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