Rebecca Crootof, ‘The Internet of Torts’

ABSTRACT
The proliferating internet-connected devices that constitute the ‘Internet of Things’ (IoT) grant companies unprecedented control over consumers’ use of property, often at the expense of consumer safety. Companies can now remotely – and, with algorithmic enforcement, automatically – alter or deactivate items, a practice that causes foreseeable property damage and even bodily injury when an otherwise operational car, alarm system, or implanted medical device abruptly ceases to function.

Even as the potential for harm escalates, contract and tort law work in tandem to shield IoT companies from liability. Exculpatory clauses limit both contract and tort remedies; disclaimers and express warranties bar implied warranty claims; and contractual notice of remote interference precludes common law tort suits. Meanwhile, absent a better understanding of how IoT-enabled injuries operate, judges are likely to apply products liability and negligence standards narrowly. In short, civil liability for this 21st century version of harmful remote action is not appropriately allocated by our 20th century regime.

In the wake of the Industrial Revolution, courts limited corporate liability by creating the modern version of ‘negligence’; the rise of mass production and cross-country transportation prompted the products liability revolution. Once again, a new technology has altered social and power relations between industry and individuals, creating a liability inflection point where we must decide who should bear the costs going forward. This Article proposes various reforms to expand corporate civil liability that advocates, judges, and policymakers should consider during this critical regulatory window.

Crootof, Rebecca, The Internet of Torts (February 26, 2019). Duke Law Journal, volume 69, 2019.

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