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[infowar.de] Schadensersatzklage gegen Microsoft wegen Viren?
Ein sehr interessanter Artikel, der sich ausführlich mit den Problemen
einer solchen Klage auseinandersetzt. Ähnliche Forderungen
(Haftungsverpflichtungen für IT-Hersteller) waren u.a. auch auf der
InfowarCon zu hören.
Is Microsoft liable for Nimda?
By David Berlind, Special to ZDNet
24 September 2001
In legal circles, there's a well-known group of law firms that's
commonly referred to as the "plaintiffs' bar." The most
characteristic of the plaintiffs' bar is that its members build
practices out of finding people and businesses that have been
and filing class action lawsuits on behalf of those plaintiffs. It
should come as no surprise that the targets of these suits typically
have deep pockets.
With all sorts of alleged harm being inflicted all the time, the
plaintiffs' bar moves from one issue to the next, with plenty of
opportunities to build high-profile cases. Perhaps most notable of
these issues is the action against the tobacco industry. Another case
had to do exposure to EMF produced by high-tension wires. The
plaintiffs' bar is a busy bunch, always on the lookout for the next
big harm. When it started to look like the Y2K bug was going to bite
some companies on the bottom line, the plaintiffs' bar boned up on
But the Y2K "harm" went from bug to bust and there was no one to sue.
In the aftermath of the big hurt that never happened was a battalion
of lawyers--with a lot of newfound computer knowledge that it didn't
want to go to waste.
On the heels of the most recent compromise in security that targeted
Microsoft technologies (one of many security lapses), and the
omnipresent threat from cyberterrorists (see story), I started
wondering just how long it would take the plaintiff's bar-fairly
bursting with computer knowledge--to turn its sights on Microsoft.
most of us non-lawyer types, Microsoft certainly appears to be
Citing the biggest and most successful security intrusions (Melissa,
Anna Kournikova, Love Bug, and Code Red), Peter Tippet, CTO of
security service provider TruSecure, estimates the total dollar
incurred as a result of worms and viruses that exploited weaknesses
Microsoft products could be as high as $4 billion. "Compared to Code
Red," which was responsible for three of those four billion, "Nimda
will be even more," says Tippett. "Nimda cleaned the clock of Code
Red. It generated 100 times the attack-related traffic that Code Red
did, and did so in about an hour. Code Red took a few days. Nimda may
cause ten times the damage."
With that much "harm" and Microsoft's virtually bottomless pockets,
would appear to be a match made in heaven for the plaintiffs' bar.
So, I called a few lawyers and all fingers pointed to Jane Winn, the
author of the leading treatise on electronic commerce law (Law of
Electronic Commerce) and professor of law at Southern Methodist
University. According to Winn, if there is a case against Microsoft,
the plaintiffs will have to prove that the company was negligent.
"Currently," says Winn, "we don't have all the elements to prove
The elements Winn refers to are what make up a four-point acid test
for determining whether a company was negligent. The first point is
called "duty of care." In layman's terms, it tests a homeowner's
responsibility to keep ice off their sidewalks. If you don't, and
someone slips and breaks their neck, this first test of duty of care
has been passed because you are responsible for keeping your sidewalk
ice-free. To date, no court has said that MS has the duty of care
it comes to incorporating security into its products. Does Microsoft
have that duty? Do the disclaimers on its products adequately protect
it from liability? These will be the first questions that the
plaintiffs' bar must satisfy.
Once the duty of care is established, then a breach of that duty must
be proven. Here, the test is whether a reasonable programmer would
have engineered the environment to be secure. The emphasis is on
reasonable. The programmer need not be perfect.
The next test is one of causality. Once Microsoft's duty of care has
been established and breach can be demonstrated, someone will have to
prove that Microsoft--and Microsoft alone--caused the damage. This
test might fail if Microsoft could prove that there were other
measures the plaintiff could have taken to prevent the damage.
The fourth and final test is whether damage was actually done. The
plaintiff will have to show that they were harmed in some way once
previous three tests have been satisfied.
What's the precedent?
As with many legal cases, the legal system looks for a precedent. The
Y2K bug might have helped set that precedent in the technology
business, but it was a bust. However, according to Winn, there were a
couple of cases in the shipping industry that may be precedents in
technology. That connection is echoed in a document that shows how
of these cases might have served as a precedent for Y2K liability.
The precedent is known as the T.J. Hooper case. Basically, the case
involved a tugboat that exposed a barge to a storm while it was
transporting it. The barge and its cargo sunk; the plaintiffs needed
to show that the four conditions of negligence were satisfied. Of the
four, the breach of duty test was the hardest to pass. The tugboat
operator did not have a functional radio (the technology) and
therefore had no way of knowing about the approaching storm. The
plaintiffs had to prove that a reasonable tugboat operator (not a
perfect one) would have a functional radio on his or her boat. This
was especially difficult because few tugboat operators had radios on
their boats. It came down to a question of what was reasonable--not
necessarily what was commonplace.
The judge rule that the test was passed saying, "[I]n most cases
reasonable prudence is in fact common prudence; but strictly it is
never its measure; a whole calling may have unduly lagged in the
adoption of new and available devices. It [the industry] never may
its own test, however persuasive be its usages. Courts must in the
say what is required; there are precautions so imperative that even
their universal disregard will not excuse their omission."
Back to layman's terms: If all it takes is a $100 radio to protect
millions of dollars of assets, then it is reasonable for a tugboat
operator to be expected to have that $100 radio, regardless of what
the common practice is.
So, is Microsoft liable?
The T.J. Hooper judgment, which some members of the legal community
consider harsh, may very well set the precedent for the software
industry. Clearly, in today's interconnected world, any reasonable
programmer would look to secure the software he or she is
This is evident from all of the configurable security options that
available to us in everything from operating systems to server-based
applications to browsers. But whether a reasonable programming effort
can make that software 100 percent bulletproof remains to be seen.
In Microsoft's case, I wonder what the impact of its architectural
decisions might be. By design, it built a software infrastructure
thrives on having access to system resources that many wanted
ActiveX exemplifies this, as well as Microsoft's extensions to the
Java Virtual Machine. Those extensions poked holes in the sandbox
Sun created to keep local and Internet-delivered code from
intermixing. Would any reasonable programmer who designed and built
such an architecture also guarantee its security? Are even the most
perfect programmers even capable of guaranteeing that security?
that Sun's sandbox had its own imperfections.
While TruSecure's Tippett points out the successful attacks and
resulting damage against Microsoft software far outdistance those
waged on Unix or Linux, he says all operating systems have the same
fundamental problem. Calling it his "rule of complexity", Tippett
says, "The more complex the system, the more vulnerabilities it has.
The only way it can be 100% secure is if there are only a couple
hundred or thousand lines of code that one programmer can track.
operating systems have millions of lines of code--too much for any
programmer to track--and could potentially have 1,000 times the
of vulnerabilities than have already been exposed."
Maybe the even bigger question is whether Microsoft should have
designed and built such an architecture if a reasonable programmer
knew it could never be 100 percent secured. It's like building a
sidewalk when you know you can never keep it ice-free. If Microsoft
could prove that other operating system vendors did the same thing,
perhaps it would be considered a reasonable practice. Then again,
tugboats didn't have working radios.
No doubt, you will have your opinion on whether the four tests are
passed. As Winn says, "There are still some missing pieces before
Microsoft can be sued. Within our working lifetimes, there's no
question that failure to maintain an appropriate level of computer
security will be the basis for legal liability, but we're not there
yet. We don't have all the elements to prove negligence."
While we wait to see if we get "there," a lot of readers have written
to me wondering just what sort of gluttons we are for punishment.
one reader, "Just how much damage has to happen before we start
considering an alternative like Linux." Good question.
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