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51.
Samuel Gibbs, Apple, Google and Microsoft: Weakening Encryption Lets the Bad Guys In,
Guardian, (Nov. 23, 2015), http://www.theguardian.com/technology/2015/nov/23/apple-google-
microsoft-weakening-encryption-back-doors.
52.
The All Writs Act, 28 U.S.C. § 1651, provides: “(a) The Supreme Court and all courts
established by Act of Congress may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles of law. (b) An alternative
writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.”
53.
Apple, A Message to Our Consumers (Feb. 16, 2016), https://www.apple.com/customer-letter/.
54.
See Hal Abelson, Ross Anderson, Steve Bellovin, Josh Benaloh, Matt Blaze, Whitfield Diffie,
John Gilmore, Matthew Green, Susan Landau, Peter Neumann, Ron Rivest, Jeff Schiller, Bruce
Schneier, Michael Specter, and Danny Weitzner, Keys Under Doormats: Mandating insecurity
by requiring government access to all data and communications, CSAIL Technical Reports,
(July 6, 2015), http://dspace.mit.edu/handle/1721.1/97690.
55.
Ransomware Attack ‘Like Having a Tomahawk Missile Stolen’, Says Microsoft Boss, Guardian,
(May 14, 2017), https://www.theguardian.com/technology/2017/may/15/ransomware-attack-
like-having-a-tomahawk-missile-stolen-says-microsoft-boss.
56.
Brad Smith, The Need For Urgent Collective Action to Keep People Safe Online: Lessons From
Last
Week’s
Cyberattack,
(May
14,
2017),
https://blogs.microsoft.com/on-the-
issues/2017/05/14/need-urgent-collective-action-keep-people-safe-online-lessons-last-weeks-
cyberattack/.
57.
Paul Wagenseil, Evernote Breaks Own Security Rule in Data-Breach Email, TechNewsDaily,
(Mar.
4,
2013),
http://www.mnn.com/green-tech/computers/stories/evernote-breaks-own-
security-rule-in-data-breach-email.
58.
See Ryan Calo, Robotics and the Lessons of Cyberlaw, 103 Calif. L. Rev. 513 (2015); Woodrow
Hartzog & Fred Stutzman, The Case for Online Obscurity, 101 Calif. L. Rev. 1 (2013); Jessica
Silbey & Woodrow Hartzog, The Upside of Deep Fakes, 78 Md. L. Rev. 960 (2019) (arguing
that deep fakes are symptoms of much deeper and long-existing problems).
59.
See Rebecca Crootof, The Internet of Torts: Expanding Civil Liability Standards to Address
Corporate Remote Interference, 69 Duke L.J. 583 (2019).
60.
Ms. Smith, Hacking Pacemakers, Insulin Pumps and Patients’ Vital Signs in Real Time, CSO,
(Aug. 12, 2018), https://www.csoonline.com/article/3296633/hacking-pacemakers-insulin-
pumps-and-patients-vital-signs-in-real-time.html.
61.
See Andrea Matwyshyn, The Internet of Bodies, 61 William & Mary L. Rev. (2019).
62.
Id. at 88.
63.
See Andrew Selbst, Negligence and AI’s Human Users, 100 B.U. L. Rev. 1315 (2020).
64.
Given the difficulties of proving causation and harm thresholds, strict liability in combination
with a functional insurance scheme could approximate a risk-based approach by forcing a
redistribution of the costs of a breach as a way for organizations to minimize and calibrate risk.
See, e.g., Danielle Keats Citron, Reservoirs of Danger: The Evolution of Public and Private
Law at the Dawn of the Information Age, 80 S. Cal. L. Rev. 241, 242 (2007); Mark A.
Geistfeld, Protecting Confidential Information Entrusted to Others in Business Transactions:
Data Breaches, Identity Theft, and Tort Liability, 66 DePaul L. Rev. 385, 387–88 (2017)(“[t]he
rule *388 of strict liability supplies the necessary means for customers to adequately enforce
the tort duty obligating businesses to adopt reasonable precautions for protecting entrusted
confidential information.”); Justin (Gus) Hurwitz, Cyberensuring Security, 49 Conn. L. Rev.
1495, 1500 (2017) (“[I]mposing strict liability on firms hosting consumer data would achieve
the key purposes of cyber insurance that have so far remained elusive, and it would do so in a
way that addresses some of the key challenges generally facing the use of strict liability to
address cybersecurity issues.”) Bryan Choi has suggested and professionalizing software
development and developing a concept of “crashworthy code” to help courts ascertain when
technology design decisions and practices are unreasonable or uncustomary. Bryan H. Choi,
Crashworthy Code, 94 Wash. L. Rev. 39 (2019); Bryan H. Choi, Software as a Profession, 33
Harv. J. L. & Tech. 557 (2020).
65.
Wolff, supra, at 208. Wolff argues that a corollary to this wisdom is that “there is no single
bulletproof defender who can, unilaterally, prevent all compromises and detect every breach.”
Id.
66.
Josephine Wolff, You’ll see this message when it is too late: The Legal and Economic Aftermath
of Cybersecurity Breaches (2018).
67.
Id.
68.
Justin (Gus) Hurwitz, Cyberensuring Security, 49 Conn. L. Rev. 1495, 1508 (2017). (“This
multiplicity of actors makes establishing cybersecurity responsibility difficult. Each of the
actors has some legitimate argument that at least some of the others bear responsibility for
almost any cyber-incident. . . . The response to any security incident will invariably be to assign
blame to any number of other parties.”) 69.
Id. at 1174. (“[W]e can expect insurers will do
even more to drive adherence to a predefined duty of data security. Many experts agree that
making these insurance policies more affordable—and therefore more widespread—will require
better information for insurers to use in making more efficient risk assessments, and more
uniform recommendations for what minimum security measures insurers should require of
policyholders.”)
CHAPTER 6
1.
David Lazarus, An Advocate for Readers, A Name You Can Trust, L.A. Times, (Aug. 12, 2007),