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47 Fla. St. U. L. Rev. 531 (2019-2020)
More Is Different: Tort Liability of Compromised Systems in Internet Denial of Service Attacks

handle is hein.journals/flsulr47 and id is 561 raw text is: MORE IS DIFFERENT: TORT LIABILITY OF COMPROMISED SYSTEMS IN INTERNET DENIAL OF SERVICE ATTACKS ROBERT A. HEVERLY* I. INTRODUCTION ........................................................................ 532 II. DENIAL OF SERVICE ATTACKS: THE MECHANICS.................... 537 A. DoS Attack Mechanics ..................................................... 541 B. DoS: Parties and Participants ......................................... 545 III. NEGLIGENCE AND DENIAL OF SERVICE ATTACKS ................... 546 A. The Big Picture................................................................. 546 B. Disputes and Uncertainties: A Framework for D oS L iability .................................................................... 548 1. Negligence Law, Duty and DoS Attacks ................... 548 2. The Problem (or not) of Purely Economic Loss ......... 559 3. Causation: Factual Causation and the Substantial Factor Test ............................................. 560 4. Additional Wrinkles ................................................... 563 5. Closing Thoughts on Tort Doctrine ........................... 564 IV. WHERE TO GO AND HOW TO GET THERE: COMMUNITIES OF INTEREST IN INTERNET SYSTEM OWNERS......................... 564 A. The Test of Power ............................................................. 567 B. Networks and Network Operations: Another Big Picture............................................................................... 569 C. Risk and Resources .......................................................... 572 D. A Robust Defense .............................................................. 577 E. The Challenge of the DoS Pool for the Courts................. 579 F. Fairness and Proportionality in Liability ....................... 580 V. CONCLUSIONS AND FURTHER THOUGHTS ............................... 581 We attack not only to hurt someone, to defeat him, but perhaps also simply to become conscious of our own strength. Friedrich Nietzsche * Robert A. Heverly is an Associate Professor of Law at Albany Law School. This ar- ticle began as one making a different argument while I was a Fellow at the Information Society Project at Yale Law School. I cannot begin to name the colleagues and mentors who read, responded to and critiqued the article over time, or who listened to presentations at a variety of workshops and presentations, but they were many and varied, and each contrib- uted something useful to the article. I am deeply appreciative of the community of scholars that inhabits this space. Errors that remain after this lengthy development process are mine alone.

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