Lichtman & Posner: ISP Immunity is too great

In a recent working paper, Professors Doug Lichtman and Eric Posner (both at University of Chicago) question the current legal policy that leaves Internet service providers "largely immune from liability for their role in the creation and propagation of worms, viruses, and other forms of malicious computer code." According to Lichtman and Posner:

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 computer system. They should therefore bear some responsibility for stopping these pests before they spread and for helping to identify individuals who originate malicious code in the first place.

At least three factors point toward the benefit of ISP liability:

1) Often true bad actors are beyond the reach of the law.
2) An ISP has some real control over what passes through its Chunk of the net.
3) End-user self-help mechanisms are often inadequate.

Read a lengthy abstract, or request the full paper from Marjorie Holme at the Law School.

Update: Tim Wu guest at Lessig's Blog provides more comments on Doug's stand.