Tort Law Sample Clauses

Tort Law. Another possible solution is based on the fu nd am ental principles of tort law. This approach applies the civil law of negligence to situations when encryption systems are breached. A party or parties will be fixed with a duty of care owed to another party or parties. For exam ple, in situations involving encryption the encryption expert might owe a duty to the data xxxxxx to create an adequately secure system. The data xxxxxx might in turn owe a duty of care to the owner of the information to engage a reasonably skilled encryption (expert. There are a n u m ber of ad vam tages w ith this negligence-based approach. Tort law is flexible enough to account for all p arties in volved w hen en cry p tio n is u sed . The law of negligence in Australia and England is wide enough to fix a duty of care on th e en cry p t io n exp ert as a professional party ((with regard to the p rovision of v e r y sp ecialised en cry p tio n serv ices) or as a m an u factu rer (fior creatin g the en cry p tio n p ro g ra m ).37 The data xxxxxx would also foe under a duty of care towards a datai owner because of the latter's reliance* on the data xxxxxx obtain in g an a d eq u a te secu rity system. Furthermore, in juidging negligence, tort law has the cap acity to take accou nt of cu r ren t standards and v iew p oin ts.38 A lthou gh this may require calling expert testimony and increase the expense of trials, it does allow the courts to update themselves as to what is currenitly acceptable with regard to electronic security. Furtherm ore, like the contract law solution, tort law is international.39 Therefore, if th ere was a situation involving a security breach extending over tw o or m ore cou n tries, the existing conflict o f law rules would be able to ascertain which country's negligence laws w<ould apply. The m ain d isad van tage w ith this p osition is the d ifficu lty w ith identifying a standard of adequate p rotection . How do courts ju d ge whether a programme created by the en cryp tion tech n ologist p rovides appropriate security? In the first place, courts have trad itionally had little technological exp ertise and would have to rely on exp ert w itnesses, raising the costs of trial. Secon d ly and m o re im p ortantly, technology improv es at such a pace that what is state-of -the-art today will be out-of-date in m onths. There is a real danger that couirts will not be able to keep up with thie progress in the field of encryption technology. The result will be t...