Negligent Info-Torts
Before we start with negligent information torts, I should explain what negligence is. Negligence law is founded what is often called the Golden Rule – “do unto others as you would have them do unto you.” This means, for example, that if you assume care of someone’s property, you must care for it as a reasonable person would care for their own property. The rationale for the rule was well-stated by Justice Holmes, who explained that a person is free to destroy their own property, since they must bear the loss; therefore, just as they experience loss by damaging their own property, they must be prepared to experience the same consequence if they damage the property of others. Only in this way, by visiting consequences upon the actor, can we communicate the importance of caring for the property and lives of others.
Here are three examples of how we apply the rule:
Example # 1: Since a reasonable person would not leave their cellphone in the bathroom of a bar, you would be negligent if you borrowed your friend’s cellphone and left it in a bar bathroom, from whence it was stolen. Why? Because a reasonable person would foresee a clear possibility that a cellphone left in a bar bathroom might be stolen.
Example # 2: Since a reasonable person would not drive a public road at one hundred and seventy miles per hour, then a person who drives at such an unreasonably high speed will be liable for all the harm he causes. Why? Because we owe everyone the duty of protecting their lives and property with as much care as a reasonable person would devote to protecting their own lives and property.
Example # 3: Since a reasonable doctor would not answer questions about a patient without obtaining a medical release in writing from the patient, he would be negligent if he permitted another patient to simply browse through a number of patient files in order to find his own records, and the medical records of another patient were disclosed. Why? Because the doctor assumed the duty to protect the medical privacy of his patients, and breached that duty by failing to protect medical records from likely disclosure.
Returning again to domain theft, it is possible that only the actual thief is aware that he is in the process of stealing a domain name. Nevertheless, negligence liability might be asserted against parties who contributed to the loss by “failing to exercise due care,” if they had a duty to the domain name owner. This field of liability has been explored very little, but as the Internet generates more information torts, it will be important to perform this analysis carefully. Key to analyzing each case will be remembering the analytical rule Woodward & Bernstein applied to Richard Nixon’s responsibility for the Watergate burglary: What did the president know, and when did he know it? Why? Because the duty to protect the property of another person from theft will arise from knowledge that one’s action or failure to act could cause the theft to occur.
A Negligent Police Tort: Wrongful Arrest and Defamation Due to Negligent Misidentification of Innocent Persons as Criminals
It’s common knowledge that the FBI maintains a database of fifty million fingerprints that it can search by computer in the Automated Fingerprint Investigation System (AFIS). It is also well known that the FBI maintains the National Crime Information Computer system (NCIC), and that all of the fifty states send their records of arrest and conviction to the NCIC for recording in the national database. What is not well-known is that the system of criminal history reporting in the United States occasionally misidentifies innocent people as convicted criminals, causing them to be arrested, to lose their jobs, and to lose all standing in the community.
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Here are three examples of how we apply the rule:
Example # 1: Since a reasonable person would not leave their cellphone in the bathroom of a bar, you would be negligent if you borrowed your friend’s cellphone and left it in a bar bathroom, from whence it was stolen. Why? Because a reasonable person would foresee a clear possibility that a cellphone left in a bar bathroom might be stolen.
Example # 2: Since a reasonable person would not drive a public road at one hundred and seventy miles per hour, then a person who drives at such an unreasonably high speed will be liable for all the harm he causes. Why? Because we owe everyone the duty of protecting their lives and property with as much care as a reasonable person would devote to protecting their own lives and property.
Example # 3: Since a reasonable doctor would not answer questions about a patient without obtaining a medical release in writing from the patient, he would be negligent if he permitted another patient to simply browse through a number of patient files in order to find his own records, and the medical records of another patient were disclosed. Why? Because the doctor assumed the duty to protect the medical privacy of his patients, and breached that duty by failing to protect medical records from likely disclosure.
Returning again to domain theft, it is possible that only the actual thief is aware that he is in the process of stealing a domain name. Nevertheless, negligence liability might be asserted against parties who contributed to the loss by “failing to exercise due care,” if they had a duty to the domain name owner. This field of liability has been explored very little, but as the Internet generates more information torts, it will be important to perform this analysis carefully. Key to analyzing each case will be remembering the analytical rule Woodward & Bernstein applied to Richard Nixon’s responsibility for the Watergate burglary: What did the president know, and when did he know it? Why? Because the duty to protect the property of another person from theft will arise from knowledge that one’s action or failure to act could cause the theft to occur.
A Negligent Police Tort: Wrongful Arrest and Defamation Due to Negligent Misidentification of Innocent Persons as Criminals
It’s common knowledge that the FBI maintains a database of fifty million fingerprints that it can search by computer in the Automated Fingerprint Investigation System (AFIS). It is also well known that the FBI maintains the National Crime Information Computer system (NCIC), and that all of the fifty states send their records of arrest and conviction to the NCIC for recording in the national database. What is not well-known is that the system of criminal history reporting in the United States occasionally misidentifies innocent people as convicted criminals, causing them to be arrested, to lose their jobs, and to lose all standing in the community.
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