Bugs in the Software Liability Debate

The Biden administration’s National Cybersecurity Strategy, released earlier this year, calls for shifting liability for insecure software, via legislation and agency action, onto software producers that fail to take “reasonable precautions.” It would impose the cost of security flaws onto the party best-positioned to avoid them while rejecting industry’s attempt to shift liability downstream. While not without critics, this proposal received a surprisingly muted reaction from software industry trade groups, potentially suggesting acquiescence to some form of software security liability.