Band 18, Heft 1 - Special Issue Title: Extended Reality Symposium: Adapting Tort Liability Law to New Technologies

Though it is common to think of AI systems as a singular tool, AI systems are often developed and deployed in a value chain that involves numerous components and actors. The AI life cycle has at least three stages: programming, fine-tuning, and implementation. Different actors can participate in these stages or sell and supply key components, such as pre-labeled data. Consequently, when harm occurs and an AI system is involved, allocating liability among these different actors and stages poses difficult questions. This Article begins to address this question by drawing on existing tort doctrine on the liability of suppliers of raw materials and components in product liability law. In doing so, it identifies principles that can inform courts, regulators, and technologists on whether and when the different participants in the AI value chain should be held liable for harm involving an AI system. It argues that several factors should be considered when facing AI liability cases. These include the relative expertise of the different actors, the moment in the AI lifecycle where it may be most efficient to adopt safety measures, the context of the AI system’s deployment, whether AI component suppliers should foresee specific uses and risks, and the level of participation of each AI actor in the outcome that causes harm.

Tort liability for failure to “age gate” is a promising legal response to the public health hazards of AI, social media, sports gambling, and other digital spaces. Tort liability for failure to “age gate” hinges liability for harms to minors on an app’s failure to take reasonable steps to prevent minors from gaining access or otherwise to apply appropriate governance rules, such as privacy-protective default settings or ensuring genuine parental consent. While no one legal response is a panacea, tort liability for failure to age gate carries several distinctive advantages that make it a particularly promising option at this stage of an evolving regulatory challenge. These advantages include avoiding section 230 preemption, mitigating First Amendment barriers, ensuring fit with existing tort doctrine, assessing technical viability, and minimizing harms to innovation. The relative insulation of the tort system from industry manipulation as compared to legislative processes, and consistency with the need to balance prevention with access in regulating addictive technologies are added bonuses.

Private voluntary standards are playing an ever increasing role in the governance of many emerging technologies, including autonomous vehicles (AVs). Government regulation of AVs and other emerging technologies has lagged due to the “pacing problem” in which technology moves faster than government regulation, and regulators lack the first-hand information that is mostly in the hands of industry and other experts in the field who often participate in standard-setting activities. Consequently, private standards have moved beyond historical tasks such as inter-operability and definitions to now produce quasi-governmental policy specifications that address the risk management, governance, safety and privacy risks of emerging technologies. As the federal government has prudently concluded that promulgating government standards for AVs would be premature at this time and may do more harm than good, private standards have become the primary governance tool for these vehicles. A number of standard-setting organizations, including the SAE, ISO, UL and IEEE have stepped forward to adopt a series of inter-locking private standards that collectively govern AV safety. While these private standards were not developed with litigation in mind, they could provide a useful benchmark for judges and juries to use in evaluating the safety of AVs and whether compensatory and punitive damages are appropriate after an injury-causing accident involving an AV. This application of private standards would help solve two problems: (i) the lack of incentives for AV manufacturers to commit to conformance with the existing private standards for AV safety, and (ii) the concerns and uncertainty of AV manufacturers about potential liability standards (especially punitive damages) when their vehicles are inevitably involved in crashes resulting in injury or death. Drawing on several decades of relevant case law, this paper argues that a manufacturer’s conformance with private standards for AV safety should be a partial shield against liability, whereas failure to conform to such standards should be a partial sword used by plaintiffs to argue lack of due care.

Throughout its history, tort law has played a pivotal role in the continuous adaptation of the legal system to social and economic transformations amid periods of technological upheaval. Its adaptive function was often carried out through the doctrine of “public callings” – a common law category widely employed by courts to define the rights and duties of businesses operating in important service industries. In particular, this doctrine served to hold businesses liable for harms caused by the incompetent or insufficiently diligent performance of the services they undertook to provide. Over time, the public callings doctrine evolved into the more familiar frameworks of common carrier and public utility laws, which were increasingly employed by legislatures and regulators to advance economic regulation. As the onus of regulation thus shifted to other branches of government, tort law receded, largely abandoning the adaptive regulatory function it had historically performed. This Article draws on the rich history of tort-based regulation of service industries through the public-callings doctrine to propose a new conceptual regulatory framework for the digital space – one recognizing the systemic importance of two doctrinal offshoots of the public-callings doctrine: the tort of professional negligence, and complementary doctrines for invalidating exculpatory clauses limiting liability for negligent services on public policy grounds. Together, these doctrines establish a framework, which enables tort law to ensure that skill-, knowledge-, and expertise-based services – particularly those essential for participation in social and economic life – are delivered with reasonable proficiency in accordance with industry norms. These doctrines provide a basis for flexible and nuanced imposition of duties in emerging digital industries, and, as the Article contends, are particularly applicable to prominent digital platforms – arguably, the “public callings” of our era. Building on this analysis, the Article introduces the novel concept of “digital malpractice,” explores its potential applications across key functions performed by digital platforms, and calls for its broader adoption as a normatively grounded, adjudication-based regulatory framework for the modern digital environment.

Drawing on recent consumer privacy litigation, this work identifies three recurring doctrinal questions that arise from the interaction between algorithmic activity and privacy tort claims. First, can algorithmic conduct give rise to liability under privacy torts, particularly where intentional conduct is required? Second, can disclosing or holding out information or representations to algorithms fulfill publicity elements of the privacy torts? Third, is use of an algorithm per se offensive or will offensiveness be judged contextually, as for human conduct? A survey of recent case law reveals that courts generally accept algorithmic conduct as sufficient to perpetrate a tortious act – whether intrusion, disclosure, or publication, but they show more skepticism when algorithms are posited as the audience necessary to fulfill a publicity element. Put differently, legally algorithms can act but not see . Further, algorithms are inherently neither aggravating nor mitigating factors as to offensiveness. This work contributes to the growing literature on tort liability and artificial intelligence by surfacing a neglected body of case law in which courts have already long engaged with algorithmic conduct. These privacy torts decisions suggest that AI tort liability is emerging incrementally and contextually. The privacy torts can serve as an informative barometer for likely judicial treatment of future algorithmic use cases.

In 2023, hackers breached 23andMe and extracted the biometric and genealogical data of nearly seven million people. By 2025, that data – originally offered up in the spirit of medical discovery and consumer empowerment – was being auctioned off in bankruptcy court as a corporate asset. The breach exposed more than technical lapses or governance failures. It revealed a structural gap in how the law understands, regulates, and protects biometric identity. Biometric data is intimate, immutable, and implicates human dignity and autonomy. And yet, the legal frameworks most often tasked with protecting it – tort, contract, and even modern privacy statutes – have consistently failed to impose meaningful obligations on the entities that collect, retain, and monetize it. This Article joins a growing body of scholarship urging courts to take bailment seriously as a tool for digital governance, and pushes that conversation forward by making the case for its specific application to biometric data. Bailment, a longstanding common law doctrine, imposes duties not through contract but through custody. It recognizes obligations where property is entrusted, even implicitly, and it treats the breach of those obligations as actionable harm – sidestepping procedural roadblocks that frustrate most privacy litigation. Courts have already extended bailment to encrypted records, digital identifiers, and biological materials such as cryogenically stored embryos. Biometric data fits naturally within that trajectory. Critically, this Article addresses the most entrenched obstacle to biometric bailment: the widespread use of contractual waivers, disclaimers, and arbitration clauses to shield data holders from liability. It argues that these contractual shields are not absolute – and that existing common law doctrines, including unconscionability, public policy limits, and judicial flexibility in recharacterizing relationships, give courts the tools to restore baseline obligations even in the face of formally disclaimed duties. Despite its doctrinal fit and practical advantages, bailment remains dramatically underused in the data privacy context. This Article argues that courts should reclaim it – not as a novel intervention, but as a functional, flexible, and doctrinally grounded response to a rapidly expanding category of legal exposure. In doing so, it offers a path toward real accountability for those who profit from data that cannot be revoked, replaced, or forgotten.

This paper addresses one kind of tort duty that is owed by one kind of platform. With respect to the latter, I focus on platforms that aim to bring about “real world” interactions, such as Lyft/Uber, Airbnb, and Tinder/Grindr. With respect to the former, I focus on the duty to protect users from the attacks of other users and/or third parties. Rather than argue that such platforms incur this kind of duty on grounds of current tort doctrine, I argue that a new doctrine is justified according to which the relevant platforms incur a duty to protect against the actions of others by virtue of their distinct nature as intermediators.

The emergence of the metaverse and spatial computing, which has enabled immersive digital interactions, raise complex legal questions. This work examines the feasibility of addressing dignitary torts – such as battery and intentional infliction of emotional distress – committed via avatars. The particular challenge for tort law is the nonphysical nature of self-representations in these virtual spaces. Drawing from the historical evolutions of several dignitary torts, such as the law of battery and emotional harm, this article argues that the key in allowing for the recognition of such harms is appreciating the expansion of the protection of physical body within these torts, to the protection of a broader concept of the “self.” By this, tort law has demonstrated both its willingness and capacity to recognize new forms of wrongs without sacrificing its core principles. Accordingly, this essay lays the groundwork for recognizing harms in virtual spaces and offers several initial considerations for dignitary tort liability regime and the extension of the self in extended reality spaces. Bridging the gap between evolving technology and traditional tort law is a must in a world where virtual interactions are carrying increasingly real consequences.