KTM is currently studying Tractate Bava Kamma (BK), which explores the laws of damages. A particularly modern and digital class of tort that is frequently celebrated in the news media consists of CVs. Such caustic programs can wreak havoc with an unsuspecting host computer to so grave a degree as to even erase data and thereby cause the computer’s owner to suffer a formidable financial loss. Is the dispatcher of the CV (e.g. by way of e-mail) liable?
Because, in essence, the damage has been effectuated by nothing more than a binary code conveyed by way offibreoptics, it behooves us to examine whether one bears liability for effectuating harm via microscopic agents. To be sure, Halakha recognizes that the microscopic realm is not of concern when it yields no macroscopic results- for example,sub visualmicrobes may be permissibly imbibed when drinking water, and molecular cracks in the letters of a Torah scroll do not disqualify. (Likewise, to the conversely stringent end, an invisible space between two letters is inadequate to render a scroll kosher.) However, there is some question among contemporary decisors as to whether sub visual phenomena which actually yield macroscopic results (e.g. gene splicing) are similarly ignored; see R’ Bleich in Tradition 36:2 for a survey of apparently conflicting rulings in this regard. Moreover, the Steipler Ga’on proves in his Kehillos Ya’akov (BK no. 39) that, at least insofar as damages are concerned, one is most assuredly responsible for even imperceptible agents of harm. This he extrapolates from Tosafos (BK 100a, s.v. “Tiheir”) who declare a judge that wrongfully condemns a litigant to pay to be effectuating direct damage through his speech alone; the vibrating air molecules emanating from his vocalized words may be intangible, but their ultimate effect in depriving the litigant of money is quite real. If so, culpability appears theoretically possible in the context of CVs.
To that end, R’ Zvi Spitz (Mishpetei HaTorah, BK no. 67) carefully differentiates between CVs that can only be opened as e-mail attachments by the recipient (albeit unwittingly) and those that directly harm the computer without the recipient’s participation. The former represents an instantiation of BK 47b which submits that if someone places poisonous food in front of his fellow’s animal, which subsequently partakes and therefore dies, he is exculpable in a court of law but liable at the Hands of Heaven. Even if the poisonous meal appears identical to normal fodder, the prankster cannot be held responsible because ultimately the hungry animal was the source of its own undoing. Likewise, anyone who opens an e-mail with an infectious CV has only himself to blame, although the dispatcher does bear moral guilt for orchestrating the mishap by way of gerama (indirect causation). The primary effect of such theological guilt is to require (as a matter of conscience) that the malfeasant obtain forgiveness of the aggrieved party.
On the other hand, where the CV hijacks the computer directly without requiring that the recipient open any e-mail attachment, the dispatcher is indeed fully liable for damages, even if the CV required that the recipient activate his computer. This represents an instantiation of BK 23b which rules (as elucidated by the Rosh) that if a man opens the door to his barn and an intruding violent animal rushes in, the owner of the intruder must pay full damages, despite the impossibility of the intrusion without the victim opening the door. The victim can rightfully claim, “What business did your ox have on my property?” Opening one’s computer is entirely akin to opening the barn door. It is immaterial whether the dispatcher sent the CV to the right or wrong address; in all such cases he is liable for “a man is always forewarned regarding damages, whether inadvertent or intentional” (BK 26a). R’ Spitz admits, though, that such aggressive CVs appear to be technologically fanciful.
Where A borrows a normal diskette from B and deviously returns it with a CV encoded that infects B’s computer upon introduction into the disk drive, A’s liability depends on what he told B when giving back the software. If he said nothing, he is exculpable in court but liable at the Hands of Heaven for gerama (as before in the case of the mischievous chef). But if he perjuriously remarked that the diskette is free of any CV, then he is liable under the principle of garmi (inevitable causation of damage by indirect means that are one degree removed from direct causation), which, unlike gerama, carries full culpability in court. After all, B was depending exclusively on A’s verbal assurances that the diskette would be CV-free.
The best computer, of course, is that designed by the Almighty – the human mind, and the finest software for its processing is Torah. Hopefully, with an enhanced appreciation of Bava Kammanian values, hackers will turn their minds to Torah instead of to the synthesis of destructive CVs.
