The best candidate to nudge those manufacturers toward better security is likely the Federal Trade Commission, which first convened a workshop about “internet of things” security three years ago, eventually publishing a detailed report of its findings in 2015.
But despite its sustained focus on connected devices, the closest the FTC has gotten to punishing a company for selling insecure products was earlier this year, when it settled charges with ASUS over flawed internet routers. Michael Zweiback, an attorney at Alston & Bird and a former federal prosecutor, thinks that’s a missed opportunity. “Instead of talking about the future prospects of what the internet of things actually is going to mean from a security standpoint, I think they have to act,” Zweiback said.
Even if the FTC did immediately start throwing some enforcement muscle around, the sea of poorly secured connected devices already out in the world will continue to haunt us for some time. Gadgets that have default passwords hard-wired into them, making the passwords nearly impossible for users to change, can’t be remotely patched to prevent them from being exploited again in the future. That’s why a Chinese electronics manufacturer said this week that it would recall millions of its webcams, which were found to have participated in Friday’s attack.
The history of the internet of things reveals some hints about why so many connected gizmos are virtual time bombs. “[The internet of things] very much parallels the way the internet grew up,” said Edward McAndrew, an attorney at Ballard Spahr and former federal cybercrime prosecutor. “We rushed to it so quickly that security was largely left behind—in part because it was so awesome. Who doesn’t need a refrigerator that can reorder milk for you on demand?”
Many companies failed to prioritize security in the design process as they rushed to bring new connected devices to market. McAndrew and Zweiback suggest that the FTC could target those flaws with its power to investigate and punish “unfair or deceptive acts or practices” which cause harm to consumers.
When it comes to a botnet—a zombie horde of devices that have been hijacked to do a hacker’s bidding—things can get more complicated. Who can claim harm when millions of unsuspecting webcams and DVRs start attacking a single target? It might be the person who bought the device, says McAndrew, because it runs more slowly or doesn’t function as intended. Or it could be the target of the coordinated attack: Krebs, for example. Last week, the internet infrastructure that came under siege belonged to a company called Dyn—but the ensuing outage affected millions across the U.S. Who can claim injury there? The answer isn’t yet clear.
There might be an alternative to government action: Perhaps an individual or a company could sue manufacturers of faulty devices directly for their negligence. Steve Rubin, a cybersecurity lawyer at Moritt Hock & Hamroff, says the legal framework for such a suit may already exist in tort and contract law. A manufacturer would be in breach of contract, for example, if it sold a product it claimed was safe but that wasn’t.