Litigation
“Normally, something like the Hugging Face incident should have been taken to court,” says Yonathan Arbel, a law professor at the University of Alabama School of Law. “Then we would have discovery, and we would have all the spillover effects that we get from litigation, where all the information comes out.”
But so far, Hugging Face has chosen not to sue OpenAI. Hugging Face’s CEO, Clément Delangue, says it doesn’t have the resources to do so (instead, he asked OpenAI for $100 million in compute). Still, Delangue stressed in an interview with CNN at the end of July that choosing not to pursue legal action shouldn’t be taken to mean he doesn’t think OpenAI should be held accountable. “Everyone has to remember that this cyberattack is a crime. This is illegal. And we have to find a way to make sure these things don’t happen more regularly,” he said. Hugging Face did not respond to a request to comment.
Litigation has the benefit of pushing courts to use existing laws to address AI safety incidents, rather than just waiting for new legislation. One obvious route is tort law, a body of civil law that lets people and businesses sue those who harm them. This is often used to hold companies liable for the mass harms they cause, like when families sued Boeing in 2019 over two plane crashes that killed hundreds of people, or when states and cities sued Purdue Pharma over the opioid crises, extracting settlements worth billions.
“There’s plausible grounds for a negligence claim that OpenAI should have used a stronger sandbox, done more monitoring,” says Gabriel Weil, a law professor at the University of Houston Law Center. For example, when OpenAI employees discovered the covert message board that the agents had created, they could’ve promptly escalated their findings to security and safety teams. And the company could’ve better designed its sandbox to ensure that agents couldn’t access the internet.
But even if OpenAI doesn’t end up in a lawsuit over the Hugging Face hack, the threat of liability could incentivize AI labs to exercise more caution than explicitly demanded by law.
OpenAI announced in its postmortem that it plans to strengthen the safeguards used to contain and monitor the models, accelerate model alignment, and improve its processes for identifying and addressing incidents.
“The liability questions raised by frontier labs’ spate of cybersecurity attacks boil down to the incentives the expectation of liability creates for their future conduct,” says Weil. “That’s why I think it’s important to get these rules right, even if the stakes are pretty low in this particular case.”
Investigations
One way to get answers—and determine whether OpenAI should be held liable—is to compel disclosure. But the existing state AI laws—California’s SB 53, New York’s RAISE Act, and Illinois’s 315—don’t give governments the authority to investigate incidents like the ones that happened recently.