INTRODUCTION :: This Article explores a seemingly straightforward question: to what extent is a consumer entitled to know how digital products work and the likelihood of digital harm? In previous work, I have explored this question in the context of contract law and consumer consent. This Article approaches the question from a different legal context. Specifically, this Article considers whether a duty to warn should exist in connection with digital products. Even if we assume arguendo that a harmed consumer will have difficulty quantifying actual damages, an independent duty to warn on the part of the digital product creator or operator may still exist.
Part II, focusing on functionality and information security harms, explains the dominant ways that digital products can harm consumers through their code and not their content. Part III reviews existing regulation of digital products. It argues in favor of borrowing the scope of the reasonable expectation of safety and duty to warn owed by possessors of land to their business visitors upon it. Finally, Part III proposes a “reasonable expectation of code safety,” along with a three-tiered framework inspired by systems theory and the land-based duty to warn, protect and repair. Part IV further considers the primary challenge against the proposed framework on First Amendment grounds and finds it to fully comport with First Amendment protections. Part V concludes.