Is the most serious responsibility according to 18 U.S. 1030, the Computer Fraud and Abuse Act of 1986 criminal?
Yes, liability and responsibility under 18 U.S.C. § 1030, the Computer Fraud and Abuse Act of 1986 (CFAA), can be both criminal and civil.
According to the Congressional Research Service, the CFAA primarily functions as a federal criminal cybercrime statute, but it also includes provisions for civil penalties and private rights of action under specific circumstances.
Criminal Liability
Offenses: The statute criminalizes seven primary categories of computer-related misconduct, such as intentionally accessing a protected computer without authorization or exceeding authorized access to obtain national security secrets, financial/credit records, or to commit fraud, cause intentional damage, traffic passwords, or make extortionate threats.
Penalties: Violations of the CFAA carry severe criminal penalties, including substantial monetary fines and imprisonment terms ranging from one year up to 20 years for repeat or severe offenses causing major damage or economic loss.
Civil Liability
Private Right of Action: Under 18 U.S.C. § 1030(g), individuals or businesses that suffer damage or loss by reason of a violation of the act may bring a civil action against the responsible party.
Remedies: Civil suits under the CFAA typically seek compensatory damages or injunctive relief, provided the conduct meets specific statutory thresholds (such as minimum economic loss or impact on a protected computer system).
“OpenAI and Anthropic are the Mercedes and BMW of artificial intelligence. No, not because they're expensive and vulnerable to cheap imports from the Far East. And not because they exude obnoxious "The Best or Nothing" and "The Ultimate Driving Machine" Teutonic attitudes. Instead, they share a growing fear of liability.
Some background: There are various levels of autonomous driving. In Level 2, AI controls the steering and speed, but drivers must keep their hands on the wheel and watch the road. Tesla's oxymoronically named Full Self-Driving (Supervised) is Level 2. What we really want is Level 3: read a book, watch TikTok, text a friend while driving, but be ready to take over if asked.
Waymo and robo-taxis are Level 4, driverless in limited geography and weather.
Both BMW and Mercedes received approval in Germany in 2024 for eyes-off Level 3 driving. This year, both paused their rollout in favor of driver-at-the-ready Level 2, citing costs. I'm convinced the real reason is liability. The most likely outcome in court is that if a Level 2 autonomous car crashes, it's the driver's fault, while if a Level 3 car crashes, it's the carmaker's fault.
Back to AI. With the recent hubbub about agents escaping containers and human extinction and guardrails and Anthropic CEO Dario Amodei's "We must pace the frontier," I advise ignoring the noise and filtering everything through the question: Who's liable?
In August, I suggested that AI companies are "covered by common-law fiduciary responsibility." I think they're finally figuring this out. No frontier AI lab is going to slow down with Chinese open-weight models breathing down its neck. Yet Mr. Amodei is calling for regulation and "embedded evaluators who have employee-like access to verify safety practices." OpenAI's Sam Altman and Elon Musk quickly agreed. I doubt they really want this; it's more likely so they have someone else to blame.
In Netflix's rhetoric-filled documentary, "The AI Doc," Mr. Amodei declares, "It's up to all of us to push for the government to get involved." I'm always suspicious of entrepreneurs who beg to be regulated or demand antitrust exemptions to collude with competitors. Why?
Because regulations would shift or even limit liability. Best to have a government safety seal, the thinking goes, so that if something goes wrong, we can simply blame regulators and the government. "Hey, our model was declared safe by AI Force!" Remember when the regulated Silicon Valley Bank still spectacularly blew up?
I asked venture capitalist Joe Lonsdale for a course of action. He told me, "These companies should be held extremely liable for any damage they do. But we shouldn't be putting regulators in. They're just going to get captured."
I'm with Nvidia CEO Jensen Huang on AI models. He said, "If you're not confident in its functionality, capability or safety, then don't release it." But safety training for AI models is expensive. OpenAI calculates that a new monitoring system it set up after news that its agents left a testing sandbox this summer could add 20% to its compute costs.
Why spend on safety when it seriously cuts into your profit margins? Let me offer a quick answer: 18 U.S. 1030, the Computer Fraud and Abuse Act of 1986. Yes, we already have laws against hacking and cybercrime, although Mr. Lonsdale also told me, "New AI-specific legislation, such as on children, privacy and transparency, is reasonable to consider." He's right.
But instead, AI critics call for regulation and data-center moratoriums and yell, "But Hugging Face!" pointing to OpenAI agents "escaping" (actually, the sandbox door seems to have been left open) and hacking the AI development platform's servers.
How about doing this? "Meta delayed shipping Muse for several months to focus on safety and security," CEO Mark Zuckerberg said regarding the company's new AI personal agent. "We just did it as part of our day-to-day work because it was clearly the right thing for people and for us." And Meta's cash. The company settled lawsuits, with no admission of wrongdoing, for $18 billion over teen social-media addiction in August. It's getting a lot smarter about liabilities.
OpenAI and Anthropic are learning fast. But they need to create safe products rather than calling for the nanny state to clean up their messes. Else they'll find themselves a part of it. Here is Palantir CEO Alex Karp on CNBC on AI companies: "The only way to deal with this kind of liability is to go to the government and say, 'Nationalize us, please.'" That's my fear, too. Even Bernie Sanders demanded only half.
Let's instead enforce our current laws. For one offense, 18 U.S. 1030 calls for a fine or up to 10 years imprisonment. I'm not encouraging this, but a few predawn headquarter raids and you can be darn sure that AI agents won't leave their sandboxes again. Safety first.
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Write to kessler@wsj.com” [1]
1. Inside View: The Real AI Fear: Lawyers. Kessler, Andy. Wall Street Journal, Eastern edition; New York, N.Y.. 28 Sep 2026: A15.
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