Comment by will_brown | Hacker News Reader

Comment by will_brown | Hacker News Reader

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>Do we really want a massive SaaS company to criminally investigate its clients at its own initiative?

I think my arms dealer provides a much clearer example of facts removed from tech where people in HN are understandably defensive.

The law doesn’t require a seller of goods/services to investigate a buyers intent, but the law does create liability if the seller knew or should have known the buyer intended to use the good/service in the commission of a crime.

So in the case of an arms dealer if the buyer uses the gun in a crime, the arms dealer is only liable if they knew or should have known, but the law isn’t requiring the seller investigate (but if facts tend to show the buyer was discussing using the gun for crime xyz to the seller, then yes the seller could be liable).

I think this is good, others may disagree and say sellers should be able to sell goods/services where they know the buyer intends to use the same in commission of a crime...but the investigation is beyond the legal scope of what is required by law and I don’t think anyone is suggested that become the law.

>I think my arms dealer provides a much clearer example of facts removed from tech where people in HN are understandably defensive.

guns are much simpler situation, and this is why it doesn't make the situation clearer. Imagine if that specific gun dealer could look into the brain of a buyer. Would you hold him accountable for not checking the Parkland shooter's brain?

>the law does create liability if the seller knew or should have known the buyer intended to use the good/service in the commission of a crime.

Is SaaS company "should have known" what is in the data it is SaaS-ing? We know that the answer is "yes" for banks according to the explicitly written money laundering, etc. laws. There arent such explicit laws for SaaS, for Facebook, etc. Is Facebook liable if somebody uses it organize a crime like say a bank robbery or an unpermitted protest?

>Imagine if that specific gun dealer could look into the brain of a buyer. Would you hold him accountable for not checking the Parkland shooter's brain?

It’s an interesting thought experiment, but that’s not the legal burden of sellers to crawl into the mind of the purchaser. Further, it’s not about selling an item that is used in a crime, it’s selling an item you know or should know will be used in a crime. I don’t know enough about the parkland shooter purchases but it’s at least possible: 1. The shooter didn’t have intent to commit a crime when he purchased the gun/ammo and only developed the intent later after the purchase (no liability for the seller under this theory), or 2. The seller didn’t know the shooters intent and there are no facts suggesting the seller should have known.

The Law and application of the same has more common sense than saying a seller should have known...if only they read the mind of the buyer.

> but the law does create liability if the seller knew or should have known the buyer intended to use the good/service in the commission of a crime.

It does? I’m a (former) lawyer and this is news to me. Not saying it’s wrong, just wondering what the crime is (aiding and abetting? accomplice liability? conspiracy?) I’m not sure how any of these quite fit. Would love to be enlightened!

>Not saying it’s wrong, just wondering what the crime is (aiding and abetting?

I didn’t say it was a crime I said it creates liability, this is a civil case about civil liability after all.

For example there are tons of civil cases against businesses that sell ammunition, there are endless such cases against Walmart alone, where the ammunition ends up being used in the commission of a crime.

More often than not Walmart prevails in the ammo cases because there is usually no evidence showing Walmart knew or should have known the buyers intent to use the bullets in a crime (it’s probably true that many times the buyers had not such intent when the bought the ammo). Still there are cases where plaintiffs can prove the seller did in fact know, should have known or even could have predicted the intent of the buyer to use the ammo in a crime.

All that said it’s also true, though far less likely the liability could raise to a criminal level.

Would the civil liability be under tort law or something else? The first requirement for tort liability is that the defendant owe a duty of care to the plaintiff. There are some exceptions to this, but I’d be curious to know the theory here. I understand that people sue Walmart for ammo sales and such, but is there any chance that a shop owner who sells, for example, duct tape, a ski mask, and zip ties to a kidnapper could have even civil liability? The shop owner has no legal duty (even civil) to the potential victim, who may not even be identified at the time of sale. how would the shop owner be liable? I’m still not seeing it. If you can just point me to the ammo cases then I can just read up on how these cases work.

> Would the civil liability be under tort law or something else?

One obvious basis would be in tort, more specifically negligence; similar to (perhaps a subtype of) negligent entrustment.

> The first requirement for tort liability is that the defendant owe a duty of care to the plaintiff.

That's the first requirement for negligence, not all tort liability.

> I understand that people sue Walmart for ammo sales and such, but is there any chance that a shop owner who sells, for example, duct tape, a ski mask, and zip ties to a kidnapper could have even civil liability?

Yes, quite likely, if they actually knew, or reasonably should have known, the kidnapper intended to use it in a kidnapping, and the harms at issue are of a time that should be reasonably foreseen in such use.

> The shop owner has no legal duty (even civil) to the potential victim

True under the very old common law where duty was found only in privity, but untrue with the modern rule which incorporates the general duty of care—which is generally a duty to act so as not to cause reasonably foreseeable harm.

Looks like negligent entrustment is typically limited to automobiles, and then only when the person to whom it is being entrusted is intoxicated or has a reputation for intoxication.

You're right that duty is a requirement of negligence, not all tort liability — thanks for correcting this.

I'm still not clear on how liability would result in this sort of hypo. Are there statutes establishing liability? Is it common law? Either way, what are the legal requirements, bright lines, etc.? Just looking for some good old fashioned IRAC here, if you know what I mean :)

>shop owner who sells, for example, duct tape, a ski mask, and zip ties to a kidnapper could have even civil liability?

I feel this has been exhaustively explained and reexplained throughout the thread, so the answer is: maybe...if the shop owner knew or should have known those items would be used in the commission of a crime, then yes there is potential liability. In your example even if the kidnapper didn’t disclose his intent the particular grouping of items may in fact suggest the shop owner knew or should have known, and of course other facts are relevant. For example, it’s a small town and the shop owner knows the purchaser as a felon with a history of violent crimes using duct tape and a ski mask.

That said maybe the facts suggest the shop owner didn’t know and had no reason to even predict the items would be used in a crime (maybe these are items typically purchased together from the shop).

As dragonwriter stated these cases are typically negligence cases, especially in firearms/ammo cases where there is federal law to protect arms dealers (thank NRA).

Here is a link to an article about a ammo case against Walmart (sold bullets to a drunk guy who gave the bullets to a kid after walking outside and 15 minutes after purchase shot and killed someone), my guess is Walmart won’t be found negligent. The article notes a second case where a gun shop sold a gun to someone who workers had suspicions was buying the gun for someone else (the gun was bought for someone else who used it to kill 2 police), they were found liable. https://www.google.com/amp/s/www.cnbc.com/amp/2016/01/08/wal...

Here is a second article against Walmart again where Walmart entered into a confidential settlement before trial. https://www.google.com/amp/s/www.mcall.com/news/breaking/mc-...

Sorry don’t have the time now to pull up the case styles.

> I feel this has been exhaustively explained and reexplained throughout the thread

Sorry — I'm on mobile and was just looking at this thread via /comments. Didn't realized it had been discussed elsewhere. Thanks for sharing the case info. Sounds like there haven't been (m)any cases where liability was established, which fits with my understanding of the limits of tort law (and lack of similar statutory laws).

The second case in the first link there was a trial and verdict finding liability for the seller (note there was evidence the gun shop employees had suspicions the buyer was illegally buying the gun/ammo for someone else, they sold it anyway, and the gun/ammo was bought for someone else who used the same to kill 2 police).

Again one must Keep in mind <10% of cases go to trial and verdict, so the result speaks for itself, but you are right. In general there aren’t a ton of cases against merchants alleging they sold an item they knew would be used in a crime - it should be a surprise most criminals don’t announce their intent when making purchases - and gun/ammo cases are about as prolific as any for these claims (hence why I keep using that hypothetical).

A prime example is The 2nd article Walmart where they settled that case, so we will never know, but if Walmart settles it’s safe to say there were facts suggesting Walmart liability meaning in that case they knew or should have known they were selling ammo that would be used in a crime.

I’d place my money on SF settling this case in the same fashion, not to say they would be found liable at trial, it just seems with the available facts there is potential liability and these facts won’t play well to a jury.

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