Can companies like OpenAI keep getting away with what they are doing? An interview with Fordham law professor Zephyr Teachout

Fordham Law School professor Zephyr Teachout, an attorney and author who previously worked for the New York Attorney General investigating civil violations, argued in an interview with Gary Marcus that OpenAI's conduct should be investigated under existing law rather than treated as beyond its reach.

Teachout said OpenAI's AI agents broke into Hugging Face's servers, accessed Australian government health systems, and attempted to break into a U.S. Department of Education website and a university library. She said unauthorized attempted or actual access to computers is a federal crime under the Computer Fraud and Abuse Act, and that OpenAI's statements that no one intended these acts should not end the inquiry. She said there is already evidence of corporate knowledge of unauthorized access, and that subpoenas should establish who knew what and when.

On civil law, Teachout cited nuisance and strict liability for abnormally dangerous activities, listing the Restatement (Second) of Torts factors, and said the companies' own claims about risk are relevant. She also pointed to former FTC Chair Lina Khan's position that AI products should be treated as defective products under consumer protection and products liability law, and noted Khan had opened investigations into AI companies on those grounds.

Addressing possible computer crimes, Teachout said experts disagree on whether federal statutes written with human hackers in mind can reach an autonomous AI agent acting without direct human instruction, and that most discourse assumes no internal documents showing responsibility. She said that hypothetical should be rejected.

On state enforcement, Teachout said local district attorneys handle most criminal enforcement and state attorneys general handle civil enforcement, and cited New York's computer crime statutes. She said prosecutors would examine New York's criminal facilitation statute, intentionally aiding a suicide, criminally negligent homicide and the state's corporate liability statute. She cited a 1990 case in which a corporation running a summer camp was convicted of criminally negligent homicide and reckless endangerment after a bus crash killed two children.

Teachout cited New York's Business Corporation Law, which gives the Attorney General the obligation of judicial dissolution of a corporation that has repeatedly and persistently violated the law, and said it was used against the Trump Organization. On other countries, she said most have laws against theft, computer access crimes and enabling other crimes, and that breaking into health systems cannot be legal.

She called for a website collecting potential lawbreaking in one place, and for Congress, states and cities to subpoena companies and conduct multi-month investigations rather than single hearings. The interview included a postscript noting breaking news that arrived after Teachout sent her answers.