More than twenty countries have signed on to the nonbinding Pall Mall Process Code of Practice for States since it was launched in April 2025 by the United Kingdom (UK) and France. Its focus is to “tackle the challenges posed by the proliferation and irresponsible use of commercial cyber intrusion capabilities (CCICs).” CCICs encompass a broad array of tools, including spyware—a kind of malicious software that allows “unauthorized remote access to an internet-enabled target device” for surveillance and/or data extraction. One of the pillars of the Code of Practice for States is accountability, under which countries are encouraged to establish or apply national frameworks to regulate the “development, facilitation, purchase, transfer, and use of” spyware.
Establishing new domestic frameworks or even analyzing which existing national or international frameworks apply to spyware-related activity will take significant time, likely years. Meanwhile, new instances of spyware abuses against journalists and other human rights defenders continue. It is therefore not surprising that the Code of Practice for States also recommends measures to incentivize responsible activity, encourage the use of export control and licensing frameworks, and provide support for victims. It is on one such measure for victim support that this report focuses: “procedures for those claiming redress as a result of the irresponsible use of CCICs, including ensuring access to effective judicial or non-judicial remedies.” Specifically, this report explores how existing tort law relating to abnormally dangerous activities in the United States and the UK could provide a ground for bringing cases related to spyware abuses.
Tort law allows individuals to take accountability into their own hands, which is especially important when processes to enact binding obligations on actors involved in developing and selling spyware can take years and there is no guarantee they will be successful. However, tort law differs by country and, within the United States, even by state. This makes research difficult and, at a larger scale, inconsistent. Additionally, litigation is very resource intensive both in terms of money and time and governments are typically shielded from civil liability. It is simply not possible for every victim of a spyware abuse to bring a case against the actor(s) responsible. In that sense, it is not recommended to rely exclusively on tort law for accountability, but to use it as a supplementary measure while continuing to pursue parallel efforts at regulation.
With that framing, this report looks at the possibility of bringing cases under strict liability for abnormally dangerous activities in California and the UK. These two jurisdictions were chosen because of the similarities in their legal systems, the fact that civil cases have been brought in California against spyware developers, and since the UK is one of the countries that launched the Pall Mall Process. The author is not aware of any previous cases brought under this theory of liability with respect to spyware. Given the six-factor definition of abnormally dangerous activities in California, the fact that a court decides whether an activity qualifies, and recent developments regarding jurisdiction over foreign defendants and significant damages awards, it could be possible, although still difficult, to bring a case there under this theory related to spyware harms. The development of the same doctrine in the UK, however, cautions against attempting this novel argument there. For UK plaintiffs, more research is needed on alternative grounds under tort.