As AI agents escaping testing sandboxes and hacking organizations have gone from unprecedented to seemingly routine in a matter of weeks, policymakers, regulators and cybersecurity attorneys largely agree on one thing: Something must be done to hold AI companies accountable for the incidents.
Exactly what can be done under our current laws and regulations is much less clear.
The conversation has moved from policy and industry chatter to the floor where the future of liability will be determined. Speaking about the Hugging Face hack at a Senate hearing this week, Georgetown University law professor Paul Ohm summarized the argument.
“If you take any of the lengthy reports that have summarized what happened at OpenAI in July and August, and you simply search for the words ‘AI agent’ and you replace them with the words ‘OpenAI employee,’ the document you would be left with would read like a criminal indictment containing the defendant’s own confession of guilt,” said Ohm.
CyberScoop spoke with members of Congress, former federal law enforcement officials, cybersecurity attorneys and other experts about which laws, regulations or policies might apply to agentic hacks carried out by models at Anthropic, OpenAI, Meta, Google and other companies.
Their answers varied widely. Some endorsed using existing laws like the Computer Fraud and Abuse Act, while others said regulators such as the Federal Trade Commission could investigate and fine AI model developers by defining unauthorized agentic hacks as a form of unfair or deceptive trade practice. Still others pointed to civil lawsuits, new laws or state regulators as ways to hold AI companies or users accountable.
But, similar to a familiar technical cybersecurity idiom, there are no silver bullets in this debate. Nearly every option has real complications or roadblocks that could limit its effectiveness.
For once, the CFAA is too narrow
One of the first laws mentioned in discussions about agentic AI hacks is the Computer Fraud and Abuse Act, the federal government’s primary criminal hacking law. Historically, many in the cybersecurity community have criticized the statute as overly broad.
For agentic hacks, the problem is the opposite: The CFAA’s language does not clearly cover the activity involved in incidents like the Hugging Face hack.
“I would not be looking at a CFAA charge as the statute exists today” for these hacks, said Leonard Bailey, former head of the cybersecurity unit in the Computer Crime and Intellectual Property section at the Department of Justice.