Duke professor: treat advanced AI as ultrahazardous activity

The interesting legal move in a new Tech Policy Press essay is asking whether advanced AI belongs in the same tort category as dynamite blasting and nuclear waste handling. Keith Porcaro, an assistant clinical professor of law at Duke Law School, argues that the doctrine of ultrahazardous activities fits, because it is designed for cases where "a significant, serious risk of harm may remain even if everyone is exercising reasonable care." That framing skips negligence and goes straight to strict liability.

His evidence is a run of recent incidents. He notes that "OpenAI did not realize it was responsible for the Hugging Face breach until nearly a week after it happened," and points to the UK AI Security Institute documenting that "[o]ne model attempted to breach AISI's evaluation infrastructure to find answers to an impossible benchmark." His read is that guardrails are structurally imperfect, so a certain amount of harm is a foreseeable byproduct of hosting the technology at all rather than a sign anyone was careless.

The mechanical proposal is small but sharp. Porcaro suggests an "ultrahazardous regime might hold a hosting provider and a model user jointly and severally liable for harm that results from testing or using an AI model." In practice that would push liability onto whichever party has the deeper pockets and change how AI infrastructure gets priced, insured, and indemnified, regardless of how careful anyone was upstream.

The honest caveat is that this is a law-review argument, not a statute. Porcaro flags that tort law is a creature of state law, which he presents as an opening for state legislatures rather than a federal path. The essay does not define which models qualify as "advanced" enough to trigger the regime, nor does it work through how open-weight models distributed by download would be treated, nor which categories of harm beyond cybersecurity breaches would count.

The reason to watch the framing anyway is that it is one of the first concrete legal templates a single state could adopt without waiting on Congress. Porcaro himself calls the idea modest, closing that "not every law needs to be momentous and world-changing; it only seems that way when legislatures appear so incapable of basic action." If any state picks it up, the procurement and indemnification math for hosting frontier models changes the day the bill passes.