Cybertrespassing

One emerging issue on the legal horizon for the internet involves a law left over from the Middle Ages. Thanks to sophisticated technology, cybertrespassing (trespassing on the internet) has become an issue and, since the courts have no laws to deal with it, they must draw upon existing, antiquated laws to create a new path.

"Trespassing to chattels" is a tort that has survived from the Middle Ages, and it has not changed since. It is a common law tort that offers a remedy to property owners whose property has been threatened in some way. A "chattel" is property other than real estate or intellectual property, like a website. This distinction makes trespassing of chattels different than regular trespassing. The tort encompasses, then, the attempt to damage or destroy goods, make unpermitted use of them or move them. Many interpret the tort to mean that there must be proof of damage or movement for a plaintiff to win a suit.

One example of internet intrusion is spam, but there are scores of others. It can be argued that spam can cause damage to an owner's computer, since it can spread viruses, or overflow a hard drive and perhaps cause it to crash. But what if the cybertrespassing causes no damage to the hard drive or computer slow down? One case in which this issue arose – eBay, Inc. v. Bidders Edge, Inc. – took place in 2000 and dealt with two online auction sites. In this case, Bidders Edge attempted to get a license from eBay to take information from the latter site and consolidate it, so as to save surfing time for online users. (Yahoo! has a similar deal).

Negotiations between the two companies broke down and Bidders Edge began using "spiders" to access information from the eBay site without permission. Thousands of times a day, these spiders (or probes) would get information from eBay and present it on Bidders Edge's website. The disrict court deciding the case said that eBay was entitled to injunctive relief (meaning they could make Bidders Edge stop the practice) because of the repetitive trespass to chattels. If no damage was done to eBay's website or equipment, then do the actions of Bidders Edge constitute trespass to chattels?

In another case - this one in 2003 – Intel Corp v Hamidi, Intel sued a former employee who had sent nasty emails to 8,000 to 35,000 Intel employees six different times. Intel blamed the defendant for loss of productivity, due to distracted and distraught employees. They also claimed they spent a long time trying to (unsuccessfully) thwart Hamidi's attempts to crack the company's website. The company was granted injunctive relief.

In both cases, the defendants argued that no harm had been done to the property in question. eBay could argue, however, that damage was caused if Bidders Edge slowed down its operation, or included an error about an item's price. And Intel argued that they suffered harm in loss of production. Both plaintiffs won their cases because of the negative effects of the trespasses, which seems to indicate that the precedent set by common law – requiring proof of damage – has held constant in the new media.

Certain questions remain: Should the courts use a law that arose during the Middle Ages to deal with cases in the new millenium? Must plaintiff's prove that their property (in this case websites, servers, and even reputation) has been damaged to win a law suit? Do users have the right to access information from a company's website? (either to make a profit or to speak out about their greivances? )

Sources:

"Cybertrespass"
Richard Epstein, University of Chicago Law Review, Winter, 2003
70 U. Chi. L. Rev. 73
Copyright (c) 2003 University of Chicago

RECENT DEVELOPMENT: Trespass to Chattels and the Internet: Intel v. Hamidi
Harvard Law School, Fall, 2003
17 Harv. J. Law & Tec 283
Copyright (c) 2003 Harvard Journal of Law & Technology

Tyson Marshall, Trespass to Chattels, the Internet’s Greatest Antagonist?, 40 S.D.L.REV. 461-79 (Winter 2003)