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One of the frequently heard objections to regulation of communications and access on the Internet revolves around the lagging nature of legislative and judicial approaches to dealing with Internet issues, even as the technology responsible for creating them gallops ahead. To address this lag, creative lawyering has stepped in selectively, persuading some courts to adapt what had been considered an antiquated tort concept to the Internet landscape in order to reign in spam (junk e-mail) and other alleged abuses involving unauthorized access to, and use of information from, Web sites and other networked computer systems. The resurrected tort of “trespass to chattels” has been used so successfully in cyberspace cases involving spammers and other unwanted intruders to public and private computer networked systems, that some are now saying it has created a powerful new cause of action, dubbed “cybertrespass” that threatens the underlying open-access nature of the Internet. This antiquated and nearly forgotten common law tort, designed originally to protect personal possessions such as one’s horse, may seem an unlikely choice in a modern, computer context, but it has proven to be either a potent legal tool to protect business interests from a widening list of claimed abuses of the Internet or a weapon to unfairly stifle speech and other commercial innovations, depending on one’s point of view. While this cybertort is controversial, no lawyer representing a client with an e-commerce presence can afford to ignore the developing case law in this area. For those who have not taken a bar exam recently, there are essentially two elements of a trespass to chattels cause of action: an intentional and unauthorized physical contact or interference with the tangible property of another; and proximately resulting damage from the contact or interference, including, inter alia, deprivation of use or diminution of value of the chattels suffered by their rightful owner. By some estimates, these criteria date back hundreds of years and have survived with little modification since then. Until recently, that is. In the last few years, decisions in e-commerce cases appear to have found the required “physical contact or interference” through various kinds of electronic data transfers and e-mail communications, while some courts have all but removed the previously required “damage” element. Understandably, this has led to criticism of the tort’s application in cyberspace as being dangerously overbroad, bearing little logical relation to its theoretical ancestral roots, and capable of being used to threaten the open-access nature of the Internet itself, either selectively to harm particular businesses, or to stifle legitimate expression. If the trend of recent case decisions continues, every privately owned computer and network on the Internet can arguably be deemed to connect to other privately owned computers and networks on the Internet only at the sufferance of each computer’s or network’s owner, each computer or network having the right to withdraw permission to others to visit for any reason at all. But how did things come this far? A good argument can be made that the application of the trespass to chattels doctrine to the electronic arena began when a California Court of Appeals declared that two minors’ use of software to access a telephone system and discover long distance access codes to make free phone calls, had committed trespass to the company’s chattels. In Thrifty-Tel, Inc. v. Bezenek, 46 Cal App. 4th 1559 (1996), 54 Cal.Rptr.2d 468 (1996), the court found sufficient interference and damage flowing from the electronic signals transmitted to the telephone system, causing an overload that, in turn, caused some subscribers to lose long-distance services. Once the California court held that the unauthorized use of a telephone system could be a basis for a claim of trespass to chattels, application of the doctrine to computer networks was not far behind. AOL CASES America Online was an early user of the “trespass to chattels” cause of action in cyberspace, pleading the claim in several successful lawsuits starting in 1997. For example, in America Online, Inc. v. Christian Brothers and Jason Vale, No. 98 Civ. 8959 (DAB) (S.D.N.Y., 2000) AOL laid out its trespass to chattels claim by arguing that the defendants had obtained lists of its members’ e-mail addresses and repeatedly transmitted over 20 million messages — up to hundreds of thousands of messages per hour — through AOL’s computers and computer networks to AOL’s members. This, according to the claim, disrupted the “legitimate” use of AOL’s mail servers, having a finite processing speed and memory capacity, causing measurable delays in the delivery of authorized e-mail. As a result, AOL claimed it had been forced to invest resources in new hardware, software and personnel to maintain the performance capacity of AOL’s e-mail system, which expenses were passed on to AOL members. Unauthorized use and damage having been argued to the court’s satisfaction, the judge awarded AOL $200,000 on the claim of trespass to chattels alone, as well as permanent injunctive relief. In Christian Brothers, and other similar cases brought by AOL, the defendants had been found to have made use of AOL’s property, resulting in direct, consequential and significant harm to its Web and mail servers’ functionality, so the trespass to chattels cause of action seemed appropriate. Even before that, a former AOL competitor also achieved prominence in the history of cybertrespass. In CompuServe, Inc. v. Cyber Promotions, Inc., 962 F.Supp. 1015 (S.D. Ohio 1997), 65 USLW 2532, 25 Media L. Rep. 1545 S.D.Ohio, the court enjoined the defendant from sending unauthorized bulk e-mails to Compuserve’s “proprietary computer system, concluding that the defendant’s e-mails were an actionable invasion of the plaintiff’s computers even without harm to the chattel, holding that “[i]ntermeddling is actionable even though the physical condition of the chattel is not impaired.” THE ‘EBAY CASE’ The legal community began to take notice of the potential of the electronic trespass claim in April 2000, when eBay won a preliminary injunction against Bidder’s Edge, an online aggregator of auction bidding information. The injunction prevented Bidder’s Edge from accessing eBay’s computer systems by use of its “automated querying program without eBay’s written permission” ( eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1056, 1071 [N.D. Cal. 2000]). This case was noticed in a way that earlier spam cases were not for two reasons: First, because the court validated a trespass to chattels claims despite finding that Bidder’s Edge’s use of search bots to collect auction bidding information from eBay’s Web site had not caused any significant harm to eBay’s network; and, second, because the decision appeared to be based on the potential harm that might be suffered if the complained of activity were legitimatised and followed by others. In other words, if the court did not stop Bidder’s Edge “it would encourage other auction aggregators to engage in similar recursive searching,” potentially bringing eBay to its knees. Although the problem remained that if this type of electronic access that admittedly caused no damage was now actionable, would not Internet use not authorized in advance also constitute trespassing? Nevertheless, on the basis of the perceived potential threat from others, the judge went so far as to grant preliminary injunctive relief, saying it was sufficient to show that the defendant’s conduct was at least “intermeddling with the use of another’s personal property.” Not long thereafter, in Ticketmaster Corp. v. Tickets.com, Inc., 2000 WL 1887522, C.D. Cal., 2000, Aug. 10, 2000, 2000 Copr.L.Dec. P 28, 146 C.D.Cal, the court reached a different conclusion, ruling that the plaintiff was not entitled to a preliminary injunction because the defendant’s use of plaintiff’s computer system was “very small” and there was “no showing that the use interfere(d) to any extent with the regular business of” the plaintiff. However, while distinguishing the facts of the two cases, the court spoke favorably of the eBay decision: [I]t is always difficult to attempt to apply established law to brand new facts with other established policies tugging and pulling one in various directions … It is noted that the harm to the equipment was foreseen to its intended function, not the physical characteristics of the computer. A basic element of trespass to chattels must be physical harm to the chattel (not present here) or some obstruction of its basic function (in the court’s opinion not sufficiently shown here). In Oyster Software, Inc. v. Forms Processing, Inc., 2001 WL 1736382 (N.D. Cal., Dec. 06, 2001), a case involving copying metatags, the behind-the-scenes codes of Web sites, the court continued to wrestle with the question of whether physical harm was a necessary element of trespass to chattels. Relying on its reading of eBay, it concluded that such harm was not required and that mere unauthorized usage, standing alone, was sufficient to impose liability. A CONTROVERSIAL CASE In Intel Corporation v. Hamidi [FOOTNOTE 1] currently on appeal before the California Supreme Court, the trespass to chattels theory was used successfully in the lower courts to enjoin a terminated employee from continuing to e-mail Intel’s employees with criticisms of Intel’s personnel policies. Intel argued that physical damage was not a necessary showing, just “some impairment in value to the business owner.” The lower court agreed: Here, Intel clearly has a legally protected interest in ensuring that its corporate computer networks are used by its employees to benefit the business, and not by disgruntled former employees for the purpose of sending e-mails that attack the company and harass and dismay employees. In the corporate context, e-mail is a business productivity tool. While any single message, or even a few messages, might have been trivial, the aggregation of his e-mail messages resulted in a genuine impairment in the value of the computer network to Intel, its owner. The trespass to chattels tort requires no more. A divided California Court of Appeal upheld the lower court’s ruling, and the state supreme court will weigh in next in what is a widely anticipated decision. What are the implications? In short, enormous. Arguably, if Hamidi stands and is followed in other jurisdictions, any e-mail or other electronic transmission could conceivably be actionable as a trespass to chattels if the receiving party notifies the sender that it does not consent and if it takes technological steps to prevent further incidents. One can envision trespass claims involving not only e-mail but streaming video or audio, chat, search engines, and almost anything else that happens on the Internet. The possibilities for business use of this tort also seem limitless if the current judicial trend continues and it falls to these same courts to determine how far plaintiffs can raise the drawbridge connecting them to cyberspace. Jay Hollander is the principal of the Manhattan law firm of Hollander and Company. He is also an editorial board member of GigaLaw.com and the director of legal affairs for the New York City chapter of the Association of Internet Professionals.

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