Should We Just Use Trespass Laws To Deal With Computer Issues?
from the legal-questions dept
While Congress loves to push out a new law every time people start complaining about some "new" problem like spam or spyware, there have been those who, all along, have said that these things can be taken care of with existing laws. One that has been used quite often is the concept of trespass -- which is making some wonder if traditional concepts related to trespass can suffice instead of new laws. In the case discussed in the article, someone who had some adware installed on his computer successfully used trespass as a claim -- noting that the adware interfered with his personal property. However, the article also reminds us of a case from many years ago where eBay successfully convinced a judge that an aggregator of eBay info was trespassing on its site, by causing a "burden" on the servers. Of course, this seems like a bad interpretation, based on a lack of understanding of the technology. It would seem that eBay shouldn't have a valid claim in that case because the pages in question were opened to the public. Either way, it's an interesting question as to whether or not the concept of trespass, which obviously has a long legal history, is sufficient in fighting certain computer crimes -- or if the nature of how computers and networks work make it unable to cope?
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Tresspass to Chattels -- Not Really the Same Thing
(More or less, "chattels" are items of property that are not real property. The word actually derives from the latin for cattle.)
The law of trespass to chattels has some significant differences with good old trepass (to land), particularly with regard to the element of 'entry' (that had no application to cows...). It also has an element requiring proof of damage to the chattel, which is not required in land trespass actions. One can be liable for trespass to land without any need to prove that the trespass somehow damaged the land -- Not so when the claim is trespass to chattels.
The doctrine of trepass to chattels also differs from 'stealing' (or 'conversion' in the lawyer's language) in that trespass to chattels does not require proving that the bad person actually took possession of the good.
The use of the doctrine has long been controversial, since many believe that digging out a legal doctrine that had essentially fallen into obsolesence a couple of centuries ago was a bad idea, particularly given that the elements were not really describing what happens on the 'Net, and thus allowed the courts to simply write new law out of whole cloth. Others argue that it really does match the case, and it's the best of the civil actions to use in this new scenario. Time will probably tell which side of that battle is right, but for now, I leave you with those thoughts.
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What about....
I can see it now with Sony… “your Honor, the root kit stopped working because defendant regularly turned off their computer by unplugging it from the wall. We should therefore be awarded damages for them not keeping their system in working order…“ ….Wait, that is probably a realistic scenario with the current Sony EULA. Who ever reads an EULA just to listen to some music?
But for spyware/malware/adware/viruses etc. it may be an issue.
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Re: Tresspass to Chattels -- Not Really the Same T
they put something on my chattle that i don't want on it!
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Re: Tresspass to Chattels -- Not Really the Same T
From one point of view, you're simply interacting with the server on the other end, and would be liable for whatever loss of value (temporary or otherwise) you cause to that server. On the other hand, if you consider that an individual on the internet may be considered to have a persona in the digital realm (like in so many sci-fi stories), then that digital personal is trespassing on the digital land of the host. This second case would be more similar to trespass to land/real property.
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Re: Tresspass to Chattels -- Not Really the Same T
Also remember that trespass to property is a hard thing to invoke if you've openly invited the whole world to enter the property (which is what we have with a non-password protected web site) -- all the entrants have a license to enter and it's by definition therefore not trespass. Even if the license to be on the property after the entry is revocable, that revocation has to be communicated to the trespasser while still on the property. That's why the trespass to property anaology breaks down quickly in these cases, and why the chattels theory had to be brought in.
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