Trespass Computers and Networks The Generic Fact Pattern

Trespass, Computers, and Networks

The Generic Fact Pattern Scattered data Collected organized data Benefits at least some consumers

e. Bay v. Bidder’s Edge (N. D. Cal. 2000) n n e. Bay is an auction web site on which sellers list items for sale, and prospective buyers post bids and track the status of auctions. e. Bay is by far the largest of hundreds of similar sites.

The Price Comparison Dilemma n n The large number of sites creates a dilemma for buyers. Should a buyer search one site, or a few sites, and settle for the best combination of price and quality the limited search reveals? Or, is a broader search worth the extra effort? Bidder’s Edge proposed to solve this dilemma.

Bidder’s Edge n n Bidder’s Edge allows a buyer to perform a single search on its site, where that search yields a list of all relevant items for sale on over one hundred other auction sites. Bidder’s Edge accomplishes this feat through software robots that automatically search the Internet for relevant information.

Revocation of Consent n e. Bay informed Bidders’ Edge that it was no longer authorized to access e. Bay. q “On November 9, 1999, e. Bay sent BE a letter reasserting that BE’s activities were unauthorized, insisting that BE cease accessing the e. Bay site, alleging that BE’s activities constituted a civil trespass and offering to license BE’s activities. ”

The Court on Consent n Probably no implied consent in the first place. q n Revocation effective anyway. q n “e. Bay does not generally permit the type of automated access made by BE. In fact, e. Bay explicitly notifies automated visitors that their access is not permitted. ” “Moreover, e. Bay repeatedly and explicitly notified BE that its use of e. Bay's computer system was unauthorized. ” Bidder’s Edge continued to attempt to access the e. Bay site.

Trespass to Chattels n One is liable for trespass to chattels if q q q one intentionally, and without authorization, uses the property of another in a way that n impairs its value, n or harms a protected interest.

The Court’s Argument n “BE argues that its searches represent a negligible load on plaintiff’s computer systems, and do not rise to the level of impairment to the condition or value of e. Bay's computer system required to constitute a trespass. ”

Impairment of Value n n “However, it is undisputed that e. Bay’s server and its capacity are personal property, and that BE’s searches use a portion of this property. Even if. . . its searches use only a small amount of e. Bay’s computer system capacity, BE has nonetheless deprived e. Bay of the ability to use that portion of its personal property for its own purposes. The law recognizes no such right to use another's personal property” (emphasis added).

The Breadth of the Right n n n Consider: Any access to a server for any purpose uses some portion of that personal property for that purpose. Thus: any unauthorized use impairs value. So: a system owner can turn any access into a trespass simply by informing the other party that such access is no longer authorized.

Buchanan Marine v. Mc. Cormack Sand n n n The defendant moored its barges to the buoy the plaintiff built and maintained for use by its tugboats. (743 F. Supp. 139 (1991)). The court found a trespass to chattels and issued an injunction without requiring the plaintiff of show any harm other than being deprived of the use of its property. It did not matter whether the plaintiff desired to use the buoy at the time the defendant was using them.

Private Property n n It was the potential deprivation that mattered. The buoy did not become available for use by others as soon as the owner was not using it. To hold otherwise would be inconsistent with the fact that the buoy is private property. An owner of private property has the right, within broad limits, to decide that no one shall use the property.

Intel v. Hamidi (2003) n n Hamidi, a former Intel employee, sent e-mails to current employees criticizing Intel’s employment practices. On each of six occasions, he sent up to 35, 000 e-mails, despite Intel’s demand that he stop. This is intentional, unauthorized access. Does it impair value or harm a relevant interest?

No Impairment of Value n n n The majority held that the e-mails did not impair the value of Intel’s e-mail system. The amount of e-mail was relatively small and did not slow down or shut down Intel’s system. This holding rejects the e. Bay approach. The mere use of another’s computing capacity is not sufficient to impair value.

No Harm To A Relevant Interest n n n The majority also held that Hamidi’s access did not harm any legally protected interest appropriately related to that system. In spam cases, courts have counted an ISP’s loss of business reputation and customer goodwill as a relevant harm. But in those cases, the harm arose from the number of messages; here it arises from their content. The court thinks that this means the harm is not appropriately related to the chattel.

Which Approach Is Best? n n Should we follow e. Bay or Intel? We can begin by seeing what influenced the Intel court.

The Consequences for the Internet First: The growth and vitality of the Internet n n n depend on e-mail communication, hyperlinking, and the search-engine index. Second: These features thrive on impliedpermission access. Third: Recognizing a right to prevent access– potentially—reduces implied-permission access and hence threatens the growth and vitality of the Internet.

Critics of Trespass n n n Mark Lemley contends that the courts failed to grasp the real issue. The courts saw the issue as one of personal property: Does an Internet system owner have the right to control access to the computer equipment? Lemley insists that the issue was information. The cases “were really efforts to control the flow of information to or from a site. ” n Mark A. Lemley, Place and Cyberspace, 91 Cal. L. Rev. 521, 529 (2003).

Apocalypse Now? n n Dan Hunter warns that the “legal propertization of cyberspace. . . is leading us to a tragedy of the digital anti-commons. ” An anti-commons is a distribution of property rights that imposes disastrously inefficient restrictions on access.

The Anticommons n He contends that “[r]ecent laws and decisions are creating millions of splintered rights in cyberspace. . . Historians will look back on our time and wonder–when we have seen what the Internet could be–how we could have sat and watched the tragedy of the digital anti-commons unfold. ” q Dan Hunter, Cyberspace As Place, 91 Cal. L. Rev. 439, 444 (2003).

The Internet Variation n Rex owns and runs Web Babes (WB), a web site consisting of a collection of hyperlinks to web pages with pictures of women. WB links to resumes containing pictures of women; to personal web sites displaying pictures of vacations; and so on. Rex catalogues the pictures in terms of attractiveness on a 1 to 10 scale.

Vicki and Sally n n He collects the links using automated robot search software which he sends to publicly accessible web sites. Vicki and Sally maintain a personal web site on which each displays vacation pictures. Rex links to the sites. Vicki is offended and Sally wants a fee.

Trespass? n n n Rex continues to search the site. Is this a trespass. The Intel approach would answer “no. ” No damage to a computer or harm to a relevant economic interest.

The Non-Internet Variation n Vicki and Sally live in a small town where they are among the many who keep albums of their vacation pictures on their front porches. Rex visits the porches regularly and summarizes his findings on his web site. In this variation, trespass to land trespass to chattels protect Vicki’s freedom and promote a market exchange between Rex and Sally.

An Artificial Approach n n n Vicki: Vicki’s complaint is that she is offended, and her claim is that she should be able to protect herself by excluding Rex. Why make the question of whether she can prevent Rex from accessing her site depend on whether the access significantly interferes with a computer or causes a relevant economic loss? Sally: Why should Sally’s ability to exclude Rex unless he pays depend on whether a computer is harmed or there is some other relevant loss related to that harm?

Intel Itself n n Intel presents a conflict is between Intel’s controlling its e-mail system, and ensuring that employees have an effective way to voice their complaints about their employers. It is artificial to force debate about this issue into a doctrinal framework that takes as the central doctrinal question whether a computer has been significantly impaired in its performance.

A Better Alternative n n Go back to e. Bay; count any use of computing capacity as an impairment of value. To see how to limit the right, recall q q That trespass to chattels involves intentional, unauthorized access; and That by making an Internet system publicly accessible, the system owner impliedly consents to public access.

Limiting the Right n So: we can limit the right to prevent access by developing a doctrine about n n when consent is implied, and when the implied consent is revocable.

Implied Consent n n n Consent is not implied when access illegally uses or obtains stored information. It is not implied to access that intentionally or negligently harms or may harm the system’s hardware or software, or that corrupts information it contains. Consent is otherwise implied to any access that the design of the system allows.

Revocability n n The critical question is when implied consent may be revoked. We balance freedom and efficiency against the interests served by implied-permission access. q q q Searching Hyperlinking E-Mail