New York Law Journal, August 21, 2000

Copyright 2000 New York Law Publishing Company
New York Law Journal

August 21, 2000 Monday


HEADLINE: Trespass Theory Poses Threat to Internet

BYLINE: By Jonathan Bick; Jonathan Bick, a shareholder with Greenberg Traurig, is adjunct Internet professor at Pace University School of Law and Rutgers Law School.

AN INTERNET user's freedom to communicate with Web sites created by others is vital to prevent the demise of this medium. And yet, this past May, in an effort to suppress one Internet user's potentially damaging access to another's site, a federal court applied the legal theory of trespass to Internet communications. Such a use of trespass, if broadly applied, could materially reduce the existing value of the Internet.

Imagine the following. An Internet user communicates with various sites. Within days, one or more of those sites send the user a demand for compensation backed by a threat to litigate on the grounds of trespass if payment is not made.

This would only be possible if "e-trespass" is widely adopted, which, to date, it has not been. When Ticketmaster sued Tickets.com to prevent it from collecting information provided by Ticketmaster (see Ticketmaster Corp. v. Tickets.com, Inc., 2000 U.S. Dist. LEXIS 4553), the court appears to have found significant value in the public interest of allowing consumers and information aggregators to obtain "e-information." Its ruling protects the very foundations of the Internet - unencumbered access to information posted on-line.

Close scrutiny of the application of trespass to the Internet to resolve a site access dispute demonstrates that such application clearly fails to properly address the relevant competing interests, and imposes an unnecessarily great restriction on speech.

The Ruling

The federal ruling in question found that the use of automated search programs, often called "robots," "bots," "spiders" or "crawlers," to collect information from third-party Internet sites constitutes "trespass." eBay v. Bidder's Edge, 100 F. Supp.2d 1058 (N.D. Cal. 2000); 2000 U.S. Dist. LEXIS 7287. The court issued a preliminary injunction barring Bidder's Edge, which indexes on-line auctions so that users can find the best deal, from using bots to collect information from eBay. Specifically, Bidder's Edge updated its database by causing a bot to interact with each eBay auction site four or five times each day. These interactions normally take less than a minute and add less than a 2 percent load to eBay's host auction site.

Four types of irreparable harm were claimed by eBay: that Bidder's Edge's automated agent transactions resulted in (1) lost capacity of its computer systems; (2) damage to eBay's reputation and goodwill caused by Bidder's Edge misleading postings; (3) dilution of the eBay mark; and (4) unjust enrichment by Bidder's Edge's. The court found that Bidder's Edge was trespassing by using the resources of eBay's computer systems without permission, stating that "The law recognizes no such right to use another's property."

This novel application of trespass is matched by the equally atypical application of an injunction remedy to a trespass to chattel. In California, the application of injunctive relief is an appropriate remedy for a continuing trespass to real property (see, e.g., Allred v. Harris, 14 Cal. App. 4th 1386, 1390 (1993)). But there is a paucity of authority supporting a preliminary injunction based on an ongoing trespass to chattel.

This ruling raises serious questions about the openness of the Internet and the proprietary rights of Internet sites. The court's use of trespass theory is particularly troublesome because three alternative remedies could have been employed to alleviate the harm complained of by eBay. First, eBay should have opted for a technical, business or less divisive legal basis for litigation, such as copyright infringement, unfair business practices or breach of contact. Any of these could have equally well supported the same outcome, without First Amendment difficulties (discussed below).

In an amici curiae brief submitted in support of reversing the injunction, a group of academics wrote that the "district court's decision represents an unwarranted and dangerous extension of the ancient doctrine of trespass to chattels to control the flow of information on the Internet." They argued that "the court's rationale sweeps so broadly as to endanger many of the most fundamental activities on which the Internet and electronic commerce are based."

In addition to the abundant alternative legal resolutions available, there were technical solutions as well. An Internet site owner that wants to maintain a private site not accessible to bots can do so by using registration technology and password protection. Alternatively, selective Internet Service Providers (ISPs) and/or Internet Protocol addresses and/or personal computers with appropriate cookies can act as a firewall of sorts to deny access.

Finally, eBay could have been made whole through contract or business means. For example, an agreement could have provided for a participating auction site to send a direct data feed to Bidder's Edge at its expense. This would reduce the host site's already negligible load to zero. Alternatively, Bidder's Edge's access to eBay could have been restricted, perhaps only being permitted during off-peak usage periods.

A third option would have been eBay's use of insurance to reduce the risk that Bidder's Edge-related activity would adversely effect its site. For example, if eBay was concerned that Bidder's Edge's consumption of resources would overload the system and cause a loss of data, an insurance policy would have reduced that risk. Recently, an Arizona federal court in the Ingram Micro case(2000 U.S. Dist. LEXIS 7299) redefined the word "property" to include computer programming. This decision has been interpreted to mean that existing property and liability insurance policies are now subject to paying policy holders when data is lost. In addition, many insurance companies now sell customers special e-commerce policies to cover other Internet-related difficulties.

The Theory of Trespass

In order to prevail on a claim of trespass to an Internet site, a plaintiff must prove that its site is property in which it has an exclusive interest. This is based on the generally accepted concept that an action for trespass protects an individual's "interest in exclusive possession" of property.

More particularly, trespass to chattels involves an intentional interference with another's rightful possession of personal property that proximately causes injury to that party. It "lies where an intentional interference with the possession of personal property has proximately caused injury," Thrifty-Tel, Inc. v. Bezenek ( 1996 Cal. App. LEXIS 624).

The Bidder's Edge court, however, relied on the possibility of future harm in granting the injunction, a position that ultimately will likely be found to be too speculative to warrant equitable relief.

Moreover, in reality, this cause of action is seldom employed as a tort theory. While it was applied to cover the unauthorized use of long-distance telephone lines in 1996 in Thrifty-Tel (a computer which controlled a telephone system was accessed by people who made unauthorized long-distance telephone calls), that court was not on technically strong grounds when it found that electronic signals generated by the defendants' activities were sufficiently tangible to support a trespass cause of action. The rationale behind the decision has yet to be regularly relied upon by other courts. Thus it appears unlikely that the electronic signals sent by one Internet user to another are sufficiently tangible to support a trespass cause of action.

While trespass to goods initially seems like a promising analogue for application to the Internet, actual application of the law to the facts tends to show to the contrary. Consider, for example, the Restatement's definition, which extends to "using or intermeddling with a chattel in the possession of another" (Restatement (Second) of Torts 217(b) (1965)), and cases where "the possessor is deprived of the use of the chattel for a substantial time."

Thus, an Internet user cannot possibly trespass on an Internet site because of the nature of the Internet, a public accommodation that is accessible to all users. While servers are private property, a server's voluntary inclusion in the Internet is conditional on affording general access to the public. Once a site fails to permit the type of automated access used by Bidder's Edge, that site forfeits its right to claim that it is part of the Internet. While most states will recognize a trespass claim where the defendant exceeds the scope of the consent, the nature of the Internet requires complete access to sites by users. To the extent that a site excludes users, that part of the site cannot be considered part of the Internet.

If eBay were a brick and mortar auction house with a limited capacity for users, it would be entitled to limit access to potential bidders and to refuse entrance to individuals with no intention of bidding on any of the items. EBay would also have a real property basis for seeking relief against non-customer trespassers whom it was physically unable to exclude.

One of the chief difficulties of extending the trespass analogy to the Internet is that, when a wrongdoer commits an ongoing trespass of a computer system, it is more akin to the traditional notion of trespass to real property than the traditional notion of a trespass to chattels. That is, even though it is ongoing, it will probably never amount to a conversion.

It could be argued that an unauthorized user of an Internet site is guilty of trespass to the computer equipment on which the Web site is hosted, either simply by using it or because the use of that equipment by the visitor temporarily deprives the possessor of the power to use that fraction of the computer's processing abilities that is dedicated to serving the Internet user. To be more specific, when an Internet site user issues the Universal Resource Locator (URL) code via his or her browser software, that act makes a program which resides in the proprietor's Web server. The site visitor is thus issuing commands to, and therefore using, the computer owned by another - on which the Web server software is running.

An examination of the cases dealing with @@ 218 and 221 of the Restatement (Second) of Torts indicates, however, that neither of these acts will amount to a trespass to chattel. If the use is such that it totally obviates the plaintiff's possession of the chattel, even temporarily, provided it is for "a time so substantial that it is possible to estimate the loss caused thereby," @ 218, then a trespass to chattels will occur. Significantly, however, if the use still allows the plaintiff to retain possession and use of the chattel, as is the case with all Internet site access, that use will not amount to a trespass. To the extent that the computer running the Web server devotes itself exclusively to serving the viewer's request for a file, that exclusivity is of such short duration that the proprietor's other computing activities will be almost totally unaffected.

Trespass theory is as applicable to land and other "tangible" property as it is for services. Consider television. If the American Broadcasting Company did not have a legal right to own a spectrum, and hence the legal right to prevent trespass, it could not enter into binding "airways use" agreements with others. Without such agreements, it would not be possible to provide television service as it is provided today. Similarly, if those who have Web sites and provide services over the Internet did not have legal protection against trespasses, they too could not enter into legally enforceable "use" or "access" agreements. So clearly the concept of trespass is applicable to the Internet, if it is to be considered a broadcast service. The use of trespass theory in this manner, however, would effectively make the use of Internet search engines and linking unlawful - or at least subject to obtaining permission, a result that would have grievous implications for free speech as well as electronic commerce.

Previous Applications

The association between the Internet and trespass has been seen before, when courts have addressed the issues of unsolicited commercial e-mail (spam) and deep linking (i.e., entering an Internet site at a place other than its home page). However, the earliest use of a trespass to chattels theory with respect to computer technology was the application by analogy in the Thrifty-Tel case.

To reach the conclusion that use of computer technology to access confidential authorization codes for the plaintiff's telephone system constituted trespass to personal property, the court there found liability when "an intentional interference with personal property has proximately caused injury." Thus the use of Thrifty-Tel's system constituted a trespass. The court stated that the electronic signals that were generated were sufficiently tangible to support the trespass to chattels cause of action, explaining that although the old rule required physical touching of a tangible chattel, the more modern approach allows for an "indirect touching." The old rule explains that "'intermeddling' means intentionally bringing about a physical contact with the chattel." Restatement (Second) of Torts @ 217 (1965).

The most significant result of Thrifty-Tel was its recognition of electronic signals as constituting adequately physical contact to give rise to a cause of action for trespass to chattels. While the Thrifty-Tel court so found, though, it did recognize that not all computer hacking will give rise to such an action.

The application of the theory of trespass to chattels as modified by the Thrifty-Tel court has been expanded to include e-mail, spam and ISPs. Using the Thrifty-Tel court's finding that electronic signals can give rise to a cause of action for trespass to chattels, an ISP successfully brought such an action against a spammer. In CompuServe, Inc. v. Cyber Promotions, Inc., the U.S. District Court for the Southern District of Ohio granted a preliminary injunction to stop an Internet advertiser from sending bulk unsolicited commercial e-mail to the ISP's customers. CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio, E. Div., 1997), 1997 U.S. Dist. LEXIS 1997.

In granting CompuServe's motion for a preliminary injunction, the district court first observed that trespass to chattels was in fact an actionable tort and then found that electronic signals are "sufficiently physically tangible" to support a trespass action. In addition to citing Thrifty-Tel, the court cited Washington v. Riley, 1993 Wash. LEXIS 66, where, under Washington law, it was found that computer hacking was the criminal offense of "computer trespass." Also cited was Indiana v. McGraw, 1985 Ind. LEXIS 904, where the court recognized that a computer hacker's unauthorized access to a computer network was akin to trespass.

In assessing the damages to CompuServe for the purpose of supporting a preliminary injunction, the court found that the spamming reduced the resources available to subscribers and resulted in harm to CompuServe's business reputation and goodwill.

Later courts have also found that sending spam by using an ISP's networks to distribute messages without permission constitutes fraud under the Computer Fraud and Abuse Act. One federal district court judge ruled that LCGM, a Michigan company that uses electronic mail to promote pornographic sites on the World Wide Web, committed fraud by sending e-mail to AOL's 15 million members despite AOL's prohibitions against it. America Online, Inc. v. LCGM, Inc., 46 F. Supp.2d 444 (E.D. Va. 1998), 1998 U.S. Dist. LEXIS 20144. Thus it can be argued that the use of trespass is not necessary to combat spam.

The ISPs have successfully argued that spam establishes a trespass to chattels because it is an interference with the property in another's possession, despite the lack of conventional physical contact. n1 This result, of course, differs from the outcome predicted by traditional trespass doctrine. While a trespass to chattels can be committed by interfering with property in the possession of another, to achieve this trespass the interference must intentionally involve physical contact with the chattel. n2

n1 See America Online, Inc. v. IMS, 1998 U.S. Dist. LEXIS 17437, which granted a summary judgment request on the grounds of trespass to chattels when defendant sent spam on the plaintiff's computer network, and CompuServe, Inc. v. Cyber Promotions, Inc., 1997 U.S. Dist. LEXIS 1997, which found that an action for trespass to chattels could be maintained for Internet-related activity.

n2 See Restatement (Second) of Torts @ 217(b) (1965) and commentary associated with section e which illustrates the fact that trespass must either be an act that brings the trespasser into physical contact with the property of another, or the outcome of the trespassor's action results in some change in the chattel in possession of another.

At least three courts have based their ruling on a finding that electronic communication is equivalent to physical contact for the purposes of substantiating a claim for trespass to chattels. n3 Thus spam and electronic signals have been used to meet the trespass requirement for interference

n3 See America Online, Inc. v. IMS, 1998 U.S. Dist. LEXIS 17437 which found that spam constituted trespass to chattels; CompuServe, Inc. v. Cyber Promotions, Inc., 1997 U.S. Dist. LEXIS 1997 which found that electronic communications constituted trespass to chattels; and Thrifty-Tel, Inc. v. Bezenek, 1996 Cal. App. LEXIS 624, which found that electronic computer signals were sufficiently tangible to maintain action for trespass to personal property.

For other examples, Intel has used a trespass theory in an attempt to suppress the speech of a former employee who sent e-mail to current employees. n4 Sites such as Ticketmaster have already sued Microsoft and Tickets.com, as noted above, claiming that linking is illegal. Each of these decisions gives these ill-considered claims powerful new ammunition and threatens to stifle the free and robust exchange of information that has become the celebrated hallmark of the Internet. (Legal scholars had considered the possible use of the trespass theory in the precedent-setting case of Ticketmaster v. Tickets.com. However, the case turned on copyright violation issues, and the court ultimately found that that deep linking did not violate copyright protection.)

n4 See Intel Corp. v. Hamidi, No. 98AS05067, 1999 WL 450944 (Cal. Super. April 28, 1999).

On a related note, the trespass doctrine was used with little success to prosecute Internet criminal use of others' computers over the past 20 years. As a result, legislatures enacted specific statutes that described the crime and applied appropriate punishments.

First Amendment Issues

The courts have often overturned trespass convictions when First Amendment rights are at issue, finding that the First Amendment forbids the use of trespass laws that interfere with free speech. This has generally been summed up in the legal aphorism that speech rights will triumph over property rights.

Since the case of Dietemann v. Time, Inc., 1971 U.S. App. LEXIS 8409, courts considering trespass cases have split over whether property rights need to be balanced against asserted First Amendment interests. While most have found that the First Amendment "is not a license to trespass," the First Amendment does preclude application of trespass laws in some situations, such as a "public forum" or on premises which are devoted to public use.

Under current law, a shopping center owner's private property rights trump a speaker's First Amendment rights, (Hudgens, 1976 U.S. LEXIS 5), but speakers' rights prevail over property rights on the property of a private, company-owned town (Marsh, 1946 U.S. LEXIS 3097).

Few would dispute the assertion that the Internet is a public forum. Equally true is the proposition that e-commerce sites such as eBay offer themselves as public accommodations with independent access to all. Thus, it is likely that First Amendment considerations will bar the widespread application of trespass to the Internet.

However, the First Amendment doctrine requires that the constitutional free speech and press clauses be triggered only by state action. That is, unless state or federal governments take some affirmative steps to limit free expression, the protections of the First Amendment simply do not apply to a transaction. So it may be concluded that a private actor's attempts to curtail speech generally are not subject to constitutional challenge.