Lawyer Article

Jessica Sawyer Wang, a summer associate in the Firm's Winston-Salem office, wrote this article with supervision provided by Mr. Claypoole, a member of the firm's Intellectual Property Practice Group.

Published in the July 20, 2005 issue of Southeast Tech Wire.

As use of the Internet becomes more widespread, courts must grapple with established rules of law that do not always lend themselves readily to the demands of cyberspace. Working within the framework that the law provides, courts rightly are concerned with maintaining the integrity of property laws, even when those principles might butt against the norms of the Internet. However, critics fear that many courts misunderstand the nature of cyberspace, and that their adherence to these principles only solves some problems while creating others.

A concern that has been thrust to the forefront in recent years is whether the common law tort of trespass to chattels, or personal property, should guide courts facing cyberspace issues that were unheard of when the rule was taking shape. As the archaic word chattels suggests, the concept of trespass to chattels is an old one, dating back to the Middle Ages. Through the years, people have claimed trespass to chattels when crops were cut by others, or when fishing nets were damaged, or when animals were injured. Such disputes seem rather quaint when compared to modern situations involving spam, for example, or web crawlers, which are computer programs that automatically collect information from websites. Even so, these matters also are governed by trespass to chattels.

Trespass to chattels occurs when a person intentionally uses or interferes with an object in the possession of another. The interference can be an indirect result of a person's actions, but it must involve physical contact. A person is liable for trespass to chattels when harm is caused. It is easy to see how trespass to chattels applies when the property dispute concerns cut crops, damaged fishing nets, or injured animals. In recent years, however, the requirements for physical contact and harm have been construed in creative ways in order to address property disputes of a different sort in cyberspace. The result is that some court decisions strain the logic behind the rule. Critics believe that a new rule, better suited to the Internet, is necessary, but trespass to chattels now holds sway.

Trespass to chattels began to take on this role after a 1996 case, Thrifty-Tel, Inc. v. Bezenek, which involved automated telephone calls. The California Court of Appeals based its finding of trespass to chattels on the electronic signals generated by the automated calls. The electronic signals "touched" the long-distance carrier's system, and harm occurred when the calls overwhelmed the system and caused customers to be without service. The incident, therefore, fell under the category of trespass to chattels. The court also acknowledged the possibility of harm in unauthorized use alone, as opposed to more traditional ways of thinking about harm in terms of easily-recognized damage to property that usually results.

After the Thrifty-Tel court took these steps, other courts saw reasons to expand the reach of trespass to chattels. Eventually, courts began to apply the rule to situations like unwanted personal e-mail and web crawlers, in which the requirements of physical contact and harm often were met in rather tenuous ways. With each new instance in which trespass to chattels was found, critics worried that the rule was being stretched too thin. For this reason, some courts have begun to put on the brakes, so to speak. One example is Intel Corp. v. Hamidi, a 2003 case which involved non-commercial mass e-mail sent by a disgruntled former employee.

In the Intel case, the court found that Intel had suffered no injury, despite the company's argument that it was harmed by a loss of productivity (when the thousands of workers took a minute or two to read these e-mails) and their assertion that their computer system was undermined by the sender when he "used" it for this unauthorized purpose. On the contrary, the court found that the amount of e-mail, six different messages over a period of nearly two years, was small when compared to the volume sent by a typical spammer. The court was motivated by proportion; the court reasoned that the sender's actions could not harm such a large operation as Intel's, although the operation was potentially vulnerable to being overburdened, and therefore harmed, given enough volume.

Many critics were relieved to see the Intel court curb the expansion of trespass to chattels, but they remain dismayed that the theory still is relied upon in other types of cyberspace disputes. Critics fear that eventually the rule might even be applied to posting an unwanted message to a message board, for example. Such a situation would be far removed from physical property and damage, they argue, so the reliance on trespass to chattels ceases to make sense.

Some critics maintain that the reason that the rule had been stretched so far—and may be stretched farther still—is because too many courts misunderstand the nature of cyberspace. They claim that because cyberspace is intended to be a publicly-accessible network, it should not be subject to property rules like trespass to chattels. They suggest that cyberspace should be self-regulated and that technology designed to thwart senders of unwanted e-mail, for example, is a better solution than a shoe-horned property rule.

Others suggest that if we understand computer data as property, and we believe that open access to all in cyberspace is not desirable, then the most sensible rule to apply is actually conversion, rather than trespass to chattels. Conversion can be understood as theft, or the wrongful possession or use of someone's property as if it were one's own. It is similar to trespass to chattels (which, in fact, frequently has been called the "little brother" of conversion), but conversion usually involves physical taking and a more serious interference. Still others believe that the doctrine of nuisance is the best solution for many cyberspace problems. Nuisance, as in the case of loud noises from a neighboring house, for example, is a condition that interferes with the use and enjoyment of one's property.

Almost everyone agrees that something—whether it is technology or legal rules or even legislation—must be available to protect people's interests in cyberspace. While trespass to chattels may not be an ideal answer for all cyberspace issues, it is the law as it stands. The important next step in the evolution of this area of the law is to ascertain its boundaries—how far is too far to stretch trespass to chattels to handle new problems? And when that limit is reached, what is the best alternative to use to settle disputes? With each technological innovation, and each new Internet-user, the questions becomes more pressing.