The Trouble With Trespass

Trespass to chattels is a somewhat obscure tort action arising out of unauthorized dispossession, use, or interference with the tangible property of another. Under the Restatement formulation, the trespass action requires some intentional physical contact with the chattel. Unlike its cousin, trespass to land, trespass to chattel requires some substantial interference with the chattel, such as removal, damage, or similar impairment of its physical condition. Trivial interferences never constitute a dispossession, but the harm necessary to trigger liability may arise from an injury to someone or something other than the chattel itself, so long as the harm bears a proximate relationship to the dispossession.

. . . Trespass to chattels debuted in a California Court of Appeals case, Thrifty-Tel v. Bezenek involving a intrusion on the equipment of a telephone services provider. . . .

. . . The court acknowledged that conversion generally requires appropriation of some tangible article, and it was unclear whether telephone access codes or telephone services could be converted. But the court concluded without any serious analysis that an unauthorized use of a telephone system could constitute trespass to chattels. . . .

The Thrifty-Tel decision paved the way for subsequent application of trespass to chattels to computer networks. The leading opinion has been that of the trial court in an action by the proprietary network system, CompuServe, against Cyber Promotions, a commercial service that transmitted unsolicited bulk e-mail, colloquially known as "spam," to thousands of user addresses on the CompuServe network. . . .

. . . Relying on Thrifty-Tel, the Ohio court found that the electronic signals received by the CompuServe system were sufficiently physically tangible to support a trespass claim. The court further found that the contact was intentional, because the email was affirmatively directed to CompuServe email addresses. Although the court agreed with the defendant that the transmissions of the messages over the CompuServe system did not amount to a dispossession of the system, it held the plaintiffs did not need to show physical dispossession to maintain a trespass action. Rather, it held that the Restatement test requires the owner only to show an interference that impairs the value of the chattel, and not necessarily impairment of the chattel's physical condition. . . .

The reasoning of CompuServe has since been adopted wholesale, essentially without additional analysis, in several suits by other Internet Service Providers seeking to enjoin spam. For the most part, these suits presented factual profiles identical to that in CompuServe. However, a new dimension was added to e-mail trespass in the context of a legal dispute between Intel corporation and a former employee, Kenneth Hamidi. Intel successfully enjoined transmission of noncommercial e-mail messages to its computers by Hamidi, who had previously left the firm due to a dispute over a work-related injury. . . .

. . . As was the case with CompuServe, Intel claimed that once it notified Hamidi his messages were unwelcome, further transmissions constituted an interference with their system. Unlike CompuServe, Intel could not claim that they lost customers from the transmission, since they are not in the business of providing Internet access. But they could claim that the company was injured due to the time and effort spent attempting to block the messages. . . .

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. . . The cases relied upon in Thrifty-Tel involve trespass to land, rather than trespass to chattles. The Thrifty-Tel opinion blithely glosses over this distinction, noting simply that both legal theories share a common ancestry. The CompuServe opinion, too, glibly intermingles trespass to chattels with doctrines related to real property. In doing so, these courts essentially reversed several hundred years worth of legal evolution, collapsing the separate doctrines of trespass to land and trespass to chattels back into their single common-law progenitor, the action for trespass. But to do so effectively creates a brand new cause of action, unknown to modern jurisprudence.

. . . Trespass to chattels exists as "the little brother of conversion." The gravamen of both actions lies in the dispossession of the property from its owner -- in conversion, the dispossession is total; in trespass to chattels the dispossession is only partial. Neither entails the interest in inviolability that attends trespass to land. . . .

It is nearly impossible to recognize trespass to chattels in Thrifty-Tel or CompuServe since the owners of the equipment were not in any way dispossessed of its use by the passage electrons through the equipment in exactly the way the equipment was designed to carry them. . . . If one is willing to base the physical contact requirement of trespass upon the receipt of electrons, then whole new vistas of electronic trespass are opened to our view. Unwanted telephone callers would seem to be engaging in trespass to chattels; the telephone call sends signals to the instrument of the recipient. So, too, with fax machines that receive unwelcome transmissions. Radios and televisions that receive unwanted transmissions are impinged upon by electromagnetic waves that induce the movement of electrons within the receiver. . . .

If such examples as I have suggested begin to sound a bit silly, that should perhaps indicate the degree of regard properly paid to the "trespass" of electrons upon computers intentionally connected to a network known to carry such electrons. The Restatement test guards against such trivial contacts by requiring that the contact rise to the level of some substantial interference equivalent to physical seizure of the chattel or similar deprivation of its use.n57 This may occur if the chattel is damaged or impaired as to its condition, quality or value. But in the case of Cyber Promotions "impinging electrons," as in my examples above, the physical contact with the equipment is of course too slight to constitute seizure or deprivation, or cause damage.

Undaunted by this common-sense requirement, the court in CompuServe simply bifurcated the requirements of physical contact and impairment, holding that any contact was sufficient -- as I have said, creating a novel rule of inviolability -- and any proximately related "harm" or loss of "value" would satisfy the requirement for damage. Note that this move cuts trespass to chattels free from its moorings of dispossession or the equivalent, allowing the court free rein to hunt for "impairment.". . . [T]he [CompuServe] court found a diminution in value from the loss of computer processing cycles and the use computer memory required to handle the bulk e-mail messages. No matter that the e-mail messages processed by the recipient systems were precisely the type of communications the equipment was meant to process. . . .

This analytical leap on behalf of CompuServe also nicely accommodates my examples above, as communications instruments that are physically contacted by various sorts of electrical signals will be similarly "impaired" by similarly processing the sort of signals that the particular device was intended to process. . . .

As an alternative form of "impairment," the Hamidi opinion finds damage in the loss of employee time occasioned by the spam. This reasoning is, of course, absurd. The Restatement test clearly speaks in the first instance to the impairment of the chattel. . . .

As a third alternative, the CompuServe court turned to the Restatement provision addressing the impairment of any legally protected interest when that impairment proximately flows from the interference with the chattel. It seems clear that what the Restatement criterion addresses is further physical harm proximately flowing from the initial harm to the chattel. . . . This is not to say that economic or dignitary harms are never actionable under trespass to chattels -- we might consider, for example, the loss of business goodwill that could occur from delay of promised services if a business electronic files were damaged or locked. . . . But accepting this claim risks bootstrapping the interference with the chattel from the alleged harm to a protected interest: loss of goodwill is only actionable if there is an interference, but we are told by the court that the interference lies in the loss of goodwill.

. . . .[I]n each of these cases the "harm" of the span is unwanted content, and not some fictional lessening of good will or of the capacity of the proprietary network. . . .

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[T]he correct property theory might be nuisance to web sites, rather than trespass. Nuisance lies only if the cost of the intrusive activity outweighs the benefit. The "muddy" nature of nuisance would allow computer owners on the net to exclude unreasonably costly uses of their servers, while allowing access for socially beneficial uses, even if the server owner might otherwise object. . . .

Of course, the law of nuisance applies to real property, not to chattels. But this property distinction has proven no obstacle to courts thus far; as I have shown above, the current actions called "trespass to chattels" in fact contains a healthy dose of jurisprudence from trespass to land. A form of cyberspace nuisance claim, containing a healthy dose of real property doctrine, might better accommodate the peculiar calculus of benefits and harms in cyberspace.