Trespassing In Cyberspace Essay Example for Free

Trespassing In Cyberspace Essay Introduction This paper will focus on one of the most contentious issues in cyberlaw, such as trespassing in cyberspace. While the issue of trespass as a sort of offense against a person or against property is carefully regulated in the majority of jurisdiction, the question whether trespass as a phenomenon can actually exist in cyberspace is a subject of heated debate. Thus, in-depth analysis of this question will help to understand its significance in the broader context of cyberlaw. Definition Under common law, trespass happens when a person intermeddles or performs unauthorized of another person’s property (Quilter, 2002). Pending the consensus among scholars concerning a clear-cut definition of trespass in cyberspace, courts and researchers often have to apply reasoning by analogy to analyze such cyberlaw cases: ‘The concept of trespass in cyberspace depends heavily on a conception of a web site or mail server as ‘property’ from which, like land, the owner ought to have the right to exclude others’ (Merges, Menell Lemley, 2006, p.928). One of the concepts that is most widely applied to cyberspace trespass cases is the concept of trespass to chattels, chattels being is defined as tangible property (not to be confused with real property and intellectual property). Trespass to chattels is a tort action under certain circumstances: ‘The tort of trespass to chattels traditionally requires proof not just that the defendant ‘intermeddled’ with a chattel, but that the defendants use actually caused injury to the chattel or injured the owner by depriving it of the benefit of using the chattel’ (Merges, Menell Lemley, 2006, p.923) However, the latter thesis is a contentious one, and further discussion of this issue will happen in the ‘Notable Cases’ section. The scholars argued that there are many concepts than need careful legal reconsiderations in the Information Age before any analogies with real property or chattels can be brought into the discussions. These concepts include, but not limited to, the notion of Intent, Entry, Property, and Permission (Adida et. al., 1998). Yet the idea of applying the doctrine of trespass to chattels to cyberspace turned out to be surprisingly appealing to judges: ‘Notwithstanding scholars’ early suggestions of its inappropriateness, courts have rushed to resurrect the late, largely unlamented, tort of trespass to chattels, and apply it to the new cyberspace arena’ (Cranor Wildman, 2003, p.13). At present, most scholars agree that the doctrine can be applied to such issues as spam and spidering when actual orb potential harm has been caused to a plaintiff. Legal Basis The foundational document that governs electronic transactions is Computer Fraud and Abuse Act of 1984 (CFAA). Computer Fraud and Abuse Act such issues with data integrity as in the situation when an offender breaks authorization rules instituted by an organization with a view to gaining access to protected information, such as information contained in a financial record of a financial institution, or of a card issuer. It also established penalties for acts or attempts to encroach on secret governmental information. However, the applicability of this Act can be made possible by proving that data and information resources can be regarded as chattels. Nowadays, it is an accepted fact in the legal practice, which was established by a series of legal precedents. Notable Cases In Thrifty-Tel v. Bezenek, it was established that electronic signals can be regarded as property due to the fact they are physical and tangible in nature. The analogy used in the case was the comparison of electronic signals to real property not chattels. Trespass to chattels first appeared in the case CompuServe v. CyberPromotions, which was a span case (Quilter, 2002). In United States v. Seidlitz, confidential software was illegally obtained by an employee by tapping into the work session of a previous worker. In this case, federal law was applied only because of an accompanying circumstance. Several  telephone calls the employee made to accomplish his aim were made across state lines.  Otherwise this employee would have had to be prosecuted under one state’s wire fraud legislation (Adida et. al., 1998). In United States v. Langevin, ex-worker of the Federal Reserve Board committed a similar offence. Being a financial analyst at the time when the offence was perpetrated, he tried to access the file containing protected data on money supply. Again, the applicability of federal legislation was made possible solely because of telephone calls made in the manner similar to the previous case (Adida et. al., 1998).    Another notable case, Intel v. Hamidi, was won by the defendant as the California Supreme Court ruled that Ken Hamidi did not commit an act of trespassing Intel’s computers by sending messages to its employees. After being fired from Intel in 1995, Ken Hamidi sent six emails to thousands of Intel’s employees with bitter criticism of the company’s policies and employee treatment. These messages did not result in physical damage on the company’s computer systems or failure of its networks or computer services. However, Intel decided to press charges against Mr.Hamidi accusing him of trespass. Intel claimed that workers were distracted and distressed as a result of disappointing emails, which further led to loss of productivity: ‘Intels position represents a further extension of the trespass to chattels tort, fictionally recharacterizing the allegedly injurious effect of a communications contents on recipients as an impairment to the device which transmitted the message’ (Epstein, 2004, p.15). Yet the court sided with the defendant on the grounds that no actual harm has been caused to Intel’s computer system: ‘The California courts have rejected trespass to chattels claims in the absence of evidence of actual harm to the chattel in question the computer server†¦ because the trespass to chattels tort†¦may not, in California, be proved without evidence of an injury to the plaintiffs personal property or legal interest therein.’ (Merges, Menell Lemley, 2006, pp.925-926). The significance of this case lies not only in the perceived victory for those who endorse cyberspace rights and fair labor relations. The case established a standard for legal reasoning in the cases of the like nature: ‘The decision noted that calling distressing content of a message a ‘trespass’ on the computer was as wrong as claiming that ‘the personal distress caused by reading an unpleasant letter would be an injury to the recipients mailbox, or the loss of privacy caused by an intrusive telephone call would be an injury to the recipients telephone equipment’’ (Electronic Frontier Foundation, 2003, para.3). The case eBay, Inc. v. Bidders Edge, Inc. is important for the discussion because it expanded the concept of trespass to chattels to spidering. Spidering is widely used by search engines to track information on Web serves. Bidder’s Edge was an auction aggregator that collected information from different auction sites, put it together in its own data bank, and then offered the information on demand as a to consumers looking for a certain item. eBay pressed charges against this company on the basis of trespass to chattels because of the company’s spider activity. The evidence of real harm resulting from Bidder’s Edge’s spidering was not allowed in the court, but the presence of potential harm was sufficient to rule that Bidder’s Edge was trespassing eBay’s information resources (Quilter, 2002). Other cases decided on the same grounds as are TicketMaster v. Tickets.com92 and Register.com v. Verio (Quilter, 2002). Impact While there is little discussion as to the benefits of application of trespass theory to spam emails, the issue is not that clear when it comes to spidering. It is widely believed that all the recent cases concerning trespass in cyberspace had far-reaching implications. Some scholars believe that the application of trespass to chattels doctrine to spidering may be detrimental to the development of e-commerce services: ‘While the promise of ecommerce is to improve consumer information and lower transaction costs, under a trespass theory many of those benefits will disappear’ (Merges, Menell Lemley, 2006, p.924). From the customer’s perspective, eBay’s victory was hardly beneficial for those seeking quality service: ‘AuctionWatch [a website run by Bidder’s Edge] was a better product for consumers than eBay, since it covered more auctions. However, eBay succeeded in shutting it down using the trespass to chattels tort. Any type of innovative aggregation product is subject to the same problem’ (Cranor Wildman, 2003, p.21). However, arguing against the doctrine of trespass in cyberspace from the position of customer’s satisfaction is not the most effective stance. In any legal case, there is a variety of stakeholders involved. The purpose of legal settling is to satisfy the demands of a plaintiff (if they have reasonable grounds) on the basis of existing laws and regulations. Companies operating in cyberspace merit protection just like customers do. Conclusion Despite the ongoing debate on the applicability of the concept of trespass to cyberspace offences, legal practice has already legitimized the relevance of certain common law doctrines (i.e. trespass to chattels) to such cases. Following the analogy with trespass to property such as land or personal possessions, courts have decided a series of exemplary cases based on the reasoning that electronic signals are physical and tangible enough to be regarded as property. References Cranor, Lorrie F., Steven S. Wildman. Rethinking Rights and Regulations: Institutional Responses to New Communications Technologies. Cambridge, MA: MIT Press, 2003. Epstein, Richard A. Cases and Materials on Torts, 8th ed. Rockville, MD: Aspen Publishers, 2004. Merges, Robert P., Menell, Peter S., Mark A. Lemley. Intellectual Property in the Technological Age, 4th ed. Rockville, MD: Aspen Publishers, 2006. Adida, Benjamin, Chang, Enoch, Fletcher, Lauren B., Hong, Michelle, Sandon, Lydia, Page, Kristina. ‘The Future of Trespass and Property in Cyberspace.’ 10 December 1998. June 19, 2007. http://cyber.law.harvard.edu/courses/ltac98/final.html Electronic Frontier Foundation. ‘California Supreme Court Sides With Email Pamphleteer: Intel v. Hamidi Decision Protects Internet Speech.’ June 30, 2003. June 19, 2007. http://www.eff.org/spam/Intel_v_Hamidi/20030630_eff_hamidi_pr.php Quilter, Laura. The Continuing Evolution of Cyberspace Trespass to Chattels. 2002. June 19, 2007. www.law.berkeley.edu/institutes/bclt/pubs/annrev/exmplrs/final/lqfin.pdf