Originally published on October 11, 2005
A federal trial court in Chicago has ruled recently that the ancient legal doctrine of trespass to chattels (meaning trespass to personal property) applies to the interference caused to home computers by spyware. Information technology has advanced at warp speed with the law struggling to keep up, and this is an example of a court needing to use historical legal theories to grapple with new and previously unforeseen contexts in Cyberspace.
The lawsuit
In Sotelo v. DirectRevenue, the plaintiff filed a complaint against various defendants alleging that, without his consent, the defendants caused spyware to be downloaded onto his computer. In a nutshell, the plaintiff alleged that the spyware tracked his Internet use, invaded his privacy, and caused damage to his computer.
The plaintiff alleged the following five causes of action: trespass to chattels, consumer fraud, unjust enrichment, negligence and computer tampering, and he sought monetary damages and injunctive relief prohibiting the offending conduct.
Factual background
The plaintiff asserted that the defendants deceptively downloaded spyware onto thousands of computers. The spyware allegedly allowed the defendants to track a computer's Web browsing behavior in order to deliver targeted advertisements to that computer. Thus, if a computer with spyware visited music-related Internet sites, the spyware would send a signal of the computer user's activity back to the defendants, which then targeted the computer with advertisements from music-oriented companies that paid for access to the computer through spyware. Apparently, one of the defendants had claimed access to 12 million computers in the United States and had gained national media attention (and criticism) for having obtained such access.
The defendants were alleged to have secretly installed spyware by bundling it with other proper software that is available for free on the Internet, such as software for games. When a computer user installs a game, he allegedly and unknowingly downloads spyware.
One of the defendants supposedly has an end user license agreement pursuant to which computer users are to be informed that spyware will be installed. However, the plaintiff alleged that that defendant has three means by which to avoid showing this agreement to computer users.
In addition, the plaintiff asserted that the spyware is designed specifically to be difficult to remove from a computer once it is installed. Worse still, the plaintiff argued that computer users are bombarded with annoying pop-up advertisements by virtue of the spyware. Finally, the plaintiff claimed that the spyware destroys other legitimate software, slows down computers, and depletes bandwith and computer memory.
Denial of motion to dismiss
The defendants filed a motion to dismiss the trespass to chattels cause of action, arguing that the traditional legal elements pertaining to this type of claim were not met in this new setting. While the court acknowledged that this historical legal doctrine over time has applied to personal property (such as damaging or stealing a person's bicycle), the court nevertheless denied the motion, allowing the cause of action to proceed to later trial.
First, the court found that this type of trespass cause action does not require loss of personal property. Instead, "interference" is sufficient. The court then took the leap to hold that interference with the use of a home computer is enough to maintain a claim for trespass to chattels.
Because the plaintiff's complaint alleged that computer use had been hindered, slowed down and bombarded with pop-up advertisements, enough interference had been asserted for the case to proceed on this cause of action.
In sum, and in the words of the court: "Simply put, plaintiff alleges that Spyware interfered with and damaged his personal property, namely his computer and Internet connection, by over-burdening their resources and diminishing their functioning. Accordingly, the court denies (the) motion to dismiss (the) trespass to chattels cause of action."
What's next?
The lesson here is that companies and individuals must be mindful that even though specific laws may not yet be on the books with respect to new types of online conduct, traditional legal principles may be applied by the courts, with potentially significant consequences. Prudence suggests that attorneys who are expert on Internet issues should be consulted when a company or an individual is not sure that certain behavior on the Web potentially could create liability.
Eric Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on litigation matters of various types, including information technology disputes. His column appears Wednesdays at USATODAY.com.
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