Spyware as Trespass?

[David Farber <dave () farber net>]

Begin forwarded message:

From: Randall <rvh40 () insightbb com>
Date: October 16, 2005 1:26:07 PM EDT
To: cyberia <CYBERIA-L () LISTSERV AOL COM>
Cc: Dave <dave () farber net>
Subject: Spyware as Trespass?


http://tinyurl.com/dr8xe

Spyware can constitute illegal trespass on home computers
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 LLP
(www.duanemorris.com), where he focuses on litigation matters of various
types, including information technology disputes. His website is
www.sinrodlaw.com, and he can be reached at ejsinrod () duanemorris com. To
receive a weekly e-mail link to Mr. Sinrod's columns, please send an
e-mail to him with the word Subscribe in the Subject line.

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a follower of Jesus Christ, unashamedly says so and applies his faith in
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"Washington Journal"



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