Abstract
During the past three decades, the growing importance of computing technology to modern society has led to regular calls in the United States for new and stronger forms of legal protection for computer equipment. Legal reforms in the United States have included the passage of laws targeting unauthorized access to computer systems, laws regulating online advertising, new criminal provisions related to identity theft, and copyright reforms protecting private interests in digital files. One of the most interesting and controversial legal developments, however, has been the acceptance by some courts of a new modification to an old common law property interest. Under the theory of cyberproperty, the owners of computer chattels have been granted the right to prohibit non-damaging contact with their systems. Essentially, cyberproperty amounts to a right to exclude others from network-connected resources (Wagner, 2005). The right is analogized to a right to exclude others from real property. Many legal scholars in the United States have supported the creation of a cyberproperty right, arguing in law review articles that this development is justified (Bellia, 2004; Epstein, 2003; Epstein, 2005; Fairfield, 2005; Hardy, 1996; McGowan, 2003; McGowan, 2005; Wagner, 2005; Warner, 2002). Other scholars, including myself, have argued against cyberproperty doctrine, claiming that it is dangerously overbroad and ill-suited to the nature of the networked environment (Burk, 2000; Carrier & Lastowka, 2007; Hunter, 2003; Lemley, 2003; Madison, 2003; O’Rourke, 2001; Quilter, 2002; Winn, 2004). This chapter has two parts. The first part explains the doctrinal evolution of cyberproperty in the United States. In the first part of this chapter, I provide an overview of the seminal cases that led up to the California Supreme Court’s decision in Intel v. Hamidi (2003). Though the Hamidi case was a landmark decision for trespass to chattels on the internet, the issue of cyberproperty in the United States remains largely an open question. In the second part of this chapter, I examine and criticize what I see as the theoretical foundations of cyberproperty. Cyberproperty grows out of two confusions. First, it is based on the strange belief that exclusion of a party from access to a computer can be easily analogized to the exclusion of a person from access to land. Second, many proponents of cyberproperty have confused the operation of computer code with the power of the law. This reasoning is based on Professor Lawrence Lessig’s claim that “code is law.” Both of these foundations of cyberproperty theory are suspect. Computer chattels are very much unlike land. Even if we apply standard law and economic principles to computer networks, we find that private interests in computer systems are unlike standard property interests. Also, code is unlike law in many ways. In fact, almost all cyberlaw scholars who reference the “code is law” equation do so in order to criticize the equation of code and law, not endorse it. Thus, the theoretical foundations of cyberproperty doctrine in the United States seem to be both easily identified and easily criticized. Despite this, as stated earlier, it is possible that cyberproperty doctrine will continue to develop in the United States and elsewhere.
TopThe Doctrine Of Cyberproperty
This first part considers the historical evolution of cyberproperty doctrine in the United States. Cyberproperty doctrine arose from judicial efforts to remedy new forms of technological harm with the ancient doctrine of trespass to chattels. Thus, debates over cyberproperty have not been primarily policy debates over the creation of new law, but have also included disputes over the proper interpretation of existing legal doctrine as applied to evolving technology.
The first cyberproperty case that arose in the United States was Thrifty-Tel, Inc. v. Bezenek (1996). Thrifty-Tel involved two teenage boys who attempted to obtain “free” long distance service by attempting to discover account codes. Over a seven-hour period, the boys made 1,300 calls to a telephone network. This action resulted in the denial of telephone access to paying customers. The trial court found that the boys had converted the value of the phone network and awarded the phone company $50,000 in damages and fees, in part based on the phone company’s own tariff fees.
The Bezenek parents appealed the decision to the California Court of Appeals, pointing out a doctrinal problem with the conversion claim raised by the phone company. The problem was that, under California property law, intangibles (such as phone service) were not subject to conversion. Though some state courts have been less formal about the tangibility requirement for the tort of conversion, the court in Thrifty-Tel respected this limitation. However, in order to preserve the victory of the phone company, the court found that the plaintiffs had demonstrated (although they had not pleaded it!) a cause of action for trespass to chattels.
In common law, trespass to chattels is not a tort of spatial intrusion, but simply an intentional action which causes harm to the personal property of another. A trespass to chattels lies where a defendant has, without privilege to do so, intermeddled with or disposed of the personal property of another. In practice, the trespass to chattels tort has been largely eclipsed by the tort of conversion. However, trespass to chattels recognizes a potentially more subtle form of injury. (VerSteeg, 1994).
To illustrate this, consider a tortfeasor who damages a car. In a claim of conversion, a successful plaintiff obtains as a remedy what is essentially a forced sale of the chattel to the tortfeasor (along with additional consequential damages). So if a car were stolen or destroyed by a tortfeasor, a claim of conversion would be fully appropriate. The tortfeasor should be forced to pay the owner the full value of the car. On the other hand, a claim of trespass to chattels awards the plaintiff only those damages caused by the interference. So if a car were merely scratched, the forced sale of the car would provide an unwarranted windfall. In such a case, trespass to chattels, the “little brother of conversion” (as courts often call it), provides the appropriate remedy.
Historically, at least in the United States, trespass to chattels has required that plaintiffs demonstrate some actual damage or dispossession of the chattel in order to bring a claim. So while intentionally tapping on the hood of another person’s car may not be polite, it is not a trespass. The owner of the car is, of course, free to prevent others from touching the car through self-help, but the state will not become involved if those efforts fail. (It should be noted that English and Australian common law may diverge from the American rule in this case (Epstein, 2003)).
Traditionally, American common law has made an important distinction between trespass to land and trespass to chattels. In a claim of trespass to real property, an injunction can be awarded in the absence of damages to the land. Jacque v. Steenberg Homes (1997). Indeed, in leading scholarly literature in the United States, the very notion of “property” rules relies on the notion that a property owner need not demonstrate evidence of damage in order to obtain a legal remedy (Calabresi & Melamed, 1972). Yet the case is different with chattels. As the Prosser & Keeton treatise explains, “the dignitary interest in the inviolability of chattels, unlike that as to land, is not sufficiently important to require any greater defense than the privilege of using reasonable force when necessary to protect them.” (Keeton, 1984, p. 87).