Trespass in the Spam Email Cases

CompuServe v. Cyber Promotion User complaints “CompuServe has received many complaints from subscribers threatening to discontinue their subscription unless CompuServe prohibits electronic mass mailers from using its equipment to send unsolicited advertisements.” System overload “CompuServe asserts that the volume of messages generated by such mass mailings places a significant burden on its equipment which has finite processing and storage capacity.

Implied Consent When you connect a publicly accessible system to the Internet, you impliedly consent to access by the general public to that system. Did CompuServe consent in this way to receiving e-mails from Cyber Promotions? Connecting to the Internet does not constitute an invitation to commit hack into the system and delete data, for example.

Revocation Moreover: even if CompuServe did consent, can’t it revoke that consent? It certainly tried to do so. “CompuServe has notified defendants that they are prohibited from using its proprietary computer equipment to process and store unsolicited e-mail and has requested them to cease and desist from sending unsolicited e-mail to its subscribers.” Courts have held that ISPs can effectively revoke whatever consent they might have initially given to access by a spammer. Cyber Promotions continued to send e-mails after consent was revoked.

The CompuServe Fact Pattern This is typical of the spam cases: huge volumes of spam, Sent after revocation of consent, overload the processing capacity of the ISP, imposing costs on the ISP, and producing dissatisfied customers, on whom the spam also imposes costs.

What Is the Chattel? CompuServe’s computers. Cyber Promotions must send the necessary message data and computer code into CompuServe’s computers. Those computers follow the instructions in the code to deliver the message to the subscriber’s inbox.

Does Trespass To Chattels Apply? What is the chattel? CompuServe’s computers. Cyber Promotions must send the necessary message data and computer code into CompuServe’s computers. Those computers follow the instructions in the code to deliver the message to the subscriber’s inbox.

Trespass “Trespass to a chattel is committed by intentionally dispossessing another of the chattel or using or intermeddling with it.” Restatement (Second) of Torts, Section 217. Cyber Promotions does not dispossess CompuServe of its computers. They stay in CompuServe’s possession. Cyber Promotions merely uses some of the computer’s processing capacity, so . . .

“Using or Intermeddling” This is “using or intermeddling” with a chattel. To be a trespass, the use the use must invade the possessory rights of the owner. An unauthorized use does so. CompuServe, at 1024 (citing Restatement (Second) of Torts, Sections 252 and 892(5), 217, Comment f and Comment g).

Liability for Trespass to Chattels One is liable for trespass to chattels if one commits it, and impairs the value of the chattel, or harms a legally protected interest. Committing trespass to chattels creates a privilege in the owner to use self-help to protect the chattel. Impairing value or harming a protected interest creates liability for damages and/or an injunction.

Summary impairs its value, or harms a protected interest. One is liable for trespass to chattels if one intentionally, and without authorization, uses the property of another in a way that impairs its value, or harms a protected interest.

Value and Harm in CompuServe Does sending vast amounts of spam through the CompuServe computers impair their value or harm a protected interest? It impairs value by slowing down or shutting down the computers. It harms a protected interest by producing dissatisfied customers, some of whom terminate their accounts.

Remedies Monetary compensation for the harm done. An injunction against future access.

Effective? Trespass to chattels is not a particular effective tool against spammers. The enormous number of spammers makes it difficult for Internet service providers to track down the source of the spam. It can be difficult to prove damages as the number of different spammers bombarding an ISP can make it difficult to determine which spammer caused what damage.

Summary (3) and (4) argue for an impairment of value. Trespass to chattels first appears in this fct pattern: (1) huge volumes of spam, (2) Intentionally sent after revocation of consent, (3) Causing computers to slow down or shut down, (4) imposing costs on the ISP. (3) and (4) argue for an impairment of value.