Spyware can constitute illegal trespass on home computers

["Richard M. Smith" <rms () computerbytesman com>]

http://www.usatoday.com/tech/columnist/ericjsinrod/2005-10-11-spyware_x.htm
 
 
<http://images.usatoday.com/_common/_images/ribbons/tech_ribbons/columnist/e
-legal.gif>  
 
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 <http://www.duanemorris.com/> ), where he focuses on
litigation matters of various types, including information technology
disputes. His website is www.sinrodlaw.com <http://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. 

This column is prepared and published for informational purposes only and
should not be construed as legal advice. The views expressed in this column
are those of the author and do not necessarily reflect the views of the
author's law firm or its individual partners.

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