Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 2. Intentional Harms
. . .The majority fail to distinguish open communication in the public “commons” of the
Internet from unauthorized intermeddling on a private, proprietary intranet. Hamidi is not
communicating in the equivalent of a town square or of an unsolicited “junk” mailing through the
United States Postal Service. His action, in crossing from the public Internet into a private
intranet, is more like intruding into a private office mailroom, commandeering the mail cart, and
dropping off unwanted broadsides on 30,000 desks. Because Intel’s security measures have been
circumvented by Hamidi, the majority leave Intel, which has exercised all reasonable self-help
efforts, with no recourse unless he causes a malfunction or systems “crash.” . . .
Intel correctly expects protection from an intruder who misuses its proprietary system, its
nonpublic directories, and its supposedly controlled connection to the Internet to achieve his bulk
mailing objectives—incidentally, without even having to pay postage.
Notes
1. Thrifty-Tel, Inc. v. Bezenek (1996). Thrifty-Tel was one of the first cases to apply
trespass to chattels principles to electronic communication. Thrifty-Tel, a long-distance telephone
company sued the parents of minors who used computers to crack the company’s authorization
codes, and to make long-distance calls without paying. In holding that trespass to chattels “lies
where an intentional interference with the possession of personal property has proximately caused
injury,” the Thrifty-Tel court found that the defendants’ hacking substantially interfered with
Thrifty-Tel’s operations, sufficiently to give rise to a common law trespass to chattels cause of
action. Thrifty-Tel, 54 Cal. Rptr. 2d at 473.
Around the same time, CompuServe Inc., an early internet service provider, brought an
action against Cyber Promotions Inc. for sending CompuServe users unsolicited advertisements
through CompuServe’s servers. The court in CompuServe Inc. v. Cyber Promotions, Inc., 962 F.
Supp. 1015, 1022 (S.D. Ohio 1997) found that defendants were guilty of trespass to chattels
because “multitudinous electronic mailings demand the disk space and drain the processing power
of plaintiff’s computer equipment,” and because the defendants’ actions caused customers to
complain, resulting in a loss of good will toward CompuServe.
In Ticketmaster Corp. v. Tickets.com Inc., 2000 WL 525390 (C.D. Cal. Mar. 27, 2000),
Ticketmaster filed suit against Tickets.com for their practice of providing hyperlinks to
Ticketmaster.com, and for copying event information from Ticketmaster’s webpage and placing it
on the Tickets.com web page. The court found that providing a hyperlink to, and copying purely
factual information from, a publicly available website did not (absent more) establish a claim of
trespass.
A few months after the Ticketmaster decision, a federal judge in the Northern District of
California held that the gathering of publicly accessible auction information from eBay.com by an
auction services firm called Bidder’s Edge constituted a trespass to chattels. Bidder’s Edge used
electronic “spiders” to crawl through bidding information on eBay and other auction sites and
used the information it collected to allow its customers to compare goods and prices across
bidding websites. Does it matter that eBay’s database was publicly accessible, or that it posted a
notice purporting to forbid the use of information collecting spiders? Part of the threat to eBay
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