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

Witt & Tani, TCPI 2. Intentional Harms
was that Bidder’s Edge allowed users to access the eBay site without encountering eBay’s
advertising. Note that eBay said that it was willing to sell Bidder’s Edge a license to collect the
information for a charge. See eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal.
2000).
2. The property analogy? Did the Hamidi court err in grounding its ruling in trespass to
chattels principles? For an argument that property analogies (either chattel or real) wrongly
govern virtual space, see Shyamkrishna Balganesh, Common Law Property Metaphors on the
Internet: The Real Problem with the Doctrine of Cyber Trespass, 12 MICH. TELECOMM. TECH. L.
REV. 265 (2006). Richard Epstein, in contrast, has argued that the Hamidi ruling’s refusal to
adopt the real property analogy deprives internet users of much needed civil protection when selfhelp
remedies for excluding cyber trespassers fail. See Richard A. Epstein, Intel Corp. v. Hamidi:
The Role of Self-help in Cyberspace?, 1 J.L. ECON. & POL’Y 147 (2005) for an extended critique
of Intel Corp. v. Hamidi. For an argument that courts should chart a middle path requiring that
plaintiffs show sufficient recourse to self-help measures as a condition for awarding civil relief,
see Catherine M. Sharkey, Trespass Torts and Self-Help for an Electronic Age, 44 TULSA L. REV.
677 (2008). Why not simply adopt a narrowly-tailored opt-out regime that would allow harmless
cyber interaction unless and until a party has been asked specifically to cease and desist?
How far can trespass principles be applied? Consider the case of United States v. Jones,
565 U.S. 400 (2012), where police placed a GPS tracking device on the defendant’s vehicle
without a warrant. The Government introduced aggregated GPS data at trial that connected Jones
(the defendant) with a cocaine stash house. Delivering the opinion of the Court, Justice Antonin
Scalia reasoned that the question of whether placing the device on the plaintiff’s vehicle amounted
to a constitutionally regulated search and seizure turned on whether the government’s action
would have constituted a trespass at common law. Justice Sonia Sotomayor concurred, but
worried that “[i]n cases of electronic or other novel modes of surveillance that do not depend upon
a physical invasion on property, the majority opinion’s trespassory test may provide little
guidance.” 565 U.S. at 415. Did placing the GPS device on the defendant’s personal property
constitute a common law trespass if it caused no damage to the property?
3. Anti-spamming legislation. Although the California Supreme Court declined to censure
Mr. Hamidi’s emailing in Intel Corp. v. Hamidi, Congress and many state legislatures have passed
anti-spamming laws. In 2003, Congress passed the Controlling the Assault of Non-Solicited
Pornography and Marketing (or CAN-SPAM) Act. Broadly, the act protects against fraud, and
misleading commercial emails. CAN-SPAM also requires that commercial senders allow email
recipients to opt out of receiving future messages and establishes a national “Do-Not-Email”
registry on which they can do so. See 15 U.S.C.A §§ 7701-13. Many states, including California,
have passed state anti-spam statutes as well, though CAN-SPAM has preempted much of the
content of the state statutes. Interestingly, in recent years, private email distributers have begun
adding additional safeguards for consumer privacy beyond those required by CAN-SPAM and its
state analogues. The widely-used digital distribution and marketing firm MailChimp, for
example, includes in its terms of use a commitment that their users “won’t send Spam!”
MailChimp reserves the right to enforce this provision by dropping clients who violate it. Terms
of Use, MAILCHIMP.COM, https://perma.cc/K3D2-9X3Y (last visited Apr. 8, 2014). Does
MailChimp’s policy suggest that some combination of market reputation on the part of
46