Jane K. Winn, Crafting a License to Know from a Privilege to Access, 79 Wash. L. Rev. 285 (2004), https://digitalcommons.law.uw.edu/faculty-articles/150
Washington Law Review
trespass to chattels, unauthorized access
Should the doctrine of trespass to chattels apply to unauthorized access to Internet facilities? If it does, then the property rights of the owners of computers connected to the Internet may be vindicated, but at a cost of diminished public access to information posted on the Internet. If it does not, then incentives to invest in the kind of commercial facilities that now largely constitute the Internet may be undermined, but the public interest in knowledge gleaned from information posted on the Internet will be protected.
Although trespass to chattels has been derided as an anachronism ill-suited to the Internet, and its application to Internet activities rejected in some recent cases, other cases have held decisively that its application gives appropriate recognition to the rights of owners of computer equipment connected to the Internet. In order to safeguard the “license to know” factual information posted to the Internet that the public currently enjoys, courts should recognize an individual privilege to access Internet resources in a reasonable manner.
Given that trespass to chattels is unlikely to disappear from the Internet landscape any time soon, refinements are needed to keep the doctrine’s scope within reasonable bounds and to make its application more predictable. The California Supreme Court recently imposed such a limitation on its application by holding that liability for trespass should be found only if the Internet access at issue significantly impairs the functions of another’s computer equipment or, if widely replicated, would so impair it.
However, this attempt to restrict the scope of earlier rulings may prove to be at least as contentious as the holdings of the cases it purports to limit, and so is unlikely to staunch the flow of controversy. One of the most significant problems created by the application of trespass to chattels doctrine to unauthorized Internet access disputes is its overbreadth. Trespass doctrine lacks the nuances normally found in intellectual property law to balance competing public and private interests in the exploitation of ideas and knowledge. Overbroad grants of rights in information have a chilling effect on the progress of science and the dissemination of knowledge generally.
Trespass doctrine vindicates the property rights of equipment owners at the expense of the “ease and openness of communication” that has always been the hallmark of the Internet. Overzealous application of trespass doctrine obscures the fact that some forms of Internet access must be privileged if the unique public character of the Internet is to be preserved. Such a privilege should be limited in scope in recognition of the role played by private parties in maintaining the Internet today. The recognition of this privilege, however, should not be made contingent on the voluntary acquiescence of private parties.
Recognizing a defense to a claim of trespass in Internet cases based on a finding of constructive consent provides a doctrinal basis for privileging some forms of access while acknowledging a right to exclude certain other forms of access. Focusing attention on the public character of the Internet and assigning a clear legal significance to the equipment owner’s deliberate choice to participate in that arena provide a more secure legal foundation for such a privilege to access than the “functional impairment” standard offered by the California Supreme Court. The contours of such a doctrine of constructive consent to Internet access are suggested by the terms of the license eBay offered to Bidder’s Edge as discussed below—access by individual Internet users or its functional equivalent.
This Article suggests that a defense based on constructive consent can complement the limitation imposed by the California Supreme Court to further limit the scope of trespass doctrine in Internet arenas, increase the predictability of the doctrine’s application in new disputes, and help to protect important public interests in free and open access to Internet resources.