Washington Law Review


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.

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