Trespass to Chattels: Spam
Richard Warner
CompuServe v. Cyber Promotion
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:“CompuServe has received many complaints
from subscribers threatening to discontinue
their subscription unless CompuServe
prohibits electronic mass mailers from using
its equipment to send unsolicited
advertisements.”
“CompuServe asserts that the volume of
messages generated by such mass mailings
places a significant burden on its equipment
which has finite processing and storage
capacity.”
The CompuServe Fact Pattern
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This is typical of the spam cases:
 huge volumes of spam
 overload the processing capacity of the ISP,
 imposing costs, and
 producing dissatisfied customers,
 on whom the spam imposes both delivery
costs and e-mail management costs.
Did CompuServe Consent?
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When you connect a publicly accessible
system to the Internet, you impliedly consent
to access by the general public to that system.
Did CompuServe consent in this way to
receiving e-mails from Cyber Promotions?
Limited Scope and Revocability
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Connecting to the Internet does not constitute
an invitation to commit hack into the system
and delete data, for example.
Moreover: even if CompuServe did consent,
can’t it revoke that consent?
It certainly tried to do so.
The CompuServe Fact Pattern
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“CompuServe has notified defendants that
they are prohibited from using its proprietary
computer equipment to process and store
unsolicited e-mail and has requested them to
cease and desist from sending unsolicited email to its subscribers.”
Is this revocation effective?
Revocability
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Courts have held that ISPs can effectively
revoke whatever consent they might have
initially given to access by a spammer.
Cyber Promotions continued to send e-mails
after consent was revoked.
Summary
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Cyber Promotions intentionally accessed
CompuServe’s system,
without authorization, and
caused significant harm in form of
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slow downs, delays, personnel costs; and
dissatisfied customers,
some of whom terminate their accounts
because of the delivery and e-mail management
costs they bear.
Two Questions
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What liability, if any, does Cyber Promotions
have for these harms?
The common law doctrine of trespass to
chattels provides an answer.
A chattel is personal property. What is the
personal property involved here?
What Is the Chattel?
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CompuServe’s computers.
Cyber Promotions must send the necessary
message data and computer code into
CompuServe’s computers.
Those computers follow the instructions in the
code to deliver the message to the subscriber’s
inbox.
Trespass
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“Trespass to a chattel is committed by
intentionally dispossessing another of the
chattel or using or intermeddling with it.”
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Restatement (Second) of Torts, Section 217.
Cyber Promotions does not dispossess
CompuServe of its computers.
They stay in CompuServe’s possession.
“Using or Intermeddling”
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Cyber Promotions merely uses some of the
computer’s processing capacity.
This is “using or intermeddling” with a
chattel.
To be a trespass, the use the use must invade
the possessory rights of the owner.
Liability
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An unauthorized use does so.
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CompuServe, at 1024 (citing Restatement
(Second) of Torts, Sections 252 and 892(5), 217,
Comment f and Comment g).
In such a case, the user is liable if
 the use impairs the value of the chattel, or
 the use harms a legally protected interest.
Value and Harm in CompuServe
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Does sending vast amounts of spam through
the CompuServe computers impair their value
or harm a relevant interest?
It impairs value by slowing down or shutting
down the computers.
It harms a relevant interest by producing
dissatisfied customers, some of whom
terminate their accounts.
Remedies
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Monetary compensation for the harm done.
An injunction against future access.
Effective?
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Trespass to chattels is not a particular
effective tool against spammers.
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The enormous number of spammers makes it
difficult for Internet service providers to track
down the source of the spam.
It can be difficult to prove damages as the number
of different spammers bombarding an ISP can
make it difficult to determine which spammer
caused what damage.
Beyond the Spam Cases
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First: to what extent does one impliedly consent to
access by the general public when one connects a
publicly accessible system to the Internet?
Second: can one always revoke such implied
consent by explicitly notifying third parties seeking
access that their access is unauthorized?
Third: when does access by a third party to a
publicly accessible system impair the value of that
system or harm a relevant interest?