The Digital Pendulum: Conforming (or Mutating) The Parameters Of Trespass Theory To Address The Act Of Wrongfully Accessing A Computer System

摘要

Beginning in the late 1990s, case law began to see a reemergence of an old and largely dormant tort theory-trespass to chattels-being applied to the digital-age act of wrongfully accessing computer systems. The tort of trespass to chattels under California law, traditionally viewed as the "little brother of conversion," encompasses "intermeddling with or use of or damages to" personal property that does not amount to an interference with the possessory right sufficient to constitute a conversion. The defendant is therefore liable for damages measured by the impairment or loss of use of the property, not its full value. Prior to 2003, the California Supreme Court had not addressed the tort of trespass to chattels in any depth since 1946. In dusting off this cause of action and realizing its potentially expanded application from cows to computers, federal and state courts in California have defined the parameters of high-tech applications of the theory-or left them undefined-in cases involving a colorful variety of acts designed to access computers. These fact patterns involve conduct ranging from the use of Internet robots, crawlers, and spiders to "recursively crawl" popular sites, to the sending of unwelcome emails, to the use of software to alter and circumvent restrictions in other software, to the transmission of commands to remotely disable installed software, to online monitoring of a PC's activity to identify piracy in the copying and distributing of copyright-protected material.