A Federal Court in Chicago has held that spyware makers may be subject to liability for trespass to chattels. In a motion to dismiss before trial, the judge in Sotelo v. DirectRevenue held that there was at least an arguable case that this legal doctrine may apply:

USATODAY.com - Spyware can constitute illegal trespass on home computers:

"... The defendants filed a motion to dismiss the trespass to chattels cause of action, arguing that the traditional legal elements pertaining to this type of claim were not met in this new setting. While the court acknowledged that this historical legal doctrine over time has applied to personal property (such as damaging or stealing a person's bicycle), the court nevertheless denied the motion, allowing the cause of action to proceed to later trial.

First, the court found that this type of trespass cause action does not require loss of personal property. Instead, 'interference' is sufficient. The court then took the leap to hold that interference with the use of a home computer is enough to maintain a claim for trespass to chattels.

Because the plaintiff's complaint alleged that computer use had been hindered, slowed down and bombarded with pop-up advertisements, enough interference had been asserted for the case to proceed on this cause of action.

In sum, and in the words of the court: 'Simply put, plaintiff alleges that Spyware interfered with and damaged his personal property, namely his computer and Internet connection, by over-burdening their resources and diminishing their functioning. Accordingly, the court denies (the) motion to dismiss (the) trespass to chattels cause of action.'"

Thanks to Privacy Digest for the link.

Labels: information breaches