Elements of trespass, etc., plus questions

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Some preliminary findings:


Here is what American Jurisprudence (2d) had to say about trespass. (For those unfamiliar with it, Am. Jur. is an encyclopedia on the law.)

"Trespass is an injury to possession [as opposed to a challenge to title]. The word 'trespass' in its broadest sense comprehends any misfeasance, transgression, or offense which damages another's person, health, reputation, or property, comprising any transgression or offense against the laws of nature or society, whether it relates to person or property. It is an intrusion which invades a possessor's protected interest in exclusive possession, whether that intrusion is by visible or invisible pieces of matter or by energy which can be measured only by the mathematical language of the physicist."

The elements of common law trespass are as follows: (1) Intentional (2) Entry (3) Onto the property of another (4) Without the express or implied permission of the owner or user of the property to so enter. Note that for Intent, liability may be imposed only if the trespass is intentional, reckless, negligent, or the result of ultrahazardous activity. You need only have intended the physical act; you need not have intended the damaging consequences of that act. Also, trespass cannot be based on a mere nonfeasance or an omission to perform a duty; there must be an affirmative act, or misfeasance. I think it would be useful to use multimedia examples to illustrate each of these four elements. What is intent? What is entry? What is "another's property"? What is implied or express permission? Does anybody have any good ideas on how to illustrate these elements?


18 U.S.C. 1030 criminalizes fraud and related computer activities. Subsection (a)(5) criminalizes knowingly causing the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causing damage without authorization, to a protected computer; intentionally accessing a protected computer without authorization, and as a result of such conduct, recklessly causing damage; or intentionally accessing a protected computer without authorization, and as a result of such conduct; causing damage. This subsection seems to track the elements of common law trespass pretty closely.


One variant of trespass that has popped up in some of the cases is "trespass to chattels." (A chattel is movable or transferable property' any property other than freehold land.) This occurs when someone "intermeddles," or "intentionally brings about a physical contact," with a chattel in the possession of another, and (a) the chattel is impaired as to its condition, quality, or value, (b) bodily harm is caused caused to the possessor, or (c) harm is caused to some person or thing in which the possessor has a legally protected interst. In CompuServe, Inc. v. Cyber Promotions (1997), the Ohio federal district court held that sending electronic signals constitutes physical contact, and that forcing CompuServe to devote system resources to dealing with Cyber Promotions' emails constituted impairment of the chattel's value.


There was also some discussion at our last meeting about "nuisance." Here is the distinction: "Trespass protects the possessor's interest in exclusive possession of property, and nuisance protects the interest in use and enjoyment of the property and does not require interference with the possession." Do you guys think we should talk about nuisance at all?

- Michelle.

-- Anonymous, October 05, 1998


A note on intent. I think one thing we should talk about is how actions in cyberspace can cause such amazing chain reactions, that the notion of intent is completely different. Since trespassing clearly applies only if there is intent (thank you Michelle for clarifying that), what happens if you write a program that has a bug and then spreads and infects and destroys other computers, but you never meant it to?

Food for thought...

-- Anonymous, October 05, 1998

So, I have a stupid question. I always thought trespass was just (at least) being on someone else's property intentionally, whether or not you did any damage. Is this definition saying that you must do damage in order to be trespassing?

As for the questions Michelle posed:

(1) What is intent? A very hard question and one I know that Ben was thinking about. If I just click a button and that inadvertently does something wrong, is that intent? I don't know...

(2) What is entry? Also a hard question I think, and one we'll have to discuss further. I mean, clearly telnetting into someone else's machine or otherwise breaking in and reading their files without their permission is entry. But is looking at someone else's digital watch? Unlikely. Looking at someone else's PDA over their shoulder?

(3) What is another's property? In this case, I think that's pretty clear, to some extent. I own a computer and the files on it (with proper copyright etc). I own my personal digital assistant, my digital watch, etc. Not that I think looking at my watch should constitute trespass, but at least we know it's my watch.

(4) Ah, permissions. Well, if I give you an account on my machine (username: x, password: y) and give the computer permissions to show you only what is in your folder, then you should probably be able to access that information freely. But what about other information on the same machine? And, what about anonymous FTP sites that people set up? Is that implied permission to look at anything the FTP site can find? I don't know.

(*) I think we do need to talk about nuisance a little bit because a lot of trespass attacks include "denial of service," which probably falls under nuisance (A denial of service attack is one in which an attacker prevents a server from doing its job for the public by, say, flooding it with the attacker's requests, etc, which I imagine is a nuisance).

Hope that helps.

-- Anonymous, October 05, 1998

Oh, okay, I understand now that you can trespass without doing harm. Thanks.

-- Anonymous, October 05, 1998

Michelle or Enoch,

After looking at Hardy's article listed under our readings, I think it might be worth it for one of you to repeat during the presentation why web sites deserve to be compared to real property; hence, why real trespass deserves to be compared to cyber-trespass. I don't think it's obvious...

- Lydia

-- Anonymous, October 06, 1998

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