Whom Must I Let In?

1
Whom Must I Let In?

• Richard Warner

2
Where the Question Arises

• Past and present
• Spam e-mail cases, eBay, Intel, employer
  monitoring of e-mail, scanning for software
  license violations, EULA provisions (permitting
  entry).
• Future
• Transportation (governmental entirely?)
• The Internet connected house
• Political web sites (selective exclusion).
• Consumer access to online databases
• Other cases?

3
My Conclusions

• The law will not provide a solution.
• The law actually requires a solution to these
  problems via the development of relevant shared
  norms.
• This is one reason that it is critical that
  technically knowledgeable people such as
  yourselves play a role in developing the
  requisite norms.

4
Trespass to Chattels

• Begin with trespass to chattels ( personal
  property).
• Trespass to chattels consists in the unauthorized
  intentional use of a chattel in a way that
  impairs its value.
• Note This is a tort.
• There were several Internet trespass to chattels
  cases around the turn of the century.
• Pattern (1) flood of e-mail from spammers (2)
  a competitor searches a businesses web site.

5
Critics of Trespass

• Mark Lemley contends that the courts failed to
  grasp the real issue.
• The courts saw the issue as one of personal
  property Does an Internet system owner have the
  right to control access to the computer
  equipment?
• Lemley insists that the issue was information.
  The cases were really efforts to control the
  flow of information to or from a site.
• Mark A. Lemley, Place and Cyberspace, 91 Cal. L.
  Rev. 521, 529 (2003).

6
Apocalypse Now?

• Dan Hunter warns that the legal propertization
  of cyberspace . . . is leading us to a tragedy of
  the digital anti-commons.
• An anti-commons is a distribution of property
  rights that imposes disastrously inefficient
  restrictions on access.

7
The Anticommons

• He contends that recent laws and decisions are
  creating millions of splintered rights in
  cyberspace . . . Historians will look back on our
  time and wonderwhen we have seen what the
  Internet could behow we could have sat and
  watched the tragedy of the digital anti-commons
  unfold.
• Dan Hunter, Cyberspace As Place, 91 Cal. L. Rev.
  439, 444 (2003).

8
The Consequences

• First The growth and vitality of the Internet
  depend on e-mail communication, hyperlinking, and
  the search-engine index.
• Second These features thrive on
  implied-permission access.
• Third Recognizing a right to prevent access
  reduces implied-permission access and hence
  threatens the growth and vitality of the
  Internet.

9
E-Mail

• E-mail is the most used aspect of the Internet.
• It provides inexpensive, worldwide communication.
• It offers innovative advertising possibilities.

10
Linking

• The Web is a network of hyperlinks.
• Links do not, however, serve only to create the
  Web. They also play a critical navigation role.
  You locate information by following links.
• The dispersion of data that is the Internet is .
  . . largely overcome by the webs ability to link
  related information in a manner transparent to
  the user. This has helped make the Internet into
  a medium of mass communication and a vast
  commercial market place.
• Maureen A. ORourke, Fencing Cyberspace Drawing
  Borders in a Virtual World, 82 Minn. L. Rev.,
  609, 611 (1998)

11
Search Engines

• Search engines are critical to the effective use
  of the Internet. The Internet has multiple
  sources of information at the back end (hundreds
  of millions of Web pages), but only one means of
  accessing that information at the front end (the
  consumers computer screen). . . Unless
  consumers have reliable means . . .

12
Search Engines

• to search through the immense number of passive
  servers quickly, easily and independently, many
  consumers will not be able to find the
  information that would be most useful to them. To
  provide impartial, accurate and timely
  information, search engines, shop bots, and other
  data tools must access and centralize information
  that already exists on other web servers, but
  which is too distributed to be of practical use
  to the consumer.

13
The Internet Is Unique

• No other communications network depends
  third-party access to property and information
  the way the Internet does.
• This challenges our conception of private
  property.
• In doing so, it involves us in puzzles about
  privacy.

14
Buchanan Marine v. McCormack Sand

• The defendant moored its barges to the buoy the
  plaintiff built and maintained for use by its
  tugboats. (743 F. Supp. 139 (1991)).
• The court found a trespass to chattels and issued
  an injunction without requiring the plaintiff of
  show any harm other than being deprived of the
  use of its property.
• It did even not matter whether the plaintiff
  desired to use the buoy at the time the defendant
  was using them.

15
Private Property

• It was the potential deprivation that mattered.
• The buoy did not become available for use by
  others as soon as the owner was not using it.
• To hold otherwise would be inconsistent with the
  fact that the buoy is private property.
• An owner of private property has the right,
  within broad limits, to decide that no one shall
  use the property.

16
The Internet Variation

• Rex owns and runs Web Babes (WB), a web site
  consisting of a collection of hyperlinks to web
  pages with pictures of women.
• WB links to resumes containing pictures of women
  to personal web sites displaying pictures of
  vacations and so on.
• Rex catalogues the pictures in terms of
  attractiveness on a 1 to 10 scale.

17
Vicki and Sally

• He collects the links using automated robot
  search software which he sends to publicly
  accessible web sites.
• Vicki and Sally maintain a personal web site on
  which each displays vacation pictures.
• Rex links to the sites.
• Vicki is offended and Sally wants a fee.

18
Trespass?

• Rex continues to search the site.
• Is this a trespass?
• Trespass to chattels consists in the unauthorized
  intentional use of a chattel in a way that
  impairs its value.
• No damage to a computer or harm to a relevant
  economic interest.

19
The Non-Internet Variation

• Vicki and Sally live in a small town where they
  are among the many who keep albums of their
  vacation pictures on their front porches.
• Rex visits the porches regularly and summarizes
  his findings on his web site.
• In this variation, trespass to land and trespass
  to chattels protect Vickis freedom and promote a
  market exchange between Rex and Sally.

20
When Does Someone Trespass?

• Trespass to chattels consists in the
• unauthorized intentional use of a chattel
• in a way that impairs its value.
• See any repeated, unpreventable use as impairing
  value.
• Develop a doctrine about when use is authorized
  (most importantly, when you can revoke permission
  to enter a publicly accessible web site).
• We need widely recognized norms defining the
  scope of authorization, but we do not have them.
• Recall Rex, Sally, and Vicki.

21
What About Contracts?

• Why not resolve these questions contractually?
• Seems plausible.
• When you go to a web site, you agree to terms of
  use.
• It turns out that we end up in the same place
• Needing norms,
• But not having them.

22
What Is A Norm?

• A behavioral regularity in group
• Supported by a (legal or non-legal) sanction
• Where group members think they ought to act in
  accordance with the norm.
• Two cases
• Ought to so act because it is the norm.
• Driving on the right.
• Ought to so act for a norm-independent reason.
• Busy lawyer meets pregnant women in narrow hall
  way. Who lets whom pass?

23
Standard Form Contracting

• The vast majority of contracting (well over 90)
  consists of agreeing to terms presented in
  standard forms.
• No onewell, almost no onereads these contracts.
• In the non-digital cases, there are fairness
  norms which apply.
• E. g., other things being equal, the best
  loss-avoider should bear the risk of loss.
• Tim is better a first base, and Sally is better
  at second, so Tim plays first base, and Sally
  plays second.
• The manufacturer is better at avoiding motor
  defects in refrigerators the buyer, better at
  avoiding wear and tear on the shelves.

24
Sellers Comply with Fairness Norms

• Sellers maximize profit by offering contracts
  consistent with fairness norms.
• Reading buyers only buy from sellers offering
  such terms, and
• the lost business outweighs the gain from the
  more seller favorable terms.
• Because they are only relevant if things go
  wrong, and
• Because courts will not enforce them.
• This is true even in monopolistic markets.
• As long as there is sufficient competition.

25
Digital Cases/Web Sites

• We lack relevant norms in regard to
• Reverse engineering
• Transfer of software to third parties
• Access rights to hard drives
• Privacy
• Privacy is our concern.

26
Privacy Puzzle

• Perhaps the most striking think about the right
  to privacy is that nobody seems to have any very
  clear idea what it is
• Judith Jarvis Thompson, The Right to Privacy, in
  Philosophical Dimensions of Privacy An Anthology
  272, 272 (Ferdinand David Schoeman ed. 1984)
• Privacy is
• vague.
• Arthur R. Miller, The Assault on Privacy
  Computers, Data Banks, and Dossiers 25 (1971).
• protean.
• Tom Gerety, Redefining Privacy, 12 Harv.
  C.R.-C.L. L. Rev. 233, 234 (1977)
• suffering from an embarrassment of riches.
• Kim Lane Scheppele, Legal Secrets 184 85 (1988).

27
Where the Question Arises

• Past and present
• Spam e-mail cases, eBay, Intel, employer
  monitoring of e-mail, scanning for software
  license violations, EULA provisions (permitting
  entry).
• Future
• Transportation (governmental entirely?)
• The Internet connected house
• Political web sites (selective exclusion)
• Consumer access to online databases
• Other cases?