SPAM is evil. Diabolical. Wicked. But did I ever expect to find it in law school? A-ha, before you [I] answer that, read the below introduction from a case I recently read for class:

This case presents novel issues regarding the commercial use of the Internet, specifically the right of an online computer service to prevent a commercial enterprise from sending unsolicited electronic mail advertising to its subscribers.

What’s that? A case on SPAM?? My pulse quickened, I gripped my pen, steam came out of my ears. Lock the bastards up.

Eh, better read the rest first. This case, folks, is one that will make you happy.

Here’s what went down.

Cyber Promotions, the alleged spammer, sent mass emails to the clients of CompuServe, an ISP. Not only that, but they also used CompuServe’s systems to send the email. CompuServe’s servers were taxed, their employees were working to block or redirect the spam, and the clients were pissed [each of those elements is important - equipment usage, employee time ($), client dissatisfaction). So CompuServe sent letters to Cyber Promotions requesting they cease and desist. Cyber Promotion did no such thing. They altered their tactics to circumnavigate the preventive measures CompuServe put in place and increased the spamming. They spoofed the headers and From address so CompuServe’s system couldn’t catch the emails. Smart, but not smart enough.

Cyber Promotions was clearly spamming CompuServe’s clients with full knowledge that CompuServe did not approve of the spamming and that they were using CompuServe‘s equipment. That’s not cool.

Legally speaking, this comes out to a trespass; specifically, trespass to chattels (moveable things). Cyber Promotions was ‘trespassing’ on CompuServe’s ‘things’ without permission. But can you trespass electronically? This case has its beginnings in the long and far away time of 1996, so this was a new concept. The answer was yes, electronic trespass can be trespass to chattels.

The elements of trespass to chattels are defined as follows:

One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if,
(a) he dispossessed the other of the chattel, or
(b) the chattel is impaired as to its condition, quality, or value, or
(c) the possessor is deprived of the use of the chattel for a substantial time, or
(d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.

Cyber Promotions’ defense was a riot. They claimed that the internet is a free space and impervious to ownership, thus negating any trespass. If CompuServe didn’t own those lines, they could not claim a trespass. Bah, said the judge, they own the equipment and they own the lines and Cyber Promotions clearly used them sans permission. In an attempt to invalidate the above elements, Cyber Promotions also claimed they caused no damage to the equipment and did not physically possess the equipment. But what about those taxed servers? A server brought to its knees can be considered impaired because it can not perform to its usual capacity. And the physical possession story was rightly rejected.

And that part about “legally protected interests?” That’s where the angry clients come into play. They were CompuServe’s business interests and they were harmed. What the judge’s opinion did not mention, however, and which I think is relevant, is the employee time spent trying to fight off the spam. CompuServe’s developers spent their time trying to write code to automatically detect and delete the spam before it got to the clients. This is money going out the window. Cyber Promotions essentially took CompuServe’s money.

The Judge’s opinion ends with:

Based on the foregoing, plaintiff's motion for a preliminary injunction is GRANTED. The temporary restraining order filed on October 24, 1996 by this Court is hereby extended in duration until final judgment is entered in this case. Further, defendants Cyber Promotions, Inc. and its president Sanford Wallace are enjoined from sending any unsolicited advertisements to any electronic mail address maintained by plaintiff CompuServe during the pendency of this action.

I.e., cease and desist, bitches.