PCs Posted No Trespass

FreeLinux writes "USA Today has a story about a federal court ruling stating that Spyware can constitute illegal trespass. From the article: 'A federal trial court in Chicago has ruled recently that the ancient legal doctrine of trespass to chattels (meaning trespass to personal property) applies to the interference caused to home computers by spyware. Information technology has advanced at warp speed with the law struggling to keep up, and this is an example of a court needing to use historical legal theories to grapple with new and previously unforeseen contexts in Cyberspace.'"

Makes Sense to Me

[Trip Ericson]

But how much spyware is installed by the user unknowingly, via misleading dialog boxes or other methods in which the user is fooled into installing it? I somehow doubt that would fall under the trespassing rule, due to being allowed in, no matter how sleazy the entry. I can understand those that are installed without the consent of the user through security holes, but those are a minority of the cases. The overwhelming majority gets in through the user inadvertantly allowing it in.

Next Up: Zoning, Public Right of Way

[G4from128k]

If PCs are like private real estate, then we could be opening a pandora's box of real estate, zoning, and property law issues. If a PC is like a piece of land with built structures, then there is both the issue of trespass and civic responsibility. Zoning laws might limit how much bandwidth a person take from a shared network infrastructure. Subnets might create their own PC-owners associations (fashioned on Home-Owners Associations) that restrict activity to avoid inconveniencing others in the virtual neighborhood (good and bad).

This may not be all bad. Perhaps some zombie PCs could be condemned under such an interpretation. Or, for example, if people create municipal mesh networks, then anyone joining the network may be required to provide public access to their part of the network for routing purposes (no leaching).

My point is that real estate/private property is heavily regulated and that entrenching the PC = private property analogy in case law could have some interesting legal consequences.

Re:The Feds Have Taken The First Step

[MichaelSmith]

All of the ones I've worked on are required to post a warning that they are government property and that unauthorized access is considered criminal trespass.

At a site where I once worked we had to change our login message from "Welcome to $machine" to "Unauthorized access prohibited" because "welcome" was considered a statement that unauthorized access was permitted.

All EULA software can share the blame

[BeBoxer]

I think all software which includes an EULA can share in the blame. The EULAs offer little to no benefit to the legitimate companies which use them. They offer no benefit to the users of the software. But they offer legal cover for the spyware / adware folks. By training all the users of commercial software that click through EULA's are just a normal and expected thing, it helps ensure that it's easy for the slime to slide through nasty stuff in them.

It's one of the things that makes me appreciate free software. So much commercial software is total crap, yet you have to jump through all these hoops to use it. Like it's such a fricken privledge. Buy the software. Click through some obnoxious 'license'. Fill out the 'registration' form. Wait for it to phone home. If you are really lucky, install a "license server" just to prove you aren't a crook. And in the end, struggle with some bloated and buggy piece of crap. With proprietary file formats to ensure that you don't really control your own data. Commercial software houses don't treat their customers like customers. They treat them like serfs.

Re:Can we also apply this to SPAM?

[krray]

I certainly don't see WHY I can't apply this to my INBOX.
Ironically I have _always_ felt spam to be trespass.
It is MY inbox. On my domain. On my server. In my house.
Through a connection that I pay for. On equipment
I've paid for. To a domain I've paid for.

God help the first spammer I MEET. Anywhere. Anytime.

Of course the same applies to telemarketing, which the
law certainly disagrees with me on that matter. Very sad
state of affairs all this technology has brought to us...

Re:The Feds Have Taken The First Step

[utlemming]

Although it does make things interesting. Imagine if you will if someone marks all their ports with a notice stating that trespasser acknowledge that they might invite a hostile counter-attack, i.e. you attack the system that it is phoning-home to. Also, could you mark all your ports that you might "shoot" trespassers? Further, does a sticky note on the screen constitute notice against trespass? That would be interesting. By applying the common law ideal of trespass, now it will be interesting if all the common law ideas of self-defense apply to. Just because the person is not physically present on your computer, does that mean that you can launch a counter-attack which "kills" or "impairs" his intellectual property, or his ability to use that which has been licensed to him?

Clearly Illegal

[whawk640]

I don't know why there's been so much debate about whether or not popups and/or spyware is illegal. Here is a simple analogy:

Putting a pop-up on my screen to sell me a product to get rid of popups is like putting a rock through the window of my house with a note advertising your window company.

Would anyone argue that the second situation is legal or that these two situations are dramatically different?
The only argument that they are different is whether or not they are destroying your property with pop-ups. Adding this sort of program damages my computer by decreasing it's availability, wasting my time and money trying to get rid of the offensive program and/or preventing some needed operation on the machine.

The analogy is very clear to me. Now, we just have to identify the companies that are responsible and slap a big financial judgement on them. Making them pay is the only way to stop it. It may also be necessary to throw the worst offenders in jail as an example.

I suppose the only reason we're tolerating this sort of thing is the big business backing the anti-spyware/popup/spam market. If we aggressively attacked the spammers, then there would be less of a demand for their services... fine, give them a portion of the judgement against the spammers.

Just my HO.

Demand nothing less than software freedom.

[jbn-o]

What you think are reasonable minimum standards are so easily worked around in licensing. By the time you discover what these proprietary programs have been doing, you have no means to fix the program so it doesn't do the bad thing again. What you're asking for is effectively going to allow others to control your computer and make it do what they want, not what you want. I don't want computer software I am forbidden from inspecting, sharing, or modifying. I want the limitations of control of my computer to be in my hands and I don't want to even inadvertantly pass on problems to my friends with whom I share software. Therefore, I ask for free software by name.

Just to answer a few of the rebuttals I know are coming: It's not a question of whether I have time to inspect every program on my computer. I don't have the time or inclination to do that. It's unrealistic to think that every user is an island and it's unhealthy to divide users and hold them helpless by expecting all users to provide 100% of their own support. But collectively multiple users have time to do this work. I'm comfortable in a community where I can trust the work of others by preserving my software freedom (running, sharing, modifying programs any time I want with anyone for any reason). Hence, I run only free software on my computer and I encourage others to do the same.

Re:interpreting the law

[mrchaotica]

I'm serious there has to be a point where this is filtered.

Sure, but the filter should only be put in place by your request, and should only apply to you. Everyone should have the right to a completely unfiltered Internet, if they so choose.

YAYY!!!!

[Hosiah]

Even if a court decision doesn't mean spit in the wind these days, at least SOMEbody else finally said it: (I've been saying it since my TSR-80), "I PAID for every bit of memory, so I will do with it what I Damn. Well. Please. And nobody else may say different."

I don't know what takes people so long to come round. From my old Windows days, I literally scoured every directory, not just for spyware, but ANYthing I didn't want. It was a big motivation for my move to Linux. We ALL have the right to say how every single byte of memory is used. Executable too big? Bundled with crap I don't use? Too skeaky with your files nested inside directories with unpronouncable names? Hiding your source code from me? Out you go! Restrictive rights? Copy-protection? EULA? Bullshit! As long as I don't *share* the file with anybody else, I hold that it's within my perfect right to HEX edit, reverse engineer, and (MOST importantly) FIX it!

I figure, as long as I already spent the money and no-one else sees it, it's my disk, regardless of whether I port it to a different file system, use it for a coaster, or cat the binary into a bitmap to make abstract art. It is the classic victimless crime. Meanwhile, anybody who tries to exert control over My computer, with or without my "consent" is wrong! (By "consent" I mean: I had no choice but to use your crap or get fired, to use your crap I had to check the box swearing that you own my children: NOT consent, at all. I check the boxes...and lie like hell!)

It is JUST as bad to put a pop-up dialog in my face without my asking for it as it is to break into my house and spray-paint graffitti on the walls. The same way wrong to clog my inbox with spam as it is to scatter trash on my lawn. Should be illegal to sell me software without offering me the RIGHT to see the source code for free as it is to sell me a prepared food without showing me the ingredients and nutritional information. It is JUST as wrong to take over my machine as it is to steal my car. It is IDENTICALLY as stupid to build a computer that's locked shut so I can't upgrade it myself as it is to sell me a car with the hood padlocked shut so I can't even check the oil. What took us so long to apply the same logic to our computer that we have to our other possessions?

All computer users...if you'll pardon the soap-boxing from the deliriously ranting man...you have been screwed long enough, and it's time you demanded that it stop!