Mobile Advertising: Electronic Trespass to Chattel, or Nuisance?
I have an iPhone 4. Almost every application that I have downloaded (paid for or otherwise) is plagued by advertisements. These advertisements are brought to my telephone via either Apple’s own iAd’s, AdMob, and even AdSense and help keep the price of applications free, or relatively cheap for the consumer.
Previously I discussed my feelings regarding At&t’s new data plans, and how the data used by these advertising sources is not conducive to the limited data packages that subscribers are forced to purchase. However, now it appears that the advertisements have become slightly more burdensome.
Trespass to Chattel is a legal tort defined as a situation where one intentionally interferes with another’s lawful possession of a chattel (e.g., personal property). This theory has been expanded throughout electronic commerce and has been used in situations such as:
1. Sending emails through a server when not authorized to do so; and
See Intel Corp. v. Hamidi, 30 Cal.4th 1342, 71 P.3d 296, 1 Cal.Rptr.3d 32 (Cal. 2003) (limiting trespass to chattels under California law to acts physically damaging or functionally interfering with property), and CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Oh. 1997) (granting preliminary injuction on grounds that unsolicited email constituted a trespass to chattels)
2. Using a web-crawler to obtain website information when not authorized to do so;
See eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000) (granting preliminary injunction on defendant’s use of automated querying programs to obtain information off of plaintiff’s website and over plaintiff’s objections).
The courts of California have been extremely cautious in applying this theory to situations involving less than physical interference/harm. For example, the only reason the court in Bidder’s Edge granted the injunction was to prevent other persons from activating similar programs and thus completely bogging down eBay’s servers. On a similar note, the court in Hamidi did not enjoin the defendant from sending the emails because no real harm could be proven.
Both of these situations seem to support my theory that advertising on the iPhone is nothing less than a trespass to chattel. I say this because when the telephone receives an advertisement, it does so through whatever data source is functioning at the time (Edge, 3g, or Wifi). While this impacts your data plan if you are on Edge or 3G, any data consumed actually disrupts (and diminishes) the device’s battery performance.
In fact, while Wifi is the most delicate on the device’s battery, Edge and 3g are technologies that use a considerable amount of energy from you telephone, and thus impact the integrity of the telephone’s battery.
In conjunction, or in the alternative, battery consumption via digital advertisements might even constitute a Nuisance under electronic law. The traditional tort of nuisance (private) is defined as an interference in the use and enjoyment of one’s property. Traditionally, such definition has applied only to real property, however, it does follow that such a theory could be applied to the situation at hand.
For example, all of the battery consumed due to the transmission of advertisements is that much less battery that the end user ultimately has to operate the device. Certainly it also follows that more battery consumption means more necessity to charge the device, and more pressure to spend money on accessories that enable the user to either sustain battery performance, or charge the battery in remote locations.
Citations above were taken from: http://www.tomwbell.com/NetLaw/Ch06.html.
Common law definitions were obtained from:
http://www.lectlaw.com/def2/t047.htm, and http://www.lectlaw.com/def2/n025.htm