A federal trial court in Chicago ruled that the ancient legal doctrine of trespass to chattels (trespassing on personal property, rather than on someone’s land or real estate) may potentially apply to spyware on your computer.

The Chicago Lawsuit
In Sotelo v. DirectRevenue, the computer owner filed a complaint against various companies alleging that they caused spyware to be downloaded onto his computer without his consent, which tracked his Internet use, invaded his privacy, and caused damage to his computer and value of his broadband connection, by drastically slowing down his computer resources and causing some applications not to function properly or to not work at all.

The computer owner’s attorney alleged the following five legal claims: trespass to chattels, consumer fraud, unjust enrichment, negligence and computer tampering, seeking money damages and an injunction prohibiting the installation of spyware.
The defendants were alleged to have secretly installed spyware by bundling it with other software that is available for free on the Internet, such as games software. When a computer user downloads and installs the free software, he allegedly also installs spyware.

Only one of the three companies had an end user license agreement which informed the computer owner that spyware will be installed. The plaintiff computer owner alleged that the spyware companies use various methods which avoid displaying this agreement to computer users before installation, and asserted that the spyware is specifically designed to be difficult to remove from a computer once it is installed. The computer owner also argued that computer users are bombarded with annoying pop-up advertisements by virtue of the operation of the spyware, which interferes with their ability to use the computer for their own purposes. He also claimed that the spyware destroys installations of other software, slows down the computer, and depletes bandwith and computer memory.

Court Allows the Spyware Case to Go Forward
The spyware companies filed a motion to dismiss the trespass to chattels claim, arguing that the traditional elements needed for that type of legal action were not met. While the court acknowledged that this historical doctrine has applied over time to tangible damage or loss of personal property (such as damaging or stealing a person’s bicycle), the court nevertheless denied the defendants’ motion. The Sotelo case is scheduled to proceed to trial including the claim of “trespass to chattels,” which is based on the impairment to the owner of the functioning of his computer system and broadband network connection.

Trial to Come…
Sotelo v. DirectRevenue is being closely watched–while there are various laws proposed in Congress to restrict the use of spyware, there are currently no cases or laws on the books that outlaw the practice. If this case is not settled by the parties and comes down in Chicago with significant money damages against DirectRevenue, look for hundreds of cases to be filed against spyware providers all over the country–as people who have literally thrown out computers they couldn’t rid of spyware will be seeking to “strike back at the Dark Side of the force.”