Search Redirection Tool Could Be Trespass to Chattels–Burgess v. EForce

By Eric Goldman

Burgess v. EForce Media, Inc., 2007 WL 3355369 (W.D.N.C. Nov. 9, 2007)

Every now and then a consumer goes on a me-vs.-the-world bender and decides to unilaterally save society by suing everyone in sight. Burgess’ anger over unwanted advertising may have sparked such a campaign. His previous appearance on the blog involved his pro se lawsuit against American Express and many other major brand names for unwanted pop-up ads. In that ruling, the court intimated that advertisers could be liable for contributory trespass to chattels.

In this companion action, Burgess sued a number of defendants for spam. The court rejects his CAN-SPAM claim for lack of standing (he doesn’t qualify for the limited private causes of action).

Burgess also sued for the installation of search redirection client software, claiming it was a privacy invasion, trespass to chattels, and “illegal conduct.” The defendants first tries to dismiss the claims as preempted by CAN-SPAM, but CAN-SPAM’s preemption clause does not apply to generally applicable laws like privacy invasions and trespass to chattels. Nevertheless, the magistrate report (approved by the judge) dismisses the privacy invasion claim for failure to state a claim, saying:

While the undersigned shares in plaintiff’s frustration with the internet and the unconscionable applications that interfere with one’s use and enjoyment of technology–and at times display offensive websites–frustration of purpose is not an invasion of privacy. Further, the undersigned cannot find any North Carolina case recognizing a cause of action for invasion of privacy based on computer viruses that redirect internet searches or inquiries, or any cases that would suggest that similar such conduct in other fields would support such a claim.

The “illegal conduct” claim was also dismissed.

On the other hand, building on Burgess prior ruling in state court, this court refuses to dismiss the trespass to chattels claim. Citing to Sotelo and others, the court says that Burgess’ “pro se pleadings are not a model of clarity but nevertheless suffice to state a claim for trespass to chattels. He sufficiently alleges actual possession of his computer and ‘unauthorized, unlawful interference’ with his use of this personal property.” So the Sotelo precedent marches on, even though this court (as with the prior Burgess court) doesn’t acknowledge Hamidi, Mummagraphics or the other cases that would put these expansive trespass to chattels rulings in serious doubt.

As a result, Burgess’ case lives to see another day. I’m sure we haven’t heard the last from him!