The Guilty Eye: Unauthorized Access, Trespass and Privacy

Abstract:     
Statutes forbidding unauthorized access to computers have become a mainstay of the legal protections governing networked computer systems, both in the United States and throughout the world. Courts have interpreted the concept of unauthorized access in the light of the common law of trespass, taking its meaning beyond the simple idea of computer hacking, and using it to protect computer-based information in general. This process has been very controversial; it is perceived to be creating a new property right in electronic information. This article contends that the debate about the so-called new property in electronic information has overlooked the flexibility in common law trespass, which maintains a natural balance between over-protection and under-protection of any given resource. While the writ of trespass has traditionally protected property and privacy rights, resource users who conform to objective standards of reasonableness have rarely been held liable for trespass. The balance inherent in common law trespass is illustrated by the famous two-part reasonable expectation of privacy test, used to decide Fourth Amendment search and seizure cases. This article proposes a similar test should be used when deciding computer trespass cases, formulated as follows: First, the access must take place without the (subjective) permission of the rights-holder. Second, the access objected to must be of a kind that a reasonable person (objectively) would expect to be unauthorized. Use of this test allows for a doctrine of computer trespass which protects property and privacy interests in electronic information, while still being flexible and dynamic enough to permit the free flow of ideas and information in open computer networks like the internet.

Keywords: Computer, Trespass, Privacy, Unauthorized Access

JEL Classifications: K00, K11, K13, 14, 19, K42

Accepted Paper Series