Website Access: The Case for Consent

Abstract

This paper presents a Coasean defense of the use of the trespass to chattels tort to regulate access to websites and private networks connected to the Internet. Consent to use should be presumed from the owner's choice to connect a site or network to the Internet. In most cases, however, owners should be able to stop unwanted uses by notifying a user that the owner objects to particular uses.

The trespass to chattels tort provides courts a doctrinal basis to enjoin uses to which an owner does not consent. Injunctions facilitate bargaining. Because transaction costs are low in such cases, bargaining will better approximate the optimal social equilibrium of uses than would alternative regimes, such as judicial management of access through the doctrine of nuisance. There may be cases where utilitarian analysis suggests deviating from this approach, but they would be the exception, not the default.

This paper also takes issue with the prevailing critique of the trespass tort. The basic premise of the prevailing critique is that chattel are different from real property because the law recognizes an interest in holding real property free from harmless intermeddling but does not recognize such an interest for chattel. The Restatement of torts says just the opposite, however, a point the prevailing critique does not acknowledge. The difference between real property and chattel is that the law provides a cause of action for harmless intermeddling with the former, and provides only a privilege to use self-help to protect the latter.

When the interest in being free from even harmless intermeddling is taken into account, the prevailing critique reduces to the proposition that courts should not recognize new torts even when legally recognized interests are violated and the means the law expects to protect those interests fail to do so. That proposition is excessively formal and provides no normative basis for criticizing the doctrine.