By Mark Edward Blankenship Jr.*

 

Unlike the Internet, which has been defined as a global network of billions of computers, millions of servers and other electronic devices that are facilitating worldwide communication, the metaverse combines aspects of physical reality, virtual reality, augmented reality, artificial intelligence, social media, online gaming and cryptocurrencies, allowing users to interact virtually, making it conceptually distinct. Within the metaverse, people can meet, and digital assets—land, malls, offices, products, and avatars—can be created, bought, and sold. Moreover, the metaverse is attempting to redefine work culture, due to the pandemic. As the metaverse gradually aims to be the new virtual experience that supersedes the Internet, current employment laws and regulations provide little insight as to navigating the workplace. For instance, what might be considered discrimination or harassment within this new workplace atmosphere? How might the company’s resources and infrastructure face harm?

When the Internet first underwent legal examination, judges and practitioners made much of what they could through the implementation of analogy and common law claims. One of the first common law claims applied to the context of the Internet was trespass to chattels, which occurs when an individual intentionally and without authorization interferes with possessory interest in chattel, and such unauthorized use proximately resulted in damage. One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if: (a) he dispossesses the other of the chattel; (b) the chattel is impaired as to its condition, quality, or value; (c) the possessor is deprived of the use of the chattel for a substantial time; or (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.

CompuServe Inc. v. Cyber Promotions, Inc. became the first to apply this tort in the context of cyberspace. In that case, the Defendant bombarded the Plaintiff’s email system with enough “spam” email to cause harm to the system’s functionality. In Ebay v. Bidder’s Edge, Inc., where an auction data aggregator used a ‘crawler’ to gather data from eBay’s website, the court found that even though the Defendant’s interference was not substantial, any intermeddling with or use of another’s personal property established such possessory interference with Plaintiff’s chattel. Additionally, the intentional use of Plaintiff’s bandwidth was considered harmful, because of its aggregative effect.

In Intel Corp. v. Hamidi, the Defendant, a former employee of Plaintiff Intel Corp., sent e-mails criticizing Intel’s employment practices to numerous current employees on Intel’s electronic mail system. Hamidi continued to send these emails, even after being sent several cease-and-desist letters from Intel. However, he breached no computer security barriers in order to communicate with Intel employees. Additionally, Hamidi’s communications to individual Intel employees caused neither physical damage nor functional disruption to the company’s computers, nor did they at any time deprive Intel of the use of its computers. Instead, the contents of the messages, however, caused discussion among employees and managers.

The court noted that unwanted electronic communications may constitute a trespass to chattels if the volume and frequency of the communications is sufficient to overly burden the recipients’ email system. However, the court found the current case to be distinct from the CompuServe decision because the messages transmitted by Hamidi were infrequent and did no actual harm to Intel’s computer system. Any harm caused to Intel’s employees by reading the emails stemmed from the content of the emails, rather than the actual quantity or frequency of those emails. The court refused to extend the tort of trespass to chattels encompass “impairment by content.” Furthermore, Intel could not assert a property interest in its employees’ time, since this would insinuate that employees were chattels, which they are not.

Hamidi’s dissenting opinions do raise some concerns about the effects this one common law tort could have in a realm where the workplace, the physical world, and the digital world are intertwined. Judge Brown wrote in his dissenting opinion that Hamidi should have been held liable for trespass to chattels because Intel had invested millions of dollars to develop and maintain a computer system in order to enhance the productivity of its employees and the time required to review and delete Hamidi’s messages diverted employees from productive tasks and undermined the utility of the computer system. And Judge Mosk believed that the majority failed to distinguish open communication in the public “commons” of the Internet from unauthorized intermeddling on a private, proprietary intranet. Hamidi’s actions, in crossing from the public Internet into a private intranet, is the equivalent to intruding into a private office mailroom, commandeering the mail cart, and dropping off unwanted broadsides on 30,000 desks. Because Intel’s security measures have been circumvented by Hamidi, the majority leave Intel, which has exercised all reasonable self-help efforts, with no recourse unless he causes a malfunction or systems “crash.” . . . Intel correctly expects protection from an intruder who misuses its proprietary system, its nonpublic directories, and its supposedly controlled connection to the Internet to achieve his bulk mailing objectives—incidentally, without even having to pay postage.

The court in Hamidi seemed to draw a line with regards to “impairment by content.” Some additional factors that may need to be considered are whether such content is an invasion of privacy or whether such content is defamatory, in this case, there would be an actual harm of one’s privacy rights. The court also seems to draw a line on whether an actual harm in one’s productivity would be a basis for recovery. Back in 2003, that court did not think so. However, in this technologically advancing world, we find ourselves it is unclear whether it will be reconsidered. Lawyers stress over the importance of the “billable hour.” Companies are constantly attempting to find ways in improving their productivity in an efficient way. Today, security breaches are more frequent than ever, and as a result, companies are urged under the law to invest in and employ reasonable cybersecurity practices. From this angle, it would seem as if the adage “time is money” has merit. In that case, perhaps common law should reflect that.

Critics might argue there should be no property interest in disrupted work productivity because human beings are not chattel. Rather, people should work to live, rather than live to work. But that argument seems to lose strength when applied to an interactive world where people are represented as avatars, in which a “separate personhood” is hard to establish. Furthermore, what determines the value of real and personal property within the metaverse is still being investigated. Upon analyzing the differences between cyberspace and the metaverse, legal scholars and practitioners may need to reconsider, if not expand upon, the application of law in Hamidi.

 

* Mark Edward Blankenship Jr. is a Senior Associate Attorney for the Ott Law Firm in St. Louis, Missouri. He received his LL.M. (Intellectual Property Law emphasis) at the Benjamin N. Cardozo School of Law at Yeshiva University in 2021, and his J.D. from the J. David Rosenberg College of Law at the University of Kentucky in 2019.

Source image: https://pixabay.com/vectors/metaverse-virtual-space-world-6786713/