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Ransomware: Does A Tort Claim Apply?

In our last blog post, we mentioned eBay, Inc. v. Bidder’s Edge, Inc. While the case wasn’t related directly to ransomware, it creates an important precedent for tort liability. Specifically, it supports the idea that common law torts can be carried out and applied in the digital world.  So, what does eBay give us as a legal theory? How might it get applied to ransomware in a hypothetical case? What is the likelihood of succeeding on such a case?

Case Analysis: eBay, Inc. v. Bidder’s Edge, Inc.

In this case, eBay sued Bidder’s Edge for the use of a type of program known as a “spider” or “bot.” These programs would automatically go to eBay, search for information, and repost it on Bidder’s Edge. The purpose of this was to allow others to get better ideas of what to bid on items by searching multiple auction sites. While there were negotiations to allow Bidder’s Edge to access eBay, however, the negotiations broke down, and ultimately prompted the lawsuit.

The issue was that the spiders would add more traffic to a website, occasionally causing it to crash, like what occurs during a DDoS attack. This prompted eBay to request a preliminary injunction based on a trespass to chattels claim since Bidder’s Edge use of eBay’s website interfered with its operations.  This is because a trespasser is liable when the trespass diminishes the condition, quality, or value of personal property.

In discussing the validity of the trespass claim, the court conceded that the trespass was more like a trespass to real property, as it would likely never amount to conversion.  Ultimately, the court found that on the matter of trespass, eBay had a strong likelihood of success, leading to injunctive relief.

Application to Ransomware Lawsuits

While these common law torts, like trespass to chattels or conversion, are archaic in origin, but their use in eBay is pertinent.  First, it means these traditional torts can apply to an unauthorized action that interferes with a plaintiff’s use.  Second, the comparison to real property gives further insight to how one might attack a legal issue.

For example, if Dan were to use ransomware against Paul, a blogger, it could compared to the spiders.  As a result, Paul’s computer would intermittently display the ransom message as Dan tried to collect the ransom.  This would be analogous to the spiders where they took space on eBay’s website and caused traffic issues.  However, Paul could also sue for conversion.  Conversion is an intentional tort where plaintiff has a right to possess personal property, and defendant intentionally interferes with that property, which deprives plaintiff of possession or use of the property and causes damages.  Assuming Dan implements a lock on Paul’s computer in seeking the ransom, Dan would deprive Paul of the use of his computer.  After, damages may result from Paul’s inability to use it, as he would be unable to post anything without the computer.

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