Okay, Gimme One of Them Information Torts
Charles Carreon
By an “information tort,” I mean wrongful cyber-conduct that gives the victim a claim in court for damages or injunctive relief. The most common information tort is simple credit card fraud in all its inglorious variety. Domain hijackings are another information tort. Most if not all information torts are accomplished through the use of identity theft; indeed, most identity thieves steal identities only as an instrumental means to acquire property by impersonating the true owner.
I have heard of some clever identity thefts committed as preliminaries for financial theft. One thief acquired a second level Internet domain name to gain control over the victim’s email address, which was hosted at that domain. In case this is passing you by, this is like buying Hotmail.com in order to be able to read the contents of the email files of Hotmail users, and more importantly, to send counterfeit emails under their names. Having thus obtained control over the victim’s email address, the thief sent counterfeit emails requesting a domain name registrar to transfer one of the victim’s own valuable domain names over to the thief’s account. The theft came off as smooth as silk, and the name has not been recovered.
Now who, in this case, can be sued for the theft of the domain name? Assuming that you are in the Ninth Circuit, which includes California and Oregon , we would have to consider filing claims against various persons and companies. How do we determine who can be sued? It’s not difficult if you understand what a tort is.
Incidentally, I initially decided not to become a lawyer because I saw that my older brother had to study a book in law school entitled “Torts.” Ugh, I thought, what an ugly word, and furthermore, one I’d never heard of. Later I learned that tort is derived from the same root as torque and torsion, words that describe a twisting motion. I then realized that torture is also derived from the same root, and concluded that a tort is a “twist” in the relationships between private persons that one may go to court to get “straightened out.”
When you get to court, the judge will want to know whether this is really a tort case, and he may therefore, at the instigation of the adversary’s lawyer, ask your lawyer to answer four questions:
1. Did the defendant owe a duty to your client?
2. Did the defendant breach that duty?
3. Did the breach cause your client injury or loss?
4. Was the injury or loss compensable?
With respect to a domain thief, in the State of California , the answers are:
1. Yes, your Honor. This is the tort of “conversion of personal property” because everyone is obliged to refrain from “converting” another person’s property to their own use.
2. Yes, because they stole my client’s domain name, which is personal property in the State of California .
3. Yes, because the loss of the domain name deprives my client of money derived from the value and operation of the domain name.
4. Yes, because the law allows us: (a) to recover stolen property when it can be returned to the true owner; (b) to recover money damages for the loss of use during the time the true owner was deprived of possession; and, (c) to require the thief to give back all the money they earned using someone else’s stolen property.
There are many information torts besides identity theft and domain theft. Invasion of privacy and anonymous slander seem to be growth areas. These information torts are all what we’d call “intentional torts.” Nobody accidentally steals an identity or an item of cyber-property. It’s virtually always intentional. In addition to these information torts, however, there is a much larger category of information torts of the negligent type.
By an “information tort,” I mean wrongful cyber-conduct that gives the victim a claim in court for damages or injunctive relief. The most common information tort is simple credit card fraud in all its inglorious variety. Domain hijackings are another information tort. Most if not all information torts are accomplished through the use of identity theft; indeed, most identity thieves steal identities only as an instrumental means to acquire property by impersonating the true owner.
I have heard of some clever identity thefts committed as preliminaries for financial theft. One thief acquired a second level Internet domain name to gain control over the victim’s email address, which was hosted at that domain. In case this is passing you by, this is like buying Hotmail.com in order to be able to read the contents of the email files of Hotmail users, and more importantly, to send counterfeit emails under their names. Having thus obtained control over the victim’s email address, the thief sent counterfeit emails requesting a domain name registrar to transfer one of the victim’s own valuable domain names over to the thief’s account. The theft came off as smooth as silk, and the name has not been recovered.
Now who, in this case, can be sued for the theft of the domain name? Assuming that you are in the Ninth Circuit, which includes California and Oregon , we would have to consider filing claims against various persons and companies. How do we determine who can be sued? It’s not difficult if you understand what a tort is.
Incidentally, I initially decided not to become a lawyer because I saw that my older brother had to study a book in law school entitled “Torts.” Ugh, I thought, what an ugly word, and furthermore, one I’d never heard of. Later I learned that tort is derived from the same root as torque and torsion, words that describe a twisting motion. I then realized that torture is also derived from the same root, and concluded that a tort is a “twist” in the relationships between private persons that one may go to court to get “straightened out.”
When you get to court, the judge will want to know whether this is really a tort case, and he may therefore, at the instigation of the adversary’s lawyer, ask your lawyer to answer four questions:
1. Did the defendant owe a duty to your client?
2. Did the defendant breach that duty?
3. Did the breach cause your client injury or loss?
4. Was the injury or loss compensable?
With respect to a domain thief, in the State of California , the answers are:
1. Yes, your Honor. This is the tort of “conversion of personal property” because everyone is obliged to refrain from “converting” another person’s property to their own use.
2. Yes, because they stole my client’s domain name, which is personal property in the State of California .
3. Yes, because the loss of the domain name deprives my client of money derived from the value and operation of the domain name.
4. Yes, because the law allows us: (a) to recover stolen property when it can be returned to the true owner; (b) to recover money damages for the loss of use during the time the true owner was deprived of possession; and, (c) to require the thief to give back all the money they earned using someone else’s stolen property.
There are many information torts besides identity theft and domain theft. Invasion of privacy and anonymous slander seem to be growth areas. These information torts are all what we’d call “intentional torts.” Nobody accidentally steals an identity or an item of cyber-property. It’s virtually always intentional. In addition to these information torts, however, there is a much larger category of information torts of the negligent type.