This article is a preview of the full article “Use of Covert GPS in Advertising: A Real Good Experiment? Or a Real Bad Legal Mess?” (Slated to be published in the Spring 2011 Hastings Communications and Entertainment Law Journal).
Consumer protection law is traditionally viewed as coming from sources such as the Federal Trade Commission, or via laws such as product liability. However, this blog will suggest that trespass law could also be construed to ensure adequate disclosures about the use of GPS devices.
In fall of 2009, a furniture company called Blu Dot engaged in an advertising campaign called “The Real Good Experiment.” The campaign consisted of Blue Dot advertisers hiding GPS devices on the bottom of Blu Dot brand chairs. The GPS bearing chairs were then scattered on the streets of New York. Blu Dot filmed the chairs from nearby rooftops to look for people who might take the chairs (not knowing the GPS devices were in tow), and used the GPS devices to keep tabs on the new chair owners (dubbed Identified New Chair owners or "INCOs" by Blu Dot) once they were out of sight. They also broadcast the GPS coordinates on a public website.
Courts have recognized that there need not be a physical harm to the property to justify a trespass action for intentional intrusion to land. In
Jacque v. Steenberg Homes, the Wisconsin Supreme Court recognized that an actual harm occurs when the right to property exclusion is infringed upon. In
Jacque, a housing company dragged a home across the plaintiff’s property without permission. Though this act caused no physical damages to the plaintiff’s property, the court recognized that the “right to exclude others from his or her land is ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’" Thus, by infringing on the legal right to exclude, “the law recognizes that actual harm occurs in every trespass.”
The action for intentional trespass to land is directed at vindication of the legal right.” In order to prevent a system of vigilante justice, the court recognized the value of providing legal remedies for infringements on property rights. As such the court upheld an award of nominal actual damages and one hundred thousand dollars in punitive damages.
Not only need not the trespasser cause physical damages to be liable for trespass, the trespasser also need not physically enter the property of another. Rather, the trespassing agent can arise from nonhuman sources such as light, sound or smoke. The Restatement fleshes out this aspect of trespass, noting:
The actor, without himself entering the land, may invade another's interest in its exclusive possession by throwing, propelling, or placing a thing either on or beneath the surface of the land or in the air space above it.
Thus, in the absence of the possessor's consent or other privilege to do so, it is an actionable trespass to throw rubbish on another's land, even though he himself uses it as a dump heap, or to fire projectiles or to fly an advertising kite or balloon through the air above it, even though no harm is done to the land or to the possessor's enjoyment of it. In order that there may be a trespass under the rule stated in this Section, it is not necessary that the foreign matter should be thrown directly and immediately upon the other's land. It is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter. Thus one who so piles sand close to his boundary that by force of gravity alone it slides down onto his neighbor's land, or who so builds an embankment that during ordinary rainfalls the dirt from it is washed upon adjacent lands, becomes a trespasser on the other's land.
And though consent is an affirmative defense to a claim of trespass, there is case law supporting the proposition that perceived “consent” based on fraud is not always a viable defense to a trespass claim. The court in
De May v. Roberts found that consent could be nullified where the property owner gave it to someone assuming a false identity. In this case, plaintiff called a doctor to the plaintiff's home to deliver her baby. The doctor brought along with him a friend who was curious to see a birth but was not a medical doctor. The doctor informed the property owner that the friend was his medical assistant. Under this pretense the “medical assistant” was allowed into the home and delivery room. The court found that though the plaintiff “consented to the presence of [the defendant] supposing him to be a physician, [it would] not preclude her from maintaining an action and recovering substantial damages [for trespass] upon afterwards ascertaining his true character.”
Similarly, the court in
Miller v. Brooks held that a person becomes a trespasser when they exceed the scope of the property owner’s consent. In
Miller, the plaintiff sued his wife from which he had been separated. The plaintiff granted the defendant permission to enter his house. However, unknown to the plaintiff, the defendant installed surveillance cameras in the bedroom. The court found that when the defendant installed the surveillance cameras, her actions extended beyond the scope of the consent and constituted as trespass.
However, there has been inconsistency among the courts as to whether fraudulently obtained consent may qualify as an affirmative defense to trespass. In
Dresnick v. the American Broadcasting Corporation, the court held that fraudulent intent did not negate the defense of consent. The defendant was a broadcasting company. The defendant received reports that the plaintiff, an ophthalmologist, regularly recommended patients receive unnecessary surgeries. To further investigate, the plaintiff sent a person undercover with surveillance equipment to the plaintiff’s office to pose as a patient. The undercover actor was not actually interested in having any eye surgery but represented a contrary position in the interview with the plaintiff. The plaintiff stated that he would not have allowed the undercover agency onto his property if the plaintiff had not been deceived. Despite the misrepresentations, the court found the consent was valid and the defendants were thus not liable for trespass. The court distinguished this case from other fraudulent consent cases noting that the trespass occurred in a professional and not a personal setting, that the trespass did not disrupt the workplace, and that it did not occur in one’s home.
Applying the logic from both the Steenberg
and fraudulent consent cases, there is an argument that an INCO could maintain a trespass action against Blu Dot. The INCOs brought the chair into their home not knowing there was an electronic signal granting Blu Dot access into their homes. The INCOs were at no point aware that any actual parties were connected to the chair. Even if the INCOs act of bringing the chair into the home were to qualify as granting consent to the chair to enter, it was a misrepresentation for Blu Dot to intentionally hide the device with the hopes the INCOs would unknowingly bring it into their homes. Further, applying the logic from Brookes, the INCO granted the chair entrance to function as a chair, and the GPS signal would have exceeded the scope of the intended consent. It would further not meet the Dresnik exception because the chairs were taken into homes and not into professional offices. Thus, even though there were no damages to the property, Blu Dot may have entered without consent creating trespass liability.
However, the questions of ownership arise. If the INCO had come to own the GPS device and chair, it could not be a trespass because one cannot trespass onto their own property. Thus, technology has outgrown the clear lines of precedent and it is unclear whether or not the entry of the GPS device would qualify as an intentional intrusion onto property trespass. However, a policy-oriented judge could acknowledge that Blue Dot maintained at least some of their property rights in the chair and that virtual intrusion without consent. Such use of trespass laws would require that parties consent to the use of such intrusive technologies.
Author: Brandy Worden, CLASS Co-President 2010-11
Contact: president@consumerlawstudents.com
