As argued in my forthcoming Whittier Law Review article with Walter Block, The Duty to Defend Advertising Injuries Caused by Junk Faxes: An Analysis of Privacy, Spam, Detection and Blackmail, spam can, in principle, properly be considered a type of trespass--since it is a means by which the spammer uninvitedly uses another's property. (See also Spam, Spyware, Spiders and Trespass.) I just came across this 2004 article, Spam—Oy, What a Nuisance!, by law professor Adam Mossoff, which argues that spam "is indeed a nuisance, and that ISPs and other affected businesses should sue the persons responsible for swamping the Internet with billions of spam for creating a nuisance. Nuisance doctrine is superior to the currently favored "trespass to chattels" because it does not require courts to engage in unnecessary legal fictions or doctrinal somersaults in finding that spam has "dispossessed" a plaintiff from its computer network."
Spam as a Nuisance
