Annoyancetech vigilante torts and policy.

• Author: Blomquist, Robert F.
• Position: Company overview

Abstract

The twenty-first century has ushered in demand by some Americans for annoyancetech devices--novel electronic gadgets that secretly fend off, punish, or comment upon perceived antisocial and annoying behaviors of others. Manufacturers, marketers, and users of certain annoyancetech devices, however, face potential tort liability for personal and property damages suffered by the targets of this "revenge by gadget." Federal, state, and local policymakers should start the process of coming to pragmatic terms with the troubling rise in the popularity of annoyancetech devices. This is an area of social policy that cries out for thoughtful and creative legislative solutions.

1. INTRODUCTION: FASCINATING NEW AND TROUBLING VIGILANTE TECHNOLOGIES II. ANNOYANCETECH TORT CAUSES OF ACTION III. ANNOYANCETECH TORT DEFENSES A. Intentional Torts and Negligence Defenses 1. Traditional Intentional Tort Defenses 2. Traditional Negligence Tort Defenses 3. Analogical Self-Help Defenses B. Strict Liability Tort Defenses IV. PUBLIC POLICY CONSIDERATIONS A. The Historical Problematics and Uses of Vigilante Justice B. Twenty-First-Century Extreme American Neighborhood Trends C. Some Sociological Perspectives V. CONCLUSION I. INTRODUCTION: FASCINATING NEW AND TROUBLING VIGILANTE TECHNOLOGIES

   Technology is a two-edged sword: new machines, devices, processes, contrivances, appliances, tools, and gizmos can bring benefits; but there are negative consequences to boot. (1) Indeed, at one time the federal government funded an Office of Technology Assessment ("OTA") (now defunct) that studied new and emerging technologies and issued reports on how to manage and regulate these cutting edge tools. (2)

   It is fundamental, of course, that at least since the early years of the twentieth century, tort law has imposed liability on manufacturers, sellers, and users of products (whether new or old). Under theories of warranty, intentional torts, negligence, and strict liability (of one sort or the other), tort law has awarded damages to victims of technology gone awry or misused. (3)

   A beguiling recent development, however, raises interesting legal questions. In an August 2007 Wall Street Journal article, innocuously placed in the "Weekend Journal" section, readers learned of "the growing ranks of electronic vigilantes" who have started to deploy novel gadgetry to secretly fend off, punish, or comment upon annoying behavior of their fellow Americans. (4) "Thanks to the falling cost of microcontroller chips and the lure of easy online sales, inventors are turning out record numbers of gadgets. One growing subset of these inventions: products that help people neutralize antisocial behavior at the push of a button." (5)

   Who are the purveyors of these new anti-antisocial behavior contraptions? "The brains behind these devices range from entrepreneurs in suburban Los Angeles to graduate students at the Massachusetts Institute of Technology." (6) Some examples are illuminating: (1) "A Tennessee company has created a $50 device that shuts up other people's dogs by answering their barks with an ultrasonic squeal that humans can't hear," and is deceptively inserted in a backyard birdhouse; (7) (2) "British inventors are exporting a new product for people who hate lousy drivers--it's a luminescent screen that fits in a car's rear window and, at the driver's command, flashes one of five messages to other motorists" including "Back Off," "Idiot," "a sad face," a happy face and--not yet widely disseminated, but demanded by some purchasers of the screen--"offensive hand gestures"; (8) (3) MIT's Media Lab, which has coined the new word "annoyancetech" has developed a '"No-Contact Jacket' that, when activated with a controller, delivers a blast of electricity to anyone who touches the person wearing it"; (9) (4) the "Annoy-a-tron," designed for simple revenge by allowing a user to hide the device under the desks of one's enemies with the device emitting "a loud, piercing little beep"; (10) (5) a specially revamped iPod which silences annoying FM radio stations in taxicabs; (11) (6) "TV-B-Gone," "a $20 handset that allows people to shut off loud televisions in public places like doctor's offices and bars"; (12) (7) "cellphone [sic] jammers"; (13) (8) "the Mosquito,"--marketed by a firm called "Kids Be Gone"--which "emits high-frequency sounds particularly irritating to congregations of teenagers"; (14) and (9) an invention called the '"I-Bomb' that emits an electromagnetic pulse that disables all electronics in its range (a similar device was depicted in the movie 'Ocean's Eleven')" (15) and that, for instance, could be used to shut down a neighbor playing loud music on her stereo.

   Yet--apparently unexamined at this writing--the manufacturers, marketers, and users of certain annoyancetech devices face possible liability for various tort causes of action by those who are the intended or foreseeable targets of these evolving electronic vigilante technologies. My overarching purpose in the remainder of this very brief overview article is to sketch possible tort causes of action by plaintiffs harmed by annoyancetech devices and potential defenses to these annoyancetech torts. First, in Part II, various annoyancetech tort causes of action are discussed. (16) Then, in Part III, potential assorted annoyancetech tort defenses are analyzed. (17) Finally, in Part IV, public policy implications of annoyancetech manufacturing, marketing, and use are considered. (18)

2. ANNOYANCETECH TORT CAUSES OF ACTION

   We live in a world full of annoying behaviors. No doubt, from time to time, every human being annoys others. For the most part, tort law seeks to bypass trifles, bad manners, bothersome and pesky human behavior--at least if the behavior is unintentional, sporadic, and minor. But discerning what is a mere trifle, on the one hand, and what is tortious harm, on the other hand, can sometimes be difficult.

   The term "tort"--derived from Latin roots meaning "twisted"--suggests that "tortious conduct is twisted conduct, conduct that departs from [social] norm [s]." (19) So, broadly speaking, "torts are traditionally associated with wrongdoing in some moral sense." (20) Indeed, tort theorists have engaged in a dynamic, ongoing debate over the past half-century between those who espouse economic efficiency grounds of tort liability, on the one hand, (21) and others who have argued "that the foundations of tort law rest[] more firmly on moral ground." (22) As Professor Dan Dobbs cogently notes, "[i]n the great majority of cases today, tort liability is grounded in the conclusion that the wrongdoer was at fault in a legally recognizable way." (23)

   Legal fault, in the law of torts, is traditionally grouped into two categories: (1) intentional wrongs and (2) negligent wrongs. (24) "Most commonly, the intentional tort defendant is consciously aware of his wrongdoing [and] he is always aware of his act." (25) Negligent wrongs entail unreasonably risky behaviors that actually result in harm. "The defendant in the negligence case is sometimes aware that he is taking unreasonable risks; he is always in violation of reasonableness standards whether he is consciously aware of that fact or not." (26)

   Strict liability torts, however, provide liability without fault (typically involving forseeability of harm and blameworthy conduct) for abnormally dangerous activities and defective products among other categories. Theorists ascribe various policy reasons for imposing strict liability--from better deterrence to more generous compensation; from wide risk spreading to basic fairness. (27)

   Given the aforementioned background principles, what would be the nature of the potential fault-based and strict liability-based wrongs suffered by a victim of annoyancetech electronic vigilantism? First, on a very general level, the impalpable autonomy of an individual to live as he or she deems fit--however eccentric or bothersome--is challenged, and possibly violated, by someone who seeks to punish or control another for a barking dog, poor driving, unwanted television or radio noise, or irritating teens. Second, the dignity of a target of annoyancetech vigilantism may be sullied. This dignitary interest is intangible and addresses the emotional distress and insult that a victim of electronic vigilantism might experience at the loss of freedom and the underhanded subjugation to the will of another person. Third, a victim of annoyancetech measures could very possibly experience diminished enjoyment or hedonic impairment in using his or her property (pets, cell phones, stereos, televisions, and electrical appliances) by devices that shut down, silence, or interfere with the property. Fourth, after being the victim of electronic vigilantism--and discovering the particular facts regarding the nature of the annoyancetech device and how it was used by the perpetrator--a person might experience anxiety that a similar stealth interference with his or her life enjoyment might happen in the future. Fifth, the victim of annoyancetech vigilantism may experience unpleasant stress at having his or her privacy breached by another who electronically tampers with one's seclusion. Sixth, casualties of electronic annoyancetech, when discovering that another has taken self-help measures because of perceived antisocial behavior (loud music, public cell phone usage, barking dogs) may experience reputational distress if the incident is reported or publicized. Seventh, targets of annoyancetech vigilantism may, of course, incur tangible economic loss: of the health or death of a pet who has been silenced by electronic pulses; of the health or death of a teenager who has been accosted by electronic sounds; of the proper functioning of cell phones, televisions, stereos and other electronic appliances that have been electronically tampered with; of lost business opportunities that come about because a PowerPoint sales pitch...