Document Type

Article

Publication Title

University of Chicago Law Review

Abstract

With cyberspace, the hard question is whether technological changes could ever lead us to abandon the presumption that a deliberate trespass counts as a private wrong. The evolution of legal doctrine provides us with excellent examples of just how that shift takes place. One of the central rules of the common (and Roman) law is embedded in the maxim cujus est solum, ejus est usque ad coelum et ad inferos-"Whosoever owns the land, owns to the sky and to the bottom of the earth." One look to the heavens shows that, literally taken, the maxim is absurd, given the rotation of the earth: It's nice to own Orion for a second. But this error seemed harmless enough because no one could put the maxim to the test by taking possession of outer space. Yet the ad coelum rule had real functional advantages by allowing people to build on land; without the maxim, possession of the soil would work, weirdly, in only two dimensions, so that any one who built an overhang over a neighbor's land could take over the air space, at least until someone built over him. The incessant "race" to build solely to perfect title would generate massive social waste. The ad coelum rule saved the common law rule of occupation with respect to land. This strong rule on possession had to respond, however, to technological and production requirements. One dividend of strong trespass rules is that they protect the privacy of the property owners, as they did even before privacy counted as an independent legal interest. But an antitrespass rule does not offer sufficient protection against electronic snooping. Building therefore from Blackstone's simple condemnation of eavesdropping, the courts have prevented prying by electronic means. Everyone is, in the long run, better off if no one is in a position to snoop, so that by operation of law, boundaries of property are extended outward incrementally to accommodate that result.

First Page

73

DOI

https://doi.org/10.2307/1600546

Volume

70

Publication Date

2003

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