Are Legal Booby Traps Legal?

Suzanne Shell, most recently in the news for receiving unauthorized practice of law sanctions from the Colorado Supreme Court in connection for her advocacy on behalf of parents facing termination of their parental rights, is back in the legal news again.

This time, it is in connection with a Colorado lawsuit against an internet archiving company and its board of directors, involving her website. Shell, of course, represents herself in the case. She claims a right to sue because the company archived her website without paying the price she insisted upon on the face of her website. About a month ago, a Colorado district court ruled that her suits for conversion, civil theft, and state and federal organized crime counts failed to state a claim upon which relief could be granted, even without considering any disputes of fact raised by the company.

Three individual parties in the case (the board of directors of the archiving firm), who faced only the organized crime counts, were not formally dismissed in the same order, but the ruling implies that they should be entitled to a dismissal on the merits, because the charges against them were held not to state a claim against another necessary party to the claim. A motion to dismiss the claims against them on the merits and for lack of personal jurisdiction is pending.

But, the Court left standing Shell's claim that there was a breach of contract against the company, at least until the facts about contract formation can be hashed out further. The Court also declined even to determine if the common law of contracts or the Uniform Commercial Code applied to the case.

Shell claims that the company entered into a contract by continuing to archive her site on an automated basis when the site contained a notice that doing so would create a contract. The company, obviously, disputes that claim.

In effect, she left a legal booby trap on her website, and this archiving company ending up triggering it. Now, the world gets to see if the booby trap works. If it does, it would destroy Google and every other internet search engine's stock price overnight.

The fact that the terms of the alleged contract involve confiscatory amounts of money and other legal impediments mitigates against finding that there is a contract, or in the alternative, that the contract is void because it is unconscionable or an improper penalty parading as a liquidated damages clause, as a matter of law.

It is highly unlikely that Shell will prevail on the merits, probably before the case goes to trial, although precisely why isn't completely clear.

Hat Tips: wendy at Colorado Confidential, slashdot, Information Week, and Eric Goldman's Technology & Marketing Law blog.