For five months, the Bourne family of Warwick, R.I., allegedly had an unwelcome intruder in their home –- the hardcore porn programming of the Playboy Channel. Now they are suing their cable provider for trespassing on their property.

The law of trespass has been used to combat computer viruses and spam e-mail, but the Bournes' suit against Verizon Communications (NYSE: VZ) appears to ignore what distinguishes their case –- they could have avoided any exposure to “sexually explicit hardcore pornography” by simply not viewing the Playboy Channel.

The “unauthorized transmissions” into the Bournes' home allegedly began in March. The family did not subscribe to the Playboy Channel and, the complaint says, repeatedly notified Verizon of “the harm that was being caused.”

“The Defendant, Verizon, continually broadcast and transmitted sexually explicit hardcore pornography into the premises after it had received notice of the prior unauthorized entries,” Robert Bourne, his wife and two children allege.

The suit also includes claims for negligence, nuisance and invasion of privacy, alleging that Verizon failed to maintain “reasonable and proper control over its equipment” and unreasonably intruded on the plaintiffs' “right to physical solitude or seclusion.”

“Premium” channels such as Playboy are scrambled so only those cable subscribers who pay an additional fee may access the programming. “Signal bleed,” however, can allow audio and video portions of shows to escape scrambling for brief periods.

In a case decided by the U.S. Supreme Court in 2000, Playboy successfully challenged a provision of the 1996 Cable Act that required cable TV operators to restrict adult programming to overnight hours if they did not fully scramble their signal to nonsubscribers. U.S. v. Playboy Entertainment Group, 529 U.S. 803.

The Bournes don't say whether they got the Playboy Channel through signal bleed or the programming was completely unscrambled. Verizon “failed to use due care and failed to make use of its training, equipment and technical expertise as a prudent cable provider,” the complaint alleges.

But computer owners have a duty to take reasonable precautions against the intrusion of hackers such as installing anti-virus software. And it would be absurd to hold a cable provider liable for unauthorized transmission of programming when a “prudent” subscriber can so easily control what programming they actually see -– or even not watch anything at all.

By Matthew Heller
12/17/08