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Companies besieged by unwanted e-mail can only invoke the state’s trespass-to-chattels law if the messages cause actual damage to equipment or property, the California Supreme Court ruled Monday. Ruling 4-3 in a case that’s been closely monitored in free speech and technology law circles, the justices said it’s not enough if the unwanted messages just take time and attention away from employees. But the majority ruling, by Justice Kathryn Mickle Werdegar, said the law could still be used against senders of spam that overloads company servers. The court stressed that the thousands of e-mails that former Intel Corp. employee Kourosh Kenneth Hamidi sent to workers’ company e-mail addresses were different than the bulk spam messages that can overburden a company’s computer systems. “Intel presented no evidence its system was slowed or otherwise impaired by the burden of delivering Hamidi’s electronic messages,” Werdegar wrote in Intel v. Hamidi, 03 C.D.O.S. 5711. In fact, she wrote, “no evidence suggested that in sending messages through Intel’s Internet connections and internal computer system Hamidi used the system in any manner in which it was not intended to function or impaired the system in any way.” Werdegar also pointed out that companies like Intel have other remedies, including defamation and business-interference claims. The 29-page majority opinion was cheered by advocates of free speech and experts on computer law, many of whom filed amicus briefs in the case. The court drew precisely the right line, Boalt Hall School of Law Professor Mark Lemley wrote in an e-mail. “By drawing the line it did, the court makes it clear that [Internet service providers] can stop spam that shuts down their systems, while forbidding companies from using the tort of trespass to chattels as a competitive weapon or a way to stop speech.” “The court basically stated that the Internet should be treated like every other communications chattel, including phones and faxes,” said F. Gregory Lastowka, an associate at Dechert who represented Hamidi. Joining Werdegar in the majority opinion were Justices Carlos Moreno, Joyce Kennard and Steven Perren, a Second District Court of Appeal justice sitting by assignment. In a separate concurrence, Kennard expressed sympathy for Intel, echoing Werdegar’s point that the company has other remedies. Justice Janice Rogers Brown dissented, as did Second District Justice Richard Mosk, who was sitting by assignment. Chief Justice Ronald George joined Mosk’s dissent, which maintained that intruding on private property, regardless of injury, is sufficient to demonstrate trespass to chattels. “The majority fails to distinguish open communication in the public ‘commons’ of the Internet from unauthorized intermeddling on a private, proprietary intranet,” wrote Justice Mosk. Hamidi’s action is not tantamount to communicating in a town square, but is more like “intruding into a private office mailroom, commandeering the mail cart and dropping off unwanted broadsides on 30,000 desks,” wrote Mosk. During a two-year period beginning in 1995, Hamidi sent thousands of e-mails to Intel employees decrying the company’s labor practices. Hamidi didn’t hack through any computer security systems, and he honored individual requests to be removed from the recipient list. A Sacramento County Superior Court judge enjoined Hamidi from sending anymore e-mail to Intel employees. Intel didn’t contend that its servers or systems were harmed, but said the distraction imposed on its employees was real. “Our position is that this has never been about Ken Hamidi’s free-speech rights. This has been about private property,” said Intel spokesman Chuck Mulloy. Mulloy said the company will review its legal options, including ways of demonstrating damage. The majority’s decision mooted the First Amendment questions posed by the case. “Adhering to the trespass-to-chattels tort is at the same time avoiding a First Amendment nightmare,” said Lee Tien, a senior staff attorney at the Electronic Frontier Foundation who filed an amicus brief in the case. Tien praised the decision as focusing on the right issues and preventing the abuse of the trespass-to-chattels doctrine. “In the hands of a lower court, it was a Swiss Army knife that could be used to justify all sorts of blocking and filtering on the Internet,” said Tien. Reporter Alexei Oreskovic’s e-mail address is [email protected].

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