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Companies besieged by unwanted e-mail can only invoke California’s trespass-to-chattels law if the messages cause actual damage to equipment or property, the state Supreme Court ruled in late June. Ruling 4 to 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 former Intel Corporation employee Kourosh Kenneth Hamidi sent to workers’ company e-mail addresses were different than spam, which can overwhelm 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. 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. Drawing the Line 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. “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.” According to F. Gregory Lastowka, a Dechert associate who represented Hamidi: “The court basically stated that the Internet should be treated like every other communications chattel.” Joining Werdegar in the majority opinion were Justice Carlos Moreno, Justice Joyce Kennard, and Steven Perren, a Second District Court of Appeal justice sitting by assignment. In a separate concurrence, Kennard echoed Werdegar’s point about other remedies. Justice Janice Rogers Brown dissented, as did Second District justice Richard Mosk, also 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 Mosk. Hamidi’s actions were akin to “intruding into a private office mailroom, commandeering the mail cart, and dropping off unwanted broadsides on 30,000 desks.” Thousands of E-Mails During a two-year period beginning in 1995, Hamidi sent thousands of e-mails to Intel employees decrying the company’s labor practices. Hamidi did not hack through security systems, and he honored individual requests to be removed from the recipient list. A Sacramento County superior court judge enjoined him from sending further messages. 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,” says Intel spokesman Chuck Mulloy. He says 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. Lee Tien, a senior staff attorney at the Electronic Frontier Foundation who filed an amicus brief in the case, 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,” he says.
A version of this story originally appeared in The Recorder, a sibling publication of Corporate Counsel and a part of American Lawyer Media.

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