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A California state appellate panel took a further step in defining what constitutes trespassing in cyberspace in a ruling Monday. Upholding a lower court decision, the Third District Court of Appeal ruled 2-1 that a former employee of Santa Clara, Calif.-based Intel trespassed on Intel’s computer system by sending e-mail messages to the company’s employees. “Intel owns the e-mail system it provides to its workers as much as it owns the telephones and manufacturing equipment it provides,” Justice Fred Morrison wrote in Intel v. Hamidi, C033076. The court rejected the argument by the American Civil Liberties Union, which represented Kourosh Hamidi, that preventing Hamidi from sending e-mail to Intel workers violated his free speech rights. In a trespass case, “the speaker’s rights are pitted against a property owner’s rights — of at least equal constitutional force — to wisely govern his lands (or, in this case, his chattels),” Morrison said. “The equation is different.” Hamidi is “free to send mail — “e” or otherwise — to the homes of Intel employees and is free to send them regular mail,” Morrison added. “The injunction simply requires that Hamidi air his views without using Intel’s private property.” The case arose after Hamidi, who had been fired by Intel, sent six separate e-mails to as many as 35,000 Intel employees. The Sacramento Superior Court issued a permanent injunction against Hamidi, citing trespass to chattels, a doctrine that holds that harming personal property constitutes a trespass. But Hamidi’s attorney, ACLU attorney Ann Brick, said the decision expands the definition of this legal theory. “It is all about protecting personal property from damage,” Brick said. Intel used it to “sidestep the protection of the First Amendment” and censure speech. Michael Jacobs, a partner in the San Francisco office of Morrison & Foerster who represented Intel, said “while one may have the right to free speech, one doesn’t have the right to someone’s personal property to convey that speech.” As to what constitutes trespass, Jacobs said there need not be “harm to the technical operations of a computer system.” He said Hamidi’s e-mails harmed Intel by disrupting its business and forcing it to devote resources to block spam. But Justice Daniel Kolkey disagreed with the majority’s interpretation of what constitutes trespass in his dissenting opinion. “The only injury claimed here — the time spent reading an e-mail — goes beyond any injury associated with the chattel or within the tort’s zone of protection,” Kolkey wrote. “The only possible exception to the requirement of actual injury is where there has been a loss of possession, which is viewed as a loss of something of value and thus actual damage.” He said that loss of employees’ productivity also couldn’t be grounds for trespass. “If that is injury, then every unsolicited communication that does not further the business’s objectives (including telephone calls) interferes with the chattel to which the communication is directed simply because it must be read or heard, distracting the recipient,” Kolkey said. Other courts have addressed the issue of trespassing in cyberspace. In one key case, eBay Inc. v. Bidder’s Edge Inc., 99-21200, U.S. District Judge Ronald Whyte found eBay Inc.’s servers are private property. In a May 2000 order he enjoined Bidder’s Edge from using its Web crawler to access eBay’s Internet auction site.

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