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The ancient legal doctrine of trespass has come to life in cyberspace. A California appellate court ruled in the case Intel v. Hamidithat waves of e-mails sent to Santa Clara, Calif.-based Intel by a former employee constituted trespass on Intel’s server and must be prohibited. E-MAIL ‘FLOODING’ STOPPED BY TRIAL COURT Kourosh Kenneth Hamidi, who was fired by Intel, aired grievances about the company via mass e-mails to Intel employees. Because Intel was unable to block or otherwise stop Hamidi’s e-mails, the company filed a lawsuit seeking an injunction barring the e-mails based on the theory of trespass to chattels. Intel argued that its e-mail system is internal, proprietary and for employee use. Intel further asserted that Hamidi obtained Intel’s confidential e-mail address list and on several occasions committed trespass on its proprietary computer system by sending mass e-mails to as many as 29,000 employees. The company stated that Hamidi ignored Intel’s requests to stop these e-mails, and that he took steps to circumvent security measures. Furthermore, Intel maintained that it was forced to “spend significant amounts of time attempting to block and remove Hamidi’s email from Intel computer systems,” to no avail. Hamidi responded that he was attempting to provide a medium for Intel employees to express their grievances and concerns about employment conditions at Intel. He further countered that his mass e-mails “did not originate on Intel property, nor were they sent to Intel property.” Rather, the electronic mails were sent “over the Internet to an Internet server.” Moreover, he pointed out that with each of the e-mails, he informed each recipient that he would remove such person from the mailing list upon request; yet, only 450 people out of the many thousands requested removal. The trial court sided with Intel on its trespass theory and issued a permanent injunction barring Hamidi from “sending unsolicited email to addresses on Intel’s computer systems.” Hamidi appealed. TRESPASS FINDING AFFIRMED The appellate court affirmed the trial court’s trespass decision by holding in no uncertain terms that “Hamidi’s conduct was trespassory.” The court found that even if Intel could not demonstrate sufficient harm to trigger an award of damages, it still showed that Hamidi “was disrupting its business by using its property and therefore is entitled to injunctive relief based on the theory of trespass.” The court noted that some commentators believe that cyberspace is “free and open,” and as such, there really is no true harm to Intel. But, according to the court, Intel “proved more than its displeasure with Hamidi’s message, [as] it showed it was hurt by loss of productivity caused by thousands of employees distracted from their work and by the time its security department spent trying to halt the distractions after Hamidi refused to respect Intel’s request to stop invading” its e-mail system. FREE SPEECH CONCERNS On appeal, Hamidi argued that an injunction prohibiting his e-mails violates his free speech rights. The appellate court swatted away this argument by distinguishing the First Amendment cases relied on by Hamidi on the ground that in this case Hamidi was enjoined from trespassing on Intel’s “private property.” As stated by the court, “private email servers differ from the Internet; they are not traditional public forums” where free speech is to be protected. “Although Intel is a large company …, the Intel [e-mail] system is not transformed into a public forum merely because it permits some personal use by employees.” Hamidi contended that Intel’s act of connecting itself and its employees to the Internet makes Intel’s email system a public forum. The court of appeal disagreed, reasoning that to accept such an argument would mean that “buying a telephone is an invitation to receive thousands of unwanted calls. That is not the law.” PARTING WORDS In rounding out its decision, the appellate court stated “Intel is as much entitled to control its email system as it is to guard its factories and hallways. No citizen has the general right to enter a private business and pester an employee trying to work.” Furthermore, that unwanted e-mails may be sufficient to trigger trespass “may be an inevitable, though regrettable, fact of modern life, like unwelcome junk mail and telephone solicitations.” NOVEL ARGUMENT RAISES QUESTIONS Not only is the age-old notion of trespass alive in the new tech age, with the Hamidi decision, it seems stronger than ever. One now can think a variety of contexts where trespass can be asserted — just like the junk mail and telephone solicitation examples referred to by the appellate court. There is bound to be much litigation in this area in the foreseeable future. Still, one must think that if Hamidi had been saying nice things about Intel in his mass e-mails, Intel probably would not have argued trespass. Thus, is trespass the act of intrusion or simply the content of the message? Moreover, how significant really is the alleged trespass if recipients easily can remove themselves from the offending e-mail list? Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris.Mr. Sinrod may be reached by e-mail at [email protected]

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