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In a decision pitting Intel Corp.’s proprietary interest in its computer systems against a former employee’s “free speech” rights, a sharply divided California Supreme Court recently held that Intel could not, on a trespass-to-chattels theory, prevent a former employee from sending unsolicited e-mails criticizing Intel’s employment practices to some 35,000 employees via Intel’s e-mail system. Despite the negative reaction around the nation, Intel Corp. v. Hamidi is not the invitation to chaos that many imagine. The court found that former Intel engineer Kourosh Hamidi did not trespass on Intel’s computer systems by sending unsolicited e-mails because Intel could not prove injury or damage to its computer systems. While the court may have correctly applied the arcane law of trespass, the decision does not foreclose employers from protecting current employees and computer systems from similar unsolicited e-mail barrages. A DISGRUNTLED DELUGE After being fired by Intel, Hamidi formed an organization and established a Web site to disseminate information and views critical of Intel’s policies. Over 21 months, Hamidi sent six mass e-mails to approximately 35,000 employees through Intel’s e-mail system, but committed no breach of security. The messages criticized Intel, warned employees of dangers to their careers, suggested they consider moving to other companies, solicited participation in Hamidi’s organization and urged employees to visit his Web site. Intel was only partially successful in blocking Hamidi’s e-mails and in its demands that he stop. Hamidi asserted his right to communicate with willing Intel employees; Intel sued him alleging claims for trespass to chattels and nuisance (a theory it curiously abandoned early in the litigation), and sought damages and an injunction. Ultimately, Intel was unsuccessful at the state’s highest court. As unpalatable as the consequences to employers may be, there is nothing remarkable about the court’s reasoning or its application of traditional tort theories to Intel’s e-mail system. The court relied on the settled Restatement (Second) of Torts rule that an actor is liable for a trespass to chattels only if he dispossesses the other of the chattel, if the chattel is impaired, if the possessor is deprived of the use of the chattel for a substantial time, if bodily harm is caused to the possessor or if harm is caused to some person or thing in which the possessor has a legally protected interest. The court discussed extensively California common law in this area and concluded that the tort pleaded did not encompass an electronic communication that neither damaged the recipient computer system nor impaired its functioning. The court refused to extend California common law to cover an otherwise harmless electronic communication whose contents are objectionable. Intel’s trespass theory failed solely because the evidence did not prove the requisite injury to the chattel. The damages Intel claims to have suffered were loss of productivity caused by employees reading and reacting to Hamidi’s messages and by company efforts to block the messages. The court found that this was not an injury to the company’s interest in its computers, noting that Intel’s computers still worked as intended and were unharmed by Hamidi’s mass e-mail communications. Intel objected to the communications not because of an offense against the integrity or dignity of its computers, but because the communications affected employees in a manner Intel found undesirable. While an unpleasant surprise to employers, the court’s decision does not leave them without recourse. A great barrage might be sufficient evidence of a threatened impairment under the majority view. No doubt anticipating the common-sense, negative reaction to its decision, the majority noted that on similar facts, a company or its employees may be able to plead claims of interference with prospective economic relations; interference with contract; or, under appropriate facts, defamation, publication of private facts or other speech-based torts. Intel’s early abandonment of its nuisance claim remains a mystery; it might have been a viable tort theory. Hamidi’s brief to the California Supreme Court noted that Intel “quickly abandoned this claim once it appeared that the trial court would be receptive to the trespass to chattel claim.” Hamidi had a good point. California law, as the court correctly applied, distinguishes between nuisance and trespass; all intangible intrusions that do not cause physical damage should be dealt with as a nuisance claim. Tyler M. Paetkau is a partner in the Silicon Valley office and Ronald J. Cooke is senior counsel in the Los Angeles office of Bingham McCutchen (www.bingham.com).

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