Tuesday, July 1, 2003
Ex-Employee’s E-Mail Barrage No Trespass, High Court Rules
By KENNETH OFGANG, Staff Writer/Appellate Courts
The mass sending of e-mails critical of Intel Corp. to its employees at work did not constitute a trespass, the California Supreme Court ruled yesterday.
In a 4-3 decision, the justices overturned an injunction barring Kourosh Kenneth Hamidi, a former Intel engineer, from continuing to send e-mails to Intel employees at their work addresses.
Justice Kathryn M. Werdegar wrote for the majority, which held that under traditional tort principles, Intel would be entitled to a remedy for trespass only if damage occurred to its computer system.
Nor would an expansion of the tort—a rule of “computer server inviolability” similar to the existing rule governing trespass to land, advocated by industry groups and conservative scholars—serve the public interest, Werdegar said.
Justice Janice Rogers Brown dissented, calling the decision a victory for “[t]hose who have contempt for grubby commerce and reverence for the rarified heights of intellectual discourse.” Court of Appeal Justice Richard Mosk of this district’s Div. Five, joined by Chief Justice Ronald M. George, authored a separate dissent in which Mosk argued Intel is entitled to a remedy because its “proprietary computer system is being used contrary to its owner’s purposes and expressed desires, and self-help has been ineffective.”
Mosk was assigned to the high court for the case, as was Justice Steven Perren. They sat in place of recused Justices Marvin Baxter and Ming Chin.
Perren joined Werdegar in the majority, as did Justices Joyce L. Kennard and Carlos Moreno.
Hamidi, who was fired from Santa Clara-based Intel after a work-injury dispute in 1999, made headlines when he drove a horse and buggy to the chipmaker’s headquarters and dropped off 40,000 anti-Intel messages.
After his 1995 dismissal, he barraged the company’s computer server by sending several different e-mails complaining of unfair work practices. The six separate distributions over a 21-month period went to as many as 35,000 of the company’s workers.
Sacramento Superior Court Judge John Lewis and the appellate panel ruled that Intel had the same right to police its e-mail system as it would its factories and office hallways. The court said the e-mails were a literal intrusion into the workplace, and a divided panel of the Third District Court of Appeal agreed.
Werdegar emphasized that there was no breach of Intel computer security, Hamidi having created his own distribution list, allegedly from a disk that was sent to him anonymously.
Spam Cases Distinguished
The justice distinguished a line of cases allowing a trespass remedy for the sending of unsolicited commercial e-mail, better known as spam. In those cases, it was the disruption of business resulting from the clogging of the plaintiffs’ servers that caused the harm, Werdegar explained.
Intel, she reasoned, was really concerned with the content of the e-mails, which were critical of how it treated Hamidi and other employees with grievances. She noted that the company does not prohibit all personal use of its e-mail system by employees, and that Hamidi offered to, and did, delete from his mailing list those employees who requested such deletion.
“He no more invaded Intel’s property than does a protester holding a sign or shouting through a bullhorn outside corporate headquarters, posting a letter through the mail, or telephoning to complain of a corporate practice,” Werdegar wrote.
Hamidi, who now works for the state Franchise Tax Board, told the Associated Press yesterday he was looking forward to resuming his e-mail campaign against the company. “I’m going to do it to the max,” he said.
His position was supported by a number of amici, including the San Francisco-based Electronic Frontier Foundation, the American Civil Liberties Union, the Thomas Jefferson Center for the Protection of Free Expression, three dozen law professors from throughout the country and the AFL-CIO.
Brown, however, argued that Intel was damaged, even if there was no physical alteration of the computer system, since employees, whether they wanted to receive the e-mails or not, had to review and delete them on company time. Intel was not trying to stop Hamidi from delivering his message, she said, it was legitimately objecting to “his use of Intel’s property to display his message.”
Hamidi, she said, was free at all times to communicate to employees through his Web site, or by sending paper or e-mail to their homes. If he didn’t have their personal e-mail addresses, she noted, he could have requested them in his workplace e-mails before he was enjoined.
Brown also insisted that Intel was entitled to selectively determine the non-business uses for which the e-mail system could be used, even if its choices were content-based. A company may, for example, “allow employees use of the Internet to check stock market tables or weather forecasts without incurring any concomitant obligation to allow access to pornographic Web sites.”
Mosk argued that the majority had failed to properly consider the company’s “private, proprietary” interest in its internal communications system.
“Hamidi is not communicating in the equivalent of a town square or of an unsolicited ‘junk’ mailing through the United States Postal Service,” Mosk wrote. “His action, in crossing from the public Internet into a private intranet, is more like intruding into a private office mailroom, commandeering the mail cart, and dropping off unwanted broadsides on 30,000 desks.”
Intel expressed disappointment in the ruling. Spokesman Chuck Mulloy told the AP that Intel was assessing its “options in the event Mr. Hamidi resumes his spamming activity against Intel.”
The company’s position was backed by a coalition of businesses whose amicus brief was authored by Richard Epstein, a conservative University of Chicago law professor who argued that computer systems are much like real property and should be protected from all intrusions, even those that do no provable harm.
The U.S. and California chambers of commerce and the Civil Justice Association of California also backed Intel.
The case is Intel Corporation v. Hamidi, 03 S.O.S. 3363.
Copyright 2003, Metropolitan News Company