N.  State Court Upholds Concept

of Electronic Trespassing 

 

      Kourosh Kenneth Hamidi left his employ with the Intel Corporation on what were, to put it mildly, less than the best of terms.  He took with him both a set of grievances and Intel’s internal e-mail list.  In the months after his departure, Mr. Hamidi on several occasions sent e-mails to between 8,000 and 35,000 of his former co-workers, restating some of his concerns and inviting erstwhile colleagues to share their feelings about Intel.  His communications offered to remove any recipient who wished not to receive Mr. Hamidi’s messages, an option of which some 450 employees took advantage.

      Intel initially asked Mr. Hamidi to stop sending such messages, but he refused and continued his barrage.  The corporate security department sought a way to block these messages, but was not successful.  Intel thus brought suit against Mr. Hamidi (and a group he had created called FACE-Intel), claiming that Mr. Hamidi had trespassed unlawfully on its property and should be enjoined. 

      The trial judge agreed, and entered an injunction in Intel’s favor.  The California Court of Appeal (though divided) agreed, and in Intel Corp. v. Hamidi, affirmed the order barring Mr. Hamidi’s mass e-mails as an unauthorized misuse of the internal electronic communications system.  In the summer of 2002 the California Supreme Court agreed to hear the case.  Intel Corp. v. Hamidi, 114 Cal. Rptr. 2d 244 (Cal. Ct. App. 2001), petition for review granted, 118 Cal. Rptr. 2d 546 (Cal. 2002).  Oral argument was set for April 2, 2003, with a decision anticipated by summer or fall. 

 

Electronic Trespass Likened to Physical Trespass

      The majority of the court of appeal accepted Intel’s proffered analogy to physical trespass on corporate property.  Clearly, it reasoned, no company would be obligated (any more than a private homeowner) to allow a disgruntled former employee to invade its physical premises -- for example, to post angry notices on bulletin boards or distribute fliers on the desks of former colleagues.  Even though a property owner could not be said to have been dispossessed in any way by mass e-mails passing through its system or network, and there was no evidence that the server or any part of Intel’s system had been physically harmed (or official communications delayed or diverted), trespass law did not require any such proof as prerequisite to injunctive relief.  The majority took some comfort from earlier rulings in which federal courts had enjoined mass “spam” at the behest of Internet service providers, even though the content of Mr. Hamidi’s messages was concededly different from that of junk commercial e-mails. 

      The majority briefly disposed of Mr. Hamidi’s First Amendment claim on the ground that neutral judicial enforcement of trespass laws involved insufficient governmental action to abridge freedom of expression.  While the California Supreme Court has consistently been more protective than federal courts of speech on private property, as in malls and shopping centers, even those precedents did not avail Mr. Hamidi’s plea, in part because Mr. Hamidi retained many alternative channels by which to reach his former colleagues.

      The dissenting judge saw Mr. Hamidi’s case quite differently.  In his view, the majority had stretched trespass law well beyond its common understanding, dispensing, for example, with the usual requirement that actual injury and/or dispossession must be shown.  Since Intel had shown neither injury nor dispossession, that should have been the end of the case.  To the extent that momentary distraction of employees who accessed Mr. Hamidi’s messages at the office might possibly invite relief, the dissenting judge noted that myriad other distractions and diversions on the job would presumably also constitute a trespass.

      The dissenter closed by noting that the California legislature had specifically addressed the problem of unsolicited and unwelcome “spam”-- indeed, one of the very first states to do so.  Such legislation, “and the legislature’s failure to extend these remedies to unsolicited e-mail in general,” observed the dissenting judge, “suggests a deliberate decision by the Legislature not to reach the circumstances here.”  What his colleagues had done was not to invoke the common law of trespass, but rather to “modify it in a way that alters the doctrine’s very character in order to extend it where the Legislature has not yet gone.”

      The California Supreme Court has agreed to resolve these sharply contrasting views of electronic trespass.  In addition to the statutory construction arguments embraced by the court of appeal dissenter, Mr. Hamidi and amici who support him have advanced novel but important First Amendment claims.  They note, for example, that California courts have been especially protective of dissemination of political messages, even on private property where many unconsented activities would be deemed trespassory.  The free speech arguments also seek to distance Mr. Hamidi’s messages completely from the unsolicited junk e-mail or spam to which the lower courts drew superficially plausible analogies.  The case will be decided during 2003.

 

--Robert M. O’Neil