California High Court Rules
Against Intel in E-Mail Case

While overshadowed by Nike v. Kasky, another important free speech involving corporate power was issued this week when the California Supreme Court refused to allow Intel Corporation to bar employee's free speech via e-mail.

A divided California Supreme Court ruled against Intel Corp., and in favor of a former employee of the giant chip maker, in a closely watched lawsuit that equated unsolicited e-mail with trespassing.

In a 4-3 vote, the court held that the former employee, Ken Hamidi, didn't illegally trespass on Intel's computers by sending e-mails critical of the company's employment practices to as many as 35,000 company employees.

The ruling, one of the most anticipated in the emerging field known as cyber law, could make it more difficult for companies to block the use of their e-mail systems for messages they don't approve. But the court said that laws involving trespassing could still be used to block unsolicited commercial e-mail, known as spam, if the mass-mailings caused disruption or damage to a company's computers.

Civil liberties groups hailed the decision as an important victory in preserving the use of e-mail as a medium for free expression. "They gave us pretty much everything we wanted," said Lee Tien, a senior staff attorney for the Electronic Frontier Foundation. William McSwain, a lawyer at the firm of Dechert LLP in Philadelphia who represented Mr. Hamidi, also called the decision "a victory for free speech."

An Intel spokesman, Chuck Mulloy, said the Santa Clara, Calif., company was disappointed. "What we are doing is studying the ruling to assess the options available to us," he said.

The case attracted wide interest, partly because of the potential conflict between First Amendment free-speech rights and a search for new legal tools to use to stem the tide of spam. Friend-of-the-court briefs were filed by groups that included the U.S. Chamber of Commerce and the American Civil Liberties Union.

Mr. Hamidi, a former engineer in Intel's facility in Folsom, Calif., became a gadfly in the 1990s after Intel fired him. He formed an organization called Former and Current Employees of Intel, and began disseminating information and opinions critical of the company's policies. Over a 21-month period, Mr. Hamidi sent six mass e-mails to thousands of Intel employees, according to court documents.
[hamidi hedcut]

Intel tried to stop the mailings using technical means, but was only partly successful. The company also asked Mr. Hamidi to stop sending the messages, but he refused. Among other things, Mr. Hamidi noted that his messages stated that recipients could remove themselves from his mailing list, and that he honored such requests to be removed. As a result, Mr. Hamidi asserted that he had a right to communicate with willing Intel employees.

Intel argued that it was forced to spend significant amounts of time and resources trying to block the e-mails. Its suit against Mr. Hamidi took a novel legal tack by using a doctrine known as "trespass to chattels," a 17th-century term that refers to meddling with or damaging another person's private property for personal gain. A trial court issued a permanent injunction barring Mr. Hamidi from sending the unsolicited e-mail, and a state appeals court also found in favor of Intel.

But the majority of the state Supreme Court disagreed, arguing in a 29-page opinion that the trespass to chattels doctrine "does not encompass, and should not be extended to encompass, an electronic communication that neither damages the recipient computer system nor impairs its functioning." The judges rejected Intel's contention that it suffered economic harm because of a loss of productivity caused by employees reading and reacting to Mr. Hamidi's messages.

The law, the court found, focused on the company's property -- in this case, its computer systems -- which suffered no economic damage, "any more than the personal distress caused by reading an unpleasant letter would be an injury to the recipient's mailbox, or the loss of privacy caused by an intrusive telephone call would be an injury to the recipient's telephone equipment," the opinion states.

The court stated that a number of other laws, such as statutes involving defamation, could be used in lawsuits to block offensive messages. It added that Internet service providers also could continue to use trespassing laws if they could show that a flood of spam caused economic harm.

Ann Brick, a lawyer with the ACLU of Northern California who filed a brief in the case, said the ruling struck the proper balance in how trespass law should be used. "Intel wasn't really trying to protect its e-mail system," she said. "It didn't like what Hamidi had to say."

Intel's Mr. Mulloy rejected that assertion. "Everyone knows that Ken has been very persistent about exercising his First Amendment rights," he said, referring to the former employee's use of speeches, Web sites, demonstrations and newspaper articles. "This case has never been about constitutional questions."

But Ms. Brick noted that the ruling describes any injunction issued by a court involving electronic speech as a "state action" that must comply with the First Amendment, as opposed to a matter between private parties that doesn't violate the constitutional right of freedom of expression.

"That part of the ruling has enormous impact on future cases," added Mr. McSwain, Mr. Hamidi's lawyer.

Two judges in the minority wrote lengthy dissenting opinions. Associate Justice Janice Brown argued that Intel had indeed been hurt economically and that if companies cannot police their computers from unwanted messages, that form of private property loses some of its value. "Those who have contempt for grubby commerce and reverence for the rarified heights of intellectual discourse may applaud Monday's ruling, but even the flow of ideas will be curtailed if the right to exclude is denied," she wrote.

Another dissenting judge, Richard Mosk, argued that the court majority failed to properly distinguish the private territory represented by a company's servers. "Hamidi is not communicating in the equivalent of a town square or of an unsolicited 'junk' mailing through the United States Postal Service," the judge wrote. "His action ... is more like intruding into a private office mailroom, commandeering the mail cart, and dropping off unwanted broadsides on 30,000 desks."

Mark Theodore, a lawyer representing the U.S. and California Chambers of Commerce, argued that the ruling would still allow Intel to use the trespass law in the future against Mr. Hamidi if he resumed his e-mailing activity and Intel took the time to gather more evidence about its economic hardships. "For Mr. Hamidi, it's a hollow victory, I think," he said.

That's not how Mr. Hamidi viewed it. He vowed to begin resuming e-mails to Intel employees in a "responsible" way. "This is the most exciting day of my life," he said. "It is just unbelievable."

© 2003 Wall Street Journal

Read the California Supreme Court's ruling in Intel's case against Ken Hamidi.