FC: California court rules unwanted spam can be unlawful trespass

[Declan McCullagh <declan () well com>]

Hamidi's "FACE Intel" site:
http://www.faceintel.com/

---

http://www.courtinfo.ca.gov/opinions/documents/C033076.PDF

Excerpt:
> After Kourosh Kenneth Hamidi was fired by Intel
> Corporation, he began to air grievances about the company.
> Hamidi repeatedly flooded Intel's e-mail system. When its
> security department was unable to block or otherwise end
> Hamidi's mass e-mails, Intel filed this action. The trial
> court issued a permanent injunction stopping the campaign, on
> a theory of trespass to chattels.
> On appeal Hamidi, supported by Amici Curiae Electronic
> Frontier Foundation (EFF) and American Civil Liberties Union
> (ACLU), urges trespass to chattels was not proven and, even if
> it was, the injunction violates free speech principles which
> require the elements of the tort be tempered in cases
> involving speech. We shall affirm.

The panel dismisses EFF's amicus brief thusly:
> EFF states if such loss of productivity "is the
> applicable standard [of harm], then every personal e-mail that
> an employee reads at work could constitute a trespass." The
> answer is, where the employer has told the sender the entry is
> unwanted and the sender persists, the employer's petition for
> redress is proper. Strangely, EFF, purporting to laud the
> "freedom" of the Internet, emphasizes Intel allows its
> employees reasonable personal use of Intel's equipment for
> sending and receiving personal e-mail. Such tolerance by
> employers would vanish if they had no way to limit such
> personal usage of company equipment.

The appeals court said that right to private property trumps the ability 
for someone else to make use of your property and call it free speech 
("None of these cases hold the First Amendment permits trespassing"). It 
distinguished this case from a wacky decision by the Calif. supreme court 
that said a shopping mall was a public forum:
> Hamidi insists Intel's act of connecting itself (and
> thus, its employees) to the Internet and giving its employees
> e-mail addresses makes Intel's e-mails a public forum. By the
> same reasoning, connecting one's realty to the general system
> of roads invites demonstrators to use the property as a public
> forum and buying a telephone is an invitation to receive
> thousands of unwanted calls. That is not the law.

And:
> It may be a few unwanted e-mails would not be sufficient to trigger a
> court's equity powers. Indeed, such may be an inevitable,
> though regrettable, fact of modern life, like unwelcome junk
> mail and telephone solicitations.

The dissent says:
> the overwhelming weight of authority is that trespass to chattel
> requires injury to the chattel or to the possessor's legally protected 
> interest in the chattel.
> Opening and reading unsolicited e-mails is not a cognizable injury to the 
> chattel or to the
> owner's possessory interest in it.

-Declan




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