The Recent California Decision On Intel and Email:
Less Significant Than It May Seem

On June 30, in Intel Corporation v. Hamidi, the California Supreme Court refused to apply an old common law tort to a very modern problem. Intel had alleged that Ken Hamidi, a former employee, committed "trespass to chattels" when he flooded its email system with messages critical of Intel.

The decision is being hailed as a landmark case for free speech in the Internet age. In fact, though, the decision is limited in scope - much more so than media accounts have generally suggested. Most importantly, even after the decision, Intel may still use other legal theories to go after Hamidi - such as interference with prospective economic relations; interference with contract; and intentional infliction of emotional distress.

As I will explain, the California ruling also is not entirely persuasive. For this reason, other states may well disagree with California, and rule the other way when confronted with the issue.

The Facts and The California Supreme Court's Ruling

In 1995, after Intel fired Hamidi, he sent - according to the court's opinion - "a single e-mail message to between 8,000 and 35,000 Intel employees, highlighting what [he] considered to be Intel's abusive and discriminatory practices."

Intel sued, invoking the old legal doctrine of "trespass to chattels." A chattel is private property other than real estate - for instance, a cow. In the Intel case, the chattel in question is the company's computer systems.

To establish a trespass, the property owner must show harm to the chattel - for instance, that the defendant caused the cow to become lame. The California Supreme Court held that the harm must be physical. Thus, Intel's claim failed because it did not show any impairment to their computer systems, nor did Hamidi's emails prevent Intel from using its computers for any measurable length of time. (Intel claimed the messages disrupted employee productivity - a harm, but not a physical one.)

The Debate Over the Physical Harm Requirement

Intel argued - unsuccessfully - that physical damage or functional disruption should not be required when the chattel at issue was a computer system. In a "friend of the court" brief, Professor Richard Epstein, contended instead that as with a trespass on land, mere entry into a company's private server should count as a trespass.

An intruder is trespassing on your lawn once he steps onto it; he need not also destroy your grass. Similarly, trespassing in cyberspace, Intel argued, should only require entry, not damage.

The court, however, declined to adopt a theory under which, in the court's words, "the electronic signals Hamidi sent would be recast as tangible intruders, perhaps as tiny messengers rushing through the 'hallways' of Intel's computers and bursting out of employees' computers to read them Hamidi's missives."

Refusing to analogize the computers' cyberspace to real property like land, the court used another, more everyday analogy. It viewed Intel's computer system as simply "personal property," like a telephone or a fax machine.

But in the end, the court cannot sufficiently explain away Epstein's analogy. Intel's Intranet was a virtual office - one in which messages and documents traveled, just as they might have traveled with mail, or along phone lines, in a real-world office. Indeed, if all of Intel's employees had telecommuted from home, this virtual office would have been the only office they had. Thus, one can see the sum of Intel's computer systems as a virtual space.

Sneaking into a private office to put numerous flyers in employee mail is trespassing. Sneaking into an Intranet to send numerous emails to employees should arguably be seen as trespassing too.

The Free Speech Implications of the Decision Have Been Overstated

This whole debate, of course, centers on property - not free speech. But the California Supreme Court also brought free speech concepts into its decision.

First, the court noted that Intel's real complaint was with the content of Hamidi's emails - not any actual damage to the email system. But that should have been irrelevant in determining whether Hamidi's flood of emails was actually a "trespass to chattels." Instead, it might have provided grounds for a constitutional challenge to the tort's application in this context. A trespass onto someone's lawn to hand them a political flyer is still a trespass - but it might also be protected by the First Amendment.

Moreover, to the extent that the decision is indeed a free speech precedent, it is a limited one - for several reasons. First, Intel can still sue Hamidi on other legal theories.

Second, the decision may not apply to instances where a computer system is misused. The Court stressed that "Hamidi did nothing but use the email system for its intended purpose--to communicate with employees."

Third, and finally, some of the court's free speech concerns seemed misplaced. The court was afraid of treating cyberspace like land in part because it feared that to do so might lead to a "substantial reduction in the freedom of electronic communication, as the owner of each computer through which an electronic message passes could impose its own limitations on message content or source."

For the Internet, that would indeed be very troubling. But for Intel's Intranet, that's not necessarily the case.

The Crucial Internet/Intranet Distinction

Consider the Internet - a huge public domain open to all. The California Supreme Court majority cites Lawrence Lessig, who has written that a site such as eBay "benefits greatly from a network that is open and where access is free. . . .If machines must negotiate before entering any individual site, then the costs of using the network climb."

Yet what the court misses is that Intel's Intranet is a private system that is not open to all. It was created for work purposes, to allow employees to communicate with each other, and with the outside world, about Intel business.

Intel apparently did not open its employees' email addresses to the outside world. Rather, Hamidi, according to the New York Times, privately obtained two disks that contained the list of the thousands of email addresses to which he sent his message.

Not only the California Supreme Court, but lobbying groups, have tried to elide the difference between closed and open Nets. In the New York Times, Lee Tien, a senior lawyer for the Electronic Frontier Foundation, insisted that "if Intel won this case we'd all be at risk of losing the fundamental value of the Internet, which is its openness . . . . "

It is more accurate to say, however, that if Intel had won its case with a suitably limited ruling, company Intranets would be protected, and Internet openness would remain unaffected. Only a broad ruling from the California Supreme Court could have have created the dystopia Tien feared.

The Court Bunts the Tough Question to Congress

Hamidi's message was not spam - for its purpose was not commercial, but political or, at a minimum, expressive. It was also a message that may have been of interest to at least some of its recipients - who were chosen not randomly, but based on where they worked, and received a message about that workplace.

Nonetheless, even absent the spam label, the California Supreme Court suggested that the legislature might someday choose to "regulate noncommercial email, such as that sent by Hamidi."

But that's unlikely. For one thing, to do so might run straight into the First Amendment. For another, even far less controversial anti-spam laws have yet to pass Congress - making it unlikely that a broader law that might end up affecting politicians' own emailings would pass.

The court noted that creating an absolute property right to exclude undesired communications - whether commercial or not - from one's email would have both advantages and disadvantages.

The advantages are obvious: Spam would be stopped for good, and spammers would be deprived of a virtually costless means of imposing costs on others.

The disadvantages, however, exist too. As the court pointed out, allowing the exclusion of all undesired communications would create "substantial new costs, to email and ecommerce users and to society generally, in lost ease and openness of communication and in lost network benefits."

Leaving it to the legislature to weigh the advantages against the disadvantages, the California Supreme Court felt that it "would be acting rashly to adopt a rule treating computer servers as real property for purposes of trespass law." But again, leaving it to the legislature may only create a legal vacuum, and continue the current email free-for-all.

Unable to appeal to either courts or legislatures, companies do have one recourse: They should be forewarned to hold on tightly to their employees' email addresses in order to prevent future Hamidis from flooding their systems with company-critical mail. The answer to this problem, for now, will be found only in a tighter hold on their proprietary information.