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More on Intel v. Hamidi
The case of Intel v. Hamidi has been going on for a few years now, and it's now reached the California Supreme Court. Hamidi is an ex-Intel employee with a grievance against the company who sent several mass-emails to most of Intel's staff. Intel attempted to block him from sending email via technical measures, and when that failed filed suit against him claiming that he was causing some harm to their property (company mail servers and computers) - there's an ancient legal concept called "trespass to chattels" which Intel is attempting to use in their case. Now, in real-dollar terms, Intel has suffered very little - a few megabytes of email more or less is a miniscule cost in terms of computer wear and tear, indeed, too small to measure (Intel is not alleging that Hamidi sent any sort of mail-bomb or that his emails caused damage). So the case comes down to an unsettled legal point: if someone has made some use of your electronic equipment, which you may not have desired but which has not damaged your property nor deprived you of its use, do you have a legal cause of action against them?
On the one hand, you apparently are against people using legal means to block e-mail, as in this case, but on the other, when it comes to spam, you're for it. Can't have it both way, I'm afraid.
Silly signature limit . . .
Wouldn't this set a precedent for an avalanche of class action lawsuits against spammers? I certainly consider the countless emails I get daily as unauthorized use of my electronic equipment.
He had no business sending emails to anyone in the company. He couldn't have had any work-related business to take care of that would require spamming the entire company.
Digital tresspass is a very real problem. One benefit of any laws passed to combat the problem is that spam would be made completely illegal and spammers would be prosecutable under the law.
Your free speech ends where my ears begin.
I have been pwned because my
As the submitter stated, there was little if any monitary loss by Intel. If Intel would like to sue for money, then they should be required to list each individual item and the amount of each ($.10 electricity, $1.00 hard drive space, $2.00 bandwidth, etc) and make them reasonable. In contrast to Sun suing Mitnick for millions when he had source code that was available for $100.
More than likely, the company will not go to the trouble of itemizing their losses since paying someone to itemize them will cost more than the losses themselves. However, in cases such as mail bombs (sending a 50 meg attachment to everyone in the company) it would certainly be worth their while. It would keep actual harmful acts (mail bombs) to a minimum allowing the company to sue if the "attack" is bad enough.
In other cases, such as this one, the company should at least be granted something similar to a restraining order where the party or individual cannot mass e-mail the company, or depending on the situation e-mail the company at all. The way I see it, it's similar to spamming: The company (or individual) doesn't want your e-mail. Stop sending it or be taken on a ride through the legal system.
What do you folks think? Is it too lopsided in favor of Intel, or balanced enough so Intel is allowed to spend thousands on lawyers if the situation is serious enough?
[Disclaimer: Although I'm posting a message written by Michael Sims, this has nothing to do with What Happened To The Censorware Project (censorware.org). I thought this was an very insightful message on the topic, and I'm big enough to say so]
From: Michael Sims <jellicle@inch.com>
Subject: Re: Intel v. Hamidi
Date: 30 Apr 1999 16:32:24 -0000
Mike Godwin wrote:
> Isn't it trivial for Intel to block Hamidi?
No. It isn't, and that's the crux of the matter. China has been trying for several years now to suppress email messages from dissidents in the U.S. China has absolute technical control over the routers into the country and a willingness to use it. China is willing to incarcerate anyone they can get their hands on who aids this process. China has failed to stop the flow of email messages, or even temper it. Intel is obviously more realistic about its odds of stopping Hamidi with technical means than Godwin is.
Godwin would prefer (in his usual abrasive fashion) to simply insist that technical solutions are the be-all and end-all, and no dissent will be tolerated. Trespassing should not be a crime - after all, anyone can build a 30-foot wall with razor wire around their property, which is certainly more effective than the legal system in preventing trespass.
If anyone wants an interesting thought to chew upon, try this one. More and more military members have email access through the military, which is often their only electronic contact, and definitely their only free contact with the outside world. What if the U.S. military desired to prevent some persons from sending mail to military members at their military addresses, either because it was frivolous, or spam, or deemed a threat to morale ("Ban the Bomb!"), or what-have-you... Keep in mind that the military has a firm commitment to delivering snail-mail to its members, anytime, anywhere, which is generally to a military unit address as well.
Any thoughts? I can definitely see future electronic activists emailing 5,000 people on the carrier U.S.S. America, telling them to stop bombing whoever it may be that we're bombing that particular day. Obviously this might annoy the military. What recourse do they have, if any? Technical solutions are obvious but not particularly effective, especially since the mailer gets infinite no-cost tries to get through. What could they do, legally?
-- Michael Sims
I can't see why this is an issue, at all. The email was not directed at the employees of the company for a business purpose; The purpose of the email system is for business use. I think Intel has every right to block email and/or refuse any user the right to send mail to that system, as every bit that goes through does incur a monetary cost to them (bandwidth, disk storage, etc) no matter how small that cost may seem. If someone was to walk thru my yard, and pull up one blade of grass, no big deal, right? But legally, I have the right to have them stopped, and if they persist, take action against them. As soon as I lose the legal protection to have this stopped, I suddenly have the very real risk of having THOUSANDS of people run thru my yard, each taking one blade of grass. Now, I have to pay $1,000s to get the yard fixed. Same scenario, just with email. Sending email to the system once could be (to a certain degree) justified, even though he knew in advance (per testimony) the reception by Intel would not be in his favor, but repeating his actions once notified of their intent to prevent his access to sending emails through the COMPANY mail system was not. Note: there is no legal prohibition to him setting up domains, giving away email at his expense to any Intel employee, or sending email to their personal accounts on any non-Intel system, but Intel has every right to protect, in any small way, their internal COMPANY system. I back them 100% in this; those who don't agree, consider what would happen if you were on the other end of the stick.
So the case comes down to an unsettled legal point: if someone has made some use of your electronic equipment, which you may not have desired but which has not damaged your property nor deprived you of its use, do you have a legal cause of action against them?
Who defines "damage" and "deprived of use"? Specifically, would regular spam be covered by this as well? What of non-malicious viri? Spyware? Distributed.net clients?
I think laws are the wrong way to go about addressing these kinds of issues. The whole point of net connectivity is the give and take of services. If reasonable technical means can be used to prevent abuse of a system, then no law should be necessary. Further, the laws don't stop the abuse, they just make it illegal. In a way, it is very much like the issue of "security through obscurity".
There's the rub: Employees do not own their email addresses at almost any organization; it is a resource provided for them by the company for the employee to produce work for the company benefit, much like the desk, chair, and computer they sit at. I know Intel has an internal computer use policy employees have to agree to as part of their employment agreements, and it includes a statement of this fact. The agreements also include that all emails are to be considered company property, etc etc. Employee rights w/ regards to company-provided email are in fact very limited, especially (as in this case, for example) when the company has gone to special steps to make that very clear (computer use policies, etc).
FindLaw > Legal Subjects > Cyberspace Law > E-Mail > Primary Materials - Laws and Government Documents
Especially Ferguson v. Friendfinder
Sig: What Happened To The Censorware Project (censorware.org)
You forgot your "IACATL" (I am clueless about the law.) IANAL, but this is basic business law stuff that anyone in the workforce should know.
Employees, on the job, act as agents of their employer and all email received is the property of the company. They are merely agents handling that email on behalf of their employer.
(This skips some specific situations where this isn't the case because they are clearly irrelevant in this case.)
Intel can't say 'boo' about what mail is sent to employees on their personal accounts, but it certainly has the right to restrict disruptive mail sent to its employees via the corporate email accounts. It's really no different than a former employee harassing employees in the company parking lot. (In this case it's again 'trespass,' and the protester can be arrested if he persists.)
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
Sig: What Happened To The Censorware Project (censorware.org)
I just went and checked the court docs: He sent 6 emails to *29,000* employees. None of them signed up for it; he had the lists himself. So, the basic bare ASCII text of the first email was approx 5K, add in headers and such and guess his avergae email size utilized was 10K.
6 * 29,000 * 10 / 1024 / 1024 = 1.65 GB of email.
Now, I ain't counting logs and all that other stuff. I'm sure this isn't a huge amount of email to Intel, but it's a helluva lot more than the story suggests. I think the big thing isn't even the size, but the scope. I mean, *29,000* people got spammed, basically. This wasn't just a few emails!
For a moment there I thought 'Hamidi' was just a creative way of spelling AMD (with a brazilian accent, perhaps):
1. The case between Intel and AMD has also been going on for some years.
2. AMD was also started by an ex-Intel guy with a grievance against the company.
The part that finally made me realise we weren't talking about AMD was this:
[...] in real-dollar terms, Intel has suffered very little.
RMN
~~~
I'm not too familiar with the specifics of this case, but it raises an interesting discussion of the design of use doctrine; basically, it says that someone can not commit trespass when they use a public facility as it is designed to be used. Granted, most of this applies to brick-and-mortar matters, but I think it translates to the electronic world. You can't be arrested for trespass for walking into Macdonald's and ordering at the counter. On the other hand, you could be arrested for breaking open the back door and going into the kitchen. Someone can't be arrested for trespasrsing at your house if they come up and ring the doorbell - until you tell them to leave. The same goes at Mcdonalds- they could ask you to leave, and if you don't, you could then be arrested for trespass. But until that point, you can't be charged.
How does this translate to the electronic world? Sending someone an email can't be trespass, because an email server is a gateway, just like a public restaurant. But what if they ask you not to do it anymore? Then, I suppose, you are using their facilities against their will... interesting stuff!
A while ago I read something along the lines that Hamidi was able to connect to the Intel network and send his emails from there. (my memory may be failing me) I think that that that is what Intl is alleging he has done when they say "tampering". I do not thing it is about spamming.
Telemarketers are also making unauthorized use of a person's and/or a company's property. They cause damage in at least three ways: tieing up a phone line, using a person's time, and consuming electricity used to make the phone ring.
He spammed. 29,000 x 6 = 174,000 unrequested emails. If he wanted to raise employee awareness of something, he went about it the wrong way.
He should have posted his grievances on the www and let people who were interested find them, not spam them.
Granted, Intel would have sued him regardless and he'd still be in the shithouse, but he would have been in the right.
If he did the same thing today, couldn't he be sued under anti-spam laws in some states?
Liberty.
Okay first of all, having an email server is very much like having an actual mailbox. People can send you mail without fear of prosecution unless there are other circumstances surrounding them.
If you run an email server, expect to recieve email. It's that simple.
Now then, if measures to block unwelcome email are put into place and those measures are intentionally avoided through indirection or otherwise subversive means, it implies that the sender has fore-knowledge that his emails are unwelcome and is acting against the will of the email recipient.
I don't see how this conflicts at all with the current position most people have on SPAM.
This guy has reportedly circumvented attempts to block him and so the question is whether or not that was intentional. Did he follow accepted email practices and represent himself honestly? If not, I would consider it a form of trespass just as I consider spamming a form of inappropriate use of my mail server for their advertisements. (If any spammer wants to purchase space on my email server, he is welcome to negotiate a deal of course, but my server is not FREE.)
So this guy feels the need to pass along the information he has gathered to people who might suffer the same problems he has experienced. It should be his right and should be guaranteed and preserved. But that doesn't give him the right to bring his material into the offices of the people he wants to educate... either in person or electronically.
If he knows their non-intel email addresses, I wouldn't see any problem at all. If he wants to stand on the street outside of Intel's buildings handing out flyers; again, no problem!
I don't want to see this guy lose, but at the same time, the consequences of him winning on this particular matter could hurt the internet community and that would suck. If Intel wins, it could actually be a better win for all of us who oppose SPAM.
Trespass, be it to person, property or goods ("chattels"), is the most basic law in the theory of torts; you can't mess around with someone else's stuff without their permission.
If someone has a mail server, you can't mess around with it. But if they attach it to the net, they are, prima facie, giving the public permission to use it in an ordinary way. They are like a storekeeper opening his store to the public. You can come in and buy goods. You can't come in a raid the safe in the store (i.e. break my secure areas). And the storekeeper retains the right to refuse entry to particular individuals. You can't go in if the storekeeper has expressly forbidden you to, even if you just want to buy goods.
Assuming that Intel have made clear to the ex-employee that he is not allowed to send emails to their servers, they have every right to sue him for what he has done.
Consent, including implied consent, may be limited to certain purposes and uses. For example, if you set up a bricks-and-mortar store, you have given implied consent for customers to enter to browse or buy, and those customers are not trespassers. On the other hand, if a thief enters to steal, the implied consent does not extend to that purpose so the thief is a trespasser. Likewise in email, the implied consent has always been acknowledged as extending to personal email, but spam is another question entirely.
Both explicit and implicit consent can be withdrawn. Intel gave notice to Hamidi that he was not permitted to send his messages, thus withdrawing implied consent.
Before you try to post a message claiming some absurd outcome, think about the effect of consent, whether explicit or implied, in your example. Hamidi's lawyers have not done this, and are in for a major smack-down by the court.
I think you are wrong.
Say he called Jane, an Intel employee, and pestered her so much she told him not to call again. If he called Jane again, despite her protestations, couldn't she conceivably have a restraining order placed against him because he is harrassing her? In any event, I can pretty much guarantee you that he would be enjoined before he finished calling all 29,000 Intel employees on his list. There is no "right to harrass," nor should there be, in my opinion.
MM
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