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?

Comments

OK, so which is it . . .

[Tam-Lin]

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.

Technical vs. legal measures, some thoughts

[Seth Finkelstein]

This was a pretty intersting message written a while back on the topic, from a mailing-list.

[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

Email is a COMPANY resource

[backtick]

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.

EXACT trespass reasoning of Appeals Court

[Seth Finkelstein]

In discussing the case, it's helpful to read the exact reasoning of the appeals court decision, for example:

Hamidi's conduct was trespassory. Even assuming Intel has not demonstrated sufficient "harm" to trigger entitlement to nominal damages for past breaches of decorum by Hamidi, it showed he was disrupting its business by using its property and therefore is entitled to injunctive relief based on a theory of trespass to chattels. Hamidi acknowledges Intel's right to self help and urges Intel could take further steps to fend off his e-mails. He has shown he will try to evade Intel's security. We conceive of no public benefit from this wasteful cat-and-mouse game which justifies depriving Intel of an injunction. (Cf. America Online, Inc. v. Nat. Health Care Discount, Inc. (N.D. Iowa 2000) 121 F.Supp.2d 1255, 1259-1260 [detailing ongoing technological struggle between spammers and system operators].) Even where a company cannot precisely measure the harm caused by an unwelcome intrusion, the fact the intrusion occurs supports a claim for trespass to chattels. (See Register.com, Inc. v. Verio, Inc. (S.D.N.Y. 2000) 126 F.Supp.2d 238, 249-250 [applying New York law, based on the Restatement, "evidence of mere possessory interference is sufficient to demonstrate the quantum of harm necessary to establish a claim for trespass to chattels"].)

Sig: What Happened To The Censorware Project (censorware.org)

"Designed use"

[mlknowle]

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!

I hope he looses.

[7-Vodka]

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?

Where could this go?

[erroneus]

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.