Intel v. Hamidi Oral Arguments

www.sorehands.com writes "This morning, the California Supreme Court heard oral arguments in the case of Intel v. Hamidi. This is a case where Ken Hamidi, an ex-employee of Intel build a website that complained of Intel's employment practices and sent emails to all of Intel's employees. Intel tried to block Hamidi's emails, then Intel filed a lawsuit for several claims including tresspass to chattel." ess' to the server and the first ammendment." Read on below for a few more notes from Mr. Hands about the Hamidi case (mentioned on Slashdot a few times before). Update: 04/03 00:56 GMT by T : That should be "Hamidi" throughout, not "Hamibi."

"Intel argued that Hamidi's sending the email disturbed the employees and interfered with their business. causing lost productivity.

Hamidi argued that Intel only complained because the the content. That Intel dropped the nuisance claim because Intel would have had to argue the content and that Intel could not file a libel claim, where did not dispute the truth of the statements in the email or the website.

This case will set the lines of control for one's own servers. From the spammer's claims that if you are on the internet, they have full rights to hijack servers and fill your mailbox with viagra offers, to the ability of an ex-friend filing a lawsuit when you asked for the $20 that they borrowed.

I spoke with Hamidi, and he takes the position that if you have email, then you are agreeing to accept non-commercial email because of the 'public access' to the server and the first ammendment."

Comments

FP!

[Anonymous Coward]

First Postage!

Lost Productivity

[valkraider]

If that is grounds for a lawsuit - /. better run for cover...

Google Cache

[Anonymous Coward]

No Whoring


http://216.239.51.100/search?q=cache:T-SJezZJTO8C: www.faceintel.com/+&hl=en&ie=UTF-8

Freedom of "speach"

[wowbagger]

An oft-heard term in anti-spamming circles is "freedom of speach" - this refers to the spammers' arguements that "I gots my rites! I gots freedom of speach! If you sets up a mail server, I gots the rite to send my messages to it!"

Folks like this forget the following:

1. Freedom of speech protects you from the GOVERNMENT inhibiting your speech, not private citizens.
2. Your freedom of speech does not obligate me to provide you with a forum in which to speak.
3. Your freedom of speech ends where my property begins.

Does this guy expect to be allowed into Intel's buildings to deliver his messages? If he does not, then why does he feel he has the right to enter their mail server?

However, most folks regard "freedom of speach" as "I gits to say whutever I want - so you can shut the fuck up!"

Now, if this guy wants to set up a web server with a "why I hate Intel" page, great! But spamming somebody else's mail server is wrong.

Re:Freedom of "speach"

[Orthanc_duo]

I have to agree with you on this one.
Regardless of weather he is right or not IMHO the mail was SPAM even though it was non-comercial (by the same token I consider mass political emails to be spam, as did a lot of slashdot recently).
I'm affraid that If Itel looses it will further open the floodgates on spam.

Re:Freedom of "speach"

[L-Train8]

Does this guy expect to be allowed into Intel's buildings to deliver his messages? If he does not, then why does he feel he has the right to enter their mail server?

Could Mr. Hamidi expect to be allowed call every phone in Intel's office? Intel has phones connected to a public phone network. Calling Intel uses their PBX resources to deliver the call.

There are avenues that can be used to address these problems. Since the 6 original emails Mr. Hamidi sent, Intel has gotten a restraining order prohibiting him from emailing Intel anymore. And he hasn't emailed them since they got it. It seems to me that this case really isn't about "trespass to chattel" and all about Intel not liking the content of Mr. Hamidi's messages. They are not suing anyone for sending penis enlargement emails to Intel servers.

The EFF says this about the case's potential to set a precedent:
"Under Intel's theory, even lovers' quarrels could turn into trespass suits by reason of the receipt of unsolicited letters or calls from the jilted lover. Imagine what happens after the angry lover tells her fiance not to call again and violently hangs up the phone. Fifteen minutes later the phone rings. Her fiance wishing to make up? No, tresspass to chattel."

Re:Freedom of "speach"

[www.sorehands.com]

I'm affraid that If Itel looses it will further open the floodgates on spam.

That is not true. The court will not just say, "Yes" or "No." What the court will do is to draw a lines as to what is permissible. Hamidi's case is based on freedom of speech and first amendment, which provides greater protection for non-commercial speech than comercial speech. The other issue that was mentioned earler in the case (not argued yesterday -- though I suggested arguing it to him) is that his speech is protected by statute under the various anti-discrimination and unionization laws.

Re:Freedom of "speach"

[phriedom]

"Does this guy expect to be allowed into Intel's buildings to deliver his messages? If he does not, then why does he feel he has the right to enter their mail server?"

IMHO, the question is "what is open to public access?" If the lobby or the cafeteria of Intel was open to the public, then I would expect to be able to enter freely to deliver a message to an employee. And since there are Brink's guards there in the lobby restricting access to the rest of the plant, I would expect to NOT be allowed to go further than the lobby. And if the guards said that I was no longer welcome in the lobby and requested that I leave Intel propery, I would expect the law to force me to leave. When something is open to the public, I think it implies that I have permission to use it, until permission is explicitly revoked. So I would expect to be allowed to send email to employees through the company email system that receives email from the public, unless otherwise notified.

So in my mind the issue is when and how Intel notified Mr. Hamidi that I didn't have permission to send through their servers. I'm speculating here but I bet he continued to send emails after they asked him nicely until they got a court order to stop him. In my mind, that is like not leaving the lobby after they ask you to leave: tresspassing. So I think we agree, but for different reasons.

I don't think a finding for Intel will hurt our ability to use the Internet, but I do think it could be used against Spammers. But what the hell do I know about it, IANAL.

This is not about spam

[iCEBaLM]

Spam is unsolicited *commercial* email, as in, I'm trying to sell you something to make a profit. What this guy was doing was not commercial in the least and therefore it is not spam.

The point is, if you have a server on a public network accepting connections from the public at large then you have authorized the public at large to connect to it. Just like a webserver, if you want to block certain IP's go ahead, if you want to filter on subject, be my guest. If this guys actions are found to be illegal or damaging in any way than ANYONE can be found the same way just because someone says "no, you're not allowed to access my server" after the fact!

These should be dealt with technically, not litigously.

-- iCEBaLM

Dangerous legal foundation!

[Alsee]

If they want to go after this guy with a harrassment suit or something, then fine. But Intel is persuing this case on an extremely dangerous legal premise. They want to extend the legal premise of "trespass to chattel" to the internet data. The theory is that his messages (electrons) TRESSPASSED on Intel's computers. The EFF has an article on trespass to chattel and the internet.

Sure trespass to chattel could be (and at times has been) twisted to deal with spammers, but that would also mean it can be used to attack ANYTHING on the internet. The cure would be worse than the disease. Any and every internet message would be subject to tresspass violations from each and every server it crosses. This (long) paper explains how trespass to chattel can essentially destroy the internet as we know it.

Trespass to chattel should NOT be twisted to apply on the internet. Any judge who does needs to be hit with a cluestick.

-

On Spam and Censorship

[craigeyb]

I realize in advance that this post will be quite unpopular with the anti-spam slashdot community, but here goes anyway ...

Although spam must technically be (by defintion) commercial, to define it as such is irrelevant to me. It takes the same amount of time to delete non-commercial unsolicited messages as it does solicited. Call this whatever you like; this is a spam issue.

While I won't insult anyone's intelligence by adding more insightless drivel to the free speech angle of this debate (because both sides are based on an interpretation of the 1st admendment that is opinion), I would like to state, however, that this whole spam issue is being tackled from the wrong side.

Instead of focusing our time and resources on deterring spammers, it is in our own interests to focus on limiting spam's detrimental effects. Necessity is the mother of invention, some say; spam provides a great need for:

1. Better filters. A company could make a fortune by developing a truly worthwhile spam filter. A spam filter could be the first truly useful "intelligent" device.
2. New electronic mail protocols. Why not? This option includes an entire array of possibilities. Yeah, SMTP is universal and it's free, but to add censorship laws of any kind just to be able to continue using this obsolete mail protocol is indeed shortsighted.

You're all wrong

[TekPolitik]

There are bunches of comments here about what any particular outcome would mean. Let me save everybody some time. They're all wrong. Don't count on the EFF to provide accurate information on this either - the EFF is wrong.

1. The injunction ("restraining order") Intel got is exactly what this case is about. It's not Intel trying to get more beyond that, it's Hamidi trying to get that overturned.
2. The "gives permission by connecting to the Internet" argument is completely bogus because that would be talking about implied permission, and Intel specifically told Hamidi not to send the messages in question. An explicit withdrawal of permission trumps implied permission.
3. It won't mean anything for 1:1 emails where the implied permission has not been explicitly withdrawn.
4. "Commercial" is not a requirement for something to be spam. Even CAUCE denies that commecrial is a relevant requirement for something to be spam.

Re:You're all wrong

[Lord Kano]

The "gives permission by connecting to the Internet" argument is completely bogus because that would be talking about implied permission, and Intel specifically told Hamidi not to send the messages in question. An explicit withdrawal of permission trumps implied permission.


When there is an SMTP connection to their mail server, that mail server gives permission again for that content to be passed through.

So what we have is implied consent because they are connected to the internet, a withdrawal of that consent by their explicit request, and a reinstatement of the previously withdrawn consent because their mail server allowed the connection(s), accepted the messages and delivered them to their intended recipients.

LK

Re:You're all wrong

[TekPolitik]

When there is an SMTP connection to their mail server, that mail server gives permission again for that content to be passed through.

Wow, that's so wrong it's amazing. It's like saying "the shopkeeper kicked me out of the store and told me never to come back, but then he opened the door the next morning, so there was new implied consent." It doesn't work that way. You can never imply consent in a way that is different to a clear expression of consent or non-consent between the parties.

And even if you could, the SMTP banner is not the place where the implied consent comes from.

Re:You're all wrong

[Lord Kano]

It's more like this. A shopkeeper lets you in. You are wearing a T shirt that he objects to so he kicks you out. The next day you ask to be let in by his wife/business partner and are granted access.

LK

Re:You're all wrong

[TekPolitik]

It's more like this. A shopkeeper lets you in. You are wearing a T shirt that he objects to so he kicks you out. The next day you ask to be let in by his wife/business partner and are granted access.

It's not. Intel told Hamidi either not to send any email, or alternatively not to send email of type 'X'. He continued contrary to that instruction. There is no other human involed. There is nothing else to contradict the explicit withdrawal of implied consent.

Your example really demonstrates that you don't understand the legal conception of consent, let alone that of implied consent.

I agree with you... but....

[www.sorehands.com]

In general you are correct. But, here Intel told Hamibi not to send the messages because the message was complaining of employment practices, discrimination, etc. Now, these have more protection than the first ammendment. There are statutes that prevent people and employers from taking action against persons complaining of discrimination or aiding or encouraging others of asserting their rights under the anti-discrimination or labor laws (NLRB, FMLA, Title VII, ADEA, ADA, etc.)

Re:I agree with you... but....

[phriedom]

Hmm...that is interesting. However, I doubt any of those apply. I don't think Hamidi has any legal authority to use Intel property (without their permission) to encourage others to assert their rights. If Intel were retaliating for legal actions that Hamidi took, some sort of whistleblower laws might apply. But if Hamidi is not acting within the law, he probably can't get protection from it. I am still not a lawyer, so I guess I'm just imagining how laws SHOULD work.

Re:I agree with you... but....

[www.sorehands.com]

The issue here is not the permission to use Intel's property, but the reason for requesting him to stop.

Generally, an employer may terminate an employee for any reason, EXCEPT an illegal reason. Similar applies to public accomodations. Here, you have Intel (ex-employer) banning Hamibi from sending email to Intel's employees but not banning others from sending email though servers to Intel's employees. This was done specifically because Hamibi was engaging in a protected act, complaining of discrimination, wage&hour violations. One is not required to file a lawsuit to be protected by the anti-retaliation laws.