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the burdens of “receiving Hamidi’s occasional advocacy messages cannot be compared to the burdens and costs... [from] the ever-rising deluge of commercial e-mail.” The court differentiated between injury caused by the quantity of messages (as in Compuserve) and the content of those messages (in Hamidi). The former is actionable, the latter not; at least under a trespass to chattels rubric.
The opinion cited with approval the Bidder’s Edge (spiders or robots collecting data) line of cases and compared various courts’ language on the presence or absence of harm to their own deliberations in the Hamidi case. It did note that there are plenty of other avenues open to a company in Intel’s position; it can sue for interference with prospective economic relations, interference with contract, or even intentional infliction of emotional distress. It also observed that if receipt of an email on a system designed to accept emails can be a trespass to chattels, so can an unwelcome fax, telephone call, page etc. While those things might cause any number of interference, reputational, or emotional torts, they cannot be trespasses to chattels.
The court expressed a profound distaste for the arguments put forth by amicus Richard Epstein who urged the justices to recognize cyberspace as real space and view Hamidi’s actions as a trespass to “real” cyber property. The court snubbed this argument as merely a series of “colorful analogies” used to obscure the “plain fact that this case involves communications equipment.” The language of the opinion is quite clear in stating that computers, websites, and email systems are to be analogized to telephones and fax machines, and not buildings or plots of land. On what it called the “more substantive” part of Epstein’s argument, that such a regime would give companies more control over Spammers and unauthorized uses the court refused to take sides. It recognized the merit in both Epstein’s argument, and the arguments of Mark Lemley, Lawrence Lessig, and others who believe that such a regime would cause transaction costs on the web to skyrocket and impede freedom of speech and association.
The court had little to say about the First Amendment implications of the case, but it did hold that a court injunction, even in a trespass case, would be state action capable of triggering the First Amendment. In addition, the court differentiated this case from earlier cases in which a trespasser to land could be enjoined because Hamidi had no physical presence on Intel’s premises. It also limited Intel’s “right not to listen” argument to those employees who opted out of Hamidi’s messages, stating that even if a corporation could exercise “such a personal right” these emails were addressed to individuals. Any injunction granted on a “right not to listen” theory would have to be tailored to those individuals who opted out of the communications. While this language means little to the Hamidi case (Hamidi maintained and respected an opt out list), it might have implications for a future class action against Spammers. Imagine a world with court injunctions forcing Bulk emailers to maintain and respect nationwide “opt out” lists.
In all, the court struck an important balance between the ability of certain companies to stop the hijacking of their systems by bulk emailers and their ability to curtail an increasingly important form of protest and communication within corporate cultures.
Read the decision here.
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GrepLaw
