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F & F


Ca. Supremes in Intel: No Damage, No Tort
posted by turmis on Tuesday July 01, @04:40PM
from the No-more-Mr.-nice-emailer dept.
News The California Supreme Court handed down a much-anticipated decision in Intel v. Hamidi yesterday. The court ruled 4-3 that under California law the tort of trespass to chattels does not apply to an electronic communication that neither damages nor impairs the functioning of a computer system. Trespass to chattels requires some actual harm to the property in question, or to the possessor’s interest in it. The court rejected out of hand the court of appeals ruling that by using Intel’s property to cause a disruption, Hamidi had committed a trespass to chattels; and stated that the dispositive issue in the case is whether “Hamidi’s actions caused or threatened to cause damage to Intel’s computer system, or injury to its rights in that personal property.” The ruling is discussed in more detail below, along with some interesting comments the court made about the amicus arguments, and a fairly innocuous statement about the First Amendment implications that could have larger effects in future cases.

The court was careful to distinguish the CompuServe (ISP suing Spammer) line of cases, stating that...

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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    Ca. Supremes in Intel: No Damage, No Tort | Login/Create an Account | Top | 1 comments | Search Discussion
    The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
    Stretching (Score:3)
    by md on Wednesday July 02, @05:07AM (#823)
    User #17 Info | http://www.mcdproductions.com/
    It seems to me that the court did a good amount of bending over backwards to grab Hamidi and place him under the protection of the law while limiting that same protection to exclude virtually any commercial interests. Insofar as the court's opinion is grounded in the First Amendment, I'm not so sure that this makes much sense and I doubt that any meaningful standards of decisionmaking have come out of this opinion.

    In particular, it does not make sense to me why the actions of Bidder's Edge in the eBay case, while not causing the eBay systems to perform any less successfully than it had without BE, can be "fictitiously aggregated" (my term) with the actions of all third parties who might copy their actions. Thus, the court seems to say that in BE's case, if everyone does what they do, THEN there will be some serious damage to the system. So why doesn't this logic apply to Hamidi? If every disgruntled employee of Intel sent messages to Intel's 35,000 employees, even on a semi-regular basis, would that not be a "threatened" damage? The court seems to answer this with a touchy-feely, qualitative analysis that puts commercial SPAM on a different playing field than non-commercial SPAM, but because of its content and because of the statistics behind the SPAM problem. I'm not sure this is a distinction that has support in the law (in particular, under the First Amendment.).

    The proper result, I think, was to say Bidder's Edge was problematic, along with any other case where the ACTUAL damage to the system did not mean a degradation of performance or operability. It is quite a mistake, I think, to stretch tort/trespass law so that it is a tool against SPAM. By doing so, you risk catching many things besides SPAM and an anti-SPAM law is what should be used to deal with the problem.

    As for Epstein, his arguments are such a veiled attempt for corporate welfare, I wonder if his research was funded. The law and econ types like to do that sort of crap.


    Full disclosure: I work for the law firm that represented Bidder's Edge, but was never involved with the case.
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