A sharply-divided state Supreme Court ruled yesterday that emailing doesn’t necessarily equal trespassing, overturning Intel's lower court win against a former employee for his spamming up to 35,000 of his former colleagues over two years.
Making an absolute property right to keep out "undesired" communications…might help force spammers to internalize the costs they impose on (Internet service providers) and their customers," but that kind of rule might also make new costs in lost simplicity and openness of communication, among other prospective problems, wrote Justice Kathryn Werdegar for the narrow majority.
That equals a big win for free speech, according to the Electronic Frontier Foundation. "(E)ven if you send electronic communications after recipients tell you not to, you are likely protected from spurious trespass lawsuits as long as there is no harm to computer systems as a direct result of the electronic communications," said legal director Cindy Cohn in a statement following the high court ruling. "Recipients of unwanted email may pursue legal claims other than trespass in certain circumstances and can pursue even trespass claims in the event of damage to their computer systems."
Intel had sued former coder Kourish Kenneth Hamidi, who had sent several e-mails to an estimated 35,000 of his former colleagues in the two years since he was fired shortly after returning from disability leave. The EFF had filed an amicus brief supporting Hamidi against his former bosses, arguing the First Amendment required "meaningful judicial scrutiny…to prevent (litigation) from being used as a pretext to curtail speech."
The California property law in question lets a property owner sue someone who misuses property even if not stealing it. A lower court had ruled and an appeals court upheld that Hamidi misused Intel property in spamming his former colleagues, making grounds enough for Intel to sue. But the state Supreme Court held Intel had to prove Hamidi's e-mails – attacking Intel employment practices and promoting an anti-Intel Website – damaged the company's computer systems.
A new California law letting computer users sue spammers was to take effect July 1. Indeed, the Supreme Court decision does not stop companies from suing any spammers if massive spam overloads company computers' servers.
"Hamidi breached no computer security barriers in order to communicate with Intel employees," wrote Werdegar. "He offered to, and did, remove from his mailing list any recipient who so wished. Hamidi's communications to individual Intel employees caused neither physical damage nor functional disruption to the company's computers, nor did they at any time deprive Intel of the use of its computers."
She added, however, that the finding didn't mean spam or any other messages sent over the Internet should be exempt from ordinary liability rules. "To the contrary, e-mail, like other forms of communication, may in some circumstances cause legally cognizable injury to the recipient or to third parties and may be actionable under various common law or statutory theories," she wrote.
But Justice Janice Brown, dissenting, said the majority refused to protect Intel's property rights, including its "interest in maintaining the integrity of its own system." She also wrote that Intel had a right to exclude Hamidi from its property, which even Hamidi himself agreed.
"The majority does not find that Hamidi has an affirmative right to have Intel transmit his messages, but denies Intel any remedy," she wrote. "…The majority denies relief on the theory that Intel has failed to establish the requisite actual injury…it is nevertheless a trespass where one party expropriates for his own use the resources paid for by another."
Justice Joyce Kennard, concurring with Werdegar, said Hamidi's two-year e-mail campaign to his former colleagues – in which he criticized Intel employment practices, after he had been fired shortly after he returned from a disability leave – would have been trespassing only if Intel's computer equipment use and availability was damaged.
"Intel has my sympathy," Kennard wrote. "Unsolicited and unwanted bulk e-mail, most of it commercial, is a serious annoyance and inconvenience for persons who communicate electronically…and bulk e-mail that distracts employees in the workplace can adversely affect overall productivity…(Intel) has not shown that…Hamidi's occasional bulk e-mail messages to Intel's employees have damaged Intel's computer system or impaired its functioning in any significant way."
