EFF Intel v. Hamidi

Amicus Brief (Jan. 18, 2000)

"Those who suppress freedom always do so in the name of law and order." John Lindsay

IN THE

COURT OF APPEAL OF CALIFORNIA

THIRD APPELLATE DISTRICT

No. C033076

INTEL CORPORATION

PLAINTIFF AND APPELLEE

V.

KOUROUSH KENNETH HAMDIDI and FACE-INTEL

DEFENDANT AND APPELLANT

Appeal from the Superior Court of California

County of Sacramento, Case Number 98AS05067

Honorable John R. Lewis, Judge

BRIEF OF AMICUS CURIAE

ELECTRONIC FRONTIER FOUNDATION

IN SUPPORT OF APPELLANT

Counsel:

DEBORAH PIERCE, SBN 190936

ELECTRONIC FRONTIER FOUNDATION

1550 BRYANT STREET

SAN FRANCISCO, CA 94103

(415) 436-9333

dsp@eff.org

TABLE OF CONTENTS

Subject
Page

TABLE OF AUTHORITIES
iii

STATEMENT OF THE CASE
1

SUMMARY OF ARGUMENTS
3

ARGUMENT
5

I.     SENDING PHYSICALLY NON-DISRUPTIVE E-MAIL OVER THE INTERNET IS NOT APPROPRIATELY CLASSIFIED AS A TRESPASS
5

II.    MR. HAMIDI HAS NOT COMMITTED A TRESPASS ON INTEL'S COMPUTER SYSTEM
7

A.     Under California State Tort Law, Mr. Hamidi's E-mail Message Were Intangible Intrusions That Did Not Cause Physical Damage to Intel's Property, and Therefore the Intrusions Should Be Dealt With as a Nuisance and Not a Trespass

7

B.     A Reasonable Reading of Thrifty-Tel, Inc. v. Bezenek Supports the Conclusion That Mr. Hamidi Has Not Committed a Trespass

9

C.     The Foundations of the Trespass to Chattel Doctrine Also Support a Reasonable Reading of Thrifty-Tel

12

D.     The Trial Court Misunderstood the Foundations of the Trespass to Chattel Doctrine

17

III.    INTEL CAN ADEQUATELY PROTECT ITS VALID LEGAL INTERESTS WITHOUT MAINTAINING A TRESPASS ACTION AGAINST MR. HAMIDI
20

IV.   EVEN IF MR. HAMIDI HAS COMMITTED A TRESPASS, HIS FREE SPEECH RIGHTS SHOULD OUTWEIGH INTEL'S PROPERTY RIGHTS IN A JUDICIAL BALANCING TEST
21

A.     The Judicial Enforcement of State Trespass Law Against Mr. Hamidi Constitutes State Action that Must Conform to Constitutional Standards
21

B.     Mr. Hamidi's E-mails Are Speech of Public Concern, and Therefore Entitled to Strong Constitutional Protection
25

C.     Under the Narrow Circumstances of This Case, Mr. Hamidi's Free Speech Rights Should Outweigh Intel's Property Rights in Its Computer System
26

CONCLUSION
31

iii

TABLE OF AUTHORITIES

CASES

ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996) 6

America Online, Inc. v. IMS, 24 F. Supp. 2d 548 (E.D. Va. 1998) 16

America Online, Inc. v. LCGM, Inc., 46 F. Supp. 2d 444 (E.D. Va. 1998) 16

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983) 29

Cohen v. Cowles Media Co., 501 U.S. 663 (1991) 22,23,24

Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Ca. 1999) 20

CompuServe Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997) 12,15

Connick v. Myers, 461 U.S. 138 (1983) 25,26

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) 25,26

Hotmail Corp. v. Van$ Money Pie Inc., No. C-98 JW PVT ENE,
C-98 20064 JW, 1998 WL 388389 (N.D. Ca. Apr. 16, 1998) 16

Intel Corp. v. Hamidi, No. 98AS05067, 1999 WL 450944
(Cal. Super. Apr.28, 1999) 9,17,18,21,26

Jewish Defense Org., Inc. v. Superior Court, 72 Cal. App. 4th 1045 (1999) 21

McIntyre v. Ohio Elections Comm�n, 514 U.S. 334 (1995) 26

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) 23,25

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 22,23

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S.767 (1986) 23

Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980) 24

Reno v. ACLU, 521 U.S. 844 (1997) 6,27,28

Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899 (1979) 27,30

San Diego Gas and Electric Co. v. Superior Court, 13 Cal. 4th 893 (1996) 7,8,9

Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559 (1996) 9,10,11,12

Wilson v. Interlake Steel Co., 32 Cal. 3d 229 (1982) 7,8

STATUTES

al. Evid. Code � 459 (West 1999) 9

OTHER AUTHORITIES

Paul Brest, State Action and Liberal Theory: A Casenote on Flagg Brothers v. Brooks, 130 U. Pa. L. Rev. 1296 (1982) 24

Developments in the Law -- The Law of Cyberspace, 112 Harv. L. Rev. 1574 (1999) 30

E-Marketer Report, Feb. 1, 1999, ........... <http://www.emarketer.com/estats/020199_email.html> 5

Howard Georgi, The Physics of Waves (1993) 8

David J. Goldstone, A Funny Thing Happened on the Way to the Cyber Forum: Public v. Private in Cyberspace Speech, 69 U. Colo. L. Rev. 1 (1998) 6

David Halliday & Robert Resnick, Physics (3d ed. 1986) 8

18 McGraw-Hill Encyclopedia of Science & Technology (8th ed. 1997) 8

Messaging Online�s Mailbox Report, Nov. 29, 1999, ........... <http://www.messagingonline.com/mt/html/feature.html> 5

Restatement (Second) of Torts (1977) 12,13,14

Eugene Volokh, Cheap Speech and What It Will Do, 104 Yale L.J. 1805 (1995) 6

1

STATEMENT OF THE CASE

Appellant Kourosh Kenneth Hamidi is a former Intel engineer and the principal spokesman of FACE-Intel, a California nonprofit organization consisting of several current and former Intel employees. FACE-Intel was formed to provide a medium for Intel employees to air their concerns about employment conditions at Intel.

Mr. Hamidi sent a handful of e-mail messages to a large number of Intel employees as part of his effort to raise awareness about what he considers to be Intel�s abusive and discriminatory employment practices. Intel alleges that Mr. Hamidi sent a total of six e-mail messages to Intel employees over a nearly two year period. Although these messages did not disrupt Intel�s computer system in any way, Intel objected to the content of the messages and therefore attempted to censor Mr. Hamidi�s speech by technologically blocking his messages from reaching Intel employees.

After Intel�s own censorship efforts failed, it filed a nuisance and trespass claim against Mr. Hamidi, in essence asking the state to censor Mr. Hamidi�s expressive activity. The Superior Court of California, Sacramento County, granted Intel a preliminary injunction forbidding Mr. Hamidi from sending e-mail messages to Intel employees. After Intel voluntarily dropped its nuisance claim, the Superior Court then granted Intel summary judgment on the trespass claim and issued a permanent

2

injunction against Mr. Hamidi. Mr. Hamidi seeks review of that decision in this appeal.

3
SUMMARY OF ARGUMENT

Trespass to chattel is the wrong cause of action for Intel to pursue against Mr. Hamidi. The trial court below extended the trespass to chattel doctrine in a wholly unprecedented manner by classifying Mr. Hamidi�s e-mail messages as a trespass even though they did not disrupt Intel�s computer system in any way. The trial court�s logic would permit almost any e-mail message to constitute a potential trespass, and its decision therefore has enormous adverse consequences for free speech on the emerging communications medium of the Internet.

Under California state tort law, Mr. Hamidi has not committed a trespass on Intel�s computer system. First, his e-mail messages constitute an intangible intrusion that according to the Supreme Court of California must be dealt with as a nuisance and not a trespass. Second, a reasonable reading of the leading California case concerning the trespass to chattel doctrine, Thrifty-Tel, Inc. v. Bezenek, supports the conclusion that Mr. Hamidi has not committed a trespass. Third, the legal foundations of the trespass to chattel doctrine confirm that physically non-disruptive e-mail messages, like Mr. Hamidi�s, cannot support a trespass cause of action.

Intel can adequately protect its valid legal interests without maintaining a trespass action against Mr. Hamidi. Of course, Intel could follow the clear guidance of the Supreme Court of California and pursue a

4

nuisance -- rather then a trespass -- action against Mr. Hamidi. But more fundamentally, if Intel believes that Mr. Hamidi�s speech is harmful, Intel should pursue a legal remedy that is designed to address speech-based harms, such as a defamation action.

Even if this Court parts company with the overwhelming weight of legal authority and rules that Mr. Hamidi has committed a trespass, Mr. Hamidi�s state and federal constitutional right to free speech should outweigh Intel�s property interest in a judicial balancing test. Such a balancing test is required because the judicial enforcement of California trespass law constitutes state action that must conform to constitutional standards. In the balancing calculus, Mr. Hamidi�s e-mail messages are speech of public concern and therefore entitled to strong constitutional protection. In contrast, Intel�s interest in censoring Mr. Hamidi is not particularly compelling given that his e-mail messages have not disrupted Intel�s computer system in any way, nor has Intel produced any specific evidence of the type of non-physical disruption that might, in theory, justify censorship.

This Court should reverse the judgment of the trial court granting Intel permanent injunctive relief. By doing so, this Court would ensure that freedom of speech in cyberspace -- which makes this new medium so democratic and exciting -- does not turn into an empty promise.

5
ARGUMENT

I.                    SENDING PHYSICALLY NON-DISRUPTIVE E-MAIL OVER THE INTERNET IS NOT APPROPRIATELY CLASSIFIED AS A TRESPASS.


Trespass to chattel is the wrong cause of action for Intel to pursue against Mr. Hamidi because of the enormous free speech implications of classifying physically non-disruptive e-mail as a trespass. Mr. Hamidi did not physically invade or disrupt Intel�s computer system when he created or sent his e-mail messages. While the trespass to chattel doctrine has been extended to the e-mail context in order to deal with the problem of physically disruptive, bulk commercial �spamming,� never before has it been used to silence physically non-disruptive speech like Mr. Hamidi�s.

Classifying physically non-disruptive e-mail as a trespass has immense adverse consequences for free speech on the Internet. E-mail is the principal mode of communication on the Internet, and its use is rapidly expanding. See, e.g., E-Marketer Report, Feb. 1, 1999, <http://www.emarketer.com/estats/020199_email.html> (noting that 81 million Americans use e-mail); Messaging Online�s Mailbox Report, Nov. 29, 1999, <http://www.messagingonline.com/mt/html/feature.html> (estimating a 66% growth rate in the number of electronic mailboxes between Sept. 1998 and Nov. 1999). Because the vast majority of

6

Internet host computers are privately-owned, almost all e-mail messages travel onto private property. See, e.g., David J. Goldstone, A Funny Thing Happened on the Way to the Cyber Forum: Public v. Private in Cyberspace Speech, 69 U. Colo. L. Rev. 1, 17 (1998). Therefore, if trespass law is applied in the Internet context without any physical disruption requirement, almost any e-mail message could constitute an actionable trespass.

Both courts and commentators have universally hailed the Internet as potentially the most diverse and democratic communications medium the world has ever known. See, e.g., ACLU v. Reno, 929 F. Supp. 824, 881 (E.D. Pa. 1996) (opinion of Dalzell, J.); Eugene Volokh, Cheap Speech and What It Will Do, 104 Yale L.J. 1805, 1833 - 43 (1995). Accordingly, the Internet offers traditionally disenfranchised groups the opportunity for meaningful participation in public debate. Indeed, the U.S. Supreme Court has praised the Internet as a �vast democratic forum[]� that is �open to all comers,� which has created a �new marketplace of ideas� with �content [that] is as diverse as human thought.� Reno v. ACLU, 521 U.S. 844, 868, 870, 880, 885 (1997). However, if courts were to sanction a legal regime in which physically non-disruptive e-mail could constitute a trespass, the free speech landscape of cyberspace would be drastically altered. In fact, given that e-mail is the principal mode of communication in cyberspace, it is no exaggeration to say that such a legal regime would be analogous to a real-space regime in which every time an individual opened his mouth, he would be committing a potential trespass. Nothing could be more antithetical to a society that values freedom of expression.

Unfortunately, the trial court below seemed to have no understanding of the broad ramifications of its ruling. Not only does the decision endorse a legal regime in which almost any e-mail message could constitute a trespass, but also it opens up the possibility of criminal trespass charges for the �crime� of expressing one�s opinion on matters of public concern on the Internet. The trial court�s ruling is unconstitutional, bad public policy, contrary to the overwhelming weight of legal authority, and it should be reversed.

7

II.                  MR. HAMIDI HAS NOT COMMITTED A TRESPASS ON INTEL�S COMPUTER SYSTEM.

A.                Under California State Tort Law, Mr. Hamidi�s E-mail Messages Were Intangible Intrusions That Did Not Cause Physical Damage to Intel�s Property, and Therefore the Intrusions Should Be Dealt With as a Nuisance and Not a Trespass.

The Supreme Court of California has established a strict dichotomy between nuisance and trespass. Simply put, all intangible intrusions that do not cause physical damage to plaintiff�s property must be dealt with as a nuisance and not a trespass. See San Diego Gas and Electric Co. v. Superior Court, 13 Cal. 4th 893, 935 - 37 (1996); Wilson v. Interlake Steel Co., 32 Cal. 3d 229, 232 - 34 (1982).

8

In Wilson, the Supreme Court listed �noise, odor, or light� as examples of intangible intrusions that cannot support a trespass action unless they cause physical damage to plaintiff�s property. Wilson, 32 Cal. 3d at 233. In San Diego Gas and Electric Co., the Supreme Court added electromagnetic waves to the list of intangible intrusions governed by Wilson. In a long and scholarly discussion, the Supreme Court explained the origin and propagation of electromagnetic energy, which covers a wide spectrum and includes such things as ultraviolet light, visible light, microwaves, and television and radio waves. See San Diego Gas and Electric Co., 13 Cal. 4th at 903 - 10. The Supreme Court concluded that electromagnetic waves arising from powerlines �are wholly intangible phenomena within the meaning of Wilson.� Id. at 936. Therefore, the plaintiffs could not bring a cause of action for trespass because they could not demonstrate that electromagnetic waves had caused physical damage to their property. See id. at 936 - 37.

Electronic signals, such as Internet e-mail messages, that travel over phone lines (or any other transmission line) into a private computer system consist of nothing more than electromagnetic waves. See, e.g., 18 McGraw-Hill Encyclopedia of Science & Technology 555 - 62 (8th ed. 1997) (discussing the propagation of electromagnetic waves along transmission lines); David Halliday & Robert Resnick, Physics � 41-4 (3d ed. 1986) (similar); Howard Georgi, The Physics of Waves 187 - 92 (1993)

9

(similar). Given the importance of properly identifying the type of intrusion at issue in the case at bar, this Court should take judicial notice of the scientific fact that Mr. Hamidi�s e-mails that entered Intel�s computer system consisted of electromagnetic waves. See Cal. Evid. Code � 459 (West 1999).

Because electromagnetic waves are intangible intrusions, Intel must demonstrate that its computer system suffered physical damage from Mr. Hamidi�s e-mail activity in order to maintain a cause of action for trespass. See San Diego Gas and Electric Co., 13 Cal. 4th at 936 - 37. Intel cannot meet this burden, and indeed freely admits that its computer system has suffered no physical damage. See, e.g., Plaintiff Intel Corporation�s Responses to Defendant Kourosh Kenneth Hamidi�s Form Interrogatories Set One, p. 7.

9

B.               A Reasonable Reading of Thrifty-Tel, Inc. v. Bezenek Supports the Conclusion That Mr. Hamidi Has Not Committed a Trespass.

The trial court below relied principally on Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559 (1996), as authority for holding that Mr. Hamidi had trespassed on Intel�s computer system. See Intel Corp. v. Hamidi, No. 98AS05067, 1999 WL 450944, at *1 - *2 (Cal. Super. Apr. 28, 1999) (citing Thrifty-Tel). Indeed, much of what is at stake in this case hinges on the proper interpretation of Thrifty-Tel. The scope of Thrifty-Tel�s

10

holding, however, can be understood only by placing the case within the larger context of California trespass law.

In Thrifty-Tel, two computer hackers used a confidential access code to gain illegal entry into Thrifty-Tel�s long-distance telephone service, and then conducted random searches for a six-digit authorization code that would have allowed them to make free telephone calls. See Thrifty-Tel, 46 Cal. App. 4th at 1563 - 64. In the process, the hackers overburdened the Thrifty-Tel telephone system, thereby denying some subscribers access to phone lines. See id. at 1564. The Thrifty-Tel court held that the hackers had committed a trespass to chattel under California state tort law, see id. at 1566 - 67, and in a footnote observed that �[i]n our view, the electronic signals generated by the [defendants�] activities were sufficiently tangible to support a trespass cause of action,� id. at 1566 n.6.

The first thing to notice about the Thrifty-Tel decision is that it preceded San Diego Gas and Electric Co., and therefore the Thrifty-Tel court did not have the benefit of the Supreme Court�s guidance that electromagnetic waves are properly classified as intangible intrusions. The Thrifty-Tel court observed that the defendants� telephone activity had generated �electronic signals,� but in fact the more precise description is that the defendants� telephone calls had generated electromagnetic waves that penetrated Thrifty-Tel�s private property. See supra section II.A. (discussing electromagnetic waves and transmission lines).

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Arguably, San Diego Gas and Electric Co. modifies Thrifty-Tel by re-classifying �electronic signals� sent over phone lines as intangible, rather than tangible, intrusions.

However, there is a more sensible way to read Thrifty-Tel that avoids any conflict with San Diego Gas and Electric Co. In Thrifty-Tel, the �electronic signals� generated by the defendants had overburdened plaintiff�s telephone system, denying some subscribers access to phone lines. See Thrifty-Tel, 46 Cal. App. 4th at 1564. It is this element of physical damage or physical disruption, even if temporary, that gave the �electronic signals� a sufficiently tangible quality to support a cause of action for trespass. Therefore, a reasonable reading of Thrifty-Tel is that �electronic signals� sent over phone lines, such as e-mail messages, may support a cause of action for trespass if they cause at least temporary physical damage or physical disruption to plaintiff�s property. Because Intel has not alleged that Mr. Hamidi�s e-mails caused any physical disruption to its computer system, the logic of Thrifty-Tel should prevent Intel from maintaining a cause of action for trespass.

The element of physical damage or physical disruption is a necessary check on the reach of the Thrifty-Tel holding for two independent reasons. First, reading Thrifty-Tel for the proposition that �electronic signals� alone, without any element of physical damage or physical disruption, may support a trespass cause of action would bring

12

Thrifty-Tel into direct conflict with San Diego Gas and Electric Co. Second, and perhaps more fundamentally, such a reading would sanction a legal regime in which almost any e-mail message could constitute an actionable trespass. Such a sweeping result certainly is not dictated by Thrifty-Tel, and it would result in a severe erosion of First Amendment protection in a communications medium that offers an unprecedented level of participation for traditionally disenfranchised groups.12

C.               The Foundations of the Trespass to Chattel Doctrine Also Support a Reasonable Reading of Thrifty-Tel.

As the Thrifty-Tel court observed, the trespass to chattel doctrine has rarely been employed as a tort theory in California. See id. at 1566. However, the tort does have a long pedigree and its elements are summarized in the Restatement (Second) of Torts, which the Thrifty-Tel court cited with approval. See id. at 1567 n.8. The first case to extend the trespass to chattel doctrine to the e-mail context, CompuServe Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997), underscored the importance of the Restatement by relying on it almost exclusively for the court�s doctrinal framework. See id. at 1021 - 25.

According to � 217 of the Restatement, a trespass to chattel may be committed by intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling with a chattel in the possession of another. Because Mr. Hamidi obviously did not actually �dispossess� Intel of its

13

computer system, the proper inquiry is whether Mr. Hamidi �used or intermeddled with� the system within the meaning of the Restatement. Even assuming that Mr. Hamidi did, in fact, use or intermeddle with Intel�s computer system, � 218 of the Restatement limits liability to those situations in which (a) the defendant dispossesses the possessor of the chattel, (b) the chattel�s condition, quality, or value is impaired, (c) the possessor is deprived of the use of the chattel for a substantial time, or (d) the possessor suffers bodily harm, or harm is caused to some person or thing in which the possessor has a legally protected interest.

Sections 218(a) and (c) do not apply to the case at bar, because Mr. Hamidi, again, did not dispossess Intel of its computer system, nor did he deprive Intel of the use of its system for a substantial time. Section 218(d) also is inapplicable because Intel cannot suffer bodily harm, nor has it identified any harm to a legally protected interest other than its interest in preventing the trespass itself. Therefore, Mr. Hamidi may only be liable under � 218 if Intel can demonstrate that the �condition, quality, or value� of its computer system has been impaired within the meaning of � 218(b).

The Restatement makes clear that when a defendant is accused of intermeddling with a chattel (rather than dispossessing it),         � 218(b) liability will only attach if the chattel itself has suffered some physical impairment:

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[O]ne who intentionally intermeddles with another�s chattel is subject to liability only if his intermeddling is harmful to the possessor�s materially valuable interest in the physical condition, quality, or value of the chattel.

Restatement (Second) of Torts � 218 cmt. e. (1977) (emphasis added). There is one exception, however, to this rule:

In the great majority of cases, the actor�s intermeddling with the chattel impairs the value of it to the possessor . . . only by some impairment of the physical condition of the chattel. There may, however, be situations in which the value to the owner of a particular type of chattel may be impaired by dealing with it in a manner that does not affect its physical condition. Thus, the use of a toothbrush by someone else may lead a person of ordinary sensibilities to regard the article as utterly incapable of further use by him, and the wearing of an intimate article of clothing may reasonably destroy its value it his eyes. In such a case, the intermeddling is actionable even though the physical condition of the chattel is not impaired.

Id. � 218 cmt. h. Obviously, this carefully limited exception does not apply to the case at bar, because Intel cannot maintain that its computer system has been so sullied by Mr. Hamidi�s e-mails that Intel no longer has any desire to use it.

The CompuServe court was well aware of the physical impairment requirement imposed by � 218(b). In that case, plaintiff CompuServe, a popular Internet Service Provider (ISP), brought an action for

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trespass to chattel against defendant Cyber Promotions, which had sent hundreds of thousands of unsolicited e-mail advertisements to CompuServe subscribers. After quoting � 218(b), the CompuServe court observed that defendant�s �enormous volume� of e-mail activity had �place[d] a tremendous burden on [plaintiff�s] equipment.� CompuServe, 962 F. Supp. at 1022. This burden was so great, in fact, that it had deprived CompuServe customers of limited processing and storage capacity that otherwise would have served their needs. See id.

Although the CompuServe court noted that this physical burden did not amount to actual �physical damage,� id., the element of at least temporary physical disruption is a necessary ingredient of the court�s holding for two reasons. First, without this element, the court�s analysis cannot be reconciled with the physical impairment requirement of Restatement � 218(b). Second, an interpretation that does not contain this element would transform every e-mail message sent to CompuServe subscribers into a potentially actionable trespass. Again, as in the analysis of Thrifty-Tel, see supra section II.B., such a sweeping interpretation of CompuServe is bad public policy and unconstitutional.

Indeed, every single court that has followed CompuServe�s lead and extended the trespass to chattel doctrine to the e-mail context has included the element of at least temporary physical disruption. See, e.g., America Online, Inc. v. LCGM, Inc., 46 F. Supp. 2d 444, 448 - 449 (E.D. Va. 1998)

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(defendants transmitted more than 92 million unsolicited e-mail advertisements over a five-day period, thereby �impairing the functioning of [plaintiff�s] e-mail system�); America Online, Inc. v. IMS, 24 F. Supp. 2d 548, 550 (E.D. Va. 1998) (defendants sent over 60 million unsolicited e-mail advertisements, which �burdened [plaintiff�s] equipment�); Hotmail Corp. v. Van$ Money Pie Inc., No. C-98 JW PVT ENE, C 98-20064 JW, 1998 WL 388389, at *7 (N.D. Ca. Apr. 16, 1998) (defendants caused tens of thousands of misdirected e-mail messages to be transmitted to plaintiff, thereby �filling up [plaintiff�s] storage space and threatening to damage [plaintiff�s] ability to service its legitimate customers�). In sum, the traditional underpinnings of the trespass to chattel doctrine support a reasonable reading of Thrifty-Tel, under which liability for trespass to chattel will not attach unless the plaintiff can demonstrate that his property has suffered at least temporary physical damage or disruption.

Against this legal backdrop, Intel has not even alleged that Mr. Hamidi�s e-mails physically disrupted Intel�s computer system. In fact, Intel has accused Mr. Hamidi of sending his e-mails �in the dead of night,� when Intel�s computer system presumably receives significantly less e-mail traffic than during the day. See Memorandum of Points and Authorities for Intel�s Motion for Summary Judgment, p. 3. Assuming the veracity of Intel�s allegations, on six occasions over a nearly two-year period, many Intel employees simply had one additional e-mail from Mr. Hamidi sitting

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in their inboxes when they came to work in the morning. This hardly constitutes physical disruption to Intel�s computer system, and consequently Intel should not be permitted to maintain an action for trespass to chattel against Mr. Hamidi.

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D.               The Trial Court Misunderstood the Foundations of the Trespass to Chattel Doctrine.

The trial court below extended the trespass to chattel doctrine in a wholly unprecedented manner. The trial court made no finding of physical damage or disruption to Intel�s computer system. Rather, the trial court claimed that Intel had been injured by �diminished employee productivity, and in devoting company resources to blocking efforts and to addressing employees about Hamidi�s e-mails.� Hamidi, 1999 WL 450944, at *2. The trial court then concluded, citing no authority, that �[t]hese injuries, which impair the value to Intel of its e-mail system, are sufficient to support a cause of action for trespass to chattels.� Id. In other words, the trial court created a trespass to chattel doctrine that completely ignores the physical status of the chattel itself.

As explained above, this interpretation of the trespass to chattel doctrine contradicts both the Restatement and every judicial decision that has applied the trespass to chattel doctrine in the e-mail context. See supra section II.C. Ironically, the trial court�s own parenthetical explanations of Thrifty-Tel and CompuServe demonstrate the trial

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court�s error. See Hamidi, 1999 WL 450944, at *2 (explaining that in Thrifty-Tel, the telephone system was �overburdened so that some subscribers [were] denied access to phone lines,� and explaining that in CompuServe, defendants� e-mailings �drain[ed] disk space and processing power [that] deprive[d] customers from those resources�).

The trial court�s definition of �injury� not only ignores legal precedent, but also is illogical. Surely the fact that Intel �devot[ed] company resources to blocking efforts� cannot be the basis for finding a trespass. Otherwise, the trespass would be based on the circular reasoning that if Intel incurs costs in trying to stop a particular activity, that activity becomes a trespass because costs were incurred. Indeed, this logically flawed approach would lead to the bizarre result that Intel could �create� a trespass after-the-fact whenever it so desired.

Similarly, �diminished employee productivity� cannot logically be the basis for a trespass. Presumably, the trial court was referring to the time that employees spend reading and possibly reacting to Mr. Hamidi�s e-mails. It is noteworthy that Intel presented no evidence of this �diminished employee productivity,� other than a purely speculative footnote in its Motion for Preliminary Injunction. See Memorandum of Points and Authorities for Motion for Preliminary Injunction, p. 7 n.8. Nonetheless, if �diminished employee productivity� is the applicable standard, then every personal e-mail that an employee reads at work could constitute a trespass.

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This would be a particularly odd result given that Intel�s company policy permits �reasonable personal use� of the Internet. See Declaration of Kenneth True in Support of Intel Corporation�s Motion for Preliminary Injunction, Exhibit 1.

Finally, the fact that Intel �devot[ed] company resources . . . to addressing employees about Hamidi�s e-mails� cannot logically be the basis for finding a trespass. Again, it is worth noting that Intel presented no evidence of the number of employees who may have complained to management about Mr. Hamidi�s e-mails, nor how much �company resources� were expended addressing any complaints. Mr. Hamidi, however, asserts that only 450 recipients have responded to any of his e-mails requesting that they be deleted from future e-mailings, even though each message offered the recipients this option. See Memorandum of Points and Authorities in Opposition to Motion for Preliminary Injunction, p. 4. Regardless of these factual uncertainties, the proper legal test cannot be whether Intel devoted company resources to addressing its employees, because this would lead to the unwarranted result that any e-mail that generated an employee inquiry could constitute a trespass.

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III.                INTEL CAN ADEQUATELY PROTECT ITS VALID LEGAL INTERESTS WITHOUT MAINTAINING A TRESPASS ACTION AGAINST MR. HAMIDI.

Intel can adequately protect its legal interests without a trespass remedy. For instance, Intel might pursue a nuisance action against Mr. Hamidi. In fact, Intel did include a nuisance count in its complaint, but then quickly dropped this count when it appeared that the trial court would be receptive to the trespass claim. In light of the strict dichotomy between nuisance and trespass established by the Supreme Court of California in Wilson and San Diego Gas and Electric Co., Intel should be required to pursue a nuisance theory rather than a trespass claim.

Ultimately, though, the case at bar is a dispute about speech, and about the harm that speech may or may not cause when it is distributed to a wide audience. Therefore, if Intel believes that it has been harmed by Mr. Hamidi�s speech, Intel should pursue a legal remedy that is designed to address speech-based harms, such as a defamation action.

The Internet has spawned a developing body of defamation litigation, but plaintiffs have often been stymied by two separate factors. First, it is often difficult to identify the sender of a defamatory message. See, e.g. Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Ca. 1999) (observing that �[t]he tortfeasor can act pseudonymously or anonymously and may give fictitious or incomplete identifying

21

information�). And second, out-of-state defendants often successfully object to the exercise of personal jurisdiction. See, e.g., Jewish Defense Org., Inc. v. Superior Court, 72 Cal. App. 4th 1045 (1999). Here, however, Mr. Hamidi freely admits to sending e-mails to Intel employees, and he obviously does not object to jurisdiction. Thus, there is no technical barrier impeding Intel from pursuing a defamation action, other than its own unwillingness to do so.

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IV.               EVEN IF MR. HAMIDI HAS COMMITTED A TRESPASS, HIS FREE SPEECH RIGHTS SHOULD OUTWEIGH INTEL�S PROPERTY RIGHTS IN A JUDICICAL BALANCING TEST.

A.                The Judicial Enforcement of State Trespass Law Against Mr. Hamidi Constitutes State Action that Must Conform to Constitutional Standards.

The trial court demonstrated a fundamental misunderstanding of the state action doctrine. After engaging the merits of Mr. Hamidi�s federal and state constitutional free speech claims, the trial court concluded in the final paragraph of its opinion that �[t]hus, Hamidi�s argument as to state action involved in the issuance of injunctive relief is a non-issue.� Hamidi, 1999 WL 450944, at *3. In other words, the trial court apparently believes that the state action question should be determined after engaging the merits of a free speech controversy; and furthermore, that the merits of the controversy somehow dictate the answer to the state action question.

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The trial court�s analysis, however, is exactly backwards. It is axiomatic that the existence or non-existence of state action is a threshold question that must be determined before engaging the merits of a constitutional free speech challenge. See, e.g., Cohen v. Cowles Media Co., 501 U.S. 663, 668 (1991) (�The initial question we face is whether a private cause of action for promissory estoppel involves �state action� within the meaning of the Fourteenth Amendment such that the protections of the First Amendment are triggered. For if it does not, then the First Amendment has no bearing on this case.�). Therefore, if this Court decides to break new legal ground by holding that Mr. Hamidi has trespassed on Intel�s computer system, then the first question for the Court is whether the issuance of an injunction against Mr. Hamidi constitutes state action that must conform to constitutional standards.

The answer to that question is an emphatic yes. This conclusion follows directly from the U.S. Supreme Court�s clear rule that the judicial enforcement of state law in a manner alleged to restrict First Amendment freedoms constitutes state action. The Court first laid down this rule in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), in which the only state action was judicial enforcement of state libel law in the context of a civil action between private parties, yet the Court quickly disposed of the state action issue by announcing that �[t]he test

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is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised.� Id. at 265.

The Court has reaffirmed this rule not only in subsequent libel actions, see, e.g., Philadelphia Newspapers, Inc. v. Hepps, 475 U.S.767, 777 (1986), but also in other contexts dealing with neutrally-applied laws that do not bear directly on speech. For example, the Court has found state action in the judicial enforcement of state common law tort liability for malicious interference with plaintiff�s businesses. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 n.51 (1982) (�Although this is a civil lawsuit between private parties, the application of state rules of law by the Mississippi state courts in a manner alleged to restrict First Amendment freedoms constitutes �state action� under the [Constitution].�) Perhaps the strongest statement of the rule is found in Cohen v. Cowles Media Co., 501 U.S. 663 (1991), in which the Court held that the enforcement of state promissory estoppel law constituted state action:

The initial question we face is whether a private cause of action for promissory estoppel involves �state action� within the meaning of the [Constitution] such that the protections of the First Amendment are triggered. For if it does not, then the First Amendment has no bearing on this case. The rationale of our decision in New York Times Co. v. Sullivan and subsequent cases compels the conclusion that there is state action here. Our cases teach that the application of state rules of law in state courts in a manner alleged to restrict First Amendment freedoms constitutes �state action� under the [Constitution]. . . .

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These legal obligations would be enforced through the official power of the Minnesota courts. Under our cases, that is enough to constitute �state action� for the purposes of the [Constitution].

Id. at 668 (citations omitted).

Furthermore, the Court�s analysis in Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980), confirms that this principle applies in the instant case. In Pruneyard, the Court affirmed the Supreme Court of California�s holding that high school students soliciting signatures had a right under the California Constitution to be on the grounds of a privately-owned shopping center. See id. at 88. Pruneyard thus involved a clash between California state trespass law and state constitutional free speech rights -- just as in the instant case. Yet the U.S. Supreme Court did not even question the existence of state action: nowhere in the Court�s opinion do the words �state action� or �state actor� even appear. Indeed, the enforcement of state trespass law so obviously involves state action that the Pruneyard Court did not even see the need to mention it. See, e.g., Paul Brest, State Action and Liberal Theory: A Casenote on Flagg Brothers v. Brooks, 130 U. Pa. L. Rev. 1296, 1321 (1982) (noting that the state action in Pruneyard �was nothing more than a state property rule�). Likewise, the enforcement of California state trespass law against Mr. Hamidi

25

constitutes state action, and therefore it must conform to state and federal constitutional standards. 25

B.               Mr. Hamidi�s E-mails Are Speech of Public Concern, and Therefore Entitled to Strong Constitutional Protection.

The next inquiry for this Court after disposing of the state action question is determining the nature of Mr. Hamidi�s speech. The U.S. Supreme Court has established an important dichotomy between private speech and speech of public concern that largely determines the degree of constitutional protection. The Court has explained that reduced constitutional protection attaches to private speech, which is defined as speech that does not involve a matter of public concern. See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759 - 61 (1985). In contrast, speech of public concern lies �at the heart of First Amendment protection.� Id. at 758 - 59; see also Claiborne Hardware Co., 458 U.S. at 913 (recognizing that expression on public issues �has always rested on the highest rung of the hierarchy of First Amendment values�). In order to distinguish between private speech and speech of public concern, courts should examine the �content, form, and context� of the speech at issue. Dun & Bradstreet, 472 U.S. at 761 (quoting Connick v. Myers, 461 U.S. 138, 147 - 48 (1983).

The �content, form, and context� of Mr. Hamidi�s speech demonstrate that it is speech of public concern, and therefore entitled to strong

26

constitutional protection. First, the public has an interest in the content of Mr. Hamidi�s speech, because alleged pervasive employment discrimination at a giant corporation such as Intel is clearly a topic of public concern. Furthermore, portions of Mr. Hamidi�s most recent e-mail message address proposed federal legislation, which is obviously a topic of public concern. See Declaration of Kenneth True in Support of Intel Corporation�s Motion for Preliminary Injunction, Exhibit 2. Second, because it is in the form of mass distributed e-mails, Mr. Hamidi�s speech targets a large audience and is therefore unlike typical private speech. See, e.g., Dun & Bradstreet, 472 U.S. at 762; Connick, 461 U.S. at 141. Third, Mr. Hamidi�s speech is in the context of a general critique of Intel�s employment practices and not in the narrow context of a current individual employment dispute. See, e.g., Connick, 461 U.S. at 153 - 54. Finally, although Mr. Hamidi�s e-mails are controversial and at times abrasive, it is important to remember that controversial viewpoints are the essence of First Amendment expression. See, e.g., McIntyre v. Ohio Elections Comm�n, 514 U.S. 334, 347 (1995).

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C.               Under the Narrow Circumstances of This Case, Mr. Hamidi�s Free Speech Rights Should Outweigh Intel�s Property Rights in Its Computer System.

As the trial court noted, Mr. Hamidi has asserted both federal and state constitutional free speech rights. See Hamidi, 1999 WL 450944,

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at *2. It is well-established that the California Constitution provides greater free speech protection than the federal First Amendment. See, e.g., Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899, 910 (1979). In fact, one lesson of Pruneyard is that in California, a speaker generally occupies a preferred position over a private property owner when such property has been opened to the public. See id. at 910 - 11.

Arguably, then, Mr. Hamidi�s state constitutional claim should prevail because Intel has opened its employee e-mail inboxes to the public. By voluntarily connecting its computer system to the Internet, Intel obviously wants to take advantage of the tremendous communicative power of cyberspace. Because of this voluntary decision, Intel is now at least a passive participant in the �new marketplace of ideas,� Reno, 521 U.S. at 885, and cannot expect to control every message that crosses the border from the Internet into its employees� e-mail inboxes. Not only is this technologically impossible (as this litigation aptly demonstrates), but Intel�s own policies permit �reasonable personal use� of the Internet, which includes receiving unsolicited e-mails.

Nevertheless, the ultimate question for this Court is how properly to balance the litigants� competing interests in this case. See, e.g., Pruneyard, 23 Cal. 3d at 905 - 911. On one side of the scale, Mr. Hamidi possesses a strong legal interest in being permitted to send his messages without court interference. As noted above, his e-mails

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fall within the definition of speech of public concern, which the federal First Amendment is designed to protect. See supra section IV.B. Furthermore, Mr. Hamidi�s messages are tailored for Intel employees; the Internet enables him to disseminate his messages via e-mail in the most effective and efficient method possible. In fact, Mr. Hamidi is simply playing the role of a cyberspace �town crier� or �pamphleteer� celebrated by the U.S. Supreme Court. Reno, 521 U.S. at 870. Although alternative avenues of communication may exist through which Mr. Hamidi could broadcast his message, such as the FACE-Intel webpage, the Supreme Court has explained that content-based speech restrictions in cyberspace cannot be justified by the suggestion that the speaker can disseminate his message elsewhere on the Internet. See id. at 880. Here, Intel�s response to Mr. Hamidi�s messages is clearly a content-based restriction, both because Intel�s censorship of Mr. Hamidi is not consistent with any content-neutral company policy and because Intel has made no secret of its displeasure with the content of Mr. Hamidi�s messages. See, e.g., Declaration of Kourosh Kenneth Hamidi in Opposition to Plaintiff�s Motion for Summary Judgment, Exhibits A - I.

On the other side of the scale, Intel�s legal interest in protecting its private property by censoring Mr. Hamidi�s speech is not particularly compelling. Mr. Hamidi�s messages did not disrupt the proper functioning of Intel�s computer system in any way. Nor has Intel

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produced any specific evidence of alleged non-physical disruption, such as diminished employee productivity. It is also important to recognize that, taking Intel�s allegations as true, Mr. Hamidi sent only six messages to Intel employees over a nearly two year period. Therefore, approximately once every four months, many employees simply had one additional e-mail sitting in their inboxes when they arrived at work in the morning. It is difficult to square this fact with Intel�s alarmist response to Mr. Hamidi�s behavior. Furthermore, Intel employees had the option of deleting themselves from Mr. Hamidi�s e-mailings, but apparently only 450 chose to do so. Finally, requiring an employee simply to erase an unwanted message -- which takes only a single mouse click or keystroke -- is an acceptable burden to bear in the interests of free speech. Cf., e.g., Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 72 (1983) (striking down prohibition on unsolicited mailing of contraceptive advertisements, based on the logic that �the short, though regular, journey from mail box to trash can . . . is an acceptable burden, at least so far as the Constitution is concerned�).

In sum, Intel should not be permitted to silence Mr. Hamidi with the blunt instrument of state trespass law. As one commentator has put it:

Ultimately, Intel wants to enjoy all the benefits of Internet communication without having to shoulder any of its burdens.

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Benefits rarely come without costs -- and if Intel believes that the benefits derived from connecting its computer system to the Internet are outweighed by the costs of tolerating free expression, then Intel should employ its own self-help measures to counter unwanted speech rather than ask the state to countenance censorship. Indeed, it is ironic that a technological giant such as Intel, which has helped to usher in and has greatly benefited from the cyberspace age, now expects the state to protect it from a creature of its own making. The irony is only heightened by Intel�s adversary, a poorly financed army of one. As a policy matter, Intel might argue that a decision in favor of Hamidi would set a bad precedent because it would open the floodgates for others, including commercial spammers, to inundate private computer systems with mass e-mailings. This argument, however, is meritless. The logic of a decision in favor of Hamidi would not apply to commercial spammers, but instead would be based on a careful balancing of the competing rights in Hamidi�s case. Furthermore, by no means would a ruling against Intel �imply that those who wish to disseminate ideas have free rein,� Pruneyard, 23 Cal. 3d at 910; rather, Hamidi�s expressive activity would continue to be bound by the requirement that it not unduly interfere with the business functions of Intel�s computer system.

Developments in the Law -- The Law of Cyberspace, 112 Harv. L. Rev. 1574, 1633 - 34 (1999). With the Internet still in its infancy, the resolution of this case will have a crucial long-term impact on the free speech landscape of cyberspace. This Court should make a positive contribution to that future by holding that California state trespass law cannot be used to silence Mr. Hamidi.

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CONCLUSION

For the foregoing reasons, Appellant respectfully requests that this Court reverse the judgment of the trial court granting Appellee permanent injunctive relief.

Dated: January 18, 2000



By:   Signed by Deborah Pierce

      Deborah Pierce, SBN 190936

      Electronic Frontier Foundation

      1550 Bryant Street, Suite 725

       San Francisco, CA 90134

       (415) 436-9333

       dsp@eff.org

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