EFF Amicus Curiae Letter to CA Supreme Court

in Intel v. Hamidi (Feb. 1, 2002)

[A better HTMLization of this is coming soon.]

Intel v. Hamidi (Case No. S103781)	1	Letter of Amicus EFF

								February 1, 2002

Honorable Ronald M. George, Chief Justice
  and the Associate Justices
Supreme Court of California
350 McAllister Street
San Francisco, CA 94102-4783

	Re:  Intel Corp. v. Hamidi, (2001) 94 Cal.App. 4th 325
	California Supreme Court No. S103781
	(Third District Court of Appeal No. C033076)

Dear Chief Justice George and Associate Justices:

This letter of amicus curiae in support of a petition for 
review is respectfully submitted by the Electronic Frontier 

I.	The Nature of the Applicant’s Interest

The Electronic Frontier Foundation (“EFF”) is a non-
profit, civil liberties group working to protect rights in the 
digital world.  EFF is based in San Francisco with members 
all over the United States, and maintains one of the most-
linked-to Web sites (http://www.eff.org) in the world.  EFF 
encourages and challenges industry and government to 
support free expression, privacy, and openness in the 
information society.  EFF has litigated and filed amicus briefs 
in many Internet cases.  Thus, EFF’s interest in this case.  

II.	Why This Court Should Grant Review

The facts of the case are simple:  After defendant 
Kourosh Kenneth Hamidi was fired by plaintiff Intel 
Corporation (“Intel”), he sought to communicate with Intel 
employees at their Intel e-mail addresses.  On six occasions, 
he sent e-mail to thousands of Intel employees.  Intel 
demanded that Hamidi stop, but he refused.  Intel sought, and 
ultimately received, an injunction prohibiting Hamidi from 
sending e-mail to Intel employees at their Intel e-mail 
addresses, based on the common-law tort of trespass to 

Despite the apparent simplicity of these facts, however -- 
a company seeking to stop unwanted e-mail from a former 
employee -- this case now has important implications for the 
future of the Internet as a medium of free speech and of 

On the surface, the decision of the Court of Appeal 
injures the freedom of speech guaranteed by both the federal 
and state constitutions by upholding an injunction against 
protected speech.   

But that result is not the most egregious aspect of this 
case.  The free speech issue should never have been reached.  
The Court of Appeal majority only reached this constitutional 
issue by unnecessarily and unjustifiably distorting the ancient 
doctrine of trespass to chattels by removing any requirement 
of actual physical damage to the chattel.  The majority 
ignored crucial differences between property in land and in 
chattels that have been emphasized by this Court.  As a result, 
under the majority’s analysis any unwanted electronic signal 
to an electronic device -- an e-mail message, even a click on a 
hyperlink -- can create tort liability.  In so doing, the Court of 
Appeal not only committed serious legal errors that require 
correction, but resolved this case without considering the 
likely effects of its interpretation on speech and commerce on 
the Internet.

Given the inconvenience and annoyance of unwanted e-
mail to computer network administrators and computer users, 
the desire to reduce it is understandable.[1]  But the majority’s 
analysis not only leads to a wrong outcome in this case but 
also creates an unnecessary new tort that threatens the free 
flow of information on the Internet.  Put simply, the 
majority’s cure is far worse than the disease. 

A.	The Court of Appeal erroneously distorted the 
doctrine of trespass to chattels.

Had the Court of Appeal simply followed the law, this 
case would be unremarkable.  Intel would have no cause of 
action, because Hamidi’s e-mails did not physically damage 
Intel’s computers or impair their condition, quality, or value.  
Nor was Intel dispossessed of its computers in any way.  

In order to uphold the injunction against Hamidi’s 
speech, however, the majority wrongly extended the doctrine 
of trespass to chattels.  The majority’s fundamental errors 
were to conflate real and personal property, and the physical 
with the electronic, online world.  Intel’s e-mail servers are 
personal, not real, property, and the contacts at issue are 
online, electronic contacts.  A chattel owner’s interest in the 
inviolability of a chattel has always been deemed weaker than 
a landowner’s interest in the inviolability of land.  Yet the 
majority invokes the notion of “trespass” to “private property” 
as though Hamidi had physically entered Intel’s land and 
damaged Intel’s servers.  

Indeed, even if Intel’s servers were considered real 
property, no trespass action would lie.  As this Court has held, 
even recovery for trespass to land must be "predicated upon 
the deposit of particulate matter upon the plaintiffs' property 
or on actual physical damage thereto. . . . All intangible 
intrusions, such as noise, odor, or light alone, are dealt with as 
nuisance cases, not trespass." (San Diego Gas & Electric Co. 
v. Superior Court (1996) 13 Cal.4th 893, 936, quoting Wilson 
v. Interlake Steel Co. (1982) 32 Cal.3d 229, 232-233 
(citations omitted).)  Thus, the Court of Appeal actually 
extended the reach of trespass to chattels beyond that of 
trespass to land.

1.	Under California law, trespass to chattels 
requires significant physical harm to the 

The tort of trespass to chattels “lies where an intentional 
interference with the possession of personal property has 
proximately caused injury.” (Thrifty-Tel, Inc. v. Bezenek 
(1996) 46 Cal.App.4th 1559, 1566 (fn. omitted); see 
RESTATEMENT (SECOND) OF TORTS (1977) § 217 cmt. e 
(liability only if “intermeddling is harmful to the possessor’s 
materially valuable interest in the physical condition, quality, 
or value of the chattel”).) The only exceptions were for loss of 
possession, which was deemed to constitute actual damage, or 
harm to some person or thing in which the possessor has a 
legally protected interest.  

In Thrifty-Tel, electronic signals generated by computers 
that minors used to access plaintiff's telephone system 
overburdened plaintiff’s telephone system, denying some 
subscribers access to phone lines.  (Id. at 1564.)  In this 
context, the electronic signals were deemed sufficiently 
tangible to maintain action for trespass to chattels.    

Thus, the majority opinion distorts trespass to chattels in 
a basic but crucial way:  it effectively eliminates the 
traditional requirement that the chattel (or the owner’s 
possession thereof) itself be significantly harmed by the 
defendant’s physical contact with the chattel.  As Judge 
Kolkey noted in dissent, the majority either eliminated any 
requirement of actual injury or treated the time spent reading 
and blocking unwanted e-mail as “actual injury” -- neither of 
which is consistent with California law.  (Hamidi, 94 
Cal.App.4th at 344, 347-348 (Kolkey, J., dissenting).)

To be sure, the Court of Appeal did not take the first step 
in this direction.  It relied on Thrifty-Tel to eliminate the 
requirement of actual physical contact with the chattel.  But 
the reasoning of Thrifty-Tel is dubious to begin with.  The 
authorities it relied on involved trespass to land, not trespass 
to chattels.  (Burk (2000) The Trouble with Trespass, 4 J. 
SMALL & EMERGING BUS. L. 27, 33 (“The Thrifty-Tel opinion 
blithely glosses over this distinction, noting simply that both 
legal theories share a common ancestry”); id. at n.52 (citing 

An owner’s interest in the “inviolability” of personal 
property is far weaker than that for real property.  (PROSSER 
AND KEETON ON TORTS (5th ed.1984) § 14, p. 87 (fns. 
omitted) (“the dignitary interest in the violability of chattels, 
unlike that as to land, is not sufficiently important to require 
any greater defense than the privilege of using reasonable 
force when necessary to protect them”); REST.2D TORTS, 
§ 218, cmt. e ("The interest of a possessor of a chattel in 
its inviolability, unlike the similar interest of a possessor of 
land, is not given legal protection by an action for nominal 
damages for harmless intermeddlings with the chattel”).)    

Moreover, electronic trespasses are not like physical 
trespasses; they lack “the immediacy and opportunity for 
physical confrontation that provides a policy basis for the 
trespass cause of action.”  (O’Rourke, Shaping Competition 
on the Internet:  Who Owns Pricing Information (2000) 53 
VAND.L.REV. 1965, 1994.)   Accordingly, the social interest 
in protecting against virtual trespass that causes no damage is 
weaker than that for physical trespass, whether to land or 

But while Thrifty-Tel distorted the traditional meaning of 
“physical” contact with the chattel to include electronic 
signals (46 Cal.App.4th at 1566 n. 6), in itself that extension 
was less fateful because Thrifty-Tel still required actual injury 
to the chattel, either to its value or operation.  (Id. at 1567 
(noting that “migrating intangibles . . . may result in a 
trespass, provided they do not simply impede an owner’s use 
or enjoyment of property, but cause damage”); id. at 1568-
1569 (denying recovery for first trespass where plaintiff failed 
to mitigate damages); id. at 1569-1570 (requiring plaintiff to 
prove actual damages in order to recover under trespass to 
chattels theory).)    

Here, there admittedly is no such harm.  Rather than 
follow Thrifty-Tel, however, the majority relied on two other, 
consequential harms:  “loss of productivity caused by the 
thousands of employees distracted from their work and by the 
time its security department spent trying to halt the 
distractions after Hamidi refused to respect Intel's request to 
stop invading its internal, proprietary e-mail system.”  
(Hamidi, 94 Cal.App.4th at 333.)  In short, the majority went 
beyond Thrifty-Tel.  

As Judge Kolkey noted, “it is circular to premise the 
damage element of a tort solely upon the steps taken to 
prevent the damage.   Injury can only be established by the 
completed tort's consequences, not by the cost of the steps 
taken to avoid the injury and prevent the tort; otherwise, we 
can create injury for every supposed tort.”  (Id. at 348 
(Kolkey, J., dissenting).)  

The majority appeared to believe that Hamidi’s e-mails 
caused some physical disruption to Intel’s e-mail system, 
saying that Hamidi should not be allowed to “flood Intel’s 
system to the penultimate extent before causing a computer 
crash.”  (Id. at 335.)  But nothing remotely resembling a 
“computer crash” occurred, and nothing in the record even 
suggests that the computer systems were or ever would be 
overloaded by Hamidi’s e-mails.  Hamidi simply wanted to 
communicate with Intel employees.  As one commentator 
noted, “[t]he trouble that the [Intel] employees are addressing 
is not that the computer systems are functioning improperly, 
but rather that they are functioning properly, receiving 
transmitted bits precisely as they were designed and intended 
to do.”  (Burk, supra, 4 J. SMALL & EMERGING BUS. L. at 36.)  

Judge Kolkey also noted: “Nor can a loss of employees' 
productivity (by having to read an unwanted e- mail on six 
different occasions over a nearly two-year period) qualify as 
injury of the type that gives rise to a trespass to chattel. . . .  
Reading an e-mail transmitted to equipment designed to 
receive it, in and of itself, does not affect the possessory 
interest in the equipment.”  (Hamidi, 94 Cal.App.4th at 348 
(Kolkey, J., dissenting).)  “No case goes so far as to hold that 
reading an unsolicited message transmitted to a computer 
screen constitutes an injury that forms the basis for trespass to 
chattel.”  (Ibid.)  In every modern trespass to chattels case, 
there arguably was a significant effect upon the owner’s 
possessory interest.  

Even in actions for trespass to land, such harm is 
insufficient.  In Wilson, supra, the plaintiffs’ use and 
enjoyment of their property was substantially disrupted by 
noise emanating from defendant’s plant; the noise lowered the 
market value of their homes, but did not cause any physical 
damage.  This Court made clear that trespass to land requires 
“the deposit of particulate matter upon the plaintiffs’ property 
or actual physical damage thereto. . . .  actionable trespass 
may not be predicated upon nondamaging noise, odor, or light 
intrusion.”  (32 Cal.3d. at 232-233 (citations omitted).)  

This Court reiterated this principle in San Diego Gas, 
supra, where the plaintiffs alleged that electric and magnetic 
fields rendered their property “unsafe and uninhabitable.” (13 
Cal.4th at 937.)  Explaining that this allegation referred only 
to “a risk of personal harm to its occupants, which is 
manifestly different from damage to the property itself” (Ibid 
(emphasis in original).), this Court rejected the attempt to 
characterize loss of market value as physical damage:  “A 
diminution in property value . . . is not a type of physical 
damage to the property itself, but an element of the measure 
of damages when such damage is otherwise proved.”  (Ibid 
(emphasis in original).)  

Clearly, the harms on which the majority here relied are 
directly analogous to the harms that this Court has clearly 
rejected in trespass to land cases.  As a result, the Court of 
Appeal’s distortion of trespass to chattels doctrine gives 
chattel owners more protection than land owners.   

The majority also sought to evade the requirement of 
actual injury to the chattel by noting that Intel sought an 
injunction, not damages.  But as Judge Kolkey cogently 
observed, “[t]he fact the relief sought is injunctive does not 
excuse a showing of injury, whether actual or threatened. . . .  
The majority therefore cannot avoid the element of injury by 
relying on the fact that injunctive relief is sought here.”  
(Hamidi, 94 Cal.App.4th at 347 (Kolkey, J., dissenting).)  
Moreover, the issuance of injunctive relief traditionally 
requires consideration of the public interest, which, as shown 
below, militates strongly against the injunction here.

In short, the majority conflated electronic trespass to 
chattels with physical trespass to chattels, then with physical 
trespass to land -- and then went even further.  Now, 
whenever electronic signals impinge upon a device without 
the owner’s consent, trespass to chattels may be invoked 
simply by giving notice to the sender of the signals.  

2.	The Court of Appeals’ distortion of trespass-
to-chattels doctrine threatens the Internet.

Judge Kolkey said in dissent that “[t]o apply this tort to 
electronic signals that do not damage or interfere with the 
value or operation of the chattel would expand the tort of 
trespass to chattel in untold ways and to unanticipated 
circumstances.”  (Id. at 345; id. at 348 (“if a chattel's receipt 
of an electronic communication constitutes a trespass to that 
chattel, then not only are unsolicited telephone calls and faxes 
trespasses to chattel, but unwelcome radio waves and 
television signals also constitute a trespass to chattel every 
time the viewer inadvertently sees or hears the unwanted 

Judge Kolkey was right; the majority’s approach creates 
enormous problems for the Internet and other forms of 
electronic communication.  First, as an architectural matter, 
the majority’s approach would transform many commonly 
accepted Internet activities into potential trespasses.  An 
example is the activities of search engines like Google, which 
automatically “crawl” websites, indexing the information 
contained there.  Under the majority’s approach, any website 
owner may simply inform a search engine that it may not 
“browse” his or her website -- or even post a “no trespassing” 
sign on its website -- making any subsequent “contact” by the 
search engine a trespass without any damage.  

Similarly, trespass to chattels poses a threat to linking.  
Under the majority’s approach, any website could post a “no 
linking” sign.  Although the law is unsettled as to whether 
websites have any legal right to prohibit unauthorized links, 
the majority’s extension of trespass to chattels doctrine would 
make the unwitting user who clicks on an unauthorized link a 
trespasser.  (See Caffarelli, Note, Crossing Virtual Lines:  
Trespass on the Internet (1999), 5 B.U.J. SCI. & TECH. L. 6, 
26-27 (noting that visiting and copying data from author’s 
website could potentially qualify as trespass).)  That the 
websites being searched or linked to were publicly accessible 
would make no difference under the majority’s approach; 
after all, anyone can send e-mail to Intel’s e-mail servers.  

Both search engines and links are critical to the Internet.  
Because the Internet is so vast, only search engines give users 
the ability to find information of interest to them easily and 
quickly.  Meanwhile, “the ability to link from one computer to 
another, from one document to another . . . regardless of its 
status or physical location is what makes the Web unique.”  
(ACLU v. Reno (E.D. Pa. 1999) 31 F.Supp.2d 473, 483, aff’d 
(3d Cir. 2000) 217 F.3d 162, cert. granted sub nom. ACLU v. 
Ashcroft (2001) 121 S.Ct. 1997, argued, Nov. 28, 2001.)  
Requiring permission to link, the predictable outcome of 
creating a cause of action for unauthorized linking, would 
fundamentally alter the character of the Internet.

Moreover, such changes in the Internet’s architecture are 
likely to have significant consequences for competition.  In 
two federal cases, trespass to chattels has been used to prevent 
firms from aggregating price information.  (Register.com, Inc. 
v. Verio, Inc. (S.D.N.Y.2000) 126 F.Supp.2d 238, 250; eBay, 
Inc. v. Bidder's Edge, Inc. (N.D.Cal. 2000) 100 F.Supp.2d 
1058, 1066, 1071.)  Company control over the dissemination 
of price information for products sold on the open market 
harms competition.  

Unsurprisingly, several law review articles have 
criticized the application of this distorted trespass to chattels 
doctrine to the Internet.  (O’Rourke, Property Rights and 
Competition on the Internet: In Search of An Appropriate 
Analogy (2001) 16 BERKELEY TECH. L.J. 561 (criticizing 
distortion of trespass to chattels in Register.com and eBay); 
Ballantine, Note: Computer Network Trespasses: Solving New 
Problems with Old Solutions (2000) 57 WASH & LEE L. REV. 
209, 248 (“failure to allege or to support a showing of actual 
harm should have precluded Intel from prevailing on a 
trespass to chattels theory”); Burk, supra, 4 J. SMALL & 
EMERGING BUS. L. at 39-54; Developments in the Law -- The 
Law of Cyberspace (1999) 112 HARV. L. REV. 1574, 1622-34 
(“Developments”); cf. Warner, Border Disputes:  Trespass to 
Chattels on the Internet (2002) 47 VILL. L. REV. 117 (arguing 
for modified form of trespass to chattels but not discussing 

B.	The Court of Appeals erroneously decided that the 
injunction did not infringe Hamidi’s right to free 

These problems are only exacerbated given that many of 
the activities affected by trespass to chattels in cyberspace are 
speech activities.  Developments, supra, 112 HARV. L. REV. at 
1628 (“plaintiffs are aggressively using the theory of 
electronic trespass to block unwanted speech”).  Search 
engines and links are often used for academic, research, 
cultural and political purposes.  Hamidi was exercising his 
right to free speech; his sending e-mail to Intel employees at 
their Intel e-mail addresses was protected “peaceful 
pamphleteering.”  (See Organization for a Better Austin v. 
Keefe (1971) 402 U.S. 415, 419  (“peaceful pamphleteering is 
a form of communication protected by the First Amendment . 
. . so long as the means are peaceful, the communication need 
not meet standards of acceptability”).)

Thus, after distorting a sound common-law doctrine 
limited to the protection of possessory interests, the majority 
was forced to consider the consequences of its reasoning:  
upholding a judicial order prohibiting Hamidi’s speech.  It is 
no accident that the majority devotes nearly half of its opinion 
to an attempt to explain why a judicial prohibition on sending 
e-mail does not violate Hamidi’s right to free speech under 
both the federal and state constitutions.  

1.	The Court of Appeal wrongly concluded that 
the injunction does not implicate the First 

The majority found that “this lawsuit does not implicate 
federal constitutional rights, for lack of state action.”  
(Hamidi, 94 Cal.App.4th at 337.)  This decision was 
erroneous as a matter of law, because the Court of Appeal 
misunderstood the underlying law of First Amendment limits 
on state authority.
Judicial action aimed at restricting speech generally 
triggers constitutional scrutiny, even when the government is 
not a party.  Defamation cases are the most obvious example.  
As the U.S. Supreme Court said,

    Although this is a civil lawsuit between private parties, the 
    Alabama court have applied a state rule of law which 
    petitioners claim to impose invalid restrictions on their 
    constitutional freedoms of speech and press. It matters not
    that that law has been applied in a civil action and that it is 
    common law only, though supplemented by statute. . . . The 
    test is not the form in which state power has been applied
    but, whatever the form, whether such power has in fact been 

(New York Times v. Sullivan (1964) 376 U.S. 254, 265 
(citations omitted).)

The principle is not confined to defamation.  (See, e.g., 
Hustler Magazine, Inc. v. Falwell (1988) 485 U.S. 46, 50, 56 
(liability for intentional infliction of emotional distress must 
take into account First Amendment standards); NAACP v. 
Claiborne Hardware Co.  (1982) 458 U.S. 886; Keefe, supra; 
Blatty v. New York Times Co. (1986) 42 Cal.3d 1033.)  

To distinguish this well-settled line of cases, the Court of 
Appeals seized upon doubt about the state action doctrine as 
expressed in Shelley v. Kraemer (1947) 334 U.S. 1.  But 
Shelley was not a First Amendment case.  The rule of 
Sullivan and its progeny is not about “classic” state action and 
is not related to the “governmental function” reasoning of 
Marsh v. Alabama (1946) 326 U.S. 501, 502 (addressing 
criminal liability of individual who “undertakes to distribute 
religious literature on the premises of a company-owned 
Rather, it is about First Amendment limitations on state 
or common law.  (E.g., Hustler, supra, 485 U.S. at 50 
(referring to “First Amendment limitations upon a State’s 
authority to protect its citizens from the intentional infliction 
of emotional distress”).)  The central concern of these cases is 
to create “breathing space” for individual speech.  (Id. at 52.)  
Put simply, states may not ignore the effects of their laws on 
First Amendment liberties, even when these laws are invoked 
by private parties to protect private rights.

Much of the majority’s reasoning talismanically invokes 
the notion of “private property.”  (Hamidi, 94 Cal.App.4th at 
339 (distinguishing Claiborne Hardware, Keefe, and Blatty as 
involving “private tort actions,” not “private property”).)  But 
there is nothing magical about “private property” in the 
speech context.[2]  That something may be labeled private 
property does not eliminate First Amendment considerations.  
The U.S. Supreme Court’s accommodation of private property 
and free speech carefully balanced the property rights of a 
shopping center owner against the rights of leafleters -- with 
no mention of state action at all. (Pruneyard Shopping Center 
v. Robins (1980) 447 U.S. 74, 88.)  Copyright law, which 
creates a species of private property in information, is 
bounded by the First Amendment in at least two ways:  the 
idea-expression dichotomy, and the fair use doctrine.  The fair 
use doctrine allows a form of “trespass” onto another’s private 
informational property.  Similarly, the state right of publicity 
is bounded by the First Amendment.  (Comedy III 
Productions, Inc. v. Saderup (2001) 25 Cal.4th 387.)  

Finally, the Court of Appeal reasoned that trespass cases 
are unlike defamation cases because the latter cases “pit 
common law rights protecting reputation against the 
constitutional right of a newspaper to publish,” while in the 
former cases “the speaker’s rights are pitted against a property 
owner’s rights -- of at least equal constitutional force.”  
(Hamidi, 94 Cal.App.4th at 337.)  

This distinction makes no difference here.  That a 
property owner has constitutional rights is not in doubt.  But 
the quality of the rights at stake implicates only the question 
of how such rights should be balanced, not the question of 
whether judicial enforcement of those rights implicates the 
First Amendment at all.  The U.S. Supreme Court confirmed 
this point in holding that a landowner has no Fifth 
Amendment takings claim against a state-created right to 
speak on private property.  (Pruneyard, 447 U.S. at 82-88; cf. 
Nebraska Press Ass’n v. Stuart (1976) 427 U.S. 539 (judicial 
gag order intended to protect criminal defendant’s Sixth 
Amendment right to a fair trial found to be invalid prior 

2.	The Court of Appeals wrongly concluded that 
state action was lacking under the California 

The majority also erred in finding that the injunction did 
not implicate the state constitutional right of free speech.[3]  
The majority used the rule:  “actions to halt expressive 
activity on one’s private property do not contravene the 
California Constitution unless the property is freely open to 
the public.”  (Hamidi, 94 Cal.App.4th at 341, citing Golden 
Gateway Center v. Golden Gateway Tenants Association 
(2001) 26 Cal.4th 1013, 1033; id. at 1036.)  It then assessed 
Intel’s e-mail servers in terms of the public forum doctrine.

Here again the majority elides the distinctions between 
“virtual” and physical property and between chattels and land.   
Tellingly, the majority says that “Intel is as much entitled to 
control its e-mail system as it is to guard its factories and 
hallways.”  (Hamidi, 94 Cal.App.4th at 342.)  Golden 
Gateway and its predecessor, Robins v. Pruneyard Shopping 
Center (1979) 23 Cal.3d 899, aff’d. sub nom. Pruneyard, 
supra, are cases involving property in land.  This case is about 
trespass to chattels, not trespass to land.  

The majority compounds its error by analyzing the 
speech issues in terms of the public forum doctrine.  The 
question is not, however, whether Intel’s e-mail servers can be 
deemed a public forum; EFF does not claim that they are a 
public forum.  Rather, EFF claims that state or common-law 
doctrines underlying such judicial relief must provide 
breathing space for free speech, and that judicial action that 
restrains communications based on the content of those 
communications requires speech scrutiny.  

Thus, even assuming that trespass to chattels can be 
applied in this case, the Court of Appeals completely failed to 
address the free speech issues and for this reason alone this 
case should be reviewed by this Court.[4]  

III.	Conclusion

The Court of Appeal first distorted trespass to chattels 
doctrine and was then forced into constitutional terrain that it 
should not have entered in the first place.  In neither step did 
the Court of Appeal manifest any recognition of the potential 
effects of its reasoning on commerce and speech over the 
Internet.  The petition for review should be granted in order to 
correct these errors and avoid the unnecessary decision of 
constitutional issues.

		Sincerely yours,

		Lee Tien	
		Attorney for Amicus Curiae
		Electronic Frontier Foundation


1 The state legislature has already addressed the problem of 
unwanted e-mail.  (Hamidi, 94 Cal.App.4th at 352 (Kolkey, 
J., dissenting) (citing Bus. & Prof. Code, §§ 
17538.4, 17538.45); Ferguson v. Friendfinders, Inc. 
(2002)___ Cal.App.4th ___, 15 Cal.Rptr.2d 258 (upholding 
Bus. & Prof. Code, §17538.4 against dormant 
Commerce Clause challenge).)  

2 Judicial application of trespass to chattels is unlikely to raise 
speech issues.  But the fact that a tort typically is not used 
against speech does not insulate judicial enforcement when it 
is so used.  (See generally NAACP v. Claiborne Hardware 
(1981) 458 U.S. 886 (applying First Amendment scrutiny to 
state application of common-law tort of malicious interference 
with business).)  The harms alleged by Intel here stem 
primarily from the communicative impact of Hamidi’s speech 
on Intel and its employees, which is necessarily based on 
content.  (Forsyth County v. Nationalist Movement (1992) 
505 U.S. 123, 134 (“Listeners’ reaction to speech is not a 
content-neutral basis for regulation.”).)  Thus, while trespass 
to chattels may typically raise no speech issues, its application 
here does.

3 Its analysis is somewhat unclear:  while the majority 
appears to suggest that there was no state action and thus no 
constitutional claim, it goes on to analyze the propriety of the 
injunction on free speech grounds.

4 EFF does not address the proper resolution of the speech 
issue in this letter, although EFF will do so if this Court 
accepts the petition for review and permits EFF to submit an 
amicus brief. 

Please send any questions or comments to webmaster@eff.org.