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Slamming the Brakes on Cyber Trespass

By Jay Hollander Esq.

Jay Hollander, Esq. is the principal of Hollander and Company LLC, www.hollanderco.com, a New York City law firm concentrating its efforts in the protection and development of property interests relating to real property, intellectual property and commercial interests, as well as related litigation.

The content of this article is intended to provide general information relating to its subject matter. Providing it does not establish any attorney-client relationship and does not constitute legal advice. Personal advice in the context of a mutually agreed attorney-client relationship should be sought about your specific circumstances.

In an eagerly anticipated decision the California Supreme Court seemingly slammed the brakes on what many had considered to be the inexorable expansion of the formidable weapon of the doctrine of cyber-trespass.

In Intel v. Hamidi, the California High Court overturned two lower court rulings awarding Intel injunctive relief and found, instead, that Hamidi, an ex-Intel employee, could not have engaged in the "trespass to chattels" underpinning Intel’s claim of cyber-trespass because he caused no damage to Intel email servers when he sent email messages critical of Intel policy to Intel employees.

As a reminder, the elements of a trespass to chattels cause of action are essentially two: an intentional and unauthorized physical contact or interference with the tangible property of another; and proximately resulting damage from the contact or interference, including, among other things, deprivation of use or diminution of value of the chattels suffered by their rightful owner. By some estimates, these criteria date back hundreds of years and has survived with little modification since then.

It was precisely this second aspect, the requirement of proximately caused physical damage, that, until now, had been increasingly emasculated in a number of decisions, where courts concluded that mere interference with possessory interests could satisfy the physical damage requirement of Trespass to Chattels.

But the Hamidi High Court squarely rejected this approach, noting that mere interference with employee productivity, time and attention, was not enough.

Articulating the new California law standard for cyber-tresspass claims, the Court concluded that:

... the tort does not encompass, and should not be extended to encompass, an electronic communication that neither damages the recipient computer system nor impairs its functioning. Such an electronic communication does not constitute an actionable trespass to personal property, i.e., the computer system, because it does not interfere with the possessor’s use or possession of, or any other legally protected interest in, the personal property itself. …

THE FACTS OF THE CASE

Ken Hamidi is a former Intel employee who, together with others, formed a group called Former and Current Employees of Intel (FACE-Intel), with the express purpose of disseminating information about Intel’s employment practices.

Over a 21-month period, Hamidi, on behalf of FACE-Intel, sent emails to all of Intel employees on six different occasions, criticizing Intel policies and suggesting employees find work elsewhere and asking them to visit their web site and join FACE-Intel. The emails also said any recipient could ask to be removed from any future mailings and requests to be removed were honored.

Intel tried various tech methods to block the emails, but they were unable to block all of them.

Intel testified that many employees asked the company to block the emails and that time was wasted trying to block the email. In addition, the emails allegedly caused a certain disturbance among the staff and upset feelings over the content of the messages.

A lower court ruling had found that this was "disrupting its business by using its property" and that this was enough to constitute trespass to chattels.

In rejecting this conclusion, the Supreme Court harkened back to the definition of trespass to chattels under its state law.

Under California law, trespass to chattels allows recovery for interference with possession of personal property "not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered." (Prosser & Keeton, "Torts" (5th ed. 1984) Section 14, pp. 85-86.)

Still, the Supreme Court held in Hamidi, that, to be actionable, the interference must proximately cause some actual injury to the chattel or to a plaintiff’s rights in it, and the plaintiff is entitled to recover only actual damages suffered because of the impairment of the property or the loss of its use. Here, they said, there was no actual damage and no interference and they quoted and highlighted this passage of the Restatement Second of Torts, p. 421-422:

"Therefore, one 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, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected…"

Admittedly, no physical harm was caused by Hamidi’s emails, nor was there any deprivation of use of, or damage to, Intel’s corporate email system.

While Intel had argued that its intranet was breached, the court’s ruling implicitly held that once a corporate Intranet allows email communication with the outside world, a company cannot claim trespass to chattels based upon normal email communication from that outside world.

Nor was Intel helped by the fact that it was asking for injunctive relief rather than damages, the court holding that injunctive relief requests require a showing of the threat of irreparable injury, to wit, injuries for which money damages would not suffice.

Here, the Court ruled, Intel’s computers weren’t interfered with for any appreciable length of time; the computers didn’t slow down or show any other impairment; Intel was able to use its computers despite the emails sent by Hamidi, emails that Intel’s computers are generically designed to receive.

Further, since Hamidi removed the names of all those requesting to be removed from his mailing list and since the amount of emails sent by Hamidi was not burdensomely large, there had bee no showing that the sheer quantity of emails had caused the kind of actual harm to Intel’s computer system comparable to that as had occurred in Thrifty-Tel, Inc. v. Bezenek (46 Cal. App.4th 1559 (1996)), eBay, Inc. v. Bidder’s Edge, Inc. (100 F.Supp.2d 1058 (N.D. Cal., May 24, 2000), Register.com, Inc. v. Verio, Inc. (126 F.Supp.2d 238 (S.D.N.Y., December 12, 2000)) or the numerous ISP v. fill-in-the-spammer’s-name cases, where actual overburdening of the systems did occur.

"…Intel has demonstrated neither any appreciable effect on the operation of its computer system from Hamidi’s messages, nor any likelihood that Hamidi’s actions will be replicated by others if found not to constitute a trespass."

Hamidi’s mailings were numbered in the thousands, and compared with commercial spammers, the court pointed out, were miniscule in number. In America Online, Inc. v. IMS, (24 F.Supp.2d, 548 (E.D. Va. 1998)), the spammer had sent more than 60 million messages over 10 months. And in America Online, Inc. v. LCGM, Inc. (No. Civ.A.98-102-A, 1998 WL 940347, 24 F.Supp2d, 548) the mailing was 93 million message over 7 months.

Free speech advocates may be somewhat disappointed in the ruling since the Court’s finding that Intel’s property interests had not been sufficiently injured avoided the need to squarely rule on the question of whether constitutional rights to free speech would have trumped a qualifying trespass to chattels injury.

On the Constitutional issues of not burdening speech more than necessary to serve a significant government interest, which the Court acknowledged was raised by the case since the lower court’s injunction was a state action, the Hamidi majority concluded:

"…Hamidi himself had no tangible presence on Intel property, instead speaking from his own home through his computer. He no more invaded Intel property than does a protester holding a sign or shouting through a bullhorn outside corporate headquarters, posting a letter through the mail, or telephoning to complain…"

In plain English, the court said trespass to chattels claims have gone too far and they drew a line in the sand and said: this is as far as you can take trespass to chattels in California. There is no constitutional "right not to listen" founded in personal autonomy that would apply to this case, because none of the email was directed to Intel itself, the entity claiming the right.

While Intel has officially indicated that it is reviewing its options, those celebrating Hamidi’s victory should take note that the Court did leave the door open to establishing a right to relief on other grounds, such as business interference or even defamation, claims that may yet still be brought in this or similar cases.

Still, if you get an email you don’t enjoy reading in California, you’ll have to look beyond trespass to chattels to sue on account of your displeasure. Or just delete it and go on with your life.

Copyright © Jay Hollander, 2003. All Rights Reserved.

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