Slamming the Brakes on Cyber Trespass
By Jay Hollander Esq.
(This article was originally published on www.mondaq.com
on July 29, 2003)
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
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
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
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
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
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.
Jay Hollander, Esq. is the principal of Hollander and
Company LLC, a New York City law firm concentrating in the
protection and development of real property and intellectual
property interests, as well as corporate matters and litigation.
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.