Cyber-Trespassing

Actionable e-mail

Sending unwelcome e-mail can now be considered trespassing, according to a December ruling by a California court.

The case grew out of a squabble between Kourosh Kenneth Hamidi and Intel Corp., which fired him after a workman's compensation dispute. Hamidi decided to air his grievances with fellow workers—all 35,000 of them. On six occasions, he sent a mass e-mail complaining about Intel to between 8,000 and 35,000 employees of the computer chip maker. He was asked to stop but didn't.

In 1999 a Superior Court judge enjoined Hamidi from sending any more e-mails to Intel staff, on the ground that doing so constituted a trespass (or, in legalese, a "trespass to chattel"—chattel meaning any movable property). In December a 3rd District Court of Appeals panel upheld the injunction.

One of the panel's three judges, Daniel M. Kolkey, filed a vigorous dissent. He pointed out that previous judicial decisions prohibiting the sending of e-mail applied only to widespread commercial spamming that actually "burdened the computer equipment, thereby interfering with its operation and diminishing the chattel's value." Since Intel could not claim any damage or interference with its computer system—its only loss was the time employees might have spent reading the mail—Kolkey declared that calling the messages a trespass was a mistake.

The Electronic Frontier Foundation filed an amicus brief in the case on Hamidi's side. "If left standing, this ruling effectively breaks the Internet," Cindy Cohn, EFF's legal director, said in a press release. "Anyone who sends e-mail messages after having been told not to could risk a lawsuit from recipients." The logic of the majority decision could also apply to unasked-for paper mail, phone calls, or even, as Judge Kolkey pointed out, television or radio transmissions.