Are E-mails Trespass?

The Los Angeles Times reports today on the California Supreme Court's hearing on a case that has powerful implications for the future of the Internet. Ken Hamidi, a disgrunted former Intel employee, sent some mass E-mails to other Intel employees. Intel claims that in doing so, he was trespassing.

A short piece I wrote about this case in Reason's April 2002 issue is here. At that point, Intel had won in a lower court in California. The state Supreme Court is now considering the case. An excerpt from my earlier story on the case's significance:

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 [a dissenting lower court judge] pointed out, television or radio transmissions.

Comments

[Todd Seavey]

Isn’t it fairly obvious that if you tell someone he can’t use your phone, snail mailbox, or e-mail inbox and he does so, it _is_ trespass, as surely as it is trespass if you tell someone he can’t step on your lawn and he does so?

The whole purpose of property rights is to prevent unwanted invasions, since trespassers will tend to place a much higher value on their own utility gains from trespassing than on the happiness lost by the trespassed party. It is plainly an annoyance to suffer junk mail, etc. that one has asked not to receive, and it should be no surprise that junk mailers and callers — from spammers to phone telemarketers — spend so much of their time in fraudulent or near-fraudulent efforts to prevent people unsubscribing, hanging up the phone. etc. Strong anti-spam/anti-telemarketing laws would be a welcome boon for property rights and the end of countless headaches and much wasted time for a besieged populace. I don’t know enough of the details of the Hamidi case to take a strong position on it, but EFF’s Cindy Cohn is wrong to defend “[a]nyone who sends e-mail messages after being told not to.” Stopping such invaders would not “break the Internet” but enable its well-behaved users to avoid spending hours fending off e-vildoers.

It would also render largely unnecessary complex legal fights over what constitutes, for instance, harrassing phonecalls, since _any_ person who made my phone ring despite being explicitly told not to would be in for legal retribution, not just ones who imply a willingess to “get back at me” or do me harm (not that I’ve really had that problem). Phones, inboxes, and snail mailboxes ought not to be treated as universally-accessible commons any more than your living room is, and libertarians shouldl be the first to see potential gains in utility from more strictly enforcing property rights in this area.

[Madog]

I’m inclined to agree with Todd on this. It seems like it would be a nice way to have legal protection against spammers too (assuming you could identify them.). The question would be who actually controls the “property” in question here though, the owners of the email address or the owners of the server? In this case of course, Intel owns both so if the courts do rule in their favor it’s unlikely to make the distinction. As for the worry about television and radion broadcasts being tresspassing, I think that would be a different matter, since you have to set your equipment to recieve that particular broadcast. The same might go for webpages too, since you have to “go there”.

[Madtoo]

Good point, Madog! If a crowd, armed with bull horns, shouts protests at a newspaper building or other such institution, are the sound waves emanating from that crowd “trespass”?

Similarly, if a newsapaper or gubmint entity gets barraged by protest emails, would that, too, be considered “trespass” in the above-mentioned legal implication?

[Russ]

Can I tell that pesky collection agency to stop calling me?

[Casey Tompkins]

Hey, why isn’t this about the war? (running and ducking for cover)

They might have a case, if Hamidi used the Intel intranet mail server from an Intel account. That might be analogous to breaking in an using the mimeograph machine to print anti-Intel leaflets.

But if he did it from an external account, isn’t that like printing a bunch of leaflets at home and mailing them thru the post office?

Is that how you see it Mr. Doherty?

[Jim]

Maddog and Todd both raise good points on this subject, but it’s a bit greyer than either case. One could argue that by maintaining an email account, you are setting yourself up to recieve ‘broadcasts’ of email much as in the case of TV and radio.

Clearly, email accounts have to be considered someone’s property. I’ve argued this point before but in reality they are probably the property of your ISP. Check the fine print sometime. You are just ‘renting’ it from them. As such if they do not feel the need to protect said account from unwanted emails, (by their definition not yours) then it is up to you to take measures to prevent it. Good ISPs that want to retain customers are doing that with spam filters.

It does seem reasonable that you should be able to explicitly tell someone to stop emailing or calling you, especially if they do so in a harassing manner. However the mere existence of unwanted mail should not constitute trespass. I think we need to accept that there are limitations to the technology, and since we are all using it voluntarily it is up to us (users and providers) to police it, not the government.

[Chip]

I’ll bet this has more to do with the content of the emails than anything else. If his email had simply said : “Bye. Thanks for everything. I still love you Intel.” , there would be no lawsuit.

Isn’t it always some large corporation with a phalanx of over-paid lawyers prosecuting these cases?

Why do the courts so often accept their arguments?

Is there a connection?

[Casey Tompkins]

Um, _because_ they have lots of lawyers? And that well-paid lawyers get that way because they’re good at framing convincing arguments?

Naaah, that couldn’t be it. 🙂