WASHINGTON -- Kourosh Kenneth Hamidi remains barred from targeting Intel employees with bulk e-mail.
A California appeals court this week ruled against Hamidi, who was fired by the computer chip giant -- then replied by airing his grievances in an e-mail campaign that targeted up to 35,000 Intel employees at a time.
In a split decision on Monday (PDF), the state appeals court upheld a lower court's decision against Hamidi, saying his avalanche of angry e-mail was equivalent to trespassing.
"Hamidi's conduct was trespassory," the 2-1 majority ruled. "(Intel) showed he was disrupting its business by using its property and therefore is entitled to injunctive relief based on a theory of trespass to chattels."
Many courts have ruled that unsolicited commercial e-mail is trespass. It's the legal club that large companies such as AOL Time Warner have used to thwack spammers when their e-mail snarls servers and eats disk space.
But Hamidi is engaged in political -- or at least anti-Intel -- speech, not commercial activity. Unlike traditional spammers, he identified himself and offered an honest way for his targets to opt out of future diatribes directed at their employer (although he reports only 450 took him up on the offer).
That's a closer question, and the three judges spent 42 pages wrestling with how the common law of trespass -- dating back hundreds of years -- should apply to the Internet.
The court said Hamidi's actions were covered by the common law prohibiting "trespass as to chattels," which covers unpermitted use of someone else's private property. One case from 1668 dealt with animals being killed; an 1814 Massachusetts case said it was unlawful to frighten a horse in a way that damaged a carriage; a 1926 suit arose when someone stole a tire from a car and replaced it two days later.
Upholding the lower court's injunction against Hamidi, the two-judge majority said Intel's right to prevent unwanted people from making use of its private property trumped Hamidi's desire to send bulk e-mail.
Neither Hamidi nor his attorney, Philip Weber, could be reached for comment about their plans to appeal to the California Supreme Court.
In a brief dissent, Judge Daniel Kolkey wrote that his colleagues "would apply the tort of trespass to chattel to the transmittal of unsolicited electronic mail that causes no harm to the private computer system that receives it by modifying the tort to dispense with any need for injury, or by deeming the mere reading of an unsolicited e-mail to constitute the requisite injury."
Kolkey said that the majority decision would interfere with the "free flow of communication on the Internet" -- unless plaintiffs such as Intel could show they were actually harmed by a bulk e-mailer.
The ACLU of Northern California and the Electronic Frontier Foundation had submitted amicus briefs supporting Hamidi's rights to free speech, but the majority dismissed that argument as nonsensical.
"Strangely, EFF, purporting to laud the 'freedom' of the Internet, emphasizes Intel allows its employees reasonable personal use of Intel's equipment for sending and receiving personal e-mail. Such tolerance by employers would vanish if they had no way to limit such personal usage of company equipment," the majority wrote.
Shari Steele, EFF's executive director, said: "We're disappointed that we lost the case, but we're pleased to see the split. It's nice to see that one of the three judges understood our argument."
The ACLU had claimed the case pits private property against the First Amendment and California's constitution -- and urged the judges to side with free expression over private property.
"It's very bad news for the Internet," says Ann Brick, a staff attorney at the ACLU's state affiliate. "It's bad news because it lets private employers or anyone else who happens to control a server to censor the e-mail people can send and receive. It puts an enormous amount of power in the hands of those who would like to censor speech they don't like."
The judges didn't seem to think there was a conflict, saying that free speech rights don't mean you can use someone else's private property to express yourself.
"Hamidi insists Intel's act of connecting itself (and thus, its employees) to the Internet and giving its employees e-mail addresses makes Intel's e-mails a public forum," the majority wrote. "By the same reasoning, connecting one's realty to the general system of roads invites demonstrators to use the property as a public forum, and buying a telephone is an invitation to receive thousands of unwanted calls. That is not the law."
Intel fired Hamidi in 1995 after a dispute over work-related injuries. The California Workers' Compensation Appeals Board ruled against Hamidi, saying he falsified his medical history.
In a pre-lawsuit exchange of letters, Hamidi wrote: "The tragedy is that, rather than help me in my simple pleas for medication and therapy, Intel chose to spend endless sums of money to follow me, investigate me, fight me and pay lawyers such as yourselves (MOFO) to ruin my life, and you have been very successful. Congratulations."
In 1997, Disgruntled magazine named Hamidi the "Disgruntled Employee of the Year."
Ben Polen contributed to this report.
