More on Intel v. Hamidi

The case of Intel v. Hamidi has been going on for a few years now, and it's now reached the California Supreme Court. Hamidi is an ex-Intel employee with a grievance against the company who sent several mass-emails to most of Intel's staff. Intel attempted to block him from sending email via technical measures, and when that failed filed suit against him claiming that he was causing some harm to their property (company mail servers and computers) - there's an ancient legal concept called "trespass to chattels" which Intel is attempting to use in their case. Now, in real-dollar terms, Intel has suffered very little - a few megabytes of email more or less is a miniscule cost in terms of computer wear and tear, indeed, too small to measure (Intel is not alleging that Hamidi sent any sort of mail-bomb or that his emails caused damage). So the case comes down to an unsettled legal point: if someone has made some use of your electronic equipment, which you may not have desired but which has not damaged your property nor deprived you of its use, do you have a legal cause of action against them?

Technical vs. legal measures, some thoughts

[Seth Finkelstein]

This was a pretty intersting message written a while back on the topic, from a mailing-list.

[Disclaimer: Although I'm posting a message written by Michael Sims, this has nothing to do with What Happened To The Censorware Project (censorware.org) [sethf.com]. I thought this was an very insightful message on the topic, and I'm big enough to say so]

From: Michael Sims <[e-mail]>
Subject: Re: Intel v. Hamidi
Date: 30 Apr 1999 16:32:24 -0000

Mike Godwin wrote:
> Isn't it trivial for Intel to block Hamidi?

No. It isn't, and that's the crux of the matter. China has been trying for several years now to suppress email messages from dissidents in the U.S. China has absolute technical control over the routers into the country and a willingness to use it. China is willing to incarcerate anyone they can get their hands on who aids this process. China has failed to stop the flow of email messages, or even temper it. Intel is obviously more realistic about its odds of stopping Hamidi with technical means than Godwin is.

Godwin would prefer (in his usual abrasive fashion) to simply insist that technical solutions are the be-all and end-all, and no dissent will be tolerated. Trespassing should not be a crime - after all, anyone can build a 30-foot wall with razor wire around their property, which is certainly more effective than the legal system in preventing trespass.

If anyone wants an interesting thought to chew upon, try this one. More and more military members have email access through the military, which is often their only electronic contact, and definitely their only free contact with the outside world. What if the U.S. military desired to prevent some persons from sending mail to military members at their military addresses, either because it was frivolous, or spam, or deemed a threat to morale ("Ban the Bomb!"), or what-have-you... Keep in mind that the military has a firm commitment to delivering snail-mail to its members, anytime, anywhere, which is generally to a military unit address as well.

Any thoughts? I can definitely see future electronic activists emailing 5,000 people on the carrier U.S.S. America, telling them to stop bombing whoever it may be that we're bombing that particular day. Obviously this might annoy the military. What recourse do they have, if any? Technical solutions are obvious but not particularly effective, especially since the mailer gets infinite no-cost tries to get through. What could they do, legally?

-- Michael Sims

To sue someone, you have to claim actual damages

[squarooticus]

I've found that civil courts are greatly misunderstood by most Americans. If you can't prove that you were actually damaged by the other party, you won't be awarded any damages.

Most confusion regarding civil courts revolves around two points:

1. In general, laws have little to do with civil courts. Civil court judgments are generally based on precedent. Laws that apply to civil courts are generally to limit or regulate penalties.
   
   
2. Civil courts only have to show a "preponderance of evidence," as opposed to "clear and convincing" or "beyond a reasonable doubt," the latter of which is used in criminal trials. (I am unclear on the exact reason; surely, taking away someone's fundamental civil liberties by putting them in jail should be very hard, but that doesn't mean evidence in civil trials should be weaker.)
   
   An example of this in action is OJ's criminal acquittal followed by the "wrongful death" judgment against him in civil court. Essentially, he was convicted of murder under a lesser standard of evidence, with a lesser penalty (money to the damaged parties) as well.
   

Re:Spam - class action lawsuits

[Seth Finkelstein]

For spam class-action lawsuits, look up the various cases at

FindLaw > Legal Subjects > Cyberspace Law > E-Mail > Primary Materials - Laws and Government Documents [findlaw.com]

Especially Ferguson v. Friendfinder [timothywalton.com]

The California Court of Appeal for the First District has ruled that California's spam statute is constitutional and valid. This means that from now on, spammers must comply with its requirements or face legal liability and/or criminal punishment. Read the decision by clicking here.

The California Supreme Court has refused to review the decision.

Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]

Re:Technical vs. legal measures, some thoughts

[joshki]

;) They'd have a hard time emailing anybody on the America... I think their servers have been down for about 6 years (the ship was decommissioned in 1996 or so)....

Seriously, though, email in the military is most definitely NOT a free, unregulated contact to the outside world. It is highly regulated, monitored, and can be cut off at the slightest sign of any problem. I would think a situation such as you discuss would qualify for these kinds of measures. And one other thing -- snail mail in the military is not necessarily free either. Any communications leaving or coming to a military unit can be monitored.

EXACT trespass reasoning of Appeals Court

[Seth Finkelstein]

In discussing the case, it's helpful to read the exact reasoning of the appeals court decision [eff.org], for example:

Hamidi's conduct was trespassory. Even assuming Intel has not demonstrated sufficient "harm" to trigger entitlement to nominal damages for past breaches of decorum by Hamidi, it 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. Hamidi acknowledges Intel's right to self help and urges Intel could take further steps to fend off his e-mails. He has shown he will try to evade Intel's security. We conceive of no public benefit from this wasteful cat-and-mouse game which justifies depriving Intel of an injunction. (Cf. America Online, Inc. v. Nat. Health Care Discount, Inc. (N.D. Iowa 2000) 121 F.Supp.2d 1255, 1259-1260 [detailing ongoing technological struggle between spammers and system operators].) Even where a company cannot precisely measure the harm caused by an unwelcome intrusion, the fact the intrusion occurs supports a claim for trespass to chattels. (See Register.com, Inc. v. Verio, Inc. (S.D.N.Y. 2000) 126 F.Supp.2d 238, 249-250 [applying New York law, based on the Restatement, "evidence of mere possessory interference is sufficient to demonstrate the quantum of harm necessary to establish a claim for trespass to chattels"].)

Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]

More than a 'few MB' of email

[backtick]

I just went and checked the court docs: He sent 6 emails to *29,000* employees. None of them signed up for it; he had the lists himself. So, the basic bare ASCII text of the first email was approx 5K, add in headers and such and guess his avergae email size utilized was 10K.

6 * 29,000 * 10 / 1024 / 1024 = 1.65 GB of email.

Now, I ain't counting logs and all that other stuff. I'm sure this isn't a huge amount of email to Intel, but it's a helluva lot more than the story suggests. I think the big thing isn't even the size, but the scope. I mean, *29,000* people got spammed, basically. This wasn't just a few emails!

Re:"Designed use"

[backtick]

He sent six emails; five of these were sent after being told explicitly by Intel to cease. He explained to the court he would continue to evade Intel's attempts to block him from sending email. So the courts ruled against him in no uncertain terms. He wasn't taken to court for the first one, but rather for the second one.

Th other factor you even mentioned above: "when they use a public facility as it is designed to be used". Intel's mail system was designed as a method for people to communicate w/ Intel employees for business purposes. This was not a business purpose. Again, the system is being abused after first notice of a cease and desist request.

I may be wrong, but...

[sasha328]

A while ago I read something along the lines that Hamidi was able to connect to the Intel network and send his emails from there. (my memory may be failing me) I think that that that is what Intl is alleging he has done when they say "tampering". I do not thing it is about spamming.

BEFORE you say "but this means X..."

[TekPolitik]

The trespass to chattels law only applies where there is no consent. Consent can be express, as in "You may send me email" or implied, as in "You set up an email server, so you impliedly gave consent to the sending of email."

Consent, including implied consent, may be limited to certain purposes and uses. For example, if you set up a bricks-and-mortar store, you have given implied consent for customers to enter to browse or buy, and those customers are not trespassers. On the other hand, if a thief enters to steal, the implied consent does not extend to that purpose so the thief is a trespasser. Likewise in email, the implied consent has always been acknowledged as extending to personal email, but spam is another question entirely.

Both explicit and implicit consent can be withdrawn. Intel gave notice to Hamidi that he was not permitted to send his messages, thus withdrawing implied consent.

Before you try to post a message claiming some absurd outcome, think about the effect of consent, whether explicit or implied, in your example. Hamidi's lawyers have not done this, and are in for a major smack-down by the court.

Re:"Designed use"

[goldmeer]

Once a notice has been given or posted that a certain action is not permetted, the mere act of being present performing the prohibited action is enough to justify a trespassing charge.

This is most commonly seen with areas available to the public (shopping malls comes to mind first) and the "no skateboarding" signs posted. If the signs are ignored, and a person is on the property performing the prohibited action (skateboarding in this instance) they can be charged with trespassing without having to be told to leave first.

Of course, IANAL. Check your local statutes for applicibility.

How does this relate to this case? Again, I don't know what the local statutes say, but if notice was given that this action is prohibited on private property, then trespass might be able to be asserted.