Law of the Line

Trespass to Computer

A California Court of Appeals has recently affirmed a decision permanently prohibiting certain e-mail from a Mr. Hamdi to employees of Intel, on a trespass theory. The decision provoked objection from three dozen law professors who have proffered a parade of horribles that they believe will follow unless the California Supreme Court sets matters right.

Mr. Hamdi was fired by Intel, and then sent six mass e-mails to Intel’s employees through the Intel mail system. Intel’s security department was unable to block these e-mails, so Intel filed suit. Intel won on a theory of "trespass to chattel," a rather arcane legal doctrine preventing intentional interference with another’s personal property. Unlike trespass to real property, trespass to chattel has traditionally required a showing of some injury, which did not occur here. The Court of Appeals concluded, over a vigorous dissent, that no showing of quantifiable harm was required before issuing an order preventing further e-mail.

The decision was motivated in part, no doubt, by the court’s impatience with what it perceived to be nothing more than unwanted SPAM sent to Intel’s e-mail network. The professors argue that the Court of Appeals has created a new tort – trespass to computer server – that is dangerous. If sending e-mail alone, which causes no harm to a server, is trespass, then arguably so are the spiders that drive all Internet search engines and the hyperlinks that allow one Web site to link to another. In short, they argue that without the ability for one computer to send information to other servers, the Internet can’t function.

The professors also raise First Amendment concerns: if Intel could not have prevented Mr. Hamdi from writing physical letters to its employees, why should Intel be able to prevent Mr. Hamdi from writing e-mail letters to its employees? The Court of Appeals reasoned that Intel’s e-mail system is not a public forum, and therefore Intel could restrict what otherwise might be Mr. Hamdi’s right of free speech. Now the California Supreme Court will decide whether to let the decision stand.

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