Filed 6/30/03 (reposted to reflect George, C.J. concurring in Mosk, J.’s dissent)
IN THE SUPREME COURT OF CALIFORNIA
INTEL CORPORATION,
Plaintiff and Respondent,
S103781
v.
) Ct.App.
3
C033076
KOUROSH KENNETH HAMIDI,
Sacramento
County
Defendant and Appellant.
Super. Ct. No. 98AS05067
Intel Corporation (Intel) maintains an electronic mail system, connected to
the Internet, through which messages between employees and those outside the
company can be sent and received, and permits its employees to make reasonable
nonbusiness use of this system. On six occasions over almost two years, Kourosh
Kenneth Hamidi, a former Intel employee, sent e-mails criticizing Intel’s
employment practices to numerous current employees on Intel’s electronic mail
system. Hamidi breached no computer security barriers in order to communicate
with Intel employees. He offered to, and did, remove from his mailing list any
recipient who so wished. Hamidi’s communications to individual Intel employees
caused neither physical damage nor functional disruption to the company’s
computers, nor did they at any time deprive Intel of the use of its computers. The
contents of the messages, however, caused discussion among employees and
managers.
On these facts, Intel brought suit, claiming that by communicating with its
employees over the company’s e-mail system Hamidi committed the tort of
trespass to chattels. The trial court granted Intel’s motion for summary judgment
and enjoined Hamidi from any further mailings. A divided Court of Appeal
affirmed.
After reviewing the decisions analyzing unauthorized electronic contact
with computer systems as potential trespasses to chattels, we conclude that under
California law the tort does not encompass, and should not be extended to
encompass, an electronic communication that neither damages the recipient
computer system nor impairs its functioning. Such an electronic communication
does not constitute an actionable trespass to personal property, i.e., the computer
system, because it does not interfere with the possessor’s use or possession of, or
any other legally protected interest in, the personal property itself. (See Zaslow v.
Kroenert (1946) 29 Cal.2d 541, 551; Ticketmaster Corp. v. Tickets.com, Inc.
(C.D.Cal., Aug. 10, 2000, No. 99CV7654) 2000 WL 1887522, p. *4; Rest.2d
Torts, § 218.) The consequential economic damage Intel claims to have suffered,
i.e., loss of productivity caused by employees reading and reacting to Hamidi’s
messages and company efforts to block the messages, is not an injury to the
company’s interest in its computers—which worked as intended and were
unharmed by the communications—any more than the personal distress caused by
reading an unpleasant letter would be an injury to the recipient’s mailbox, or the
loss of privacy caused by an intrusive telephone call would be an injury to the
recipient’s telephone equipment.
Our conclusion does not rest on any special immunity for communications
by electronic mail; we do not hold that messages transmitted through the Internet
are exempt from the ordinary rules of tort liability. To the contrary, e-mail, like
other forms of communication, may in some circumstances cause legally
2
cognizable injury to the recipient or to third parties and may be actionable under
various common law or statutory theories. Indeed, on facts somewhat similar to
those here, a company or its employees might be able to plead causes of action for
interference with prospective economic relations (see Guillory v. Godfrey (1955)
134 Cal.App.2d 628, 630-632 [defendant berated customers and prospective
customers of plaintiffs’ cafe with disparaging and racist comments]), interference
with contract (see Blender v. Superior Court (1942) 55 Cal.App.2d 24, 25-27
[defendant made false statements about plaintiff to his employer, resulting in
plaintiff’s discharge]) or intentional infliction of emotional distress (see Kisesky v.
Carpenters’ Trust for So. California (1983) 144 Cal.App.3d 222, 229-230 [agents
of defendant union threatened life, health, and family of employer if he did not
sign agreement with union].) And, of course, as with any other means of
publication, third party subjects of e-mail communications may under appropriate
facts make claims for defamation, publication of private facts, or other speech-
based torts. (See, e.g., Southridge Capital Management v. Lowry (S.D.N.Y. 2002)
188 F.Supp.2d 388, 394-396 [allegedly false statements in e-mail sent to several of
plaintiff’s clients support actions for defamation and interference with contract].)
Intel’s claim fails not because e-mail transmitted through the Internet enjoys
unique immunity, but because the trespass to chattels tort—unlike the causes of
action just mentioned—may not, in California, be proved without evidence of an
injury to the plaintiff’s personal property or legal interest therein.
Nor does our holding affect the legal remedies of Internet service providers
(ISP’s) against senders of unsolicited commercial bulk e-mail (UCE), also known
as “spam.” (See Ferguson v. Friendfinders, Inc. (2002) 94 Cal.App.4th 1255,
1267.) A series of federal district court decisions, beginning with CompuServe,
Inc. v. Cyber Promotions, Inc. (S.D.Ohio 1997) 962 F.Supp. 1015, has approved
the use of trespass to chattels as a theory of spammers’ liability to ISP’s, based
3
upon evidence that the vast quantities of mail sent by spammers both
overburdened the ISP’s own computers and made the entire computer system
harder to use for recipients, the ISP’s customers. (See id. at pp. 1022-1023.) In
those cases, discussed in greater detail below, the underlying complaint was that
the extraordinary quantity of UCE impaired the computer system’s functioning. In
the present case, the claimed injury is located in the disruption or distraction
caused to recipients by the contents of the e-mail messages, an injury entirely
separate from, and not directly affecting, the possession or value of personal
property.
FACTUAL AND PROCEDURAL BACKGROUND
We review a grant of summary judgment de novo; we must decide
independently whether the facts not subject to triable dispute warrant judgment for
the moving party as a matter of law. (Galanty v. Paul Revere Life Ins. Co. (2000)
23 Cal.4th 368, 374; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404; Code Civ.
Proc., § 437c, subd. (c).) The pertinent undisputed facts are as follows.
Hamidi, a former Intel engineer, together with others, formed an
organization named Former and Current Employees of Intel (FACE-Intel) to
disseminate information and views critical of Intel’s employment and personnel
policies and practices. FACE-Intel maintained a Web site (which identified
Hamidi as Webmaster and as the organization’s spokesperson) containing such
material. In addition, over a 21-month period Hamidi, on behalf of FACE-Intel,
sent six mass e-mails to employee addresses on Intel’s electronic mail system.
The messages criticized Intel’s employment practices, warned employees of the
dangers those practices posed to their careers, suggested employees consider
moving to other companies, solicited employees’ participation in FACE-Intel, and
urged employees to inform themselves further by visiting FACE-Intel’s Web site.
The messages stated that recipients could, by notifying the sender of their wishes,
4
be removed from FACE-Intel’s mailing list; Hamidi did not subsequently send
messages to anyone who requested removal.
Each message was sent to thousands of addresses (as many as 35,000
according to FACE-Intel’s Web site), though some messages were blocked by
Intel before reaching employees. Intel’s attempt to block internal transmission of
the messages succeeded only in part; Hamidi later admitted he evaded blocking
efforts by using different sending computers. When Intel, in March 1998,
demanded in writing that Hamidi and FACE-Intel stop sending e-mails to Intel’s
computer system, Hamidi asserted the organization had a right to communicate
with willing Intel employees; he sent a new mass mailing in September 1998.
The summary judgment record contains no evidence Hamidi breached
Intel’s computer security in order to obtain the recipient addresses for his
messages; indeed, internal Intel memoranda show the company’s management
concluded no security breach had occurred.1 Hamidi stated he created the
recipient address list using an Intel directory on a floppy disk anonymously sent to
him. Nor is there any evidence that the receipt or internal distribution of Hamidi’s
electronic messages damaged Intel’s computer system or slowed or impaired its
functioning. Intel did present uncontradicted evidence, however, that many
employee recipients asked a company official to stop the messages and that staff
1
To the extent, therefore, that Justice Mosk suggests Hamidi breached the
security of Intel’s internal computer network by “circumvent[ing]” Intel’s
“security measures” and entering the company’s “intranet” (dis. opn. of Mosk, J.,
post, at p. 1), the evidence does not support such an implication. An “intranet” is
“a network based on TCP/IP protocols (an internet) belonging to an organization,
usually a corporation, accessible only by the organization's members, employees,
or others with authorization.”
(<http://www.webopedia.com/TERM/i/intranet.html [as of June 30, 2003].)
Hamidi used only a part of Intel’s computer network accessible to outsiders.
5
time was consumed in attempts to block further messages from FACE-Intel.
According to the FACE-Intel Web site, moreover, the messages had prompted
discussions between “[e]xcited and nervous managers” and the company’s human
resources department.
Intel sued Hamidi and FACE-Intel, pleading causes of action for trespass to
chattels and nuisance, and seeking both actual damages and an injunction against
further e-mail messages. Intel later voluntarily dismissed its nuisance claim and
waived its demand for damages. The trial court entered default against FACE-
Intel upon that organization’s failure to answer. The court then granted Intel’s
motion for summary judgment, permanently enjoining Hamidi, FACE-Intel, and
their agents “from sending unsolicited e-mail to addresses on Intel’s computer
systems.” Hamidi appealed; FACE-Intel did not.2
The Court of Appeal, with one justice dissenting, affirmed the grant of
injunctive relief. The majority took the view that the use of or intermeddling with
another’s personal property is actionable as a trespass to chattels without proof of
any actual injury to the personal property; even if Intel could not show any
damages resulting from Hamidi’s sending of messages, “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.” The dissenting justice warned that
the majority’s application of the trespass to chattels tort to “unsolicited electronic
mail that causes no harm to the private computer system that receives it” would
2
For the first time, in this court, Intel argues Hamidi’s appeal is moot
because, as FACE-Intel’s agent, Hamidi is bound, whatever the outcome of his
own appeal, by the unappealed injunction against FACE-Intel. But as Hamidi
points out in response, he could avoid the unappealed injunction simply by
resigning from FACE-Intel; his own appeal is therefore not moot.
6
“expand the tort of trespass to chattel in untold ways and to unanticipated
circumstances.”
We granted Hamidi’s petition for review.3
DISCUSSION
I. Current California Tort Law
Dubbed by Prosser the “little brother of conversion,” the tort of trespass to
chattels allows recovery for interferences with possession of personal property
“not sufficiently important to be classed as conversion, and so to compel the
defendant to pay the full value of the thing with which he has interfered.” (Prosser
& Keeton, Torts (5th ed. 1984) § 14, pp. 85-86.)
Though not amounting to conversion, the defendant’s interference must, to
be actionable, have caused some injury to the chattel or to the plaintiff’s rights in
it. Under California law, trespass to chattels “lies where an intentional
interference with the possession of personal property has proximately caused
injury.” (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1566, italics
added.) In cases of interference with possession of personal property not
amounting to conversion, “the owner has a cause of action for trespass or case,
and may recover only the actual damages suffered by reason of the impairment of
the property or the loss of its use.” (Zaslow v. Kroenert, supra, 29 Cal.2d at
p. 551, italics added; accord, Jordan v. Talbot (1961) 55 Cal.2d 597, 610.) In
modern American law generally, “[t]respass remains as an occasional remedy for
3
We grant both parties’ requests for notice of legislative history materials
relating to California laws on spam and on injunctions in labor dispute cases.
Hamidi’s further request for notice of the “undisputed” fact that “e-mail messages
that travel into computer equipment consist of electromagnetic waves” is denied as
irrelevant.
7
minor interferences, resulting in some damage, but not sufficiently serious or
sufficiently important to amount to the greater tort” of conversion. (Prosser &
Keeton, Torts, supra, § 15, p. 90, italics added.)
The Restatement, too, makes clear that some actual injury must have
occurred in order for a trespass to chattels to be actionable. Under section 218 of
the Restatement Second of Torts, dispossession alone, without further damages, is
actionable (see id., par. (a) & com. d, pp. 420-421), but other forms of interference
require some additional harm to the personal property or the possessor’s interests
in it. (Id., pars. (b)-(d).) “The interest of a possessor of a chattel in its
inviolability, unlike the similar interest of a possessor of land, is not given legal
protection by an action for nominal damages for harmless intermeddlings with the
chattel. In order that an actor who interferes with another’s chattel may be liable,
his conduct must affect some other and more important interest of the possessor.
Therefore, one who intentionally intermeddles with another’s chattel is subject to
liability only if his intermeddling is harmful to the possessor’s materially valuable
interest in the physical condition, quality, or value of the chattel, or if the
possessor is deprived of the use of the chattel for a substantial time, or some other
legally protected interest of the possessor is affected as stated in Clause (c).
Sufficient legal protection of the possessor’s interest in the mere inviolability of
his chattel is afforded by his privilege to use reasonable force to protect his
possession against even harmless interference.” (Id., com. e, pp. 421-422, italics
added.)
The Court of Appeal (quoting 7 Speiser et al., American Law of Torts
(1990) Trespass, § 23:23, p. 667) referred to “ ‘a number of very early cases
[showing that] any unlawful interference, however slight, with the enjoyment by
another of his personal property, is a trespass.’ ” But while a harmless use or
touching of personal property may be a technical trespass (see Rest.2d Torts,
8
§ 217), an interference (not amounting to dispossession) is not actionable, under
modern California and broader American law, without a showing of harm. As
already discussed, this is the rule embodied in the Restatement (Rest.2d Torts,
§ 218) and adopted by California law (Zaslow v. Kroenert, supra, 29 Cal.2d at p.
551; Thrifty-Tel, Inc. v. Bezenek, supra, 46 Cal.App.4th at p. 1566).
In this respect, as Prosser explains, modern day trespass to chattels differs
both from the original English writ and from the action for trespass to land:
“Another departure from the original rule of the old writ of trespass concerns the
necessity of some actual damage to the chattel before the action can be
maintained. Where the defendant merely interferes without doing any harm—as
where, for example, he merely lays hands upon the plaintiff’s horse, or sits in his
car—there has been a division of opinion among the writers, and a surprising
dearth of authority. By analogy to trespass to land there might be a technical tort
in such a case . . . . Such scanty authority as there is, however, has considered
that the dignitary interest in the inviolability of chattels, unlike that as to land, is
not sufficiently important to require any greater defense than the privilege of using
reasonable force when necessary to protect them. Accordingly it has been held
that nominal damages will not be awarded, and that in the absence of any actual
damage the action will not lie.” (Prosser & Keeton, Torts, supra, § 14, p. 87,
italics added, fns. omitted.)
Intel suggests that the requirement of actual harm does not apply here
because it sought only injunctive relief, as protection from future injuries. But as
Justice Kolkey, dissenting below, observed, “[t]he fact the relief sought is
injunctive does not excuse a showing of injury, whether actual or threatened.”
Indeed, in order to obtain injunctive relief the plaintiff must ordinarily show that
the defendant’s wrongful acts threaten to cause irreparable injuries, ones that
cannot be adequately compensated in damages. (5 Witkin, Cal. Procedure (4th ed.
9
1997) Pleading, § 782, p. 239.) Even in an action for trespass to real property, in
which damage to the property is not an element of the cause of action, “the
extraordinary remedy of injunction” cannot be invoked without showing the
likelihood of irreparable harm. (Mechanics’ Foundry v. Ryall (1888) 75 Cal. 601,
603; see Mendelson v. McCabe (1904) 144 Cal. 230, 232-233 [injunction against
trespass to land proper where continued trespasses threaten creation of prescriptive
right and repetitive suits for damages would be inadequate remedy].) A fortiori, to
issue an injunction without a showing of likely irreparable injury in an action for
trespass to chattels, in which injury to the personal property or the possessor’s
interest in it is an element of the action, would make little legal sense.
The dispositive issue in this case, therefore, is whether the undisputed facts
demonstrate Hamidi’s actions caused or threatened to cause damage to Intel’s
computer system, or injury to its rights in that personal property, such as to entitle
Intel to judgment as a matter of law. To review, the undisputed evidence revealed
no actual or threatened damage to Intel’s computer hardware or software and no
interference with its ordinary and intended operation. Intel was not dispossessed
of its computers, nor did Hamidi’s messages prevent Intel from using its
computers for any measurable length of time. Intel presented no evidence its
system was slowed or otherwise impaired by the burden of delivering Hamidi’s
electronic messages. Nor was there any evidence transmission of the messages
imposed any marginal cost on the operation of Intel’s computers. In sum, no
evidence suggested that in sending messages through Intel’s Internet connections
and internal computer system Hamidi used the system in any manner in which it
was not intended to function or impaired the system in any way. Nor does the
evidence show the request of any employee to be removed from FACE-Intel’s
mailing list was not honored. The evidence did show, however, that some
employees who found the messages unwelcome asked management to stop them
10
and that Intel technical staff spent time and effort attempting to block the
messages. A statement on the FACE-Intel Web site, moreover, could be taken as
an admission that the messages had caused “[e]xcited and nervous managers” to
discuss the matter with Intel’s human resources department.
Relying on a line of decisions, most from federal district courts, applying
the tort of trespass to chattels to various types of unwanted electronic contact
between computers, Intel contends that, while its computers were not damaged by
receiving Hamidi’s messages, its interest in the “physical condition, quality or
value” (Rest.2d Torts, § 218, com. e, p. 422) of the computers was harmed. We
disagree. The cited line of decisions does not persuade us that the mere sending of
electronic communications that assertedly cause injury only because of their
contents constitutes an actionable trespass to a computer system through which the
messages are transmitted. Rather, the decisions finding electronic contact to be a
trespass to computer systems have generally involved some actual or threatened
interference with the computers’ functioning.
In Thrifty-Tel, Inc. v. Bezenek, supra, 46 Cal.App.4th at pages 1566-1567
(Thrifty-Tel), the California Court of Appeal held that evidence of automated
searching of a telephone carrier’s system for authorization codes supported a cause
of action for trespass to chattels. The defendant’s automated dialing program
“overburdened the [plaintiff’s] system, denying some subscribers access to phone
lines” (Thrifty-Tel, supra, 46 Cal.App.4th at p. 1564), showing the requisite injury.
Following Thrifty-Tel, a series of federal district court decisions held that
sending UCE through an ISP’s equipment may constitute trespass to the ISP’s
computer system. The lead case, CompuServe, Inc. v. Cyber Promotions, Inc.,
supra, 962 F.Supp. 1015, 1021-1023 (CompuServe), was followed by Hotmail
Corp. v. Van$ Money Pie, Inc. (N.D.Cal., Apr. 16, 1998, No. C 98-20064 JW)
1998 WL 388389, page *7, America Online, Inc. v. IMS (E.D.Va. 1998) 24
11
F.Supp.2d 548, 550-551, and America Online, Inc. v. LCGM, Inc. (E.D.Va. 1998)
46 F.Supp.2d 444, 451-452.
In each of these spamming cases, the plaintiff showed, or was prepared to
show, some interference with the efficient functioning of its computer system. In
CompuServe, the plaintiff ISP’s mail equipment monitor stated that mass UCE
mailings, especially from nonexistent addresses such as those used by the
defendant, placed “a tremendous burden” on the ISP’s equipment, using “disk
space and drain[ing] the processing power,” making those resources unavailable to
serve subscribers. (CompuServe, supra, 962 F.Supp. at p. 1022.) Similarly, in
Hotmail Corp. v. Van$ Money Pie, Inc., supra, 1998 WL 388389 at page *7, the
court found the evidence supported a finding that the defendant’s mailings
“fill[ed] up Hotmail’s computer storage space and threaten[ed] to damage
Hotmail’s ability to service its legitimate customers.” America Online, Inc. v.
IMS, decided on summary judgment, was deemed factually indistinguishable from
CompuServe; the court observed that in both cases the plaintiffs “alleged that
processing the bulk e-mail cost them time and money and burdened their
equipment.” (America Online, Inc. v. IMS, supra, 24 F.Supp.2d at p. 550.) The
same court, in America Online, Inc. v. LCGM, Inc., supra, 46 F.Supp.2d at page
452, simply followed CompuServe and its earlier America Online decision,
quoting the former’s explanation that UCE burdened the computer’s processing
power and memory.
Building on the spamming cases, in particular CompuServe, three even more
recent district court decisions addressed whether unauthorized robotic data
collection4 from a company’s publicly accessible Web site is a trespass on the
4
Data search and collection robots, also known as “Web bots” or “spiders,”
are programs designed to rapidly search numerous Web pages or sites, collecting,
(Footnote continued on next page.)
12
company’s computer system. (eBay, Inc. v. Bidder’s Edge, Inc., supra, 100
F.Supp.2d at pp. 1069-1072 (eBay); Register.com, Inc. v. Verio, Inc. (S.D.N.Y.
2000) 126 F.Supp.2d 238, 248-251; Ticketmaster Corp. v. Tickets.com, Inc.,
supra, 2000 WL 1887522, at p. *4.) The two district courts that found such
automated data collection to constitute a trespass relied, in part, on the deleterious
impact this activity could have, especially if replicated by other searchers, on the
functioning of a Web site’s computer equipment.
In the leading case, eBay, the defendant Bidder’s Edge (BE), operating an
auction aggregation site, accessed the eBay Web site about 100,000 times per day,
accounting for between 1 and 2 percent of the information requests received by
eBay and a slightly smaller percentage of the data transferred by eBay. (eBay,
supra, 100 F.Supp.2d at pp. 1061, 1063.) The district court rejected eBay’s claim
that it was entitled to injunctive relief because of the defendant’s unauthorized
presence alone, or because of the incremental cost the defendant had imposed on
operation of the eBay site (id. at pp. 1065-1066), but found sufficient proof of
threatened harm in the potential for others to imitate the defendant’s activity: “If
BE’s activity is allowed to continue unchecked, it would encourage other auction
aggregators to engage in similar recursive searching of the eBay system such that
eBay would suffer irreparable harm from reduced system performance, system
unavailability, or data losses.” (Id. at p. 1066.) Again, in addressing the
(Footnote continued from previous page.)
retrieving, and indexing information from these pages. Their uses include creation
of searchable databases, Web catalogues and comparison shopping services.
(eBay, Inc. v. Bidder’s Edge, Inc. (N.D.Cal. 2000) 100 F.Supp.2d 1058, 1060-
1061; O’Rourke, Property Rights and Competition on the Internet: In Search of an
Appropriate Analogy (2001) 16 Berkeley Tech. L.J. 561, 570-571; Quilter, The
Continuing Expansion of Cyberspace Trespass to Chattels (2002) 17 Berkeley
Tech. L.J. 421, 423-424.)
13
likelihood of eBay’s success on its trespass to chattels cause of action, the court
held the evidence of injury to eBay’s computer system sufficient to support a
preliminary injunction: “If the court were to hold otherwise, it would likely
encourage other auction aggregators to crawl the eBay site, potentially to the point
of denying effective access to eBay’s customers. If preliminary injunctive relief
were denied, and other aggregators began to crawl the eBay site, there appears to
be little doubt that the load on eBay’s computer system would qualify as a
substantial impairment of condition or value.” (Id. at pp. 1071-1072.)
Another district court followed eBay on similar facts—a domain name
registrar’s claim against a Web hosting and development site that robotically
searched the registrar’s database of newly registered domain names in search of
business leads—in Register.com, Inc. v. Verio, Inc., supra, 126 F.Supp.2d at pages
249-251. Although the plaintiff was unable to measure the burden the defendant’s
searching had placed on its system (id. at pp. 249-250), the district court, quoting
the declaration of one of the plaintiff’s officers, found sufficient evidence of
threatened harm to the system in the possibility the defendant’s activities would be
copied by others: “ ‘I believe that if Verio’s searching of Register.com’s WHOIS
database were determined to be lawful, then every purveyor of Internet-based
services would engage in similar conduct.’ ” (Id. at p. 250.) Like eBay, the court
observed, Register.com had a legitimate fear “that its servers will be flooded by
search robots.” (Id. at p. 251.)
In the third decision discussing robotic data collection as a trespass,
Ticketmaster Corp. v. Tickets.com, Inc., supra, 2000 WL 1887522 (Ticketmaster),
the court, distinguishing eBay, found insufficient evidence of harm to the chattel to
constitute an actionable trespass: “A basic element of trespass to chattels must be
physical harm to the chattel (not present here) or some obstruction of its basic
function (in the court’s opinion not sufficiently shown here). . . . The comparative
14
use [by the defendant of the plaintiff’s computer system] appears very small and
there is no showing that the use interferes to any extent with the regular business
of [the plaintiff]. . . . Nor here is the specter of dozens or more parasites joining
the fray, the cumulative total of which could affect the operation of [the plaintiff’s]
business.” (Id. at p. *4, italics added.)
In the decisions so far reviewed, the defendant’s use of the plaintiff’s
computer system was held sufficient to support an action for trespass when it
actually did, or threatened to, interfere with the intended functioning of the
system, as by significantly reducing its available memory and processing power.
In Ticketmaster, supra, 2000 WL 1887522, the one case where no such effect,
actual or threatened, had been demonstrated, the court found insufficient evidence
of harm to support a trespass action. These decisions do not persuade us to Intel’s
position here, for Intel has demonstrated neither any appreciable effect on the
operation of its computer system from Hamidi’s messages, nor any likelihood that
Hamidi’s actions will be replicated by others if found not to constitute a trespass.
That Intel does not claim the type of functional impact that spammers and
robots have been alleged to cause is not surprising in light of the differences
between Hamidi’s activities and those of a commercial enterprise that uses sheer
quantity of messages as its communications strategy. Though Hamidi sent
thousands of copies of the same message on six occasions over 21 months, that
number is minuscule compared to the amounts of mail sent by commercial
operations. The individual advertisers sued in America Online, Inc. v. IMS, supra,
24 F.Supp.2d at page 549, and America Online, Inc. v. LCGM, Inc., supra, 46
F.Supp.2d at page 448, were alleged to have sent more than 60 million messages
over 10 months and more than 92 million messages over seven months,
respectively. Collectively, UCE has reportedly come to constitute about 45
percent of all e-mail. (Hansell, Internet Is Losing Ground in Battle Against Spam,
15
N.Y. Times (Apr. 22, 2003) p. A1, col. 3.) The functional burden on Intel’s
computers, or the cost in time to individual recipients, of receiving Hamidi’s
occasional advocacy messages cannot be compared to the burdens and costs
caused ISP’s and their customers by the ever-rising deluge of commercial e-mail.
Intel relies on language in the eBay decision suggesting that unauthorized
use of another’s chattel is actionable even without any showing of injury: “Even
if, as [defendant] BE argues, its searches use only a small amount of eBay’s
computer system capacity, BE has nonetheless deprived eBay of the ability to use
that portion of its personal property for its own purposes. The law recognizes no
such right to use another’s personal property.” (eBay, supra, 100 F.Supp.2d at p.
1071.) But as the eBay court went on immediately to find that the defendant’s
conduct, if widely replicated, would likely impair the functioning of the plaintiff’s
system (id. at pp. 1071-1072), we do not read the quoted remarks as expressing the
court’s complete view of the issue. In isolation, moreover, they would not be a
correct statement of California or general American law on this point. While one
may have no right temporarily to use another’s personal property, such use is
actionable as a trespass only if it “has proximately caused injury.” (Thrifty-Tel,
supra, 46 Cal.App.4th at p. 1566.) “[I]n the absence of any actual damage the
action will not lie.” (Prosser & Keeton, Torts, supra, § 14, p. 87.) Short of
dispossession, personal injury, or physical damage (not present here),
intermeddling is actionable only if “the chattel is impaired as to its condition,
quality, or value, or [¶] . . . the possessor is deprived of the use of the chattel for a
substantial time.” (Rest.2d Torts, § 218, pars. (b), (c).) In particular, an actionable
deprivation of use “must be for a time so substantial that it is possible to estimate
the loss caused thereby. A mere momentary or theoretical deprivation of use is
not sufficient unless there is a dispossession . . . .” (Id., com. i, p. 423.) That
Hamidi’s messages temporarily used some portion of the Intel computers’
16
processors or storage is, therefore, not enough; Intel must, but does not,
demonstrate some measurable loss from the use of its computer system.5
In addition to impairment of system functionality, CompuServe and its
progeny also refer to the ISP’s loss of business reputation and customer goodwill,
resulting from the inconvenience and cost that spam causes to its members, as
harm to the ISP’s legally protected interests in its personal property. (See
CompuServe, supra, 962 F.Supp.2d at p. 1023; Hotmail Corp. v. Van$ Money Pie,
Inc., supra, 1998 WL 388389 at p. *7; America Online, Inc. v. IMS, supra, 24
F.Supp.2d at p. 550.) Intel argues that its own interest in employee productivity,
assertedly disrupted by Hamidi’s messages, is a comparable protected interest in
its computer system. We disagree.
Whether the economic injuries identified in CompuServe were properly
considered injuries to the ISP’s possessory interest in its personal property, the
type of property interest the tort is primarily intended to protect (see Rest.2d Torts,
§ 218 & com. e, pp. 421-422; Prosser & Keeton, Torts, supra, § 14, p. 87), has
5
In the most recent decision relied upon by Intel, Oyster Software, Inc. v.
Forms Processing, Inc. (N.D.Cal., Dec. 6, 2001, No. C-00-0724 JCS) 2001 WL
1736382, pages *12-*13, a federal magistrate judge incorrectly read eBay as
establishing, under California law, that mere unauthorized use of another’s
computer system constitutes an actionable trespass. The plaintiff accused the
defendant, a business competitor, of copying the metatags (code describing the
contents of a Web site to a search engine) from the plaintiff’s Web site, resulting
in diversion of potential customers for the plaintiff’s services. (Id. at pp. *1-*2.)
With regard to the plaintiff’s trespass claim (the plaintiff also pleaded causes of
action for, inter alia, misappropriation, copyright and trademark infringement), the
magistrate judge concluded that eBay imposed no requirement of actual damage
and that the defendant’s conduct was sufficient to establish a trespass “simply
because [it] amounted to ‘use’ of Plaintiff’s computer.” (Id. at p. *13.) But as just
explained, we do not read eBay, supra, 100 F.Supp.2d 1058, as holding that the
actual injury requirement may be dispensed with, and such a suggestion would, in
any event, be erroneous as a statement of California law.
17
been questioned.6 “[T]he court broke the chain between the trespass and the harm,
allowing indirect harms to CompuServe’s business interests—reputation, customer
goodwill, and employee time—to count as harms to the chattel (the server).”
(Quilter, The Continuing Expansion of Cyberspace Trespass to Chattels, supra, 17
Berkeley Tech. L.J. at pp. 429-430.) “[T]his move cuts trespass to chattels free
from its moorings of dispossession or the equivalent, allowing the court free reign
[sic] to hunt for ‘impairment.’ ” (Burk, The Trouble with Trespass (2000) 4 J.
Small & Emerging Bus.L. 27, 35.) But even if the loss of goodwill identified in
CompuServe were the type of injury that would give rise to a trespass to chattels
claim under California law, Intel’s position would not follow, for Intel’s claimed
injury has even less connection to its personal property than did CompuServe’s.
CompuServe’s customers were annoyed because the system was inundated
with unsolicited commercial messages, making its use for personal communication
more difficult and costly. (CompuServe, supra, 962 F.Supp. at p. 1023.) Their
complaint, which allegedly led some to cancel their CompuServe service, was
about the functioning of CompuServe’s electronic mail service. Intel’s workers, in
contrast, were allegedly distracted from their work not because of the frequency or
quantity of Hamidi’s messages, but because of assertions and opinions the
6
In support of its reasoning, the CompuServe court cited paragraph (d) of
section 218 of the Restatement Second of Torts, which refers to harm “to some
person or thing in which the possessor has a legally protected interest.” As the
comment to this paragraph explains, however, it is intended to cover personal
injury to the possessor or another person in whom the possessor has a legal
interest, or injury to “other chattel or land” in which the possessor of the chattel
subject to the trespass has a legal interest. (Rest.2d Torts, § 218, com. j, p. 423.)
No personal injury was claimed either in CompuServe or in the case at bar, and
neither the lost goodwill in CompuServe nor the loss of employee efficiency
claimed in the present case is chattel or land.
18
messages conveyed. Intel’s complaint is thus about the contents of the messages
rather than the functioning of the company’s e-mail system. Even accepting
CompuServe’s economic injury rationale, therefore, Intel’s position represents a
further extension of the trespass to chattels tort, fictionally recharacterizing the
allegedly injurious effect of a communication’s contents on recipients as an
impairment to the device which transmitted the message.
This theory of “impairment by content” (Burk, The Trouble with Trespass,
supra, 4 J. Small & Emerging Bus.L. at p. 37) threatens to stretch trespass law to
cover injuries far afield from the harms to possession the tort evolved to protect.
Intel’s theory would expand the tort of trespass to chattels to cover virtually any
unconsented-to communication that, solely because of its content, is unwelcome to
the recipient or intermediate transmitter. As the dissenting justice below
explained, “ ‘Damage’ of this nature—the distraction of reading or listening to an
unsolicited communication—is not within the scope of the injury against which
the trespass-to-chattel tort protects, and indeed trivializes it. After all, ‘[t]he
property interest protected by the old action of trespass was that of possession; and
this has continued to affect the character of the action.’ (Prosser & Keeton on
Torts, supra, § 14, p. 87.) Reading an e-mail transmitted to equipment designed to
receive it, in and of itself, does not affect the possessory interest in the equipment.
[¶] Indeed, if a chattel’s receipt of an electronic communication constitutes a
trespass to that chattel, then not only are unsolicited telephone calls and faxes
trespasses to chattel, but unwelcome radio waves and television signals also
constitute a trespass to chattel every time the viewer inadvertently sees or hears
the unwanted program.” We agree. While unwelcome communications,
electronic or otherwise, can cause a variety of injuries to economic relations,
reputation and emotions, those interests are protected by other branches of tort
19
law; in order to address them, we need not create a fiction of injury to the
communication system.
Nor may Intel appropriately assert a property interest in its employees’
time. “The Restatement test clearly speaks in the first instance to the impairment
of the chattel. . . . But employees are not chattels (at least not in the legal sense of
the term).” (Burk, The Trouble with Trespass, supra, 4 J. Small & Emerging
Bus.L. at p. 36.) Whatever interest Intel may have in preventing its employees
from receiving disruptive communications, it is not an interest in personal
property, and trespass to chattels is therefore not an action that will lie to protect it.
Nor, finally, can the fact Intel staff spent time attempting to block Hamidi’s
messages be bootstrapped into an injury to Intel’s possessory interest in its
computers. To quote, again, from the dissenting opinion in the Court of Appeal:
“[I]t is circular to premise the damage element of a tort solely upon the steps taken
to prevent the damage. Injury can only be established by the completed tort’s
consequences, not by the cost of the steps taken to avoid the injury and prevent the
tort; otherwise, we can create injury for every supposed tort.”
Intel connected its e-mail system to the Internet and permitted its
employees to make use of this connection both for business and, to a reasonable
extent, for their own purposes. In doing so, the company necessarily contemplated
the employees’ receipt of unsolicited as well as solicited communications from
other companies and individuals. That some communications would, because of
their contents, be unwelcome to Intel management was virtually inevitable.
Hamidi did nothing but use the e-mail system for its intended purpose—to
communicate with employees. The system worked as designed, delivering the
messages without any physical or functional harm or disruption. These occasional
transmissions cannot reasonably be viewed as impairing the quality or value of
Intel’s computer system. We conclude, therefore, that Intel has not presented
20
undisputed facts demonstrating an injury to its personal property, or to its legal
interest in that property, that support, under California tort law, an action for
trespass to chattels.
II. Proposed Extension of California Tort Law
We next consider whether California common law should be extended to
cover, as a trespass to chattels, an otherwise harmless electronic communication
whose contents are objectionable. We decline to so expand California law. Intel,
of course, was not the recipient of Hamidi’s messages, but rather the owner and
possessor of computer servers used to relay the messages, and it bases this tort
action on that ownership and possession. The property rule proposed is a rigid
one, under which the sender of an electronic message would be strictly liable to
the owner of equipment through which the communication passes—here, Intel—
for any consequential injury flowing from the contents of the communication. The
arguments of amici curiae and academic writers on this topic, discussed below,
leave us highly doubtful whether creation of such a rigid property rule would be
wise.
Writing on behalf of several industry groups appearing as amici curiae,
Professor Richard A. Epstein of the University of Chicago urges us to excuse the
required showing of injury to personal property in cases of unauthorized electronic
contact between computers, “extending the rules of trespass to real property to all
interactive Web sites and servers.” The court is thus urged to recognize, for
owners of a particular species of personal property, computer servers, the same
interest in inviolability as is generally accorded a possessor of land. In effect,
Professor Epstein suggests that a company’s server should be its castle, upon
which any unauthorized intrusion, however harmless, is a trespass.
21
Epstein’s argument derives, in part, from the familiar metaphor of the
Internet as a physical space, reflected in much of the language that has been used
to describe it: “cyberspace,” “the information superhighway,” e-mail “addresses,”
and the like. Of course, the Internet is also frequently called simply the “Net,” a
term, Hamidi points out, “evoking a fisherman’s chattel.” A major component of
the Internet is the World Wide “Web,” a descriptive term suggesting neither
personal nor real property, and “cyberspace” itself has come to be known by the
oxymoronic phrase “virtual reality,” which would suggest that any real property
“located” in “cyberspace” must be “virtually real” property. Metaphor is a
two-edged sword.
Indeed, the metaphorical application of real property rules would not, by
itself, transform a physically harmless electronic intrusion on a computer server
into a trespass. That is because, under California law, intangible intrusions on
land, including electromagnetic transmissions, are not actionable as trespasses
(though they may be as nuisances) unless they cause physical damage to the real
property. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th
893, 936-937.) Since Intel does not claim Hamidi’s electronically transmitted
messages physically damaged its servers, it could not prove a trespass to land even
were we to treat the computers as a type of real property. Some further extension
of the conceit would be required, under which the electronic signals Hamidi sent
would be recast as tangible intruders, perhaps as tiny messengers rushing through
the “hallways” of Intel’s computers and bursting out of employees’ computers to
read them Hamidi’s missives. But such fictions promise more confusion than
clarity in the law. (See eBay, supra, 100 F.Supp.2d at pp. 1065-1066 [rejecting
eBay’s argument that the defendant’s automated data searches “should be thought
of as equivalent to sending in an army of 100,000 robots a day to check the prices
in a competitor’s store”].)
22
The plain fact is that computers, even those making up the Internet, are—
like such older communications equipment as telephones and fax machines—
personal property, not realty. Professor Epstein observes that “[a]lthough servers
may be moved in real space, they cannot be moved in cyberspace,” because an
Internet server must, to be useful, be accessible at a known address. But the same
is true of the telephone: to be useful for incoming communication, the telephone
must remain constantly linked to the same number (or, when the number is
changed, the system must include some forwarding or notification capability, a
qualification that also applies to computer addresses). Does this suggest that an
unwelcome message delivered through a telephone or fax machine should be
viewed as a trespass to a type of real property? We think not: As already
discussed, the contents of a telephone communication may cause a variety of
injuries and may be the basis for a variety of tort actions (e.g., defamation,
intentional infliction of emotional distress, invasion of privacy), but the injuries
are not to an interest in property, much less real property, and the appropriate tort
is not trespass.7
7
The tort law discussion in Justice Brown’s dissenting opinion similarly
suffers from an overreliance on metaphor and analogy. Attempting to find an
actionable trespass, Justice Brown analyzes Intel’s e-mail system as comparable to
the exterior of an automobile (dis. opn. of Brown, J., post, at p. 1), a plot of land
(id., at pp. 14-15), the interior of an automobile (p. 18), a toothbrush (pp. 22-23), a
head of livestock (p. 23), and a mooring buoy (pp. 24-25), while Hamidi is
characterized as a vandal damaging a school building (p. 21) or a prankster
unplugging and moving employees’ computers (p. 23). These colorful analogies
tend to obscure the plain fact that this case involves communications equipment,
used by defendant to communicate. Intel’s e-mail system was equipment designed
for speedy communication between employees and the outside world; Hamidi
communicated with Intel employees over that system in a manner entirely
consistent with its design; and Intel objected not because of an offense against the
integrity or dignity of its computers, but because the communications themselves
(Footnote continued on next page.)
23
More substantively, Professor Epstein argues that a rule of computer server
inviolability will, through the formation or extension of a market in
computer-to-computer access, create “the right social result.” In most
circumstances, he predicts, companies with computers on the Internet will
continue to authorize transmission of information through e-mail, Web site
searching, and page linking because they benefit by that open access. When a
Web site owner does deny access to a particular sending, searching, or linking
computer, a system of “simple one-on-one negotiations” will arise to provide the
necessary individual licenses.
Other scholars are less optimistic about such a complete propertization of
the Internet. Professor Mark Lemley of the University of California, Berkeley,
writing on behalf of an amici curiae group of professors of intellectual property
and computer law, observes that under a property rule of server inviolability,
“each of the hundreds of millions of [Internet] users must get permission in
advance from anyone with whom they want to communicate and anyone who
owns a server through which their message may travel.” The consequence for e-
mail could be a substantial reduction in the freedom of electronic communication,
as the owner of each computer through which an electronic message passes could
impose its own limitations on message content or source. As Professor Dan
Hunter of the University of Pennsylvania asks rhetorically: “Does this mean that
(Footnote continued from previous page.)
affected employee-recipients in a manner Intel found undesirable. The proposal
that we extend trespass to chattels to cover any communication that the owner of
the communications equipment considers annoying or distracting raises, moreover,
concerns about control over the flow of information and views that would not be
presented by, for example, an injunction against chasing another’s cattle or
sleeping in her car.
24
one must read the ‘Terms of Acceptable Email Usage’ of every email system that
one emails in the course of an ordinary day? If the University of Pennsylvania had
a policy that sending a joke by email would be an unauthorized use of their
system, then under the logic of [the lower court decision in this case], you commit
‘trespass’ if you emailed me a . . . cartoon.” (Hunter, Cyberspace as Place, and
the Tragedy of the Digital Anticommons (2003) 91 Cal. L.Rev. 439, 508-509.)
Web site linking, Professor Lemley further observes, “would exist at the
sufferance of the linked-to party, because a Web user who followed a
‘disapproved’ link would be trespassing on the plaintiff’s server, just as sending an
e-mail is trespass under the [lower] court’s theory.” Another writer warns that
“[c]yber-trespass theory will curtail the free flow of price and product information
on the Internet by allowing website owners to tightly control who and what may
enter and make use of the information housed on its Internet site.” (Chang,
Bidding on Trespass: eBay, Inc. v. Bidder’s Edge, Inc. and the Abuse of Trespass
Theory in Cyberspace Law (2001) 29 AIPLA Q.J. 445, 459.) A leading scholar of
Internet law and policy, Professor Lawrence Lessig of Stanford University, has
criticized Professor Epstein’s theory of the computer server as quasi-real property,
previously put forward in the eBay case (eBay, supra, 100 F.Supp.2d 1058), on the
ground that it ignores the costs to society in the loss of network benefits: “eBay
benefits greatly from a network that is open and where access is free. It is this
general feature of the Net that makes the Net so valuable to users and a source of
great innovation. And to the extent that individual sites begin to impose their own
rules of exclusion, the value of the network as a network declines. If machines
must negotiate before entering any individual site, then the costs of using the
network climb.” (Lessig, The Future of Ideas: The Fate of the Commons in a
Connected World (2001) p. 171; see also Hunter, Cyberspace as Place, and the
Tragedy of the Digital Anticommons, supra, 91 Cal. L.Rev. at p. 512 [“If we
25
continue to mark out anticommons claims in cyberspace, not only will we
preclude better, more innovative uses of cyberspace resources, but we will lose
sight of what might be possible”].)
We discuss this debate among the amici curiae and academic writers only
to note its existence and contours, not to attempt its resolution. Creating an
absolute property right to exclude undesired communications from one’s e-mail
and Web servers might help force spammers to internalize the costs they impose
on ISP’s and their customers. But such a property rule might also create
substantial new costs, to e-mail and e-commerce users and to society generally, in
lost ease and openness of communication and in lost network benefits. In light of
the unresolved controversy, we would be acting rashly to adopt a rule treating
computer servers as real property for purposes of trespass law.
The Legislature has already adopted detailed regulations governing UCE.
(Bus. & Prof. Code, §§ 17538.4, 17538.45; see generally Ferguson v.
Friendfinders, Inc., supra, 94 Cal.App.4th 1255.) It may see fit in the future also
to regulate noncommercial e-mail, such as that sent by Hamidi, or other kinds of
unwanted contact between computers on the Internet, such as that alleged in eBay,
supra, 100 F.Supp.2d 1058. But we are not persuaded that these perceived
problems call at present for judicial creation of a rigid property rule of computer
server inviolability. We therefore decline to create an exception, covering
Hamidi’s unwanted electronic messages to Intel employees, to the general rule that
a trespass to chattels is not actionable if it does not involve actual or threatened
injury to the personal property or to the possessor’s legally protected interest in the
personal property. No such injury having been shown on the undisputed facts,
Intel was not entitled to summary judgment in its favor.
26
III. Constitutional Considerations
Because we conclude no trespass to chattels was shown on the summary
judgment record, making the injunction improper on common law grounds, we
need not address at length the dissenters’ constitutional arguments. A few
clarifications are nonetheless in order.
Justice Mosk asserts that this case involves only “a private entity seeking to
enforce private trespass rights.” (Dis. opn. of Mosk, J., post, at p. 14.) But the
injunction here was issued by a state court. While a private refusal to transmit
another’s electronic speech generally does not implicate the First Amendment,
because no governmental action is involved (see Cyber Promotions, Inc. v.
America Online, Inc. (E.D.Penn. 1996) 948 F.Supp. 436, 441-445 [spammer could
not force private ISP to carry its messages]), the use of government power,
whether in enforcement of a statute or ordinance or by an award of damages or an
injunction in a private lawsuit, is state action that must comply with First
Amendment limits. (Cohen v. Cowles Media Co. (1991) 501 U.S. 663, 668;
NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 916, fn. 51; New York
Times v. Sullivan (1964) 376 U.S. 254, 265.) Nor does the nonexistence of a
“constitutional right to trespass” (dis. opn. of Mosk, J., post, at p. 14) make an
injunction in this case per se valid. Unlike, for example, the trespasser-to-land
defendant in Church of Christ in Hollywood v. Superior Court (2002) 99
Cal.App.4th 1244, Hamidi himself had no tangible presence on Intel property,
instead speaking from his own home through his computer. He no more invaded
Intel’s property than does a protester holding a sign or shouting through a bullhorn
outside corporate headquarters, posting a letter through the mail, or telephoning to
complain of a corporate practice. (See Madsen v. Women’s Health Center (1994)
27
512 U.S. 753, 765 [injunctions restraining such speakers must “burden no more
speech than necessary to serve a significant government interest”].)8
Justice Brown relies upon a constitutional “right not to listen,” rooted in the
listener’s “personal autonomy” (dis. opn. of Brown, J., post, at p. 11), as
compelling a remedy against Hamidi’s messages, which she asserts were sent to
“unwilling” listeners (id., at p. 4). Even assuming a corporate entity could under
some circumstances claim such a personal right, here the intended and actual
recipients of Hamidi’s messages were individual Intel employees, rather than Intel
itself. The record contains no evidence Hamidi sent messages to any employee
who notified him such messages were unwelcome. In any event, such evidence
would, under the dissent’s rationale of a right not to listen, support only a narrow
injunction aimed at protecting individual recipients who gave notice of their
rejection. (See Bolger v. Youngs Drug Products Corp. (1983) 463 U.S. 60, 72
[government may not act on behalf of all addressees by generally prohibiting
mailing of materials related to contraception, where those recipients who may be
offended can simply ignore and discard the materials]; Martin v. City of Struthers
(1943) 319 U.S. 141, 144 [anti-canvassing ordinance improperly “substitutes the
judgment of the community for the judgment of the individual householder”]; cf.
Rowan v. U.S. Post Office Dept. (1970) 397 U.S. 728, 736 [“householder” may
8
Justice Brown would distinguish Madsen v. Women’s Health Cente, supra,
on the ground that the operators of the health center in that case would not have
been entitled to “drive[] [the protesters] from the public streets,” whereas Intel was
entitled to block Hamidi’s messages as best it could. (Dis. opn. of Brown, J., post,
at p. 6, fn. 1.) But the health center operators were entitled to block protesters’
messages—as best they could—by closing windows and pulling blinds. That a
property owner may take physical measures to prevent the transmission of others’
speech into or across the property does not imply that a court order enjoining the
speech is not subject to constitutional limitations.
28
exercise “individual autonomy” by refusing delivery of offensive mail].) The
principal of a right not to listen, founded in personal autonomy, cannot justify the
sweeping injunction issued here against all communication to Intel addresses, for
such a right, logically, can be exercised only by, or at the behest of, the recipient
himself or herself.
DISPOSITION
The judgment of the Court of Appeal is reversed.
WERDEGAR, J.
WE CONCUR:
KENNARD, J.
MORENO, J.
PERREN, J.*
*
Associate Justice of the Court of Appeal, Second Appellate District,
Division Six, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
29
CONCURRING OPINION BY KENNARD, J.
I concur.
Does a person commit the tort of trespass to chattels by making occasional
personal calls to a mobile phone despite the stated objection of the person who
owns the mobile phone and pays for the mobile phone service? Does it matter that
the calls are not made to the mobile phone’s owner, but to another person who
ordinarily uses that phone? Does it matter that the person to whom the calls are
made has not objected to them? Does it matter that the calls do not damage the
mobile phone or reduce in any significant way its availability or usefulness?
The majority concludes, and I agree, that using another’s equipment to
communicate with a third person who is an authorized user of the equipment and
who does not object to the communication is trespass to chattels only if the
communications damage the equipment or in some significant way impair its
usefulness or availability.
Intel has my sympathy. Unsolicited and unwanted bulk e-mail, most of it
commercial, is a serious annoyance and inconvenience for persons who
communicate electronically through the Internet, and bulk e-mail that distracts
employees in the workplace can adversely affect overall productivity. But, as the
majority persuasively explains, to establish the tort of trespass to chattels in
California, the plaintiff must prove either damage to the plaintiff’s personal
property or actual or threatened impairment of the plaintiff’s ability to use that
1
property. Because plaintiff Intel has not shown that defendant Hamidi’s
occasional bulk e-mail messages to Intel’s employees have damaged Intel’s
computer system or impaired its functioning in any significant way, Intel has not
established the tort of trespass to chattels.
This is not to say that Intel is helpless either practically or legally. As a
practical matter, Intel need only instruct its employees to delete messages from
Hamidi without reading them and to notify Hamidi to remove their workplace e-
mail addresses from his mailing lists. Hamidi’s messages promised to remove
recipients from the mailing list on request, and there is no evidence that Hamidi
has ever failed to do so. From a legal perspective, a tort theory other than trespass
to chattels may provide Intel with an effective remedy if Hamidi’s messages are
defamatory or wrongfully interfere with Intel’s economic interests. (See maj.
opn., ante, at p. 3.) Additionally, the Legislature continues to study the problems
caused by bulk e-mails and other dubious uses of modern communication
technologies and may craft legislation that accommodates the competing concerns
in these sensitive and highly complex areas.
Accordingly, I join the majority in reversing the Court of Appeal’s
judgment.
KENNARD,
J.
2
DISSENTING OPINION OF BROWN, J.
Candidate A finds the vehicles that candidate B has provided for his
campaign workers, and A spray paints the water soluble message, “Fight
corruption, vote for A” on the bumpers. The majority’s reasoning would find that
notwithstanding the time it takes the workers to remove the paint and the expense
they incur in altering the bumpers to prevent further unwanted messages,
candidate B does not deserve an injunction unless the paint is so heavy that it
reduces the cars’ gas mileage or otherwise depreciates the cars’ market value.
Furthermore, candidate B has an obligation to permit the paint’s display, because
the cars are driven by workers and not B personally, because B allows his workers
to use the cars to pick up their lunch or retrieve their children from school, or
because the bumpers display B’s own slogans. I disagree.
Intel has invested millions of dollars to develop and maintain a computer
system. It did this not to act as a public forum but to enhance the productivity of
its employees. Kourosh Kenneth Hamidi sent as many as 200,000 e-mail
messages to Intel employees. The time required to review and delete Hamidi’s
messages diverted employees from productive tasks and undermined the utility of
the computer system. “There may . . . be situations in which the value to the
owner of a particular type of chattel may be impaired by dealing with it in a
manner that does not affect its physical condition.” (Rest.2d Torts, § 218, com. h,
p. 422.) This is such a case.
The majority repeatedly asserts that Intel objected to the hundreds of
thousands of messages solely due to their content, and proposes that Intel seek
1
relief by pleading content-based speech torts. This proposal misses the point that
Intel’s objection is directed not toward Hamidi’s message but his use of Intel’s
property to display his message. Intel has not sought to prevent Hamidi from
expressing his ideas on his Web site, through private mail (paper or electronic) to
employees’ homes, or through any other means like picketing or billboards. But
as counsel for Intel explained during oral argument, the company objects to
Hamidi’s using Intel’s property to advance his message.
Of course, Intel deserves an injunction even if its objections are based
entirely on the e-mail’s content. Intel is entitled, for example, to allow employees
use of the Internet to check stock market tables or weather forecasts without
incurring any concomitant obligation to allow access to pornographic Web sites.
(Loving v. Boren (W.D.Okla. 1997) 956 F.Supp. 953, 955.) A private property
owner may choose to exclude unwanted mail for any reason, including its content.
(Rowan v. U.S. Post Office Dept. (1970) 397 U.S. 728, 738 (Rowan); Tillman v.
Distribution Systems of America Inc. (App. Div. 1996) 648 N.Y.S.2d 630, 635
(Tillman).)
The majority refuses to protect Intel’s interest in maintaining the integrity
of its own system, contending that: (1) Hamidi’s mailings did not physically
injure the system; (2) Intel receives many unwanted messages, of which Hamidi’s
are but a small fraction; (3) Intel must have contemplated that it would receive
some unwanted messages; and (4) Hamidi used the e-mail system for its intended
purpose, to communicate with employees.
Other courts have found a protectible interest under very similar
circumstances. In Thrifty-Tel v. Bezenek (1996) 46 Cal.App.4th 1559 (Thrifty-
Tel), the Court of Appeal found a trespass to chattels where the defendants used
another party’s access code to search for an authorization code with which they
could make free calls. The defendants’ calls did not damage the company’s
2
system in any way; they were a miniscule fraction of the overall communication
conducted by the phone network; and the company could have reasonably
expected that some individuals would attempt to obtain codes with which to make
free calls (just as stores expect shoplifters). Moreover, had the defendants
succeeded in making free calls, they would have been using the telephone system
as intended. (Id. at p. 1563.)
Because I do not share the majority’s antipathy toward property rights and
believe the proper balance between expressive activity and property protection can
be achieved without distorting the law of trespass, I respectfully dissent.
THE INSTANT FINDING OF A TRESPASS CONFORMS THE LAW ON ELECTRONIC
MAIL TO THAT OF OTHER FORMS OF COMMUNICATION
The majority endorses the view of the Court of Appeal dissent, and review
a finding of a trespass in this case as a radical decision that will endanger almost
every other form of expression. Contrary to these concerns, the Court of Appeal
decision belongs not to a nightmarish future but to an unremarkable past—a long
line of cases protecting the right of an individual not to receive an unwanted
message after having expressed that refusal to the speaker. It breaks no new legal
ground and follows traditional rules regarding communication.
It is well settled that the law protects a person’s right to decide to whom he
will speak, to whom he will listen, and to whom he will not listen. (Martin v. City
of Struthers (1943) 319 U.S. 141, 149 (Martin) [noting the “constitutional rights of
those desiring to distribute literature and those desiring to receive it, as well as
those who choose to exclude such distributors”].) As the United States Supreme
Court observed, “we have repeatedly held that individuals are not required to
welcome unwanted speech into their homes” (Frisby v. Schultz (1988) 487 U.S.
474, 485), whether the unwanted speech comes in the form of a door-to-door
solicitor (see Martin, at pp. 147-148), regular “snail” mail (Rowan, supra, 397
3
U.S. 728), radio waves (FCC v. Pacifica Foundation (1978) 438 U.S. 726), or
other forms of amplified sound (Kovacs v. Cooper (1949) 336 U.S. 77). (See
Frisby v. Schultz, at p. 485.)
Of course, speakers have rights too, and thus the result is a balancing:
speakers have the right to initiate speech but the listener has the right to refuse to
listen or to terminate the conversation. This simple policy thus supports Hamidi’s
right to send e-mails initially, but not after Intel expressed its objection.
Watchtower Bible and Tract Society v. Village of Stratton (2002) 536 U.S.
150 does not compel a contrary result. Watchtower follows Martin, supra, 319
U.S. 141, in holding that the government may not bar a speaker from a
homeowner’s door, but the homeowner surely may. The Martin court invalidated
an ordinance that banned all door-to-door soliciting (in that case the speech was
the noncommercial ideas of a religious sect), even at homes where the residents
wished to hear the speech. This exclusion “substitute[d] the judgment of the
community for the judgment of the individual householder.” (Martin, at
p. 144.) Instead, the court authorized the property owner to indicate his desire not
to be disturbed. “This or any similar regulation leaves the decision as to whether
distributers of literature may lawfully call at a home where it belongs—with the
homeowner himself.” (Id. at p. 148.) A speaker is entitled to speak with willing
listeners but not unwilling ones. “A city can punish those who call at a home in
defiance of the previously expressed will of the occupant . . . .” (Ibid., italics
added.) Watchtower, supra, 536 U.S. 150, reaffirmed the listener’s complete
autonomy to accept or reject offered speech.
Martin further recognized that the decisions regarding whether to accept a
particular message must be made by a nongovernmental actor, but not necessarily
by every single potential listener on an individual level. “No one supposes . . . that
the First Amendment prohibits a state from preventing the distribution of leaflets
4
in a church against the will of the church authorities.” (Martin, supra, 319 U.S. at
p. 143, italics added.) Unanimity among the congregation is not required. (See
also Church of Christ in Hollywood v. Superior Court (2002) 99 Cal.App.4th 1244
(Church of Christ).) The Supreme Court reaffirmed this rule in Lloyd Corp. v.
Tanner (1972) 407 U.S. 551 (Lloyd) and Hudgens v. NLRB (1976) 424 U.S. 507,
where private shopping mall owners validly excluded speakers from their malls.
The owners could make this decision, even though they were not the “intended
and actual recipients of [the speakers’] messages.” (Maj. opn., ante, at p. 28.) The
owners had no obligation to obtain the agreement of every individual store within
the mall, or of every employee within every store in the mall.1
1
The majority distinguishes Church of Christ on its facts, by asserting that a
former church member could be barred from church property because she had a
“tangible presence” on the church’s property. (Maj. opn., ante, at p. 27.) But the
majority does not refute the legal point that “the mere judicial enforcement of
neutral trespass laws by the private owner of property does not alone render it a
state actor.” (CompuServe, Inc. v. Cyber Promotions, Inc. (S.D. Ohio 1997) 962
F.Supp. 1015, 1026 (CompuServe).)
The First Amendment does not shield Hamidi’s speech, and the majority’s
authorities do not suggest it does. On the contrary, the high court recognized that
the First Amendment does not preclude generally applicable laws, even where
they incidentally restrict speech. (Cohen v. Cowles Media Co. (1991) 501 U.S.
663, 669.) There is thus no right to intrude upon privately owned property simply
to generate speech. (Ibid.)
The majority cites New York Times Co. v. Sullivan (1964) 376 U.S. 254, as
well as N.A.A.C.P. v. Claiborne Hardware Co. (1982) 458 U.S. 886, and Madsen
v. Women’s Health Center, Inc. (1994) 512 U.S. 753, none of which are apposite.
In these cases, speakers enjoyed First Amendment protection when they spoke to
the public through a newspaper advertisement (with the newspaper’s consent) or a
protest on a public street, a traditional public forum. (Schneider v. State (1939)
308 U.S. 147.) If Hamidi had similarly expressed his anti-Intel feelings in a
newspaper advertisement or from a public street, these authorities would be on
point. By contrast, nothing in New York Times entitles a computer hacker to alter
an online newspaper’s content so that it expresses the hacker’s opinions against
the paper’s wishes.
(Footnote continued on next page.)
5
This rule applies not only to real property but also to chattels like a
computer system. In Loving v. Boren, supra, 956 F.Supp. at page 955, the court
held that the University of Oklahoma could restrict the use of its computer system
to exclude pornographic messages, notwithstanding the contrary preferences of
any individual faculty member (or student). Intel may similarly control the use of
its own property, regardless of any specific employee’s contrary wishes. (See also
Bus. & Prof. Code, § 17538.4, subd. (h).) In any event, Hamidi had ample
opportunity in his preobjection e-mails to direct employees to his Web site or
request the employees’ private e-mail addresses. He thus continues to use the
internal Intel network to speak to an unreceptive audience.2
Accordingly, all that matters is that Intel exercised the right recognized in
Martin to exclude unwanted speech. The instant case is considerably easier than
(Footnote continued from previous page.)
Intel’s right to use reasonable force (see maj. opn., ante, at p. 9), to prevent
interference with its property distinguishes this case from the majority’s United
States Supreme Court precedents. Whereas Intel could attempt to block the
unwanted messages, Sullivan, who claimed to have been libeled by the newspaper,
could not have burned the newspapers to prevent their publication, nor could the
targets of the public protesters in Claiborne Hardware or Madsen have driven
them from the public streets where they were speaking. Contrariwise, Intel, as the
majority does not dispute, would have been allowed to suppress Hamidi’s
messages if it had been able to do so.
2
Hamidi required employees to take affirmative steps to remove themselves
from the mailing list. Not only might some employees have declined to do so
because such removal might involve a greater burden than simply deleting the
unwanted message, but they also might reasonably have assumed that such
requests could be counterproductive. (Whang, An Analysis of California’s
Common and Statutory Law Dealing with Unsolicited Commercial Electronic
Mail: An Argument for Revision (2000) 37 San Diego L.Rev. 1201, 1205-1206
(Whang).) “ ‘Don’t respond [to spam]! Don’t ask them to “take you off a list.”
People who respond—even negatively—are viewed as Grade A targets. You will
probably get more junk than ever.’ ” (Id. at p. 1206 & fn. 24, quoting Campbell,
Waging War on Internet Spammers, Toronto Star (Aug. 26, 1999) p. L5.)
6
Lloyd and Hudgens in light of the severe infringement on Intel’s autonomy.
Whereas the mall owners had been asked merely to allow others to speak, Intel,
through its server, must itself actively “participate in the dissemination of an
ideological message by displaying it on . . . private property in a manner and for
the express purpose that it be observed and read . . . .” (Wooley v. Maynard (1977)
430 U.S. 705, 713.)
The principle that a speaker’s right to speak to a particular listener exists for
only so long as the listener wishes to listen applies also to mail delivery. (Rowan,
supra, 397 U.S. 728.) In Bolger v. Youngs Drug Products Corp. (1983) 463 U.S.
60 (Bolger), the court struck down a law barring the mailing of information
regarding contraception because the government was deciding which messages
could be delivered. But Bolger cited Rowan with approval—a case that upheld the
procedure by which private parties could refuse to receive specific materials.
“[A] sufficient measure of individual autonomy must survive to permit every
householder to exercise control over unwanted mail.” (Rowan, supra, 397 U.S.
at p. 736.) Citing Martin, supra, 319 U.S. 141, Rowan held “a mailer’s right to
communicate must stop at the mailbox of an unreceptive addressee . . . . [¶] . . .
[¶] To hold less would tend to license a form of trespass.” (Rowan, at pp.
736-737, italics added.) Furthermore, Bolger expressly contemplated that
some family members would exclude materials on behalf of others; the right to
accept or reject speech thus belonged to the household, not each individual
member. (Bolger, at p. 73.)
The pertinent precedent for an anti-spam case is Rowan, which involved
private action, not Bolger, which involved governmental action. “ ‘[H]ere we are
not dealing with a government agency which seeks to preempt in some way the
ability of a publisher to contact a potential reader; rather, we are dealing with a
reader who is familiar with the publisher’s product, and who is attempting to
7
prevent the unwanted dumping of this product on his property.” (CompuServe,
supra, 962 F.Supp. at p. 1027, quoting Tillman, supra, 648 N.Y.S.2d at p. 635.)
Rowan further held the recipient could reject a message for any subjective
reason, including annoyance or discomfort at its content. (Rowan, supra, 397 U.S.
at p. 738.) A private actor thus has no obligation to hear all messages just because
he chooses to hear some. A homeowner’s desire to receive letters from relatives
or friends does not compel him to accept offensive solicitations. It is therefore
possibly true but certainly immaterial that Intel might have expected that some
unwanted messages would be sent to its employees. A store that opens its doors to
the public should reasonably expect some individuals will attempt to shoplift, but
the store does not thereby incur an obligation to accept their presence and the
disruption they cause.
If we did create an “accept one, accept all” rule, whereby a party’s
acceptance of outside mail abrogates the right to exclude any messages, the result
would likely be less speech, not more. Courts have recognized the seeming
paradox that permitting the exclusion of speech is necessary to safeguard it. “It is
ironic that if defendants were to prevail on their First Amendment arguments, the
viability of electronic mail as an effective means of communication for the rest of
society would be put at risk.” (CompuServe, supra, 962 F.Supp. at p. 1028.) The
Court of Appeal below likewise observed that employers’ tolerance for reasonable
personal use of computers “would vanish if they had no way to limit such personal
usage of company equipment.” (Cf. Miami Herald Publishing Co. v. Tornillo
(1974) 418 U.S. 241, 256 [compulsory fair reply law would deter newspaper from
speaking to avoid forced expression of disagreeable speech].) Furthermore,
merely permitting exclusion may be insufficient absent a mechanism for
enforcement. If spamming expands to a new volume of activity, “[t]he cost
increases that would result from a massive increase in volume could even lead
8
many sites to discontinue supporting standard e-mail altogether. Within a few
years, e-mail may no longer be the near-universal method for communicating with
people via the Internet that it is today.” (Sorkin, Technical and Legal Approaches
to Unsolicited Electronic Mail (2001) 35 U.S.F. L.Rev. 325, 338-339, fn. omitted
(Sorkin).)
The majority expresses its agreement with the dissent below, which found
that if the lost productivity of Intel’s employees serves as the requisite injury,
“then every unsolicited communication that does not further the business’s
objectives (including telephone calls) interferes with the chattel. . . . [¶] . . . [¶]
. . . Under Intel’s theory, even lovers’ quarrels could turn into trespass suits by
reason of the receipt of unsolicited letters or calls from the jilted lover. Imagine
what happens after the angry lover tells her fiancé not to call again and violently
hangs up the phone. Fifteen minutes later the phone rings. Her fiancé wishing to
make up? No, trespass to chattel.” But just as private citizens may deny access to
door-to-door solicitors or mailers, they may also maintain the integrity of their
phone system from callers they wish to exclude. A telephone, no less than an
envelope, may be an instrument of trespass. (See Thrifty-Tel, Inc., supra, 46
Cal.App.4th at pp. 1566-1567.)
Individuals may not commandeer the communications systems of unwilling
listeners, even if the speakers are jilted lovers who wish to reconcile. (People v.
Miguez (Crim. Ct. 1990) 556 N.Y.S.2d 231.)3 The Miguez defendant repeatedly
left messages4 on the complainant’s answering machine and pager, “interrupting
3
New York further proscribes such conduct as criminal. (People v. Miguez,
supra, 556 N.Y.S.2d 231.)
4
Some of the messages reflected a desire to reconcile: “ ‘ “Please don’t hurt
me anymore. You’ve hurt me enough, I still love you.” ’ ” A later call stated,
(Footnote continued on next page.)
9
him in his professional capacity as a doctor.” (Id. at p. 232.) It was the disruptive
volume (not the specific content) of calls from which the complainant was entitled
to relief. Similarly, an individual could not lawfully telephone a police department
28 times in 3 hours and 20 minutes to inquire about a civil matter where the police
told him not to call because he was disrupting police operations. (People v. Smith
(App.Div. 1977) 392 N.Y.S.2d 968, 969-970.)
The law on faxes is even stricter. As faxes shift the costs of speech from
the speaker to the listener, senders of commercial e-mail must obtain prior consent
from the recipient. (47 U.S.C. § 227.) Likewise, the users of automated telephone
dialers also must obtain prior consent where they result in costs to the recipient.
(47 U.S.C. § 227(b)(1)(A)(iii); Missouri ex. rel. Nixon v. American Blast Fax, Inc.
(8th Cir. 2003) 323 F.3d 649, 657 (Blast Fax).) Because e-mail permits mass
unwanted communications without the sender having to bear the costs of postage
or labor, there is a much greater incentive for sending unwanted e-mail, and thus
the potential volume of unwanted e-mail may create even greater problems for
recipients than the smaller volume of unwanted faxes. (Whang, supra, 37
San Diego L.Rev. at p. 1216 & fn. 112.) In any event, honoring the wishes of a
party who requests the cessation of unwanted telecommunications, whether by
phone, fax or e-mail, does nothing more than apply Martin to today’s technology.
(Shannon, Combating Unsolicited Sales Calls: The “Do-Not-Call” Approach to
Solving the Telemarketing Problem (2001) 27 J. Legis. 381, 394.)
Therefore, before the listener objects, the speaker need not fear he is
trespassing. Afterwards, however, the First Amendment principle of respect for
(Footnote continued from previous page.)
“ ‘ “Eddie I want to give you my number; even if you don’t call me I want you to
have it.” ’ ” (People v. Miguez, supra, 556 N.Y.S.2d. at p. 232.)
10
personal autonomy compels forbearance. “The Court has traditionally respected
the right of a householder to bar, by order or notice, [speakers] from his property.
See Martin v. City of Struthers, supra, . . . . In this case the mailer’s right to
communicate is circumscribed only by an affirmative act of the addressee giving
notice that he wishes no further mailings from that mailer.” (Rowan, supra, 397
U.S. at p. 737, italics added.) Speakers need not obtain affirmative consent before
speaking, and thus have no reason to fear unexpected liability for trespass, but
they must respect the decisions of listeners once expressed. The First Amendment
protects the right not to listen just as it protects the right to speak.
THE TRIAL COURT CORRECTLY ISSUED THE INJUNCTION
Intel had the right to exclude the unwanted speaker from its property, which
Hamidi does not dispute; he does not argue that he has a to right force unwanted
messages on Intel. The instant case thus turns on the question of whether Intel
deserves a remedy for the continuing violation of its rights. I believe it does, and
as numerous cases have demonstrated, an injunction to prevent a trespass to
chattels is an appropriate means of enforcement.
The majority does not find that Hamidi has an affirmative right to have
Intel transmit his messages, but denies Intel any remedy. Admittedly, the case
would be easier if precise statutory provisions supported relief, but in the rapidly
changing world of technology, in which even technologically savvy providers like
America Online and CompuServe are one step behind spammers, the Legislature
will likely remain three or four steps behind. In any event, the absence of a
statutory remedy does not privilege Hamidi’s interference with Intel’s property.
Nor are content-based speech torts adequate for violations of property rights
unrelated to the speech’s content. In any event, the possibility of another avenue
for relief does not preclude an injunction for trespass to chattels.
11
The majority denies relief on the theory that Intel has failed to establish the
requisite actual injury. As discussed, post, however, the injunction was properly
granted because the rule requiring actual injury pertains to damages, not equitable
relief, and thus courts considering comparable intrusions have provided injunctive
relief without a showing of actual injury. Furthermore, there was actual injury as
(1) Intel suffered economic loss; (2) it is sufficient for the injury to impair the
chattel’s utility to the owner rather than the chattel’s market value; and (3) even in
the absence of any injury to the owner’s utility, it is nevertheless a trespass where
one party expropriates for his own use the resources paid for by another.
Harmless Trespasses to Chattels May be Prevented
Defendant Hamidi used Intel’s server in violation of the latter’s demand to
stop. This unlawful use of Intel’s system interfered with the use of the system by
Intel employees. This misconduct creates a cause of action. “[I]t is a trespass to
damage goods or destroy them, to make an unpermitted use of them, or to move
them from one place to another.” (Prosser & Keeton on Torts (5th ed. 1984)
Trespass to Chattels, § 14, p. 85, fns. omitted & italics added.) “[T]he unlawful
taking away of another’s personal property, the seizure of property upon a
wrongful execution, and the appropriation of another’s property to one’s own use,
even for a temporary purpose, constitute trespasses, although a mere removal of
property without injuring it is not a trespass when done by one acting rightfully.”
(7 Speiser et al., American Law of Torts (1990) Trespass, § 23:23, p. 667 (Speiser)
fns. omitted & italics added.)
Regardless of whether property is real or personal, it is beyond dispute that
an individual has the right to have his personal property free from interference.
There is some division among authorities regarding the available remedy,
particularly whether a harmless trespass supports a claim for nominal damages.
12
The North Carolina Court of Appeal has found there is no damage requirement
for a trespass to chattel. (See Hawkins v. Hawkins (N.C.Ct.App. 1991) 400
S.E.2d 472, 475.) “A trespass to chattels is actionable per se without any proof of
actual damage. Any unauthorized touching or moving of a chattel is actionable at
the suit of the possessor of it, even though no harm ensues.” (Salmond &
Heuston, The Law of Torts (21st ed. 1996) Trespass to Goods, § 6.2, p. 95, fns.
omitted.) Several authorities consider a harmless trespass to goods actionable per
se only if it is intentional. (Winfield & Jolowicz on Torts (10th ed. 1975)
Trespass to Goods, p. 403 (Winfield & Jolowicz); Clerk & Lindsell on Torts
(17th ed. 1995) ¶ 13-159, p. 703.) The Restatement Second of Torts, section 218,
which is less inclined to favor liability, likewise forbids unauthorized use and
recognizes the inviolability of personal property. However, the Restatement
permits the owner to prevent the injury beforehand, or receive compensation
afterward, but not to profit from the trespass through the remedy of damages
unrelated to actual harm, which could result in a windfall. (Thrifty-Tel, supra, 46
Cal.App.4th at p. 1569; Whang, supra, 37 San Diego L.Rev. at p. 1223.) “The
interest of a possessor of a chattel in its inviolability, unlike the similar interest of
a possessor of land, is not given legal protection by an action for nominal
damages for harmless intermeddlings with the chattel. . . . Sufficient legal
protection of the possessor’s interest in the mere inviolability of his chattel is
afforded by his privilege to use reasonable force to protect his possession against
even harmless interference.” (Rest.2d Torts, § 218, com. e, pp. 421-422, italics
added.) Accordingly, the protection of land and chattels may differ on the
question of nominal damages unrelated to actual injury. The authorities agree,
however, that (1) the chattel is inviolable, (2) the trespassee need not tolerate
even harmless interference, and (3) the possessor may use reasonable force to
prevent it. Both California law and the Restatement authorize reasonable force
13
regardless of whether the property in question is real or personal. (Civ. Code,
§ 51; Rest.2d Torts, § 77.)
The law’s special respect for land ownership supports liability for damages
even without actual harm. (Speiser, supra, § 23:1, at p. 592.) By contrast, one
who suffers interference with a chattel may prevent the interference before or
during the fact, or recover actual damages (corresponding to the harm suffered),
but at least according to the Restatement, may not recover damages in excess of
those suffered. But the Restatement expressly refutes defendant’s assertion that
only real property is inviolable. From the modest distinction holding that only
victims of a trespass to land may profit in the form of damages exceeding actual
harm, defendant offers the position that only trespasses to land may be prevented.
The law is to the contrary; numerous cases have authorized injunctive relief to
safeguard the inviolability of personal property.
The law favors prevention over posttrespass recovery, as it is permissible to
use reasonable force to retain possession of a chattel but not to recover it after
possession has been lost. (See 1 Dobbs, The Law of Torts (2001) §§ 76, 81,
pp. 170, 186; see also Deevy v. Tassi (1942) 21 Cal.2d 109, 118-119.)
Notwithstanding the general rule that injunctive relief requires a showing of
irreparable injury (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 782,
p. 239), Witkin also observes there are exceptions to this rule where injunctive
relief is appropriate; these include repetitive trespasses. (Id., § 784, p. 242.) The
first case cited in that section, Mendelson v. McCabe (1904) 144 Cal. 230
(Mendelson), is apposite to our analysis.
In entering McCabe’s property, Mendelson exceeded the scope of the
consent he received to do so. McCabe had granted Mendelson the right to pass
through his property on condition that Mendelson close the gates properly, which
he did not do. (Mendelson, supra, 144 Cal. at pp. 231-232.) McCabe “did not
14
allege that any actual damage had been caused by the acts of [Mendelson] . . . in
leaving the gates open.” (Id. at p. 232.) After finding that Mendelson planned to
continue his conduct over McCabe’s objection, we authorized injunctive relief.
(Id. at pp. 233-234.) Our analysis in Mendelson applies here as well. “The right
to an injunction is not always defeated by the mere absence of substantial damage
from the acts sought to be enjoined. The acts of the plaintiff in leaving the gates
open, if persisted in as he threatened, will constitute a continual invasion of the
right of the defendant to maintain the gates . . . . Moreover, the only remedy, other
than that of an injunction, for the injury arising from such continued trespass,
would be an action against the plaintiff for damages upon each occasion when he
left the gates open. The damage in each case would be very small, probably
insufficient to defray the expenses of maintaining the action not recoverable as
costs. Such remedy is inadequate and would require numerous petty suits, which
it is not the policy of the law to encourage.” (Id. at pp. 232-233.)
Our decision thus noted that injunctive relief was proper, regardless of
actual injury (1) if it is necessary to protect the trespassee’s right to control his
property, or (2) if suits for damages are impractical, because no individual suit
would be worthwhile. Accordingly, we reiterated the rule that “ ‘[a] trespass of a
continuing nature, whose constant recurrence renders the remedy at law
inadequate, unless by a multiplicity of suits, affords sufficient ground for relief.’ ”
(Mendelson, supra, 144 Cal. at p. 233.) Both Mendelson grounds support an
injunction here.
“Injunction is a proper remedy against threatened repeated acts of trespass
. . . particularly where the probable injury resulting therefrom will be ‘beyond
15
any method of pecuniary estimation,’ and for this reason irreparable.”5 (Uptown
Enterprises v. Strand (1961) 195 Cal.App.2d 45, 52; see also id. at p. 52 [an
otherwise lawful “entry for the purpose of harassing the owner, giving his
business a bad reputation . . . or unjustifiably interfering with the business
relations between him and his patrons is unauthorized, wrongful and
actionable”].) Although Mendelson and Uptown Enterprises concerned real
property, the principles of safeguarding a party’s possessory interest in property
and of not encouraging repetitive litigation apply no less to trespasses to chattels.
Accordingly, several courts have issued injunctive relief to prevent interference
with personal property.
In 1996, the Appellate Division of the New York Supreme Court
considered the claim of plaintiff Tillman, who sought to enjoin the unwanted
delivery of a newspaper onto his property. (Tillman, supra, 648 N.Y.S.2d 630.)
He offered no specific critique of the newspaper’s content, observing only
“ ‘[t]here is no reason that we have to clean up [defendant’s] mess.’ ” (Id. at
p. 632.) Citing Rowan, Martin, and Lloyd, the court rejected the defendants’
argument “that there is nothing a homeowner can do to stop the dumping on his or
her property of pamphlets or newspapers, no matter how offensive they might be,”
and instead upheld Tillman’s right to prevent the mail’s delivery, regardless of
whether his objection was due to the quantity (volume) or quality (content) of the
5
The majority asserts Intel was not deprived of its computers “for any
measurable length of time” (maj. opn., ante, at p. 10), which supposedly fits this
case within the rule that a “ ‘mere momentary or theoretical’ ” deprivation is
insufficient to establish a trespass to chattel (maj. opn., ante, at p. 16). There is a
chasm between the two descriptions. The time needed to identify and delete
200,000 e-mail messages is not capable of precise estimation, but it is hardly
theoretical or momentary. Most people have no idea of how many words they
spoke yesterday, but that does not render the figure de minimis.
16
messages. (Tillman, at p. 636.) In authorizing injunctive relief, the Tillman court
found no need to quantify the actual damage created by the delivery; it merely
noted that the homeowner should not be forced either “to allow such unwanted
newspapers to accumulate, or to expend the time and energy necessary to gather
and to dispose of them.” (Ibid.) Subsequent courts have extended this policy to
the delivery of e-mail as well.
The CompuServe court followed Tillman in authorizing an injunction to
prevent the delivery of unwanted e-mail messages. (CompuServe, supra, 962
F.Supp. 1015.) The majority summarily distinguishes CompuServe and its
progeny by noting there the “plaintiff showed, or was prepared to show, some
interference with the efficient functioning of its computer system.” (Maj. opn.,
ante, at p. 12.) But although CompuServe did note the impairment imposed by the
defendant’s unsolicited e-mail, this was not part of its holding. Just before
beginning its analysis, the court summarized its ruling without mentioning
impairment. “[T]his Court holds that where defendants engaged in a course of
conduct of transmitting a substantial volume of electronic data in the form of
unsolicited e-mail to plaintiff’s proprietary computer equipment, where defendants
continued such practice after repeated demands to cease and desist, and where
defendants deliberately evaded plaintiff’s affirmative efforts to protect its
computer equipment from such use, plaintiff has a viable claim for trespass to
personal property and is entitled to injunctive relief to protect its property.”
(CompuServe, supra, 962 F.Supp. at p. 1017.) The cited criteria apply fully to
Hamidi’s conduct. Likewise, the conclusion of CompuServe’s analysis fully
applies here: “Defendants’ intentional use of plaintiff’s proprietary computer
equipment exceeds plaintiff’s consent and, indeed, continued after repeated
demands that defendants cease. Such use is an actionable trespass to plaintiff’s
chattel.” (Id. at p. 1027.)
17
Post-CompuServe case law has emphasized that unauthorized use of
another’s property establishes a trespass, even without a showing of physical
damage. “Although eBay appears unlikely to be able to show a substantial
interference at this time, such a showing is not required. Conduct that does
not amount to a substantial interference with possession, but which consists
of intermeddling with or use of another’s personal property, is sufficient to
establish a cause of action for trespass to chattel.” (eBay, Inc. v. Bidder’s
Edge, Inc. (N.D.Cal. 2000) 100 F.Supp.2d 1058, 1070.)6 “While the eBay
decision could be read to require an interference that was more than
negligible, . . . this Court concludes that eBay, in fact, imposes no such
requirement. Ultimately, the court in that case concluded that the defendant’s
conduct was sufficient to establish a cause of action for trespass not because
the interference was ‘substantial’ but simply because the defendant’s conduct
amounted to ‘use’ of Plaintiff’s computer.” (Oyster Software, Inc. v. Forms
Processing, Inc. (N.D.Cal., Dec. 6, 2001, No. C-00-0724 JCS) 2001
WL1736382 at *13.) An intruder is not entitled to sleep in his neighbor’s
car, even if he does not chip the paint.
Hamidi concedes Intel’s legal entitlement to block the unwanted messages.
The problem is that although Intel has resorted to the cyberspace version of
reasonable force, it has so far been unsuccessful in determining how to resist the
unwanted use of its system. Thus, while Intel has the legal right to exclude
6
The majority asserts eBay does require impairment, because the opinion
noted that the wide replication of the defendant’s conduct would likely impair the
functioning of the plaintiff’s system. (Maj. opn., ante, at pp. 13-14.) Of course,
the “wide replication” of Hamidi’s conduct would likely impair Intel’s operating
system. Accordingly, a diluted “likely impairment through wide replication”
standard would favor Intel, not Hamidi.
18
Hamidi from its system, it does not have the physical ability. It may forbid
Hamidi’s use, but it cannot prevent it.
To the majority, Hamidi’s ability to outwit Intel’s cyber defenses justifies
denial of Intel’s claim to exclusive use of its property. Under this reasoning, it is
not right but might that determines the extent of a party’s possessory interest.
Although the world often works this way, the legal system should not.
Intel Suffered Injury
Even if CompuServe and its progeny deem injury a prerequisite for
injunctive relief, such injury occurred here. Intel suffered not merely an affront to
its dignitary interest in ownership but tangible economic loss. Furthermore,
notwithstanding the calendar’s doubts, it is entirely consistent with the
Restatement and case law to recognize a property interest in the subjective utility
of one’s property. Finally, case law further recognizes as actionable the loss that
occurs when one party maintains property for its own use and another party uses
it, even if the property does not suffer damage as a result.
Intel Suffered Economic Loss
Courts have recognized the tangible costs imposed by the receipt of
unsolicited bulk e-mail (UBE).7 Approximately 10 percent of the cost of Internet
access arises from the delivery of UBE, because networks must expand to ensure
their functioning will not be disturbed by the unwanted messages and must design
7
There is considerable debate regarding whether “spam” encompasses only
unsolicited commercial e-mail (UCE) or all UBE, regardless of its commercial
nature. (Sorkin, supra, 35 U.S.F. L.Rev at pp. 333-335.) Because parties object to
spam due to its volume rather than the sender’s motivation, UBE is a preferable
definition. (Id. at p. 335.) Moreover, as our decision in Kasky v. Nike, Inc. (2002)
27 Cal.4th 939 made plain, there is no bright-line distinction between commercial
and noncommercial speech. (See also City of Cincinnati v. Discovery Network,
Inc. (1993) 507 U.S. 410, 419.)
19
software to reduce the flood of spam. (Whang, supra, 37 San Diego L.Rev. at pp.
1203 & fn. 10, 1207 & fn. 37.) Especially where bulk e-mailers mask the true
content of their messages in the “header” (as Hamidi did), there is a shift in costs
from sender to recipient that resembles “ ‘sending junk mail with postage due or
making telemarketing calls to someone’s pay-per-minute cellular phone.’ ”
(Ferguson v. Friendfinders (2002) 94 Cal.App.4th 1255, 1268 (Ferguson), quoting
State v. Heckel (Wash. 2001) 24 P.3d 404, 410 (Heckel).) E-mail may be cheaper
and more efficient than other means of communication, but “[t]here is no
constitutional requirement that the incremental cost of sending massive quantities
of unsolicited [messages] must be borne by the recipients.” (CompuServe, supra,
962 F.Supp. at p. 1026.)
The Ferguson court noted the tangible economic loss to employers created
by unwanted e-mail. “Individuals who receive UCE can experience increased
Internet access fees because of the time required to sort, read, discard, and attempt
to prevent future sending of UCE. If the individual undertakes this process at
work, his or her employer suffers the financial consequences of the wasted time.”
(Ferguson, supra, 94 Cal.App.4th at p. 1267, italics added.) CompuServe likewise
observed the recipient of unwanted e-mail must “sift through, at his expense, all of
the messages in order to find the ones he wanted or expected to receive.”
(CompuServe, supra, 962 F.Supp. at p. 1023, italics added.) Unwanted messages
also drain the equipment’s processing power, and slow down the transfers of
electronic data. (Id. at pp. 1022, 1028.)
The economic costs of unwanted e-mail exist even if Intel employees,
unlike CompuServe subscribers, do not pay directly for the time they spend on the
Internet. No such direct costs appear here, only the opportunity costs of lost time.
But for Intel, “time is money” nonetheless. One justification for the strict rule
against unsolicited faxes is that they “shift costs to the recipients who are forced to
20
contribute ink, paper, wear on their fax machines, as well as personnel time.”
(Blast Fax, supra, 323 F.3d at p. 652, italics added.) (In re Johnny M. (2002) 100
Cal.App.4th 1128 [vandalism that diverted salaried employees from ordinary
duties caused economic loss through lost work product].)
Courts have also recognized the harm produced by unwanted paper mail.
Mail sent in violation of a request to stop creates the “burdens of scrutinizing the
mail for objectionable material and possible harassment.” (Rowan, supra, 397
U.S. at p. 735, italics added.) The Tillman court thus held a newspaper could not
compel unwilling recipients “to spend their own time or money unwillingly
participating in the distribution process by which a newspaper travels from the
printing press to its ultimate destination, i.e., disposal.” (Tillman, supra, 648
N.Y.S.2d at p. 636, italics added.)8
Although Hamidi claims he sent only six e-mails, he sent them to between
8,000 and 35,000 employees, thus sending from 48,000 to 210,000 messages.
Since it is the effect on Intel that is determinative, it is the number of messages
received, not sent, that matters. In any event, Hamidi sent between 48,000 and
210,000 messages; the “six” refers only to the number of distinct texts Hamidi
sent. Even if it takes little time to determine the author of a message and then
delete it, this process, multiplied hundreds of thousands of times, amounts to a
substantial loss of employee time, and thus work product. If Intel received
200,000 messages, and each one could be skimmed and deleted in six seconds, it
8 Citing
to
Bolger, supra, 463 U.S. at page 72, for the proposition that the
Constitution imposes on recipients the burden of disposing of unwanted mail, is
inapposite because, as explained in part I, ante, Bolger involved the government’s
objections to the delivery, not the objection of a nongovernmental actor like Intel,
which, under Rowan, supra, 397 U.S at pages 736-738, may exclude unwanted
mail.
21
would take approximately 333 hours, or 42 business days, to delete them all. In
other words, if Intel hired an employee to remove all unwanted mail, it would take
that individual two entire months to finish. (Cf. Tubbs v. Delk (Mo.Ct.App. 1996)
932 S.W.2d 454, 456 (Tubbs) [deprivation of access to chattel for “ ‘less than five
minutes’ ” constitutes actionable trespass, although found justified there].)
Intel’s Injury is Properly Related to the Chattel
The majority does not dispute that Intel suffered a loss of work product as a
matter of fact, so much as it denies that this loss may constitute the requisite injury
as a matter of law. According to the majority, the reduced utility of the chattel to
the owner does not constitute a sufficiently cognizable injury, which exists only
where the chattel itself suffers injury, i.e., its “market value” falls. The
Restatement and related case law are to the contrary.
The Restatement recognizes that the measure of impairment may be
subjective; a cognizable injury may occur not only when the trespass reduces the
chattel’s market value but also when the trespass affects its value to the owner.
“In the great majority of cases, the actor’s intermeddling with the chattel impairs
the value of it to the possessor, as distinguished from the mere affront to his
dignity as possessor, only by some impairment of the physical condition of the
chattel. There may, however, be situations in which the value to the owner of a
particular type of chattel may be impaired by dealing with it in a manner that does
not affect its physical condition.” (Rest.2d Torts, § 218, com. h, p. 422.)
The Restatement goes on to explain that A’s using B’s toothbrush could
extinguish its value to B. The brushing constitutes a trespass by impairing the
brush’s subjective value to the owner rather than its objective market value.
(Rest.2d Torts, § 218, com. h, p. 422.) Moreover, there can be a trespass even
22
though the chattel is used as intended—to brush teeth—if it is used by an
unwanted party.
As the Court of Appeal’s opinion below indicated, interference with an
owner’s ability to use the chattel supports a trespass. The opinion recalled the
rule, which dates back almost 400 years, holding that chasing an owner’s animal
amounts to a trespass to chattels. (See, e.g., Farmer v. Hunt (1610) 123 Eng. Rep.
766; Winfield & Jolowicz, supra, Trespass to Goods, p. 403.) These authorities
do not require injury or damage to the animal; the interference with the owner’s
use of the animal suffices to create a trespass. (Winfield & Jolowicz, at p. 40.)
Interference is actionable if it “deprives the possessor of the use of that chattel.”
(Fleming, The Law of Torts (9th ed. 1998) Trespass, § 4.1, p. 598.) Moreover,
such interference need not permanently deny the owner the ability to use the
chattel—mere delay is enough. (See Tubbs, supra, 932 S.W.2d at p. 456.)
A contemporary version of this interference would occur if a trespasser
unplugged the computers of the entire Intel staff and moved them to a high shelf in
each employee’s office or cubicle. The computers themselves would suffer no
damage, but all 35,000 employees would need to take the time to retrieve their
computers and restart them. This would reduce the computers’ utility to Intel, for,
like the chased animals, they would not be available for immediate use. If the
chasing of a few animals supports a trespass, then so does even minimal
interference with a system used by 35,000 individuals.
CompuServe is in accord, as it observed how a bundle of unwanted
messages decreased the utility of the server. (CompuServe, supra, 962 F.Supp. at
p. 1023.) Here, Intel maintains a possessory interest in the efficient and
productive use of its system—which it spends millions of dollars to acquire and
maintain. Hamidi’s conduct has impaired the system’s optimal functioning for
Intel’s business purposes. As the Restatement supports liability where “harm is
23
caused to . . . some . . . thing in which the possessor has a legally protected
interest” (Rest.2d Torts, § 218, subd. (d)), Hamidi has trespassed upon Intel’s
chattel.
The Unlawful Use of Another’s Property is a Trespass, Regardless of
Its Effect on the Property’s Utility to the Owner
Finally, even if Hamidi’s interference did not affect the server’s utility to
Intel, it would still amount to a trespass. Intel has poured millions of dollars into a
resource that Hamidi has now appropriated for his own use. As noted above, “the
appropriation of another’s property to one’s own use, even for a temporary
purpose, constitute[s] [a] trespass[].” (Speiser, supra, § 23:23, p. 667, fn.
omitted.) The use by one party of property whose costs have been paid by another
amounts to an unlawful taking of those resources—even if there is no unjust
enrichment by the trespassing party.
In Buchanan Marine Inc. v. McCormack Sand Co. (E.D.N.Y. 1990) 743
F.Supp. 139 (Buchanan), the plaintiff built and maintained mooring buoys for use
by its own tugboats. Defendants’ barges used the buoy over plaintiff’s objection.
(Id. at pp. 140-141.) The federal district court found such unlawful use could
constitute a trespass to chattels (if the facts were proved), and thus denied the
defendants’ motion for summary judgment. “[D]efendants’ meddling with [the
buoy] is either a trespass to a chattel or perhaps a conversion for which [plaintiff]
may seek relief in the form of damages and an injunction.” (Id. at pp. 141-142.)
There was an allegation of damage (to plaintiff’s barge, not the buoy itself), which
could support a claim for damages, but this was not a prerequisite for injunctive
relief. Even if defendants did not injure the buoys in any way, they still had no
right to expropriate plaintiff’s property for their own advantage.
24
The instant case involves a similar taking. Intel has paid for thousands of
computers, as well as the costs of maintaining a server.9 Like the Buchanan
defendants, Hamidi has likewise acted as a free rider in enjoying the use of not
only Intel’s computer system but the extra storage capacity needed to
accommodate his messages. Furthermore, Intel’s claim, which does not object to
Hamidi’s speaking independently,10 only to his use of Intel’s property, resembles
that of the Buchanan plaintiff who “has not sought to prevent others from placing
their own mooring buoys in the Harbor,” but only the use of the plaintiff’s
property.11 (Buchanan, supra, 743 F.Supp. at p. 142.) Hamidi has thus
unlawfully shifted the costs of his speaking to Intel. (Ferguson, supra, 94
Cal.App.4th at p. 1268; Blast Fax, supra, 323 F.3d at p. 652; Heckel, supra, 24
P.3d at p. 410.)
Moreover, even such free ridership is not necessary to establish a trespass
to chattels. Had the Thrifty-Tel defendants succeeded in making free telephone
calls without authorization, they would stand in the same position as the Buchanan
9
In fact, Intel pays to maintain a high capacity to ensure that the system does
not crash (or slow down); if Intel had not preempted such harm, there is no dispute
that Hamidi would be liable for damages. As Professor Epstein cogently observes,
Intel is thus being penalized for engaging in preemptive self-help. According to
the majority, Intel would do better by saving its money and collecting damages
after a crash/slowdown.
10
Intel does not object to Hamidi’s transmitting the same message through his
Web site, e-mail to employees’ home computers, snail mail to their homes,
distribution of materials from outside the company’s gates, or any other
communication that does not conscript Intel’s property into Hamidi’s service.
Intel does object to the use of its property, regardless of its message. Although
Intel objected that Hamidi sent antagonistic messages, Intel would presumably
also object if Hamidi sent “blank” messages that slowed down both the Intel
system and the employees who use it.
11
As with the hypothetical toothbrush, the Buchanan defendants used the
buoy for its intended use. (Buchanan, supra, 743 F.Supp. at p. 140.)
25
defendants. But the record does not show they ever succeeded in making calls for
which another subscriber (or the phone company itself) would have to pay. Thus,
neither injury to the trespassee nor benefit to the trespasser is an element of
trespass to chattel. “[T]respass to chattel has evolved considerably from its
original common law application—concerning the asportation of another’s
tangible property—to include even the unauthorized use of personal property.”
(Thrifty-Tel, supra, 46 Cal.App.4th at p. 1566.)
As in those cases in which courts have granted injunctions to prevent the
delivery of unwanted mail, paper or electronic, Intel is not attempting to profit
from its trespass action by receiving nominal damages. Rather, it seeks an
injunction to prevent further trespass. Moreover, Intel suffered the requisite injury
by losing a great deal of work product, a harm properly related to the property
itself, as well as the money it spent in maintaining the system, which Hamidi
wrongfully expropriated.
CONCLUSION
Those who have contempt for grubby commerce and reverence for the
rarified heights of intellectual discourse may applaud today’s decision, but even
the flow of ideas will be curtailed if the right to exclude is denied. As the Napster
controversy revealed, creative individuals will be less inclined to develop
intellectual property if they cannot limit the terms of its transmission. Similarly, if
online newspapers cannot charge for access, they will be unable to pay the
journalists and editorialists who generate ideas for public consumption.
This connection between the property right to objects and the property right
to ideas and speech is not novel. James Madison observed, “a man’s land, or
merchandize, or money is called his property.” (Madison, Property, Nat. Gazette
(Mar. 27, 1792), reprinted in The Papers of James Madison (Robert A. Rutland et
al. edits. 1983) p. 266, quoted in McGinnis, The Once and Future Property-Based
26
Vision of the First Amendment (1996) 63 U.Chi. L.Rev. 49, 65.) Likewise, “a man
has a property in his opinions and the free communication of them.” (Ibid.)
Accordingly, “freedom of speech and property rights were seen simply as different
aspects of an indivisible concept of liberty.” (Id. at p. 63.)
The principles of both personal liberty and social utility should counsel us
to usher the common law of property into the digital age.
BROWN, J.
27
DISSENTING OPINION BY MOSK, J.
The majority hold that the California tort of trespass to chattels does not
encompass the use of expressly unwanted electronic mail that causes no physical
damage or impairment to the recipient’s computer system. They also conclude
that because a computer system is not like real property, the rules of trespass to
real property are also inapplicable to the circumstances in this case. Finally, they
suggest that an injunction to preclude mass, noncommercial, unwelcome e-mails
may offend the interests of free communication.
I respectfully disagree and would affirm the trial court’s decision. In my
view, the repeated transmission of bulk e-mails by appellant Kourosh Kenneth
Hamidi (Hamidi) to the employees of Intel Corporation (Intel) on its proprietary
confidential e-mail lists, despite Intel’s demand that he cease such activities,
constituted an actionable trespass to chattels. The majority fail to distinguish open
communication in the public “commons” of the Internet from unauthorized
intermeddling on a private, proprietary intranet. Hamidi is not communicating in
the equivalent of a town square or of an unsolicited “junk” mailing through the
United States Postal Service. His action, in crossing from the public Internet into
a private intranet, is more like intruding into a private office mailroom,
commandeering the mail cart, and dropping off unwanted broadsides on 30,000
desks. Because Intel’s security measures have been circumvented by Hamidi, the
majority leave Intel, which has exercised all reasonable self-help efforts, with no
recourse unless he causes a malfunction or systems “crash.” Hamidi’s repeated
intrusions did more than merely “prompt[] discussions between ‘[e]xcited and
1
nervous managers’ and the company’s human resource department” (maj. opn.,
ante, at p. 6); they also constituted a misappropriation of Intel’s private computer
system contrary to its intended use and against Intel’s wishes.
The law of trespass to chattels has not universally been limited to physical
damage. I believe it is entirely consistent to apply that legal theory to these
circumstances — that is, when a proprietary computer system is being used
contrary to its owner’s purposes and expressed desires, and self-help has been
ineffective. Intel correctly expects protection from an intruder who misuses its
proprietary system, its nonpublic directories, and its supposedly controlled
connection to the Internet to achieve his bulk mailing objectives — incidentally,
without even having to pay postage.
I
Intel maintains an intranet — a proprietary computer network — as a tool
for transacting and managing its business, both internally and for external business
communications.1 The network and its servers constitute a tangible entity that has
value in terms of the costs of its components and its function in enabling and
enhancing the productivity and efficiency of Intel’s business operations. Intel has
1
The Oxford English Dictionary defines an intranet as “A local or restricted
computer network; spec. a private or corporate network that uses Internet
protocols. An intranet may (but need not) be connected to the Internet and be
accessible externally to authorized users.” (OED Online, new ed., draft entry,
Mar. 2003, <http://dictionary.oed.com/> [as of June 30, 2003]; see also Kokka,
Property Rights on an Intranet, 3-Spring 1998 J. Tech.L. & Policy 3, WL 3
UFLJTLP 3 at *3, *6 [defining an intranet as “an internal network of computers,
servers, routers and browser software designed to organize, secure, distribute and
collect information within an organization” which in large organizations generally
includes a wide range of services, including e-mail].) Contrary to the majority’s
assertion, there is nothing incorrect about characterizing Hamidi’s unauthorized
bulk e-mails as intrusions onto Intel’s intranet.
2
established costly security measures to protect the integrity of its system, including
policies about use, proprietary internal e-mail addresses that it does not release to
the public for use outside of company business, and a gateway for blocking
unwanted electronic mail — a so-called firewall.
The Intel computer usage guidelines, which are promulgated for its
employees, state that the computer system is to be “used as a resource in
conducting business. Reasonable personal use is permitted, but employees are
reminded that these resources are the property of Intel and all information on these
resources is also the property of Intel.” Examples of personal use that would not
be considered reasonable expressly include “use that adversely affects
productivity.” Employee e-mail communications are neither private nor
confidential.
Hamidi, a former Intel employee who had sued Intel and created an
organization to disseminate negative information about its employment practices,
sent bulk electronic mail on six occasions to as many as 35,000 Intel employees on
its proprietary computer system, using Intel’s confidential employee e-mail lists
and adopting a series of different origination addresses and encoding strategies to
elude Intel’s blocking efforts. He refused to stop when requested by Intel to do so,
asserting that he would ignore its demands: “I don’t care. I have grown deaf.”
Intel sought injunctive relief, alleging that the disruptive effect of the bulk
electronic mail, including expenses from administrative and management
personnel, damaged its interest in the proprietary nature of its network.
The trial court, in its order granting summary judgment and a permanent
injunction, made the following pertinent findings regarding Hamidi’s transmission
of bulk electronic mail: “Intel has requested that Hamidi stop sending the
messages, but Hamidi has refused, and has employed surreptitious means to
circumvent Intel’s efforts to block entry of his messages into Intel’s system. . . .
3
[¶] . . . The e-mail system is dedicated for use in conducting business, including
communications between Intel employees and its customers and vendors.
Employee e-mail addresses are not published for use outside company business.
. . . [¶] The intrusion by Hamidi into the Intel e-mail system has resulted in the
expenditure of company resources to seek to block his mailings and to address
employee concerns about the mailings. Given Hamidi’s evasive techniques to
avoid blocking, the self help remedy available to Intel is ineffective.” The trial
court concluded that “the evidence establishes (without dispute) that Intel has been
injured by diminished employee productivity and in devoting company resources
to blocking efforts and to addressing employees about Hamidi’s e-mails.” The
trial court further found that the “massive” intrusions “impaired the value to Intel
of its e-mail system.”
The majority agree that an impairment of Intel’s system would result in an
action for trespass to chattels, but find that Intel suffered no injury. As did the trial
court, I conclude that the undisputed evidence establishes that Intel was
substantially harmed by the costs of efforts to block the messages and diminished
employee productivity. Additionally, the injunction did not affect Hamidi’s ability
to communicate with Intel employees by other means; he apparently continues to
maintain a Web site to publicize his messages concerning the company.
Furthermore, I believe that the trial court and the Court of Appeal correctly
determined that the tort of trespass to chattels applies in these circumstances.
The Restatement Second of Torts explains that a trespass to a chattel occurs
if “the chattel is impaired as to its condition, quality, or value” or if “harm is
caused to some . . . thing in which the possessor has a legally protected interest.”
(Rest.2d Torts, § 218, subds. (b) & (d), p. 420, italics added.) As to this tort, a
current prominent treatise on the law of torts explains that “[t]he defendant may
interfere with the chattel by interfering with the plaintiff’s access or use” and
4
observes that the tort has been applied so as “to protect computer systems from
electronic invasions by way of unsolicited email or the like.” (1 Dobbs, The Law
of Torts (2001) § 60, pp. 122-123.) Moreover, “[t]he harm necessary to trigger
liability for trespass to chattels can be . . . harm to something other than the chattel
itself.” (Id. at pp. 124-125; see also 1 Harper et al., The Law of Torts (3d ed. 1996
& 2003 supp.) § 2.3, pp. 2:14-2:18.) The Restatement points out that, unlike a
possessor of land, a possessor of a chattel is not given legal protection from
harmless invasion, but “the actor” may be liable if the conduct affects “some other
and more important interest of the possessor.” (Rest.2d Torts, § 218, com. (e),
p. 421, italics added.)
The Restatement explains that the rationale for requiring harm for trespass
to a chattel but not for trespass to land is the availability and effectiveness of self-
help in the case of trespass to a chattel. “Sufficient legal protection of the
possessor’s interest in the mere inviolability of his chattel is afforded by his
privilege to use reasonable force to protect his possession against even harmless
interference.” (Rest.2d Torts, § 218, com. (e), p. 422.) Obviously, “force” is not
available to prevent electronic trespasses. As shown by Intel’s inability to prevent
Hamidi’s intrusions, self-help is not an adequate alternative to injunctive relief.
The common law tort of trespass to chattels does not require physical
disruption to the chattel. It also may apply when there is impairment to the
“quality” or “value” of the chattel. (Rest.2d Torts, § 218, subd. (b), p. 420; see
also id., com. (e), pp. 421-422 [liability if “intermeddling is harmful to the
possessor’s materially valuable interest in the physical condition, quality, or value
of the chattel”].) Moreover, as we held in Zaslow v. Kroenert (1946) 29 Cal.2d
541, 551, it also applies “[w]here the conduct complained of does not amount to a
5
substantial interference with possession or the right thereto, but consists of
intermeddling with or use of or damages to the personal property.”2
Here, Hamidi’s deliberate and continued intermeddling, and threatened
intermeddling, with Intel’s proprietary computer system for his own purposes that
were hostile to Intel, certainly impaired the quality and value of the system as an
internal business device for Intel and forced Intel to incur costs to try to maintain
the security and integrity of its server — efforts that proved ineffective. These
included costs incurred to mitigate injuries that had already occurred. It is not a
matter of “bootstrapp[ing]” (maj. opn., ante, at p. 20) to consider those costs a
damage to Intel. Indeed, part of the value of the proprietary computer system is
the ability to exclude intermeddlers from entering it for significant uses that are
disruptive to its owner’s business operations.
If Intel, a large business with thousands of former employees, is unable to
prevent Hamidi from continued intermeddling, it is not unlikely that other
outsiders who obtain access to its proprietary electronic mail addresses would
engage in similar conduct, further reducing the value of, and perhaps debilitating,
the computer system as a business productivity mechanism. Employees
understand that a firewall is in place and expect that the messages they receive are
from senders permitted by the corporation. Violation of this expectation increases
the internal disruption caused by messages that circumvent the company’s attempt
to exclude them. The time that each employee must spend to evaluate, delete or
2
In Zaslow, we observed that when the trespass involves “intermeddling
with or use of” another’s property, the owner “may recover only the actual
damages suffered by reason of the impairment of the property or the loss of its
use.” (Zaslow v. Kroenert, supra, 29 Cal.2d at p. 551.) We did not state that such
damages were a requirement for a cause of action; nor did we address the
availability of injunctive relief.
6
respond to the message, when added up, constitutes an amount of compensated
time that translates to quantifiable financial damage.3
All of these costs to protect the integrity of the computer system and to deal
with the disruptive effects of the transmissions and the expenditures attributable to
employee time, constitute damages sufficient to establish the existence of a
trespass to chattels, even if the computer system was not overburdened to the point
of a “crash” by the bulk electronic mail.
The several courts that have applied the tort of trespass to chattels to
deliberate intermeddling with proprietary computer systems have, for the most
part, used a similar analysis. Thus, the court in CompuServe Inc. v. Cyber
Promotions, Inc. (S.D. Ohio 1997) 962 F.Supp. 1015, 1022, applied the
Restatement to conclude that mass mailings and evasion of the server’s filters
3
As the recent spate of articles on “spam” — unsolicited bulk e-mail —
suggests, the effects on business of such unwanted intrusions are not trivial.
“Spam is not just a nuisance. It absorbs bandwidth and overwhelms Internet
service providers. Corporate tech staffs labor to deploy filtering technology to
protect their networks. The cost is now widely estimated (though all such
estimates are largely guesswork) at billions of dollars a year. The social costs are
immeasurable. . . . [¶] ‘Spam has become the organized crime of the Internet.’ . . .
‘[M]ore and more it’s becoming a systems and engineering and networking
problem.’ ” (Gleick, Tangled Up in Spam, N.Y. Times (Feb. 9, 2003) magazine
p. 1 <http://www.nytimes.com/2003/02/09/> [as of June 30, 2003]; see also
Cooper & Shogren, U.S., States Turn Focus to Curbing Spam, L.A. Times (May 1,
2003) p. A21, col. 2 [“Businesses are losing money with every moment that
employees spend deleting”]; Turley, Congress Must Send Spammers a Message,
L.A. Times (Apr. 21, 2003) p. B13, col. 5 [“Spam now costs American businesses
about $9 billion a year in lost productivity and screening”]; Taylor, Spam’s Big
Bang! (June 16, 2003) Time magazine, at p. 51 [“The time we spend deleting or
defeating spam costs an estimated $8.9 billion a year in lost productivity”].) But
the occasional spam addressed to particular employees does not pose nearly the
same threat of impaired value as the concerted bulk mailings into one e-mail
system at issue here, which mailings were sent to thousands of employees with the
express purpose of disrupting business as usual.
7
diminished the value of the mail processing computer equipment to CompuServe
“even though it is not physically damaged by defendant’s conduct.” The
inconvenience to users of the system as a result of the mass messages “decrease[d]
the utility of CompuServe’s e-mail service” and was actionable as a trespass to
chattels. (Id. at p. 1023.)
The court in America Online, Inc. v. IMS (E.D.Va. 1998) 24 F.Supp.2d 548,
on facts similar to those in the present case, also applied the Restatement in a
trespass to chattels claim. There, defendant sent unauthorized e-mails to America
Online’s computer system, persisting after receiving notice to desist and causing
the company “to spend technical resources and staff time to ‘defend’ its computer
system and its membership” against the unwanted messages. (Id. at p. 549.) The
company was not required to show that its computer system was overwhelmed or
suffered a diminution in performance; mere use of the system by the defendant
was sufficient to allow the plaintiff to prevail on the trespass to chattels claim.
Similarly, the court in eBay, Inc. v. Bidder’s Edge, Inc. (N.D.Cal. 2000)
100 F.Supp.2d 1058 determined that there was a trespass to chattels when the
quality or value of a computer system was diminished by unauthorized “web
crawlers,”4 despite the fact that eBay had not alleged any “particular service
disruption” (id. at p. 1065) or “specific incremental damages” (id. at p. 1063) to
the computer system. Intermeddling with eBay’s private property was sufficient
to establish a cause of action: “A trespasser is liable when the trespass diminishes
the condition, quality or value of personal property”; “[e]ven if [defendant’s
intrusions] use only a small amount of eBay’s computer . . . capacity, [defendant]
4
A “web crawler” is a computer program that operates across the Internet to
obtain information from the websites of others. (eBay, Inc. v. Bidder’s Edge,
supra, 100 F.Supp.2d at p. 1061, fn. 2.)
8
has nonetheless deprived eBay of the ability to use that portion of its personal
property for its own purposes. The law recognizes no such right to use another’s
personal property.” (Id. at p. 1071; see also, e.g., Oyster Software, Inc. v. Forms
Processing, Inc. (N.D.Cal. Dec. 6, 2001, No. C-00-0724 JCS) 2001 WL 1736382
at *12 -*13 [trespass to chattels claim did not require company to demonstrate
physical damage]; Register.com, Inc. v. Verio, Inc. (S.D.N.Y. 2000) 126
F.Supp.2d 238, 250 [accord]; cf. Thrifty-Tel, Inc. v. Bezenek (1996) 46
Cal.App.4th 1559, 1566-1567 [unconsented electronic access to a computer
system constituted a trespass to chattels].)
These cases stand for the simple proposition that owners of computer
systems, like owners of other private property, have a right to prevent others from
using their property against their interests. That principle applies equally in this
case. By his repeated intermeddling, Hamidi converted Intel’s private employee
e-mail system into a tool for harming productivity and disrupting Intel’s
workplace. Intel attempted to put a stop to Hamidi’s intrusions by increasing its
electronic screening measures and by requesting that he desist. Only when self-
help proved futile, devolving into a potentially endless joust between attempted
prevention and circumvention, did Intel request and obtain equitable relief in the
form of an injunction to prevent further threatened injury.
The majority suggest that Intel is not entitled to injunctive relief because it
chose to allow its employees access to e-mail through the Internet and because
Hamidi has apparently told employees that he will remove them from his mailing
list if they so request. They overlook the proprietary nature of Intel’s intranet
system; Intel’s system is not merely a conduit for messages to its employees. As
the owner of the computer system, it is Intel’s request that Hamidi stop that must
be respected. The fact that, like most large businesses, Intel’s intranet includes
external e-mail access for essential business purposes does not logically mean, as
9
the majority suggest, that Intel has forfeited the right to determine who has access
to its system. Its intranet is not the equivalent of a common carrier or public
communications licensee that would be subject to requirements to provide service
and access. Just as Intel can, and does, regulate the use of its computer system by
its employees, it should be entitled to control its use by outsiders and to seek
injunctive relief when self-help fails.
The majority also propose that Intel has sufficient avenues for legal relief
outside of trespass to chattels, such as interference with prospective economic
relations, interference with contract, intentional infliction of emotional distress,
and defamation; Hamidi urges that an action for nuisance is more appropriate.
Although other causes of action may under certain circumstances also apply to
Hamidi’s conduct, the remedy based on trespass to chattels is the most efficient
and appropriate. It simply requires Hamidi to stop the unauthorized use of
property without regard to the content of the transmissions. Unlike trespass to
chattels, the other potential causes of action suggested by the majority and Hamidi
would require an evaluation of the transmissions’ content and, in the case of a
nuisance action, for example, would involve questions of degree and value
judgments based on competing interests. (See Hellman v. La Cumbre Golf &
Country Club (1992) 6 Cal.App.4th 1224, 1230-1231; 11 Witkin, Summary of
Cal. Law (9th ed. 1990) Equity, § 153, p. 833; Rest.2d Torts, § 840D).
II
As discussed above, I believe that existing legal principles are adequate to
support Intel’s request for injunctive relief. But even if the injunction in this case
amounts to an extension of the traditional tort of trespass to chattels, this is one of
those cases in which, as Justice Cardozo suggested, “[t]he creative element in the
10
judicial process finds its opportunity and power” in the development of the law.
(Cardozo, Nature of the Judicial Process (1921) p. 165.)5
The law has evolved to meet economic, social, and scientific changes in
society. The industrial revolution, mass production, and new transportation and
communication systems all required the adaptation and evolution of legal
doctrines.
The age of computer technology and cyberspace poses new challenges to
legal principles. As this court has said, “the so-called Internet revolution has
spawned a host of new legal issues as courts have struggled to apply traditional
legal frameworks to this new communication medium.” (Pavlovich v. Superior
Court (2002) 29 Cal.4th 262, 266.) The court must now grapple with proprietary
interests, privacy, and expression arising out of computer-related disputes. Thus,
in this case the court is faced with “that balancing of judgment, that testing and
sorting of considerations of analogy and logic and utility and fairness” that Justice
Cardozo said he had “been trying to describe.” (Cardozo, Nature of the Judicial
Process, supra, at pp. 165-166.) Additionally, this is a case in which equitable
relief is sought. As Bernard Witkin has written, “equitable relief is flexible and
expanding, and the theory that ‘for every wrong there is a remedy’ [Civ. Code,
§ 3523] may be invoked by equity courts to justify the invention of new methods
of relief for new types of wrongs.” (11 Witkin, Summary of Cal. Law, supra,
Equity, § 3, p. 681.) That the Legislature has dealt with some aspects of
commercial unsolicited bulk e-mail (Bus. & Prof. Code, §§ 17538.4, 17538.45;
see maj. opn., ante, at p. 25) should not inhibit the application of common law tort
5
“It is revolting to have no better reason for a rule of law than that so it was
laid down in the time of Henry IV.” (Holmes, The Path of the Law (1897) 10
Harv.L.Rev. 457, 469.)
11
principles to deal with e-mail transgressions not covered by the legislation. (Cf.
California Assn. of Health Facilities v. Department of Health Services (1997) 16
Cal.4th 284, 297; I.E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281,
285.)
Before the computer, a person could not easily cause significant disruption
to another’s business or personal affairs through methods of communication
without significant cost. With the computer, by a mass mailing, one person can at
no cost disrupt, damage, and interfere with another’s property, business, and
personal interests. Here, the law should allow Intel to protect its computer-related
property from the unauthorized, harmful, free use by intruders.
III
As the Court of Appeal observed, connecting one’s driveway to the general
system of roads does not invite demonstrators to use the property as a public
forum. Not mindful of this precept, the majority blur the distinction between
public and private computer networks in the interest of “ease and openness of
communication.” (Maj. opn., ante, at p. 26.) By upholding Intel’s right to
exercise self-help to restrict Hamidi’s bulk e-mails, they concede that he did not
have a right to send them through Intel’s proprietary system. Yet they conclude
that injunctive relief is unavailable to Intel because it connected its e-mail system
to the Internet and thus, “necessarily contemplated” unsolicited communications to
its employees. (Maj. opn., ante, at p. 20.) Their exposition promotes
unpredictability in a manner that could be as harmful to open communication as it
is to property rights. It permits Intel to block Hamidi’s e-mails entirely, but offers
no recourse if he succeeds in breaking through its security barriers, unless he
physically or functionally degrades the system.
By making more concrete damages a requirement for a remedy, the
majority has rendered speech interests dependent on the impact of the e-mails.
12
The sender will never know when or if the mass e-mails sent by him (and perhaps
others) will use up too much space or cause a crash in the recipient system, so as
to fulfill the majority’s requirement of damages. Thus, the sender is exposed to
the risk of liability because of the possibility of damages. If, as the majority
suggest, such a risk will deter “ease and openness of communication” (maj. opn.,
ante, at p. 26), the majority’s formulation does not eliminate such deterrence.
Under the majority’s position, the lost freedom of communication still exists. In
addition, a business could never reliably invest in a private network that can only
be kept private by constant vigilance and inventiveness, or by simply shutting off
the Internet, thus limiting rather than expanding the flow of information.6
Moreover, Intel would have less incentive to allow employees reasonable use of
its equipment to send and receive personal e-mails if such allowance is
justification for preventing restrictions on unwanted intrusions into its computer
system. I believe the best approach is to clearly delineate private from public
networks and identify as a trespass to chattels the kind of intermeddling involved
here.
The views of the amici curiae group of intellectual property professors that
a ruling in favor of Intel will interfere with communication are similarly misplaced
because here, Intel, contrary to most users, expressly informed appellant that it did
not want him sending messages through its system. Moreover, as noted above, all
of the problems referred to will exist under the apparently accepted law that there
is a cause of action if there is some actionable damage.
6
Thus, the majority’s approach creates the perverse incentive for companies
to invest less in computer capacity in order to protect its property. In the view of
the majority, Hamidi’s massive e-mails would be actionable only if Intel had
insufficient server or storage capacity to manage them.
13
Hamidi and other amici curiae raise, for the first time on appeal, certain
labor law issues, including the matter of protected labor-related communications.
Even assuming that these issues are properly before this court (see Cal. Rules of
Court, rule 28(c)(1)), to the extent the laws allow what would otherwise be
trespasses for some labor-related communications, my position does not exclude
that here too. But there has been no showing that the communications are labor
law protected.7
Finally, with regard to alleged constitutional free speech concerns raised by
Hamidi and others, this case involves a private entity seeking to enforce private
rights against trespass. Unlike the majority, I have concluded that Hamidi did
invade Intel’s property. His actions constituted a trespass — in this case a trespass
to chattels. There is no federal or state constitutional right to trespass. (Adderley
v. Florida (1966) 385 U.S. 39, 47 [“Nothing in the Constitution of the United
States prevents Florida from even-handed enforcement of its general trespass
statute. . . .”]; Church of Christ in Hollywood v. Superior Court (2002) 99
Cal.App.4th 1244, 1253-1254 [affirming a restraining order preventing former
church member from entering church property: “[the United States Supreme
Court] has never held that a trespasser or an uninvited guest may exercise general
rights of free speech on property privately owned”]; see also CompuServe Inc. v.
Cyber Promotions, Inc., supra, 962 F.Supp. at p. 1026 [“the mere judicial
enforcement of neutral trespass laws by the private owner of property does not
alone render it a state actor”]; Cyber Promotions, Inc. v. America Online, Inc.
7
The bulk e-mail messages from Hamidi, a nonemployee, did not purport to
spur employees into any collective action; he has conceded that “[t]his is not a
drive to unionize.” Nor was his disruptive conduct part of any bona fide labor
dispute.
14
(E.D.Pa. 1996) 948 F.Supp. 436, 456 [“a private company such as Cyber simply
does not have the unfettered right under the First Amendment to invade AOL’s
private property . . . .”].) Accordingly, the cases cited by the majority regarding
restrictions on speech, not trespass, are not applicable. Nor does the connection of
Intel’s e-mail system to the Internet transform it into a public forum any more than
any connection between private and public properties. Moreover, as noted above,
Hamidi had adequate alternative means for communicating with Intel employees
so that an injunction would not, under any theory, constitute a free speech
violation. (Lloyd Corp. v. Tanner (1972) 407 U.S. 551, 568-569.)
IV
The trial court granted an injunction to prevent threatened injury to Intel.
That is the purpose of an injunction. (Ernst & Ernst v. Carlson (1966) 247
Cal.App.2d 125, 128.) Intel should not be helpless in the face of repeated and
threatened abuse and contamination of its private computer system. The
undisputed facts, in my view, rendered Hamidi’s conduct legally actionable.
Thus, the trial court’s decision to grant a permanent injunction was not “a clear
abuse of discretion” that may be “disturbed on appeal.” (Shapiro v. San Diego
City Council (2002) 96 Cal.App.4th 904, 912; see also City of Vernon v. Central
Basin Mun. Water Dist. (1999) 69 Cal.App.4th 508, 516 [in an appeal of summary
judgment, the trial court’s decision to deny a permanent injunction was “governed
by the abuse of discretion standard of review”].)
The injunction issued by the trial court simply required Hamidi to refrain
from further trespassory conduct, drawing no distinction based on the content of
his e-mails. Hamidi remains free to communicate with Intel employees and others
outside the walls — both physical and electronic — of the company.
15
For these reasons, I respectfully dissent.
MOSK, J.∗
I CONCUR :
GEORGE, C.J.
∗
Associate Justice, Court of Appeal, Second Appellate District, Division
Five, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
16
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Intel Corporation v. Hamidi
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 94 Cal.App.4th 325
Rehearing Granted
__________________________________________________________________________________
Opinion No. S103781
Date Filed: June 30, 2003
__________________________________________________________________________________
Court: Superior
County: Sacramento
Judge: John R. Lewis
__________________________________________________________________________________
Attorneys for Appellant:
Philip H. Weber; Dechert, William M. McSwain, Richard L. Berkman, F. Gregory Lastowka; Levy, Ram &
Olson, Karl Olson and Erica L. Craven for Defendant and Appellant.
Mark A. Lemley and Deirdre K. Mulligan for Professors of Intellectual Property and Computer Law as
Amicus Curiae on behalf of Defendant and Appellant.
Lee Tien and Deborah Pierce for Electronic Frontier Foundation as Amicus Curiae on behalf of Defendant
and Appellant.
Jennifer Stisa Granick for the Stanford Law School Center for Internet and Society as Amicus Curiae on
behalf of Defendant and Appellant.
Ann Brick and Christopher A. Hansen for American Civil Liberties Union Foundation of Northern
California, Inc., and American Civil Liberties Union Foundation as Amici Curiae on behalf of Defendant
and Appellant.
Robert M. O’Neil and J. Joshua Wheeler for The Thomas Jefferson Center for the Protection of Free
Expression as Amicus Curiae on behalf of Defendant and Appellant.
Atshuler, Berzon, Nussbaum, Rubin & Demain, Stephen P. Berzon, Scott A. Kronland and Stacey M.
Leyton for the Service Employees International Union, AFL-CIO as Amicus Curiae on behalf of Defendant
and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Morrison & Foerster, Linda E. Shostak, Michael A. Jacobs, Kurt E. Springmann and Paul A. Friedman for
Plaintiff and Respondent.
1
Page 2 - counsel continued - S103781
Attorneys for Respondent:
Steptoe & Johnson, Stewart A. Baker and W. Chelsea Chen for the US Internet Service Provider
Association as Amicus Curiae on behalf of Plaintiff and Respondent.
Richard A. Epstein for California Employment Law Council, California Manufacturers & Technology
Association, eBay, Inc., Information Technology Industry Council, National Association of Manufacturers,
Semiconductor Industry Association and Silicon Valley Manufacturing Group as Amici Curiae on behalf of
Plaintiff and Respondent.
Fred J. Hiestand for the Civil Justice Association of California as Amicus Curiae on behalf of Plaintiff and
Respondent.
Proskauer Rose, Mark Theodore, Arthur F. Silbergeld, Niloofar Nejat-Bina and Adam C. Abrahms for
Labor Policy Association, Inc., United States Chamber of Commerce and California Chamber of
Commerce as Amici Curiae on behalf of Plaintiff and Respondent.
2
Counsel who argued in Supreme Court (not intended for publication with opinion):
William M. McSwain
Dechert
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
(215) 994-4000
Michael A. Jacobs
Morrison & Foerster
425 Market Street
San Francisco, CA 94105-2482
(415) 268-7000
3
4
Opinion Information
| Date: | Docket Number: |
| Mon, 06/30/2003 | S103781A |
Parties
| 1 | Hamidi, Kourosh Kenneth (Defendant and Appellant) Represented by Karl Olson Levy Ram, Olson & Rossi LLP 639 Front Street, 4th Floor San Francisco, CA |
| 2 | Hamidi, Kourosh Kenneth (Defendant and Appellant) Represented by Richard Berkman Dechert 4000 Bell Atlantic Tower, 1717 Arch St. Philadelphia, PA |
| 3 | Hamidi, Kourosh Kenneth (Defendant and Appellant) Represented by Erica Lee Craven-Green Levy Ram, Olson & Rossi LLP 639 Front Street, 4th Floor San Francisco, DC |
| 4 | Hamidi, Kourosh Kenneth (Defendant and Appellant) Represented by F. Gregory Lastowka Dechert 4000 Bell Atlantic Tower, 1717 Arch St. Philadelphia, PA |
| 5 | Intel Corporation (Plaintiff and Respondent) Represented by Michael Allen Jacobs Morrison & Foerster 425 Market Street San Francisco, CA |
| 6 | Afl-Cio (Pub/Depublication Requestor) Represented by Stacey Monica Leyton Attorney at Law 177 Post Street, Ste. 300 San Francisco, CA |
| 7 | Professors Of Intellectual Property And Computer Law (Amicus curiae) Represented by Mark Alan Lemley Univ. of Calif., Boalt Hall 396 Simon Hall Berkeley, CA |
| 8 | California Employment Law Council, Et Al. (Amicus curiae) Represented by Richard Allen Epstein Univ. Of Chicago Law School 1111 East 60th St. Chicago, IL |
| 9 | U.S. Internet Service Provider Association (Amicus curiae) |
| 10 | Aclu Foundation Of Northern California, Inc. (Amicus curiae) Represented by Ann Brick American Civil Liberties Union Foundation Of No Ca 1663 Mission Street, Suite 460 San Francisco, CA |
| 11 | Center For Internet & Society (Amicus curiae) Represented by Jennifer S. Granick Attorney at Law 559 Nathan Abbott Way Stanford, CA |
| 12 | Labor Policy Association, Inc. (Amicus curiae) Represented by Mark Theodore Proskauer Rose, LLP 2049 Century Park East, Ste. 3200 Los Angeles, CA |
| 13 | Thomas Jefferson Center For Protection Of Free Expression (Amicus curiae) Represented by J. Joshua Wheeler Attorney at Law 400 Peter Jefferson Place Charlottesville, VA |
| Disposition | |
| Jun 30 2003 | Opinion: Reversed |
| Dockets | |
| Jan 22 2002 | Petition for review filed by counsel for appellant Kourosh Kenneth Hamidi. *Message left with secretary for atty Karl Olson to provide supplemental POS on Superior Court.* |
| Jan 22 2002 | Record requested |
| Jan 23 2002 | Received: amended proof of service from appellant for ptn for review. |
| Jan 23 2002 | Application filed to: be admitted as counsel pro hac vice Richard L. Berkman, William M. McSwain & F. Gregory Lastowka for appellant Kourosh Kenneth Hamidi. |
| Jan 24 2002 | Received Court of Appeal record one doghouse |
| Feb 11 2002 | Request for depublication (petition for review pending) American Federation of Labor and Congress of Organization Industrial Organizations, et al., (non-party) |
| Feb 11 2002 | Answer to petition for review filed by counsel for respondent (Intel Corporation) |
| Feb 21 2002 | Reply to answer to petition filed counsel for appellant ( K. Hamidi) |
| Mar 21 2002 | Time extended to grant or deny review to and including April 22, 2002 |
| Mar 27 2002 | Petition for Review Granted (civil case) Baxter, J., and Chin, J., were recused and did not participate. |
| Apr 3 2002 | Certification of interested entities or persons filed by counsel for appellant (K. Hamidi) |
| Apr 10 2002 | Request for extension of time filed by counsel for appellant (K. Hamidi) requesting 90-day extension of time to file opening brief on the merits. |
| Apr 11 2002 | Certification of interested entities or persons filed by counsel for respondent (Intel Corporation) |
| Apr 16 2002 | Extension of time granted Appellant's time to serve and file the opening brief on the merits will be (30) days from the date of filing of this order. No further extensions are contemplated or will be granted without a substantial showing of good cause. |
| Apr 16 2002 | Order filed The application of William M. McSwain, Richard L. Berkman, and F. Gregory Lastowka of the State of Pennsylvania for admission Pro Hac Vice to appear on behalf of Kourosh Kenneth Hamid is hereby granted. |
| Apr 18 2002 | Note: Mail returned (unable to forward) (Certification of Interested Entities or Persons to Atty Abner Reed Neff) |
| May 16 2002 | Opening brief on the merits filed by counsel for appellant (K. Hamidi) |
| Jun 17 2002 | Answer brief on the merits filed by counsel for respondent (Intel Corp.) |
| Jun 17 2002 | Request for judicial notice filed (in non-AA proceeding) by counsel for respondent (Intel Corp.) |
| Jul 8 2002 | Reply brief filed (case fully briefed) by counsel for appellant (K. Hamidi) |
| Jul 8 2002 | Request for judicial notice filed (in non-AA proceeding) by counsel for appellant (K. Hamidi) |
| Jul 18 2002 | Filed: by counsel for respondent (Intel Corp.) Opposition to appellant's Request for Judicial Notice. |
| Jul 26 2002 | Received application to file amicus curiae brief; with brief by Professors of Intellectual Property & Computer Law in support of aplt. |
| Jul 29 2002 | Filed: aplt Hamidi's reply to resp Intel's oppos. to motion for judicial notice. |
| Aug 2 2002 | Permission to file amicus curiae brief granted by Professors of Intellectual Property and Computer Law . any answers due w/in 20 days. |
| Aug 2 2002 | Amicus Curiae Brief filed by: Prof. of Intellectual Prop. & Computer Law. |
| Aug 5 2002 | Request for extension of time filed by counsel for respondent (Intel Corp.) to August 27, 2002 to file single omnibus answer to amicus briefs. |
| Aug 5 2002 | Received application to file amicus curiae brief; with brief Labor Policy Assoc., Inc., United States Chamber of Commerce, and California Chamber of Commerce supports resp Intel Corp., [application ad brief separate] |
| Aug 5 2002 | Received application to file Amicus Curiae Brief by Electronic Frontier Foundation (non-party) supporting reversal. (brief under same cover) |
| Aug 6 2002 | Permission to file amicus curiae brief granted Electronic Frontier Foundation supporting reversal. |
| Aug 6 2002 | Amicus Curiae Brief filed by: Electronic Frontier Foundation |
| Aug 7 2002 | Received application to file Amicus Curiae Brief Service Employees International Union, AFL-CIO (non-party) in support of appellant. (brief under same cover) |
| Aug 7 2002 | Received application to file Amicus Curiae Brief Center for Internet & Society in support of the appellate court's reversal. (brief under same cover) |
| Aug 7 2002 | Received application to file amicus curiae brief; with brief American Civil Liberties Union and American Civil Liberties Union of Southern California in support of appellant. |
| Aug 7 2002 | Received application to file Amicus Curiae Brief U S Internet Service Provider Assoc. in support of respondent. (brief under same cover) |
| Aug 7 2002 | Received application to file amicus curiae brief; with brief California Employment Law Council, et al., in supoprt of respondent. |
| Aug 8 2002 | Permission to file amicus curiae brief granted U S Internet Service Provider Assoc. |
| Aug 8 2002 | Amicus Curiae Brief filed by: U S Internet Service Provider Assoc. in support of respondent. |
| Aug 8 2002 | Permission to file amicus curiae brief granted Center for Internet & Society |
| Aug 8 2002 | Amicus Curiae Brief filed by: Center for Internet & Society in support of the appellate court's reversal. |
| Aug 8 2002 | Permission to file amicus curiae brief granted American Civil Liberties Union and American Civil Liberties Union of Northern Califo. |
| Aug 8 2002 | Amicus Curiae Brief filed by: American Civil Liberties Union and American Civil Liberties Union of Northern Calif. in support of appellant. |
| Aug 8 2002 | Permission to file amicus curiae brief granted California Employment Law Council, et al., |
| Aug 8 2002 | Amicus Curiae Brief filed by: Calif. Employment Law Council, et al., in support of respondent. |
| Aug 8 2002 | Extension of time granted Counsel for respondent's time to serve and file the consolidated answer to amicus briefs is extended to and including August 27, 2002. |
| Aug 8 2002 | Received application to file Amicus Curiae Brief Civil Justice Assoc. of California (non-party) in support of respondent. (40k) |
| Aug 9 2002 | Received application to file Amicus Curiae Brief The Thomas Jefferson Center (non-party) in support of appellant and reversal. (brief under same cover) (40k) |
| Aug 12 2002 | Permission to file amicus curiae brief granted Civil Justice Assoc. of California in support of respondent. |
| Aug 12 2002 | Amicus Curiae Brief filed by: Civil Justice Association of California in support of respondent. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Aug 13 2002 | Permission to file amicus curiae brief granted The Thomas Jefferson Center for the Protection of Free Expression. |
| Aug 13 2002 | Amicus Curiae Brief filed by: The Thomas Jefferson Center for the Protection of Free Expression in support of appellant and reversal. |
| Aug 13 2002 | Permission to file amicus curiae brief granted Service Employees International Union, AFL-CIO . |
| Aug 13 2002 | Amicus Curiae Brief filed by: Service Employees International Union, AFL-CIO in support of appellant. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Aug 13 2002 | Permission to file amicus curiae brief granted Labor Policy Association Inc, et al., |
| Aug 13 2002 | Amicus Curiae Brief filed by: Labor Policy Association Inc., et al., in support of respondent. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Aug 16 2002 | Request for extension of time filed by counsel for appellant (Hamidi) to August 27, 2002 to file a consolidated answer to amicus briefs. |
| Aug 21 2002 | Extension of time granted Appellant's time to serve and file the consolidated answer to amicus briefs is extended to and including August 27, 2002. |
| Aug 27 2002 | Response to amicus curiae brief filed by counsel for appellant (Hamidi) (consolidated answer) |
| Aug 27 2002 | Response to amicus curiae brief filed by council for respondent (Intel Corp.) (consolidated answer) |
| Oct 29 2002 | 2nd record request |
| Oct 30 2002 | Received Court of Appeal record 2-envelopes |
| Mar 6 2003 | Case ordered on calendar 4-2-03, 9am, L.A. |
| Mar 17 2003 | Filed letter from: counsel for aplt. |
| Apr 2 2003 | Cause argued and submitted (Baxter and Chin, JJs, not participating; Perren and Mosk, JJs assigned Justices Pro Tempore) |
| Jun 30 2003 | Opinion filed: Judgment reversed OPINION BY: Werdegar, J. ---joined by Kennard, Moreno, (assigned) Perren, JJ. CONCURRING OPINION BY: Kennard, J. DISSENTING OPINION BY: BROWN, J. DISSENTING OPINION BY: (assigned) R. MOSK, J. --- joined by George, C.J. |
| Jul 30 2003 | Motion filed (in non-AA proceeding) Motion for award of entitlement to attorney's fees from counsel for appellant K. Hamidi |
| Aug 11 2003 | Opposition filed by counsel for respondent (Intel Corp.) to Motion for Award of Entitlement to Attorney's fees. |
| Aug 20 2003 | Remittitur issued (civil case) |
| Aug 20 2003 | Filed: appellant's reply to resp's motion re attorney's fees. (by fax) |
| Aug 20 2003 | Motion denied |
| Aug 28 2003 | Received: receipt for remittitur from CA 3 |
| Briefs | |
| May 16 2002 | Opening brief on the merits filed |
| Jun 17 2002 | Answer brief on the merits filed |
| Jul 8 2002 | Reply brief filed (case fully briefed) |
| Aug 2 2002 | Amicus Curiae Brief filed by: |
| Aug 6 2002 | Amicus Curiae Brief filed by: |
| Aug 8 2002 | Amicus Curiae Brief filed by: |
| Aug 8 2002 | Amicus Curiae Brief filed by: |
| Aug 8 2002 | Amicus Curiae Brief filed by: |
| Aug 8 2002 | Amicus Curiae Brief filed by: |
| Aug 12 2002 | Amicus Curiae Brief filed by: |
| Aug 13 2002 | Amicus Curiae Brief filed by: |
| Aug 13 2002 | Amicus Curiae Brief filed by: |
| Aug 13 2002 | Amicus Curiae Brief filed by: |
| Aug 27 2002 | Response to amicus curiae brief filed |
| Aug 27 2002 | Response to amicus curiae brief filed |
