Court of Appeal No. C033076

 

 

IN THE

SUPREME COURT OF CALIFORNIA

 

 

 

INTEL CORPORATION                         )     Supreme Court No. S103781

                        Plaintiff/Respondent       )

                                                                  )

                        v.                                       )     Trial Judge:    Hon. John R. Lewis

                                                                  )     Sacramento County Superior Court

KOUROSH KENNETH HAMIDI          )     Trial Court Case No. 98-AS-05067

                        Defendant/Appellant       )

 

                                                                                                                                   

Opening Brief On The Merits

                                                                                                                                   

 

William M. McSwain, Esquire

Pa. State Bar No. 86499

Richard L. Berkman, Esquire

Pa. State Bar No. 17668

F. Gregory Lastowka, Esquire

Pa. State Bar No. 87529

Dechert

4000 Bell Atlantic Tower

1717 Arch Street

Philadelphia, PA  19103-2793

215-994-4000

 

Karl Olson, Esquire

Calif. State Bar No. 104760

Erica L. Craven, Esquire
Calif. State Bar No. 199918

Levy, Ram, Olson & Rossi, LLP

639 Front Street, 4th Floor

San Francisco, CA  94111

415-433-4949

Attorneys For Kourosh Kenneth Hamidi

 


TABLE OF CONTENTS

Page

TABLE OF CONTENTS......................................................................................... i

TABLE OF AUTHORITIES.................................................................................. iv

ISSUES PRESENTED........................................................................................... 1

FACTUAL AND PROCEDURAL BACKGROUND.......................................... 2

STANDARD OF REVIEW.................................................................................... 6

summary of argument............................................................................. 7

argument.......................................................................................................... 8

I.          THIS COURT SHOULD MAINTAIN THE AGE-OLD DISTINCTION BETWEEN TRESPASS TO REAL PROPERTY AND TRESPASS TO CHATTEL............................. 8

A.        The Court of Appeal Decision Radically Rewrites the Trespass to Chattel Doctrine Under California Law............................................................................... 8

B.        The Principal Policy Justification for the Age-old
Distinction Between Trespass to Real Property and
Trespass to Chattel Is Fully Applicable in the Internet Context. 14

C.        In the Internet Context, There Is Even Greater Policy Justification for Maintaining the Distinction Between Trespass to Real Property and Trespass to Chattel Than
Exists in the Traditional Physical World.................................. 17

1.         The Court of Appeal Opinion Has Enormous
Adverse Consequences for Free Speech on the Internet. 17

2.         The Court of Appeal Opinion Also Threatens the
Basic Operation of the Internet Itself............................ 21

D.        The Relevant Analogies In This Case to the Traditional Physical World Support the Conclusion That Trespass to Chattel Should Not Be Extended to Censor Mr. Hamidi’s
E-mail Speech............................................................................ 23

E.        This Court Does Not Need to Abandon the Distinction Between Trespass to Real Property and Trespass to
Chattel In Order For Intel To Protect Its Valid Legal
Interests...................................................................................... 27

F.        Sound Policies of Judicial Self-Restraint Counsel This
Court to Reject the Court of Appeal’s Radical Revision
of Trespass to Chattel Doctrine............................................. 28

1.         The Court of Appeal’s Radical Expansion of
Trespass to Chattel Doctrine Violates Principles of Judicial Self-Restraint Because the Regulation of
Mr. Hamidi’s E-Mail Speech Is Best Left to the Legislature, Given the Complex, Competing Policy Considerations Inherent in Such Regulation......... 29

2.         The Court of Appeal’s Radical Expansion of
Trespass to Chattel Doctrine Violates Principles
of Judicial Self-Restraint Because the Majority
Should Have Deferred to the Legislature’s
Deliberate Choice Not to Censor Mr. Hamidi’s Speech. 31

3.         The Court of Appeal’s Radical Expansion of
Trespass to Chattel Doctrine Violates Principles of Judicial Self-Restraint Because The Decision
Entails Enormous Social Costs...................................... 36

II.        THIS COURT SHOULD MAINTAIN ITS CLEAR
DICHOTOMY BETWEEN NUISANCE AND TRESPASS
LAW WHEN DEALING WITH INTANGIBLE INTRUSIONS........... 38

III.       THIS COURT SHOULD OVERTURN THE INJUNCTION AGAINST MR. HAMIDI BECAUSE IT VIOLATES BOTH CALIFORNIA AND FEDERAL LABOR LAW.... 41

IV.       THE INJUNCTION AGAINST MR. HAMIDI CONSTITUTES STATE ACTION THAT MUST COMPLY WITH THE FREE SPEECH GUARANTEES OF THE CALIFORNIA AND
UNITED STATES CONSTITUTIONS.................................................... 43

conclusion.................................................................................................... 47

CERTIFICATE OF COMPLIANCE................................................................... 48

PROOF OF SERVICE......................................................................................... 49

 

 


TABLE OF AUTHORITIES

Page(s)

 

STATE CASES

 

Aguilar v. Atlantic Richfield Co.,

25 Cal.4th 826 (2001).............................................................................. 6

 

Briggs v. Eden Council for Hope and Opportunity,

19 Cal.4th 1106 (1999).......................................................................... 35

 

People v. Drew,

22 Cal.3d 333 (1978)............................................................................. 31

 

Elden v. Sheldon,

46 Cal.3d 267 (1988)............................................................................. 37

 

Golden Gateway Center v. Golden Gateway Tenants Association,

26 Cal.4th 1013 (2001).................................................................... 43-46

 

Intel Corp. v. Hamidi,

94 Cal.App.4th 325 (2001)............................................................. passim

 

Itano v. Colonial Yacht Anchorage,

267 Cal.App.2d 84 (1968)........................................................................ 9

 

Jewish Defense Organization, Inc. v. Superior Court,

72 Cal.App.4th 1045 (1999).................................................................. 28

 

Jordan v. Talbot,

55 Cal.2d 597 (1961)................................................................................ 9

 

Kentucky Fried Chicken of California, Inc. v. Superior Court,

14 Cal.4th 814 (1997)............................................................................ 38

 

Macias v. State of California,

10 Cal.4th 844 (1995)............................................................................ 35

 

Merrill v. Navegar, Inc.,

26 Cal.4th 465 (2001)............................................................................ 35

 

Mirkin v. Wasserman,

5 Cal.4th 1082 (1993)............................................................... 29, 31, 37

 

Moore v. Regents of the University of California,

51 Cal.3d 120 (1990)................................................................. 29-31, 36

 

Nally v. Grace Community Church of the Valley,

47 Cal.3d 278 (1988)............................................................................. 30

 

Parsons v. Crown Disposal Co.,

15 Cal.4th 456 (1997)............................................................................ 36

 

Peery v. Superior Court of Santa Clara County,

29 Cal.3d 837 (1981)............................................................................. 42

 

Potter v. Firestone Tire and Rubber Co.,

6 Cal.4th 965 (1993)........................................................................ 36-37

 

Ramirez v. Plough, Inc.,

6 Cal.4th 539 (1993)........................................................... 30-31, 34, 36

 

Randi W. v. Muroc Joint Unified School District,

14 Cal.4th 1066 (1997).......................................................................... 36

 

Rider v. County of San Diego,

1 Cal.4th 1 (1992)................................................................................... 41

 

San Diego Gas and Electric Co. v. Superior Court,

........... 13 Cal.4th 893 (1996)......................................................... 27, 38, 39-40

 

Thing v. LaChusa,

48 Cal.3d 644 (1989)............................................................................. 37

 

Thomas v. City of Richmond,

9 Cal.4th 1154 (1995)............................................................................ 40

 

Thrifty-tel, Inc. v. Bezenek,

46 Cal.App.4th 1559 (1996).............................................................. 9, 13

 

Wilson v. Interlake Steel Co.,

32 Cal.3d 229 (1982)................................................................. 27, 38-39

 

Zaslow v. Kroenert,

29 Cal.2d 541 (1946)................................................................................ 9

 

FEDERAL CASES

 

ACLU v. Reno,

929 F.Supp. 824 (E.D. Pa. 1996).................................................... 17, 22

 

America Online, Inc. v. IMS,

24 F.Supp.2d 548 (E.D. Va. 1998)......................................................... 10

 

America Online, Inc. v. LCGM, Inc.,

46 F.Supp.2d 444 (E.D. Va. 1998)......................................................... 10

 

Ashcroft v. ACLU,

2002 WL 970708 (U.S. May 13, 2002)............................ 18, 19, 22, 23

 

Bally Total Fitness Holding Corp. v. Faber,

29 F.Supp.2d 1161 (C.D. Cal. 1998)..................................................... 23

 

Bolger v. Youngs Drug Products Corp.,

463 U.S. 60 (1983)................................................................................. 46

 

Broadfoot v. Diaz,
245 B.R. 713 (Bankr. N.D. Ga. 2000)................................................... 21

 

Brookfield Communications, Inc. v. West Coast Entertainment Corp.,

174 F.3d 1036 (9th Cir. 1999).............................................................. 21

 

Columbia Insurance Co. v. Seescandy.com,

185 F.R.D. 573 (N.D. Cal. 1999).......................................................... 28

 

CompuServe Inc. v. Cyber Promotions, Inc.,

962 F.Supp. 1015 (S.D. Ohio 1997)............................................... 11, 13

 

eBay, Inc. v. Bidder's Edge,

100 F.Supp.2d 1058 (N.D. Cal. 2000)............................................ 10, 13

 

E.I. DuPont De Nemours & Co.,

311 NLRB 893 (1993)........................................................................... 43

 

United States v. Hay,

231 F.3d 630 (9th Cir. 2000)................................................................. 22

 

Hotmail Corp. v. Van$ Money Pie Inc.
1998 WL 388389 (N.D. Cal. Apr. 16, 1998)................................. 10-11

 

Oyster Software, Inc. v. Forms Processing, Inc.,

2001 WL 1736382 (N.D. Cal. Dec. 6, 2001)...................................... 11

 

Panavision International, L.P. v. Toeppen,

141 F.3d 1316 (9th Cir. 1998).............................................................. 21

 

Register.com, Inc. v. Verio, Inc.,

126 F.Supp.2d 238 (S.D.N.Y. 2000)..................................................... 10

 

Reno v. ACLU,

521 U.S. 844 (1997)........................................................................ 18, 22

 

Rio Properties, Inc v. Rio International Interlink,

2002 WL 431915 (9th Cir. Mar. 20, 2002)................................... 20, 21

 

Rowan v. Post Office Dept.
397 U.S. 728 (1970) .............................................................................. 26

 

Ticketmaster Corp. v. Tickets.com, Inc.,

2000 WL 1887522 (C.D. Cal. Aug. 10, 2000)..................................... 10

 

Timekeeping System, Inc.,

323 NLRB 244 (1997)........................................................................... 42

 

STATUTES

 

Cal. Bus. & Prof. Code § 17538.4.......................................................... 5, 31, 32

 

Cal. Bus. & Prof. Code § 17538.45........................................................ 5, 31, 32

 

Cal. Bus. & Prof. Code §§ 17590-17595 (2001)............................................ 26

 

Cal. Civ. Proc. Code §527.3(a) ................................................................... 41, 42

 

Cal. Evid. Code §§ 452(h), 459(a)..................................................................... 39

 

Cal. Penal Code § 502.................................................................................... 5, 34

 

California Rules of Court Rule 14(c)(1).......................................................... 48

 

 

OTHER AUTHORITIES

 

Dan L. Burk, The Trouble With Trespass, 4 J. Small &
Emerging Bus. L. 27 (2000)............................................................ 19, 22

 

Developments in the Law -- The Law of Cyberspace,
112 Harv. L. Rev. 1574 (1999)....................................................... 23, 45

 

Barbara Esbin, Internet Over Cable:  Defining the Future
in Terms of the Past
, 7 CommLaw Conspectus 37 (1999)................. 18

 

David J. Goldstone, A Funny Thing Happened on the
Way to the CyberForum:  Public v. Private in
Cyberspace Speech
, 69 U. Colo. L. Rev. 1 (1998).............................. 18

 

Maureen A. O'Rourke, Shaping Competition on the
Internet:  Who Owns Product and Pricing Information?
,
53 Vand. L. Rev. 1965 (2000)......................................................... 15, 16

 

Prosser & Keeton on Torts (5th ed. 1984)................................................... 4, 10

 

Restatement (Second) of Torts .............................................................. 9, 12, 13

 

Eugene Volokh, Cheap Speech and What It Will Do,
104 Yale L. J. 1805 (1995).................................................................... 17

 

 

 

 


ISSUES PRESENTED

1.         Should California trespass law maintain a distinction between trespass to chattel and trespass to real property, such that e-mail messages that cause no physical disruption to the computer equipment that receives them may not constitute an actionable trespass to chattel?

2.         Should California tort law maintain a clear dichotomy between nuisance and trespass law when dealing with intangible intrusions, such that e-mail messages that cause no physical disruption to the computer equipment that receives them may not constitute an actionable trespass to chattel?

3.         If physically non-disruptive e-mail messages may support an action for trespass to chattel, does the judicial enforcement of an injunction against the sender of the e-mail messages violate California and federal labor law when the content of the messages involves workplace concerns?

4.         If physically non-disruptive e-mail messages may support an action for trespass to chattel, does the judicial enforcement of an injunction against the sender of the e-mail messages constitute state action that must comply with the free speech guarantees of the California and United States Constitutions?

 


FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case are simple and undisputed.  Petitioner Ken Hamidi is a former Intel engineer and the principal spokesman of Former and Current Employees of Intel (“FACE-Intel”), a California nonprofit organization consisting of current and former Intel employees.  Superior Court File in Lieu of Clerk’s Transcript [hereinafter “C.T.”] at 187-189.  FACE-Intel was formed to provide a medium for Intel employees to air their concerns about employment conditions at Intel.  Intel Corp. v. Hamidi, 94 Cal.App.4th 325, 329 (2001); C.T. at 89-90, 269.

On six specific occasions over approximately a two year period, Mr. Hamidi sent a single e-mail message to between 8,000 and 35,000 Intel employees, highlighting what Mr. Hamidi considered to be Intel’s abusive and discriminatory employment practices.  Hamidi, 94 Cal.App.4th at 328; C.T. at 269.  Although these e-mail messages did not disrupt Intel’s computer equipment in any way, Intel objected to the content of the messages and therefore attempted to censor Mr. Hamidi’s speech by technologically blocking his messages from reaching Intel employees.  Hamidi, 94 Cal.App.4th at 329; C.T. at 7.1-7.2, 65.2.  Intel’s attempts to block Mr. Hamidi’s messages, however, were only partially successful.  Hamidi, 94 Cal.App.4th at 329; C.T. at 7.1-7.2, 65.2.

After Intel’s own censorship efforts failed, it filed a nuisance and trespass to chattel claim against Mr. Hamidi, asking the state through an injunction to censor Mr. Hamidi’s expressive activity.  C.T. at 1-3.  The Sacramento County Superior Court granted Intel a preliminary injunction forbidding Mr. Hamidi from sending unsolicited e-mail to Intel employees at their place of work.  Id. at 141-42.  After Intel voluntarily dropped its nuisance claim, the Superior Court granted Intel summary judgment on the trespass to chattel claim and issued a permanent injunction against Mr. Hamidi.  Hamidi, 94 Cal.App.4th at 329.

The Court of Appeal, Third Appellate District, affirmed the issuance of the permanent injunction against Mr. Hamidi in a published, 2-1 decision over Justice Kolkey’s dissent.  After reviewing the history of the trespass to chattel doctrine, the Court of Appeal concluded that the “harm” requirement of the tort could be satisfied by the “loss of productivity” that Intel suffered as a result of the time some of its employees spent reading Mr. Hamidi’s messages, or on the basis that some of its technical personnel spent time trying to censor Mr. Hamidi.  Id. at 333. 

The court flatly rejected the argument that trespass to chattel requires some physical harm or disruption to the chattel itself.  Instead, the court stated that the mere “electronic signal” of Mr. Hamidi’s e-mail was “‘sufficiently tangible to support a trespass cause of action,’” even though it was undisputed that Mr. Hamidi’s e-mail messages caused no physical disruption to Intel’s computer equipment, nor was Intel dispossessed, even temporarily, of its computer equipment by receipt of Mr. Hamidi’s e-mails.  Id. at 334-35 (quoting Thrifty-tel, Inc. v. Bezenek, 46 Cal.App.4th 1559, 1566 n.6 (1996)).  In short, the court concluded, “[t]he tangibility of the [electronic] contact is not dependent on the harm caused.”  Id. at 335.  Finally, the court ruled that the injunction against Mr. Hamidi comported with both the U.S. and the California Constitutions.  Id. at 336-44.

In his dissent, Justice Kolkey provided a carefully reasoned critique of the majority’s analysis.  Regarding the majority’s examination of the “harm” requirement of trespass to chattel, Justice Kolkey noted that “a loss of employees’ productivity” cannot qualify as the requisite injury for the tort.  Id. at 348 (Kolkey, J., dissenting).  If loss of productivity could support a trespass to chattel action, he explained, “then every unsolicited communication that does not further the business’s objectives (including telephone calls) interferes with the chattel to which the communication is directed simply because it must be read or heard, distracting the recipient.”  Id.  Moreover, he continued:

“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 § 14, p. 87 (5th ed. 1984)).  Reading an e-mail transmitted to equipment designed to receive it, in and of itself, does not affect the possessory interest in the equipment.

Id. (emphasis added).  Justice Kolkey also observed that it was “circular” for the majority to premise the damage element of trespass to chattel on the time spent by technical personnel attempting to block Mr. Hamidi’s messages.  Id.  More specifically, he explained that “[i]njury 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.”  Id.

Finally, Justice Kolkey examined the central question presented by this appeal -- namely, “[i]f the transmittal of an unsolicited e-mail that causes no injury to the condition, value, or operation of the chattel (or to the possessory interest therein) does not rise to the level of trespass to chattel, should the requirement of injury be relaxed to allow an injunction against unwanted e-mail?”  Id. at 351.  He answered this question in the negative, for two compelling reasons.  First, he noted that the trespass to chattel tort exists to protect an owner’s possessory interest in his personal property, and therefore “[d]ispensing with the requirement of injury to the value, operation, or condition of the chattel, or the possessory interest therein, would extend the tort’s scope in a way that loses sight of its purpose.”  Id.  In particular, “[e]xtension of the tort to protect against undesired communications, where neither the chattel nor the possessory interest therein is injured, transforms a tort meant to protect possessory interests into one that merely attacks speech.”  Id. at 352.

Second, Justice Kolkey explained that sound policies of judicial self-restraint counsel against relaxing the injury requirement of trespass to chattel in the Internet context.  He reasoned that “such a metamorphosis of the tort is better suited for deliberate legislative action than judicial policymaking,” and noted that the California Legislature had, in fact, already enacted two statutes that restrict unsolicited e-mail, Bus. & Prof. Code §§ 17538.4 and 17538.45, and another that grants a civil remedy to those who suffer damage or loss from unauthorized access to a computer system, Penal Code § 502 (e)(1).  Id.  He observed that “[t]hese statutory provisions and the Legislature’s failure to extend these remedies to unsolicited e-mails in general suggests a deliberate decision by the Legislature not to reach the circumstances here.”  Id.  In sum, Justice Kolkey concluded, “[m]odification of the tort doctrine in this way, which would affect the free flow of communication on the Internet, is better addressed by the legislative branch . . . .”  Id.

Mr. Hamidi appeals the decision of the Court of Appeal upholding the issuance of the permanent injunction barring him from sending unsolicited e-mail to Intel employees at their place of work.  This Court granted review by order of March 27, 2002.  The order did not specify or limit the issues for review.


STANDARD OF REVIEW

This Court reviews the Court of Appeal decision de novo.  E.g., Aguilar v. Atl. Richfield Co., 25 Cal.4th 826, 860 (2001) (observing that “[a]n order granting summary judgment, of course, is reviewed independently,” and that it must “necessarily be deemed an abuse” for a lower court to select an erroneous legal rule or to apply decisional law in a manner “that is inconsistent with the law itself”).

 


summary of argument

The Court of Appeal decision is an example of judicial activism in an area of the law particularly ill-suited to that approach.  In addressing the new phenomenon of e-mail communications, the court ruled that e-mail messages that cause no physical harm or disruption to the chattel that receives them may nonetheless constitute a trespass to chattel.  In doing so, the court eliminated the distinction between trespass to real property and trespass to chattel, reversing age-old legal authority.

The court’s radical decision is misguided for a number of reasons, but principally because it threatens to stifle a vibrant new medium of communications.  The decision also is in clear conflict with the most basic concepts of judicial self-restraint.  Given the complex, competing policy considerations inherent in regulating the new communications phenomenon of e-mail, rewriting California tort law as applied to e-mail communications is a matter best left to the Legislature.  Moreover, deference to the Legislature is particularly appropriate here, where the Legislature has, in fact, already acted to regulate unsolicited e-mail communications, but chosen not to permit censorship of the type of e-mail communications at issue in this case.

In sum, the Court of Appeal decision should be reversed on the ground that Mr. Hamidi’s e-mail messages did not constitute a trespass to chattel on Intel’s computer equipment.  Resolution of the case in this manner also has an appealing simplicity, because it avoids the necessity of delving into the thorny issues of state and federal labor law, state action under the California and U.S. Constitutions, and California and federal constitutional free speech that arise if Mr. Hamidi’s e-mail speech is classified as trespass to chattel.


argument

I.          THIS COURT SHOULD MAINTAIN THE AGE-OLD DISTINCTION BETWEEN TRESPASS TO REAL PROPERTY AND TRESPASS TO CHATTEL.

A.        The Court of Appeal Decision Radically Rewrites the Trespass to Chattel Doctrine Under California Law.

The most alarming aspect of the Court of Appeal decision is that it abandons the historical distinction between trespass to real property and trespass to chattel, and therefore radically rewrites the trespass to chattel doctrine under California law.  Trespass to real property recognizes the inviolability of real property, and thus a plaintiff may maintain a trespass action without proof of actual harm to the real property.  In contrast, trespass to chattel has never been treated in this fashion.  In order to maintain a trespass to chattel action, a plaintiff must prove either actual harm to the chattel itself, or that he has been dispossessed of his chattel for a period of time.

The “chattel” in this case is Intel’s computer equipment.  It is undisputed that Mr. Hamidi’s e-mails caused no physical harm or disruption to Intel’s computer equipment, nor was Intel dispossessed, even temporarily, of its computer equipment by reason of receipt of Mr. Hamidi’s e-mails.  Hamidi, 94 Cal.App.4th at 332-36; id. at 347 (Kolkey, J., dissenting); C.T. at 1-3 (Complaint contains no allegation of physical harm, physical disruption, or dispossession); C.T. 166-69 (Intel’s statement of undisputed facts contains no mention of physical harm, physical disruption, or dispossession).  But the Court of Appeal ruled that the “loss of productivity” that Intel suffered as a result of the time spent by technical personnel attempting to block Mr. Hamidi’s messages, or as a result of time that Intel employees spent reading the messages, constituted sufficient injury for purposes of trespass to chattel.  Hamidi, 94 Cal.App.4th at 333.  In other words, the court created a trespass to chattel doctrine that completely ignores the physical status of the chattel itself.

In doing so, the court reversed age-old legal authority.  Its decision is flatly inconsistent with every decision by the California courts to consider the trespass to chattel doctrine, which requires the owner to prove either physical harm to his property, or that he has been dispossessed of his property for a period of time.  E.g., Jordan v. Talbot, 55 Cal.2d 597, 610 (1961) (observing that when bringing a claim for trespass to personal property, plaintiff “may recover only the actual damages suffered by reason of the impairment of the property or the loss of its use”); Zaslow v. Kroenert, 29 Cal.2d 541, 551 (1946) (same); Thrifty-tel, Inc. v. Bezenek, 46 Cal.App.4th 1559, 1566 (1996) (noting that the “chief importance” of trespass to chattel “is that there may be recovery . . . for interferences with the possession of chattels which are not sufficiently important to be classed as conversion”); Itano v. Colonial Yacht Anchorage, 267 Cal.App.2d 84, 90 (1968) (stating that “[t]o recover on the theory of trespass to personal property . . . there must be substantial evidence that there was intentional interference with the possession of respondent”). 

The Court of Appeal decision is also flatly inconsistent with the leading treatises on the law of torts.  E.g., Restatement (Second) of Torts § 218 cmt. e (“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 . . . .  [O]ne 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 . . . .”); id. cmt. h (noting that “as distinguished from the mere affront to [the owner’s] dignity as possessor,” liability will only attach if there is “actual impairment of [the chattel’s] physical condition, quality or value . . . .”); Prosser & Keeton on Torts § 14, at 87 (5th ed. 1984) (noting the “necessity of some actual damage to the chattel before the action can be maintained,” and observing 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”). 

For that matter, the Court of Appeal opinion is flatly inconsistent with the decisions of the overwhelming majority of courts that have considered the trespass to chattel doctrine in the Internet context, whereby the courts have carefully limited the tort to those situations in which the defendant has caused real physical disruption to the plaintiff’s computer equipment.  E.g., Ticketmaster Corp. v. Tickets.com, Inc., No. 99CV7654, 2000 WL 1887522, at *4 (C.D. Cal. Aug. 10, 2000) (stating that “[a] basic element of trespass to chattels must be physical harm to the chattel . . . or some obstruction of its basic function”); eBay, Inc. v. Bidder’s Edge, 100 F.Supp.2d 1058, 1072 (N.D. Cal. 2000) (recognizing the requirement that plaintiff show “substantial impairment of condition or value” of its computer equipment); Register.com, Inc. v. Verio, Inc., 126 F.Supp.2d 238, 249 (S.D.N.Y. 2000) (noting that plaintiff “must . . . demonstrate that [defendant’s] unauthorized access caused harm to its chattels, namely its computer system”); Am. Online, Inc. v. LCGM, Inc., 46 F.Supp.2d 444, 448-49 (E.D. Va. 1998) (defendants transmitted more than 92 million unsolicited e-mail advertisements over a five-day period, thereby “impairing the functioning of [plaintiff’s] e-mail system”); Am. Online, Inc. v. IMS, 24 F.Supp.2d 548, 550 (E.D. Va. 1998) (defendants sent over 60 million unsolicited e-mail advertisements, which “burdened [plaintiff’s] equipment”); Hotmail Corp. v. Van$ Money Pie Inc., No. C.-98 JW PVT ENE, C 98-20064 JW, 1998 WL 388389, at *7 (N.D. Cal. Apr. 16, 1998) (defendants caused tens of thousands of misdirected e-mail messages to be transmitted to plaintiff, thereby “filling up [plaintiff’s] storage space and threatening to damage [plaintiff’s] ability to service its legitimate customers”); CompuServe Inc. v. Cyber Promotions, Inc., 962 F.Supp. 1015, 1022 (S.D. Ohio 1997) (noting that defendant’s “enormous volume” of e-mail activity had “place[d] a tremendous burden on [plaintiff’s] equipment”).  But see Oyster Software, Inc. v. Forms Processing, Inc., No. C-00-0724 JCS, 2001 WL 1736382, at *13 (N.D. Cal. Dec. 6, 2001) (declining to grant defendant’s motion for summary judgment even though plaintiff “has presented no evidence” of interference with the “basic function of [its] computer system”).

Intel cannot seriously dispute that the Court of Appeal opinion transforms the trespass to chattel tort in the Internet context by abandoning the tort’s requirement of harm to the chattel itself.  This aspect of the majority decision is well-documented by Justice Kolkey’s dissent.  Hamidi, 94 Cal.App.4th at 344-53 (Kolkey, J., dissenting).  Indeed, the majority itself was well aware that it was navigating uncharted waters and creating new law.  The very first sentence of the majority’s legal discussion announced that “[t]he common law adapts to human endeavor.”  Hamidi, 94 Cal.App.4th at 329.  The court explained that “[f]or example, if rules developed through judicial decisions for railroads prove nonsensical for automobiles, courts have the ability and duty to change them.”  Id. (emphasis added).  The obvious import of the court’s analogy is that the majority believed that the tort of trespass to chattel needed to be “changed” to adapt to the new “human endeavor” of e-mail.

The fact that the Court of Appeal has radically transformed the law of trespass to chattel is one of the principal reasons that this case has generated such intense interest from various amicus parties around the country, all of whom in previous letters to this Court recognized that the Court of Appeal opinion is not in keeping with established law.  See generally Petitioner’s Reply to Respondent Intel Corporation’s Answer to Petition for Review, at 3 (discussing amicus letters).  Furthermore, as Mr. Hamidi has previously pointed out, even Intel’s lead counsel has argued in a pending case in the Second Circuit that it is well-established that trespass to chattel requires actual harm to the chattel itself.[1]  Id. at 3-8.

In sum, it is abundantly clear that the Court of Appeal opinion makes new law.  Any attempt by Intel to argue otherwise is an exercise in futility.  Presumably, however, Intel has already decided to abandon that route, as it has acknowledged that the majority decision applies the trespass to chattel tort “to a set of facts significantly different from those stated in published opinions” and that the decision “evolv[es] the common law” to deal with “a new social phenomenon.”  Respondent Intel Corp.’s Letter in Opposition to Letter of Labor Amici, at 5. 

The central question, then, for this Court is not whether the Court of Appeal decision transforms existing law, but instead whether that transformation is a wise one.[2]  Justice Kolkey framed the inquiry as follows:  “[i]f the transmittal of an unsolicited e-mail that causes no injury to the condition, value, or operation of the chattel (or to the possessory interest therein) does not rise to the level of trespass to chattel, should the requirement of injury be relaxed to allow an injunction against unwanted e-mail?”  Justice Kolkey has already given this question an incisive treatment, concluding that such a transformation is decidedly unwise, both because it would extend the tort’s scope in a way that loses sight of its purpose, and because it would violate sound principles of judicial self-restraint.  Supra pp. 4-5.  In contrast, the majority opinion gives this question only the most cursory examination, simply stating that “[w]e conceive of no public benefit from this wasteful cat-and-mouse game which justifies depriving Intel of an injunction.”  Hamidi, 94 Cal.App.4th at 332.  Despite the majority’s dismissive treatment, however, this question is at the heart of this appeal, and is considered in detail below.

B.        The Principal Policy Justification for the Age-old Distinction Between Trespass to Real Property and Trespass to Chattel Is Fully Applicable in the Internet Context.

The starting point for determining whether, in the Internet context, the distinction between trespass to real property and trespass to chattel should be maintained is to identify the policy justification for the difference between the two torts in the first place.  The principal justification for recognizing the inviolability of real property -- as opposed to chattels -- is the desire to prevent physical confrontations between real property owners and potential trespassers.  As one commentator has recently explained:

[T]he policy that supports protecting against physical intrusions is based, at least in part, on preventing breaches of the peace.  One often has some financial and psychic attachment to one’s land, particularly if the land is used for personal rather than business purposes.  The landowner may view a physical intrusion as threatening, and be tempted to respond with force.  That the intruder will be liable for trespass both deters his or her conduct, and makes it less necessary for the landowner to resort to violence.

Maureen A. O’Rourke, Shaping Competition on the Internet: Who Owns Product and Pricing Information?, 53 Vand. L. Rev. 1965, 1994 (2000) (emphasis added).  The Court of Appeal was apparently aware of this long-standing policy basis for differentiating between trespass to real property and trespass to chattel.  Specifically, the court observed that:

Originally, all types of trespass, including trespass to land, were punishable under the criminal law because the trespasser’s conduct was regarded as a breach of the peace.  When the criminal and civil aspects of trespass were separated, the civil action for trespass was colored by its past, and the idea that the peace of the community was put into danger by the trespasser’s conduct influenced the courts’ ideas of the character of the tort.  Therefore, relief was granted to the plaintiff where he was not actually damaged, partly, at least, as a means of discouraging disruptive influences in the community.

Hamidi, 94 Cal.App.4th at 331 (citing 7 Speiser et al., American Law of Torts (1990) Trespass, § 23:1, p. 592) (emphasis added). 

Quite obviously, Mr. Hamidi’s e-mails do not raise these sorts of concerns.  An e-mail message is not going to physically confront anyone.  Nor is anyone likely to resort to violence as a means of protecting himself against the electronic signal of an e-mail message.  As Professor O’Rourke succinctly puts it, the “virtual intrusion” of an electronic signal “is not directly analogous to the physical invasion against which trespass to real property protects.  It lacks the immediacy and opportunity for physical confrontation that provides a policy basis for the trespass cause of action.”  O’Rourke, supra, at 1194.

When Mr. Hamidi sent e-mail messages to Intel, he sent electronic signals to Intel’s computer equipment, but he obviously was not setting foot on Intel’s property in the sense of roaming Intel’s factories and hallways, risking a physical confrontation with Intel’s management or employees.  If this all sounds a bit strange -- imagining an e-mail message physically roaming a factory or hallway -- it is.  Remarkably, however, that is precisely the analogy that the Court of Appeal adopted in its opinion, observing that “Intel is as much entitled to control its e-mail system as it is to guard its factories and hallways.”  Hamidi, 94 Cal.App.4th at 342.  Yet this is an indefensible analogy, as it simply ignores the long-standing difference between trespass to real property and trespass to chattel, and the principal policy reason for that difference. 

In short, the main policy justification for recognizing a doctrinal difference between trespass to real property and trespass to chattel -- namely, that trespass to real property risks a violent confrontation between the property owner and the trespasser, while trespass to chattel does not present as great a risk -- exists in both the traditional physical world and on the Internet.  In fact, this policy justification is even more pronounced in the Internet context, where a physical confrontation between the sender and recipient of an e-mail message is literally impossible.  On this basis alone, the Court of Appeal opinion should be rejected; yet there are several other policy justifications for rejecting the decision, explored below.

C.        In the Internet Context, There Is Even Greater Policy Justification for Maintaining the Distinction Between Trespass to Real Property and Trespass to Chattel Than Exists in the Traditional Physical World.

In the Internet context, the distinction between trespass to real property and trespass to chattel takes on even greater importance than it does in the traditional physical world.  This is because, without the element of harm to the chattel, the trespass to chattel tort in the Internet context would be transformed from “a tort meant to protect possessory interests into one that merely attacks speech.”  Hamidi, 94 Cal.App.4th at 352 (Kolkey, J., dissenting).  In other words, the element of harm to the chattel in the Internet context functions as a necessary, limiting principle that ensures that trespass law does not stray too far from its conceptual underpinnings.  Moreover, as Justice Kolkey recognized, abandoning this element would “expand the tort of trespass to chattel in untold ways and to unanticipated circumstances.”  Justice Kolkey’s prescient admonition is examined in more detail below.

1.         The Court of Appeal Opinion Has Enormous Adverse Consequences for Free Speech on the Internet.

Both courts and commentators have universally hailed the Internet as potentially the most diverse and democratic communications medium that the world has ever known.  E.g., ACLU v. Reno, 929 F.Supp. 824, 881 (E.D. Pa. 1996) (opinion of Dalzell, J.); Eugene Volokh, Cheap Speech and What It Will Do, 104 Yale L. J. 1805, 1833-43 (1995).  Indeed, the U.S. Supreme Court has praised the Internet as a “vast democratic forum[]” that is “open to all comers,” which has created a “new marketplace of ideas” with “content [that] is as diverse as human thought.”  Reno v. ACLU, 521 U.S. 844, 868, 870, 880, 885 (1997).  Moreover, “‘[t]he Internet . . . offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.’”  Ashcroft v. ACLU, No. 00-1293, 2002 WL 970708, at *2 (U.S. May 13, 2002) (quoting 47 U.S.C. § 230(a)(3) (1994 ed., Supp. V)).

The Court of Appeal opinion, however, has enormous adverse consequences for the democratic, speech-enabling characteristics of the Internet.  The Court of Appeal held that the “electronic signal” generated by Mr. Hamidi’s e-mails was sufficiently tangible to support a trespass cause of action, even though it is undisputed that Mr. Hamidi’s e-mails caused no physical harm or disruption to Intel’s computer equipment, nor was Intel dispossessed, even temporarily, of its computer equipment by reason of receipt of Mr. Hamidi’s e-mails.  Hamidi, 94 Cal.App.4th at 334-35.  Yet once trespass to chattel no longer requires proof of harm to the chattel, then any e-mail transmission that travels onto private property becomes actionable if the plaintiff simply objects to the transmission. 

What the Court of Appeal failed to grasp, however, is that virtually the entire network of computers that makes up the Internet, and virtually every e-mail server and personal computer that receives e-mail messages, are privately-owned.  Therefore, almost all e-mail messages necessarily travel through and onto private property.  E.g., Barbara Esbin, Internet Over Cable: Defining the Future in Terms of the Past, 7 CommLaw Conspectus 37, 47-48 (1999); David J. Goldstone, A Funny Thing Happened on the Way to the Cyber Forum: Public v. Private in Cyberspace Speech, 69 U. Colo. L. Rev. 1, 17 (1998).  Therefore, if trespass to chattel doctrine is applied on the Internet without any requirement of harm to the chattel, almost any e-mail message could constitute an actionable trespass.  As Professor Burk has observed, if an “electronic signal” is sufficiently tangible to support a trespass cause of action, then “it is quite possible to torture the doctrine of trespass to chattels to cover any number of . . . inconvenient communications . . . [and] such contortions are not at all unlikely where Internet communications are at issue . . . all that any user needs to fulfill the elements of trespass is to withdraw consent for some real or imagined offense.”  Dan L. Burk, The Trouble With Trespass, 4 J. Small & Emerging Bus. L. 27, 47 (2000) (emphasis added).

This aspect of the Court of Appeal decision is greatly troubling, because it threatens to stifle a vibrant new medium of communications that has attained significant importance in today’s society.  Despite its recent invention, e-mail communication is now as vital to society as traditional communications media, such as phones or conventional mail.  As recent studies published by the United States Department of Commerce and the UCLA Center for Communications Policy observe, the majority of Americans now regularly use the Internet to communicate and receive information.  U.S. Dept. of Commerce, A Nation Online: How Americans Are Expanding their Use of the Internet, February 2002, available at <http://www.ntia.doc.gov/ntiahome/dn/nationonline_ 020502.htm> [hereinafter “Commerce Report”]; UCLA Center for Communication Policy, The UCLA Internet Report 2001: Surveying the Digital Future: Year Two, November 29, 2001, available at <http://www.ccp.ucla.edu/pages/internet-report.asp> [hereinafter “UCLA Report”].  The U.S. Supreme Court recently observed that “176.5 million Americans have Internet access either at home or at work.”  ACLU, 2002 WL 970708, at *2 n.2.  The rate of growth in the total number of e-mail users has been astronomical, with two million new American Internet users coming on-line per month.  Commerce Report at 1.

According to the UCLA Report, the average American with Internet access spends over nine hours a week on-line and uses e-mail regularly to communicate with family, friends, and colleagues.  UCLA Report at 5-8.  Over eighty percent of Internet e-mail users say they rely on e-mail as a means of communicating with people they could not normally talk to as often.  Id. at 56.  In fact, in the aftermath of September 11, 2001, over 100 million Americans used e-mail to express emotional concerns or share information about victims.  UCLA Center for Communication Policy, The UCLA Internet Project Survey, February 7, 2002, available at <http://www.ccp.ucla.edu/pages/internet-report.asp> (“In the aftermath of the attacks, e-mail had a profound influence on how Americans communicate.”).

Businesses also rely heavily on e-mail.  As the Ninth Circuit recently observed, “[a]lthough communication via email and over the Internet is comparatively new, such communication has been zealously embraced within the business community.”  Rio Prop., Inc v. Rio Int’l Interlink, Nos. 01-15466, 01-15784, 2002 WL 431915, at *6 (9th Cir. Mar. 20, 2002).  As Intel’s lead counsel puts it, e-mail is “mission-critical,” and indeed “we live on e-mail.”  Maggie Shiels, Why One Spam Could Cost $50, BBC News, Sci/Tech, April 9, 2002, available at <http://news.bbc.co. uk/hi/english/sci/tech/newsid_1917000/1917458.stm>.

In sum, e-mail is one of our society’s most important means of communication.  Yet the Court of Appeal opinion establishes a rule of liability whereby virtually any e-mail message -- regardless of its content, its purpose, who sends it, or who receives it -- becomes actionable if the recipient simply objects to the message, thereby turning millions of Americans into potential lawbreakers for doing what they do every day.[3]  Nothing could be more antithetical to a society that values freedom of expression.  This Court should soundly reject the Court of Appeal decision.

2.         The Court of Appeal Opinion Also Threatens the Basic Operation of the Internet Itself.

The Court of Appeal decision not only threatens e-mail communication, but also threatens the basic operation of the Internet itself.  This is because virtually every use of the Internet requires the transmission of “electronic signals” across the network.  For example, Internet search engines must regularly send a myriad of electronic signals across private computers in order to index the contents of the Internet and thereby help individuals to find information.  E.g., Brookfield Comms., Inc. v. West Coast Entm’t Corp., 174 F.3d 1036, 1044-45 (9th Cir. 1999) (describing the operation of search engines). Likewise, in order to read Web pages, electronic signals must be sent over private equipment, requesting the transmission of data files.[4]  Put simply, the Internet is nothing more than billions of electronic signals travelling between individual private computers.  Thus, if an “electronic signal” alone can supply the basis for trespass to chattel, the application of the tort is limited only by a plaintiff’s imagination.

As Professor Burk has warned, “[o]ne can easily imagine the anti-commons nightmare that could ensue on the Internet in web linking, indexing, and other routine functions if every owner of equipment attached to the network were granted a cause of action for the trespass of unwanted electrons on her equipment.”  Burk, supra, at 49.  Furthermore:

Lest anyone should think that such trespass claims would be limited to e-mail or the web, similar analyses could easily be supplied for FTP,[5] telnet,[6] streaming audio or video, Internet “chat” sessions, software agents, indexing “spiders,” and many other on-line applications.  Trespass may indeed be the all-purpose cause of action for the Internet; the impingement of electrons . . . is inherent in connecting a machine to the Internet.

 

Id. at 46 (emphasis added).

The Court of Appeal’s conclusion to grant a cause of action based on nothing more than an “electronic signal,” Hamidi, 94 Cal.App.4th at 334, is especially unfortunate given the manner in which other courts have praised the information-sharing nature of the Internet.  For example, the U.S. Supreme Court has noted that “[a]nyone with access to the Internet may take advantage of a wide variety of communication and information retrieval methods.”  Reno v. ACLU, 521 U.S. 844, 851 (1997).  The Court has compared the World Wide Web to “a vast library including millions of readily available and indexed publications . . . .”  Id. at 852.  And in its recent Ashcroft v. ACLU opinion, the Court extolled the virtues of “surfing” the Web, observing that:

[I]ndividuals can access material about topics ranging from aardvarks to Zoroastrianism.  One can use the Web to read thousands of newspapers published around the globe, purchase tickets for a matinee at the neighborhood movie theatre, or follow the progress of any Major League Baseball team on a pitch-by-pitch basis.

ACLU, 2002 WL 970708, at *2; see also Bally Total Fitness Holding Corp. v. Faber, 29 F.Supp.2d 1161, 1168 (C.D. Cal. 1998) (observing that “[t]he essence of the Internet is that sites are connected to facilitate access to information”).

Yet all of this activity that the U.S. Supreme Court describes in such glowing terms -- “surfing” the Internet, employing search engines, accessing the World Wide Web “library,” etc. -- has been rendered a potential trespass by the Court of Appeal decision.  As a practical matter, these activities would not disappear under the rule announced by the Court of Appeal, but they would exist only at the sufferance of the recipient of the respective “electronic signal.”  The courts would be forced to enjoin, at the whim of any given website or computer owner, specific individuals (or arbitrary classes of individuals) from sending electronic requests for information maintained on publicly-accessible systems.  For this reason, the Court of Appeal decision is radically out-of-step with the most basic understanding of the operation and character of the Internet.  It should be squarely rejected.

D.        The Relevant Analogies In This Case to the Traditional Physical World Support the Conclusion That Trespass to Chattel Should Not Be Extended to Censor Mr. Hamidi’s E-mail Speech.

Much of what is at stake in this case revolves around the proper analogy to draw between the traditional physical world and the on-line world.  E.g., Developments in the Law -- The Law of Cyberspace, 112 Harv. L. Rev. 1574, 1631 n.127 (1999) (observing that “[w]hen a case of first impression reaches the courts, much of the battle often focuses around which new analogy the court should adopt to resolve the case”).  As noted above, the Court of Appeal analogized Mr. Hamidi’s e-mail messages to Mr. Hamidi himself (or at least his messages) roaming Intel’s “factories and hallways.”  Hamidi, 94 Cal.App.4th at 342.  From there, it is a short step to the conclusion that Intel should be granted an injunction.  As explained above, however, this is a decidedly poor analogy, both because it distorts the reality of the physical properties of an e-mail message, and because it ignores the long-standing difference between trespass to real property and trespass to chattel, as well as the principal policy reason for that difference.  Supra Section I.B.

But there is an additional reason to reject the majority’s analogy.  The “chattel” in this case -- Intel’s computer equipment that makes up its e-mail system -- is designed to carry communications.  When Mr. Hamidi sent his e-mail messages to Intel employees, the chattel functioned exactly as it was designed to function, and moreover, it suffered no impairment whatsoever.  Accordingly, the more precise analogy to draw between the traditional physical world and the on-line world is one that compares communications chattels.  Specifically, Mr. Hamidi’s e-mail messages to Intel’s computer equipment should be compared to phone calls to Intel’s phones, or faxes to Intel’s fax machines, or letters to Intel’s mailboxes, or even radio or television broadcasts to Intel’s radios or televisions.  Each of these analogies is far superior to the “roaming the factories and hallways” analogy, because each is much more faithful to the reality of what occurs when e-mail messages enter on-line chattels.

Once the proper analogy is identified, it becomes clear why the Court of Appeal decision should be reversed.  Nobody would suggest that trespass to chattel should be used to block telephone calls, faxes, mail, or radio and television waves.  The very idea is absurd -- after all, the chattels that receive these transmissions (telephones, fax machines, mailboxes, radios and televisions) are designed to receive communications.  The same reasoning applies here:  Intel’s chattel is designed to receive e-mail, and thus it is entirely anomalous to conclude that Mr. Hamidi trespassed on Intel’s chattel, especially considering that he did not disrupt the chattel in any way.

Justice Kolkey recognized this flaw in the Court of Appeal opinion when he observed that:

            [I]f 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.
            At oral argument, Intel’s counsel argued that the latter cases can be distinguished because Intel gave defendant notice of its objection before his final set of e-mails in September 1998.  But such notice could also be given to television and radio stations, telephone callers, and correspondents.  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.

Hamidi, 94 Cal.App.4th at 348 (Kolkey, J., dissenting) (emphasis added).

The majority offers no direct response to Justice Kolkey’s persuasive critique.  The closest the majority comes to addressing this issue is when it states that “[n]or could a person send thousands of unwanted letters to a company, nor make thousands of unwelcome telephone calls.  (See Rowan v. Post Office Dept. (1970) 397 U.S. 728, 736-737 [90 S.Ct. 1484, 1490, 25 L.Ed.2d 736, 743] [upholding statute allowing blocking of mail, “Everyman’s mail today is made up overwhelmingly of material he did not seek from persons he does not know”; “To hold less would tend to license a form of trespass.”].)”  Hamidi, 94 Cal.App.4th at 336 (emphasis added).  But as the source cited by the majority makes plain, it is statutory law -- not the tort of trespass to chattel -- that may provide relief from unwanted letters.  Id. at 351 n.3 (Kolkey, J., dissenting) (noting that “[n]othing in Rowan suggests the common law, as opposed to statute, can make unsolicited mailings a trespass to chattel”).  Similarly, California statutes exist to regulate certain unwanted faxes, and certain unwanted phone calls.  Cal. Bus. & Prof. Code §§ 17590-17595 (2001) (regulating unsolicited telephone calls); id. § 17528.4 (2001) (regulating unsolicited faxes).

In contrast, no court has ever suggested that unwanted mail, faxes, phone calls, or radio or television signals should be treated as trespass to chattel.  Thus, the majority’s argument simply highlights the fact that relief from unsolicited communications that enter chattels designed to receive them must be addressed by statute, and that trespass to chattel has no applicability to such a situation.  The same result should apply here, where Intel’s chattel is designed to receive Mr. Hamidi’s e-mails.  Moreover, as explained more fully in Section I.F.2., infra, the California Legislature has enacted legislation to address unsolicited e-mail communications, which further strengthens the parallel to unsolicited mail, faxes and phone calls, and their legal treatment.

 

E.        This Court Does Not Need to Abandon the Distinction Between Trespass to Real Property and Trespass to Chattel In Order For Intel To Protect Its Valid Legal Interests.

It is entirely unnecessary for this Court to transform the law of trespass to chattel in order for Intel to protect its valid legal interests.  Intel has numerous options at its disposal for dealing with the supposed “harm” of unsolicited e-mail.  First, as already noted, and as explained more fully below in Section I.F.2., infra, the California Legislature has provided a statutory remedy against certain types of unsolicited e-mail.  Although Mr. Hamidi’s e-mail speech does not fall within the ambit of the legislation, this merely highlights the fact that the Legislature has chosen not to prohibit speech like Mr. Hamidi’s, and this Court should defer to that legislative choice.

Second, Intel could have pursued a nuisance action against Mr. Hamidi.  In fact, Intel did include a nuisance count in its Complaint, C.T. at 3, but then quickly abandoned this claim once it appeared that the trial court would be receptive to the trespass to chattel claim.  In light of the strict dichotomy between nuisance and trespass established by this Court in Wilson v. Interlake Steel Co., 32 Cal.3d 229 (1982), and San Diego Gas and Elec. Co. v. Superior Court, 13 Cal.4th 893 (1996), described more fully in Section II., infra, Intel should have been required to pursue a nuisance theory rather than a trespass claim.

Ultimately, though, this case is a dispute about speech.  Therefore, if Intel believed that it had been harmed by Mr. Hamidi’s speech, Intel should have pursued a legal remedy that is designed to address speech-based harm, such as a defamation action.  Indeed, the Internet has spawned a developing body of defamation litigation, but plaintiffs have often been stymied by two separate factors.  First, it is often difficult to identify the sender of a defamatory message.  E.g., Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999) (observing that “[t]he tortfeasor can act pseudonymously or anonymously and may give fictitious or incomplete identifying information”).  And second, out-of-state defendants often successfully object to the exercise of personal jurisdiction.  E.g., Jewish Def. Org., Inc. v. Superior Court, 72 Cal.App.4th 1045, 1061-62 (1999), review denied Sept. 15, 1999.  Here, however, Mr. Hamidi freely admitted to sending e-mails to Intel employees, and he obviously did not object to jurisdiction.  Thus, there was no technical barrier impeding Intel from pursuing a defamation action, other than its own unwillingness to do so, and the fact that Mr. Hamidi’s e-mails are protected speech.[7]

The reason, of course, that Intel is so enamored of the trespass remedy is that it is extremely broad and powerful.  Yet this is precisely why the trespass remedy is inappropriate here.  Rather than balancing the competing concerns and entitlements in this case, the Court of Appeal decision adopts an absolutist view of Intel’s property rights, and in the process grants every computer owner the unprecedented power to censor Internet speech.  In short, in its zeal to regulate unsolicited e-mail, the court’s cure is many times worse than the disease.

F.        Sound Policies of Judicial Self-Restraint Counsel This Court to Reject the Court of Appeal’s Radical Revision of Trespass to Chattel Doctrine.

This Court has a long, estimable history of exercising judicial self-restraint in appropriate circumstances.  For example, judicial self-restraint is appropriate when (a) a legal question involves complex policy choices, (b) the California Legislature has already acted in the area of the law that is the subject of the dispute, or (c) an expansion of potential liability would entail large social costs.  Each one of these circumstances is present here.  The Court of Appeal opinion, unfortunately, gives them no attention.  Justice Kolkey, however, was well aware of the principles of judicial self-restraint, as he carefully reasoned his way to the conclusion that the majority’s “metamorphosis” of the trespass to chattel tort “is better suited for deliberative legislative action than judicial policymaking,” and that “[m]odification of the tort doctrine in this way, which would affect the free flow of communication on the Internet, is better addressed by the legislative branch.”  Hamidi, 94 Cal.App.4th at 352 (Kolkey, J., dissenting).  These principles of judicial self-restraint are examined in more detail below.

1.         The Court of Appeal’s Radical Expansion of Trespass to Chattel Doctrine Violates Principles of Judicial Self-Restraint Because the Regulation of Mr. Hamidi’s E-mail Speech Is Best Left to the Legislature, Given the Complex, Competing Policy Considerations Inherent in Such Regulation.

This Court has repeatedly held that when an area of law involves complex, competing policy considerations, the Legislature is ideally suited to make the necessary policy choices, and therefore courts should exercise self-restraint by declining to announce new rules of law that expand potential liability.  E.g., Mirkin v. Wasserman, 5 Cal.4th 1082, 1104-05 (1993) (observing that “we have emphasized in recent decisions that courts should be hesitant to impose [new tort duties] when to do so would involve complex policy decisions, especially when such decisions are more appropriately the subject of legislative deliberation and resolution”); Moore v. Regents of the Univ. of California, 51 Cal.3d 120, 147 (1990) (declining to adopt a new theory of liability for conversion, because “[c]omplex policy choices affecting all of society are involved”); Nally v. Grace Cmty. Church of the Valley, 47 Cal.3d 278, 299 (1988) (noting that “[w]e have previously refused to impose a duty when to do so would involve complex policy decisions, and we are unpersuaded by plaintiffs that we should depart from this policy in the present case”).

The logic behind this principle is sound.  Unlike courts, “[l]egislatures, in making such policy decisions, have the ability to gather empirical evidence, solicit the advice of experts, and hold hearings at which all interested parties present evidence and express their views.”  Moore, 51 Cal.3d at 147 (quoting Foley v. Interactive Data Corp., 47 Cal.3d 654, 694 n.31 (1988)); see also Ramirez v. Plough, Inc., 6 Cal.4th 539, 553 (1993) (noting that “legislative . . . investigation . . . [is] based upon empirical data and consideration of the viewpoints of all interested parties”).

It would be hard to imagine a situation more tailor-made for this principle than the instant case.  The Internet in general, and e-mail in particular, has transformed our society by changing the way that people communicate with each other.  In this sense, the invention of e-mail is on par with such historical developments as the invention of the telephone or the telegram.  Such a phenomenon necessarily raises novel, complex legal issues that are not susceptible to easy answers.  Rather, a whole host of competing policy considerations come into play.  Mr. Hamidi has already identified many of the policy considerations that support his position.  Supra Sections I.B.-I.E.  Intel, no doubt, will raise competing considerations in its Answer to this Brief.  But any arguments that Intel raises will only serve to prove the larger point that rewriting California tort law to cover Mr. Hamidi’s e-mail speech is a matter best left to the Legislature.  In this way, the ultimate fate of e-mail communication (and of the Internet more broadly) will not merely be “predicated primarily and essentially upon judicial instinct, second-hand sources, and appellate argument.”  People v. Drew, 22 Cal.3d 333, 360-61 (1978) (Richardson, J., dissenting).

2.         The Court of Appeal’s Radical Expansion of Trespass to Chattel Doctrine Violates Principles of Judicial Self-Restraint Because the Majority Should Have Deferred to the Legislature’s Deliberate Choice Not to Censor Mr. Hamidi’s Speech.

The principle of judicial self-restraint takes on even greater importance when the Legislature has, in fact, already acted to regulate the area of law in question.  E.g., Mirkin, 5 Cal.4th at 1105 (stating that the principle of judicial self-restraint “has particular force when the plea to expand liability concerns an area . . . in which the Legislature has already acted”); Ramirez, 6 Cal.4th at 552 (noting that existing statutes “demonstrate that the Legislature is able and willing to define” the scope of a tort duty); Moore, 51 Cal.3d at 147 (observing that “[l]egislative competence to act in this area is demonstrated by the existing statutes”).  That is precisely the situation here, as the California Legislature has recently enacted two statutes that address unsolicited e-mail.

The California statutes pertaining to unsolicited electronic mail are found at Cal. Bus. & Prof. Code §§ 17538.4 and 17538.45 (Deering Supp. 2000).  Section 17538.4 generally requires that “unsolicited advertising material” sent by e-mail must include a statement informing the recipient of a toll-free number or valid return e-mail address through which the recipient can opt-out of future mailings.  Cal. Bus. & Prof. Code § 17538.4(2).  The “subject line” of such advertising material must also include “ADV:” as the first four characters.  Id. § 17538.4(g).[8]  Section 17538.45 further requires that senders of unsolicited electronic mail advertisements must comply with the policies of California electronic mail service providers, and provides statutory damage awards for the failure to do so.

The legislative history of sections 17538.4 and 17538.45 reveals that the California Legislature carefully considered the free speech issues presented by the legislation.  See Sen. Bills No. 1629 & 1676 (1997-98 Reg. Sess.); Sen. Com. on Bus. and Profs., Analysis of AB 1629 (Miller) (1997-98 Reg. Sess.) June 22, 1998, p. 6 (“Questions have arisen as this bill proceeded through the Assembly regarding whether its provisions might be an unconstitutional infringement against free speech . . . .”); Assembly Com. on Consumer Protection, Governmental Efficiency, and Econ. Dev., Analysis of AB 1676 (Bowen) (1997-98 Reg. Sess.) March 17, 1998, p. 3 (“Opponents of the bill claim that the bill may be an unconstitutional infringement on free speech and that any government regulation of the Internet may have a dampening effect on Internet commerce.”). 

Moreover, these free speech considerations encouraged the Legislature to craft narrowly drawn legislation that does not unlawfully impinge on free speech rights, and does not regulate unsolicited e-mail in general.  For instance, in addressing the “Alleged Unconstitutionality of the Bill,” the Analysis of the Assembly Committee on the Judiciary made clear that while an “across-the-board ban” on the transmission of commercial e-mail advertisements would probably be defensible under existing law, the intent of the legislation was to adopt a “narrower approach to the problem of unsolicited commercial e-mail.”  Assembly Com. on the Judiciary, Analysis of AB 1629 (Miller) (1997-98 Reg. Sess.) Apr. 14, 1998, pp. 3-4 (emphasis added).  The Legislature heard from various interest groups which supported or opposed the enactment of the bill.  One supporting group, CAUCE (Coalition Against Unsolicited Commercial E-mail), was cited in numerous analyses as supporting AB 1629 on the basis that the legislation protected “personal, political, artistic, and religious speech” from the “relentless blare of advertising.”  Id. at p. 4.

Federal legislation regulating unsolicited e-mail has also been introduced and shares a similar solicitude for free speech rights.  The leading federal bill, sponsored by Senator Burns (R-MT) and six other Senators, is the CAN SPAM Act of 2001, S. 630, 107th Cong. (2001).  This proposed legislation explicitly recognizes the societal interest in protecting free speech by stating as its primary congressional finding that “[t]here is a right to free speech on the Internet,” and as its final finding that “[i]n legislating against certain abuses on the Internet, Congress should be very careful to avoid infringing in any way upon constitutionally protected rights, including the rights of assembly, free speech, and privacy.  Id. § 2(a)(1) & (11) (emphasis added).  The proposed bill, like the California legislation, is narrowly drafted to regulate “unsolicited commercial electronic mail” and e-mail containing “fraudulent routing information.”  Id. § 2(a) & 4.

It is clear that the California Legislature did not seek to prohibit speech such as Mr. Hamidi’s when it enacted legislation concerning unsolicited e-mail, and accordingly crafted narrowly drawn statutes.  It is undisputed that none of Mr. Hamidi’s e-mail messages to Intel employees were commercial advertisements.  It is also undisputed that Mr. Hamidi did not “hack” into Intel’s computer system or otherwise cause any damage to the system in any way.  See Cal. Penal Code § 502; C.T. 272 (e-mails among Intel technical personnel stating that “FIRST OF ALL . . . 1. THERE IS NO SECURITY BREACH.  ANYONE WITH AN INTERNET ADDRESS FOR AN INTEL EMPLOYEE CAN SEND THAT EMPLOYEE MAIL,” and “You’re absolutely right, there is no security breach”) (capitalization in original).  Therefore, California statutory law does not proscribe Mr. Hamidi’s e-mail speech.

Given that the California Legislature did not seek to prohibit speech such as Mr. Hamidi’s when it enacted legislation addressing unsolicited e-mail, this Court should infer that the Legislature has made a deliberate decision not to regulate Mr. Hamidi’s e-mail speech -- and that decision should be respected.  As this Court stated in Ramirez, in rejecting plaintiff’s claim that the defendant should have included package warnings in foreign languages on nonprescription drugs:

These statutes demonstrate that the Legislature is able and willing to define the circumstances in which foreign-language communications should be mandated.  Given the existence of a statute expressly requiring that package warnings on nonprescription drugs be in English, we think it reasonable to infer that the Legislature has deliberately chosen not to require that manufacturers also include warnings in foreign languages. 

Ramirez, 6 Cal.4th at 552 (emphasis added). 

The parallel to the instant case could not be more plain.  The Legislature has demonstrated that it is “able and willing” to regulate unsolicited e-mail, and given the existence of statutes “expressly requiring” that unsolicited e-mail advertisements meet certain criteria, it is “reasonable to infer that the Legislature has deliberately chosen not” to regulate e-mail such as Mr. Hamidi’s.  Id.; see also Hamidi, 94 Cal.App.4th at 352 (Kolkey, J., dissenting) (citing Cal. Bus. & Prof. Code §§ 17538.4, 17538.45, and Cal. Penal Code § 502(e)(1), and concluding that “[t]hese statutory provisions and the Legislature’s failure to extend these remedies to unsolicited e-mails in general suggests a deliberate decision by the Legislature not to reach the circumstances here”).[9]

Proper deference to the Legislature also necessarily entails that courts should not expand tort doctrines in such a manner that renders legislative acts a nullity.  Yet that is exactly what the Court of Appeal decision does to the Legislature’s regulation of unsolicited e-mail.  Put simply, if plaintiffs no longer have to demonstrate harm to their on-line chattels (and thus are entitled to an injunction to protect their chattels from mere “electronic signals”), what possible purpose do Bus. & Prof. Code sections 17538.4 and 17538.45 serve?  The answer is none whatsoever.  Thus, the Court of Appeal decision violates the well-settled and fundamental principle that when interpreting a legal issue, courts should do so in a manner that creates harmony within the larger system of law in which the issue arises.  E.g., Merrill v. Navegar, Inc., 26 Cal.4th 465, 486 (2001) (rejecting a common law negligence liability theory for gun manufacturers because “the availability of such negligence liability would effectively render section 1714.4 useless”); Briggs v. Eden Council for Hope and Opportunity, 19 Cal.4th 1106, 1118-19 (1999) (noting that “every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect”).

Finally, it is worth noting that a decision to overturn the Court of Appeal would not necessarily “freeze” the law in Mr. Hamidi’s favor.  Indeed, it might prompt the Legislature to give unsolicited e-mail a fresh review.  E.g., Ramirez, 6 Cal.4th at 553 (noting that “we are conscious that our decision here may prompt review of this issue by the California legislature”).  As detailed above in Section I.F.1., supra, the Legislature is better equipped than the courts to regulate the new phenomenon of e-mail communications.  This Court should wisely decline to rewrite the trespass to chattel tort here, and instead leave that task, should it be necessary, to the Legislature.  Intel is certainly not powerless in that arena.

3.         The Court of Appeal’s Radical Expansion of Trespass to Chattel Doctrine Violates Principles of Judicial Self-Restraint Because The Decision Entails Enormous Social Costs.

As explained in detail in Sections I.C.1. and I.C.2., the Court of Appeal opinion has enormous social costs because the decision threatens to stifle an important new medium of communication, and because it is at odds with the basic operation of the Internet itself.  This is yet another reason why judicial self-restraint is particularly appropriate here.  E.g., Parsons v. Crown Disposal Co., 15 Cal.4th 456, 475 (1997) (“We conclude that imposing a duty in the present case to guard against fright to a horse might well subject all manner of actors to the same duty and potential liability, with obvious and detrimental consequences stifling to the community”); Randi W. v. Muroc Joint Unified Sch. Dist., 14 Cal.4th 1066, 1079 (1997) (stating that “[w]hen deciding whether to expand a tort duty of care, courts must consider the potential social and economic consequences”); Potter v. Firestone Tire and Rubber Co., 6 Cal.4th 965, 991 (1993) (noting the “unduly detrimental impact that unrestricted fear liability would have in the health care field”); Moore, 51 Cal.3d at 146 (explaining that “we have in the past considered the impact that expanded liability would have on activities that are important to society”).

A prime way to ensure that judicial decisions do not inflict an undue burden on society is to carefully guard against too great an expansion of the potential plaintiff class.  E.g., Potter, 6 Cal.4th at 991 (“[W]e believe the tremendous societal cost of otherwise allowing emotional distress compensation to a potentially unrestricted plaintiff class demonstrates the necessity of imposing some limit on the class”); Mirkin, 5 Cal.4th at 1108 (“We are reminded of the admonition that the inexorable broadening of the class of plaintiff who may sue in this area of law will ultimately result in more harm than good”); Elden v. Sheldon, 46 Cal.3d 267, 276 (1988) (“The final justification for our conclusion is . . . the need to limit the number of persons to whom a negligent defendant owes a duty of care.”). 

But as explained above in Sections I.C.1. and I.C.2., the Court of Appeal decision expands the potential plaintiff class here to anybody who receives the “electronic signal” of an e-mail communication, and turns literally millions of Americans into potential lawbreakers for doing what they do every day.  This flies in the face of the most basic concept of judicial self-restraint.  The most prudent course for this Court to follow, then, is to reverse the Court of Appeal decision and restore the bright-line rule that in order to maintain an action for trespass to chattel, a plaintiff must demonstrate physical harm to his chattel, or that he has been dispossessed of his chattel for a period of time.  E.g., Thing v. LaChusa, 48 Cal.3d 644, 664 (1989) (declining to expand tort liability for negligent infliction of emotional distress, and noting that the case “affords the court a[n] . . . opportunity to meet its obligation to create a clear rule under which liability may be determined”); Elden, 46 Cal.3d at 277 (noting that “[t]he need to draw a bright line in this area of the law is essential” in order to prevent “the unreasonable extension of the scope of [tort] liability”).[10]

II.        THIS COURT SHOULD MAINTAIN ITS CLEAR DICHOTOMY BETWEEN NUISANCE AND TRESPASS LAW WHEN DEALING WITH INTANGIBLE INTRUSIONS.

This Court has established a strict dichotomy between nuisance and trespass.  Simply put, all intangible intrusions that do not cause physical damage to plaintiff’s property must be dealt with as a nuisance and not as trespass.  San Diego Gas and Elec. Co. v. Superior Court, 13 Cal.4th 893, 935-37 (1996); Wilson v. Interlake Steel Co., 32 Cal.3d 229, 232-34 (1982).  This Court should maintain this clear dichotomy between nuisance and trespass law when dealing with intangible intrusions, because this separation between the two tort doctrines helps to ensure that e-mail messages that cause no physical disruption to the computer equipment that receives them may not constitute an actionable trespass to chattel. 

In Wilson, this Court listed “noise, odor, or light” as examples of intangible intrusions that cannot support a trespass action unless they cause physical damage to plaintiff’s property.  Wilson, 32 Cal.3d at 233.  In San Diego Gas, this Court unanimously added electromagnetic waves to the list of intangible intrusions governed by Wilson.  In a long and scholarly discussion, Justice Mosk explained the origin and propagation of electromagnetic energy, which covers a wide spectrum and includes such things as ultraviolet light, visible light, microwaves, and television and radio waves.  San Diego Gas, 13 Cal.4th at 903-10.  This Court concluded that electromagnetic waves arising from power lines “are wholly intangible phenomena within the meaning of Wilson.”  Id. at 936.  Therefore, plaintiffs could not bring a cause of action for trespass because they could not demonstrate that the electromagnetic waves had caused physical damage to their property.  Id. at 936-37.

Electronic signals, such as e-mail messages, that travel into private computer equipment consist of nothing more than electromagnetic waves.  E.g., 18 McGraw-Hill Encyclopedia of Science & Technology 555-62 (8th ed. 1997) (discussing propagation of electromagnetic waves along transmission lines); Gordon L. Stuber, Principles of Mobile Communication 1-16 (Kluwer Academic Publishers 2d ed. 2001) (discussing propagation of wireless communications).  Given the importance of properly identifying the type of intrusion at issue in this case, this Court should take judicial notice of the scientific fact that Mr. Hamidi’s e-mails that entered Intel’s computer equipment consisted of electromagnetic waves.  See Cal. Evid. Code §§ 452(h), 459(a). 

Consistent with San Diego Gas, Intel must demonstrate that its computer equipment suffered physical damage from Mr. Hamidi’s e-mail messages in order to maintain a cause of action for trespass.  Intel cannot meet this burden, however, because it is undisputed that its computer equipment suffered no physical damage from Mr. Hamidi’s e-mails.

The San Diego Gas opinion paints Intel into a corner.  Intel cannot dispute the scientific fact that e-mails are electromagnetic waves.  Nor can Intel make the argument that San Diego Gas is distinguishable merely because it deals with trespass to land -- because to do so would be to acknowledge that trespass to land and trespass to chattel should be treated differently, which, of course, would be fatal to Intel’s trespass to chattel claim.  See supra Section I.  Moreover, if the element of physical damage is a requirement of trespass to real property when dealing with intangible intrusions, how can it not be a requirement of trespass to chattel?  Hamidi, 94 Cal.App.4th at 350 (Kolkey, J., dissenting) (discussing San Diego Gas and observing that “[a] fortiori, non-damaging electronic signals should not constitute trespass to chattel”).  By holding that Mr. Hamidi committed a trespass to chattel on Intel’s computer equipment, the Court of Appeal turned California trespass law on its head by actually extending the reach of trespass to chattel beyond that of trespass to real property.  Surely, this cannot be the law.

 

As the foregoing discussion in Sections I. and II. demonstrates, the Court of Appeal decision should be reversed on the ground that Mr. Hamidi’s e-mails did not constitute a trespass to chattel on Intel’s computer equipment.  Resolution of the case in this manner also has an appealing simplicity, because it avoids the necessity of delving into the complicated labor law, state action, and constitutional free speech issues that arise if Mr. Hamidi’s e-mail speech is classified as trespass to chattel.  In this sense, reversing the Court of Appeal on the trespass to chattel issue, and thereby dispensing with the need to address any additional issues, would be a further manifestation of sound judicial self-restraint.  See, e.g., Thomas v. City of Richmond, 9 Cal.4th 1154, 1166 (1995) (Mosk, J., concurring) (observing that “judicial restraint . . . counsels” that courts avoid “complex and difficult questions” if it is possible to resolve the case on “much simpler” grounds); cf., e.g., Rider v. County of San Diego, 1 Cal.4th 1, 17 (1992) (George, J., concurring) (noting the “settled maxim” that courts should not address constitutional issues if other grounds for the decision exist).

Should this Court, however, hold that Mr. Hamidi has committed a trespass to chattel, then it would be necessary to grapple with the thorny issues of state and federal labor law, state action under the California and U.S. Constitutions, and California and federal constitutional free speech implicated by such a holding.  These issues are discussed below.

III.       THIS COURT SHOULD OVERTURN THE INJUNCTION AGAINST MR. HAMIDI BECAUSE IT VIOLATES BOTH CALIFORNIA AND FEDERAL LABOR LAW.

Mr. Hamidi’s e-mail speech, which addressed workplace concerns at Intel, is protected by California’s Moscone Act and therefore the injunction is improper.  The Moscone Act exists “to promote the rights of workers to engage in concerted activities for the purpose of collective bargaining, picketing or other mutual aid or protection, and to prevent the evils which frequently occur when courts interfere with the normal process of dispute resolution between employers and recognized employee organizations.”  Cal. Civ. Proc. Code §527.3(a) (emphasis added).  On its face, the phrase “mutual aid or protection” is broad enough to encompass Mr. Hamidi’s activity.  Moreover, the Moscone Act defines “labor disputes” quite broadly, stating that they encompass “any controversy concerning terms or conditions of employment,” even when the parties to the dispute do not “stand in the proximate relation of employer and employee.”  Id. §527.3(b)(4)(iii).

Indeed, the trial court in this case made a factual finding that Mr. Hamidi’s e-mail speech fell within the ambit of the statute.  C.T. at 121 (ruling that “the content of Hamidi’s e-mail communications appear to fall within the statute’s broad definition of labor disputes”).  This finding can only be disturbed if there is “no substantial evidence” to support it.  Peery v. Superior Court of Santa Clara County, 29 Cal.3d 837, 845 (1981).

There is an abundance of evidence to support the trial court’s finding.  Mr. Hamidi’s e-mails unquestionably addressed workplace concerns, and encouraged Intel employees to take individual and collective action to safeguard their rights.  E.g., C.T. at 44 (e-mail of February 17, 1997, stating that “[t]he nature of this e-mail is to protest Intel’s Human Resource policies and practices”); id. at 67 (e-mail of September 1998, stating that “[w]e need to get united and take action and we have to show to the public the true face and intentions of Intel,” and listing “[a]ction recommendations for you and what we will do”).  Indeed, in reaction to Mr. Hamidi’s messages, Intel drafted an internal memorandum that describes the messages as follows:  “[t]hese messages generally describe [FACE-Intel], mention a website and allege that Intel has discriminated against employees and terminated their employment unfairly.”  Id. at 276, 280.  In short, the trial court’s finding that Mr. Hamidi’s e-mail speech concerns a “labor dispute” finds ample support in the record.  Accordingly, Mr. Hamidi’s e-mail speech cannot be enjoined without running afoul of California labor law.  Cal. Civ. Proc. Code §527.3(b)(1).

The injunction against Mr. Hamidi also violates federal labor law principles.  The National Labor Relations Act prohibits employers from discriminating against e-mail speech concerning workplace issues on the basis of content.  Timekeeping Sys., Inc., 323 NLRB 244, 247-49 (1997) (ruling that employer violated federal labor law by terminating an employee who had sent an e-mail message criticizing the employer’s proposed change in vacation policy); E.I. DuPont De Nemours & Co., 311 NLRB 893, 919 (1993) (holding employer violated federal labor law by prohibiting use of e-mail to distribute union materials).  Yet the Court of Appeal decision, in fact, expressly sanctions discrimination against protected labor speech based on content, and thus cannot be reconciled with the NLRA.

IV.       THE INJUNCTION AGAINST MR. HAMIDI CONSTITUTES STATE ACTION THAT MUST COMPLY WITH THE FREE SPEECH GUARANTEES OF THE CALIFORNIA AND UNITED STATES CONSTITUTIONS.

In Golden Gateway Center v. Golden Gateway Tenants Association, 26 Cal.4th 1013 (2001), this Court deadlocked on the question whether the free speech clause of the California Constitution contains a state action limitation.  In the lead opinion, three Justices concluded that it does, and furthermore, that “judicial enforcement of injunctive relief does not, by itself, constitute state action for purposes of California’s free speech clause,” and thus the “mere[] . . . judicial enforcement of a neutral lease provision” is not state action.  Id. at 1034 (plurality opinion).  In the dissenting opinion, three Justices concluded just the opposite, subscribing to the view that “we consistently have rejected any suggestion that California’s free speech clause carries a state action limitation.”  Id. at 1046 (Werdegar, J., dissenting).  Chief Justice George in his concurring opinion declined to break the tie, choosing not to join “the lead opinion’s discussion or conclusions with regard to the state action doctrine,” in favor of an “incrementalist approach” that considers the state action question on a case-by-case basis.  Id. at 1036, 1041-43 (George, C.J., concurring).

Even assuming, for sake of argument, that the California free speech clause does contain a state action limitation, it is clear that state action must be present in this case if this Court upholds the injunction against Mr. Hamidi.  This is because such a ruling would require this Court to transform the trespass to chattel tort, and not merely enforce an existing tort rule.  In other words, there is a fundamental difference between mere judicial enforcement of an existing, neutral legal rule, and judicial expansion of a legal rule.  The former is arguably not state action; the latter clearly must be.

To put it another way, imagine that the California Legislature (rather than the Court of Appeal) announced a new tort rule that sending any e-mail without the recipient’s permission could be an actionable trespass to chattel.  Nobody would deny that such a statute would be state action subject to constitutional scrutiny.  In fact, if such a statute were ever passed, this Court would likely strike it down in peremptory fashion as a blatantly unconstitutional abridgement of free speech.  It would be entirely anomalous to say that the Court of Appeal can announce such a new rule -- as it did in this case -- and yet have its ruling be immune from constitutional review.

Indeed, such a state of affairs would pervert the purpose of state action doctrine.  As the lead opinion in Golden Gateway explained, the state action doctrine exists to “safeguard[] the separation of powers embodied in every American constitution by recognizing the limited ability of courts to accomplish goals which are essentially legislative and political,” and that “[w]ithout a state action limitation, the courts will possess the same authority as the legislature to limit individual freedoms, but will lack the degree of accountability which should accompany such power.”  Golden Gateway, 26 Cal.4th at 1030-31 (citation and internal quotation marks omitted) (plurality opinion).  In other words, the state action doctrine functions as a necessary limitation on judicial authority, so that the rule of law does not devolve into the “rule by the judges alone.”  Id. at 1031 (citation and internal quotation marks omitted).  Yet if there is no state action in the instant case, the doctrine would paradoxically permit this Court to limit individual freedoms in a manner that the Legislature cannot -- which is the exact opposite purpose the doctrine is supposed to serve.  Clearly, the same reasoning applies to state action under the U.S. Constitution, as well.  Thus, if this Court upholds the injunction against Mr. Hamidi, state action is present and this Court must consider Mr. Hamidi’s free speech defense to trespass to chattel under both the free speech clause of the California Constitution, and under the Federal First Amendment.

In order to properly resolve these issues, this Court must balance Mr. Hamidi’s free speech rights against Intel’s property rights.  E.g., Id. at 1049-53 (Werdegar, J., dissenting) (noting that content-based bans on speech[11] by private property owners are subject to a balancing analysis); Developments, supra, at 1631-32 (observing that “the ultimate question in the [Hamidi] case . . . is how to balance the litigants’ competing interests properly”).  On one side of the scale, Mr. Hamidi has a strong state and federal constitutional interest in communicating with Intel employees without court interference.  E.g., Golden Gateway, 26 Cal.4th at 1052 (Werdegar, J., dissenting) (observing that “[w]e should be mindful of the ‘paramount and preferred place’ that free speech enjoys in the hierarchy of rights in this state” (quoting In re Lane, 71 Cal.2d 872, 878 (1969))); Developments, supra, at 1632 (concluding that Mr. Hamidi’s “e-mails fall within the definition of speech of public concern, which the First Amendment is designed to protect”).

On the other side of the scale, Intel’s concern that its property rights will be diminished if Mr. Hamidi is permitted to communicate with its employees at their place of work “would seem overblown” given that Intel’s company policies permit its employees to send and receive personal e-mail.[12]  Golden Gateway, 26 Cal.4th at 1052 (Werdegar, J., dissenting); C.T. at 293-94, 354.  Moreover, Mr. Hamidi’s messages permitted the recipients to remove themselves from future e-mailings simply by replying to the e-mail and requesting removal from the distribution list.[13]  C.T. at 68, 91.  Alternatively, the recipients had the option, of course, of simply deleting the messages (which takes only a single mouse click or keystroke), which is certainly an acceptable burden to bear in the interest of free speech.  Cf., e.g., Bolger v. Youngs  Drug Prods. Corp., 463 U.S. 60, 72 (1983) (striking down prohibition on unsolicited mailing of contraceptive advertisements, based on the logic that “the short, though regular journey from mail box to trash can . . . is an acceptable burden, at least so far as the Constitution is concerned”).  Finally, it is important to recognize that Mr. Hamidi sent only six messages to Intel employees over a nearly two year period.  Therefore, on average once every four months, many employees simply had one additional e-mail sitting in their inboxes when they arrived at work in the morning.  Considering the large volume of e-mail that most


people receive at work every day, Mr. Hamidi’s supposed intrusion on Intel’s property rights is relatively minor.

In sum, the balancing calculus tilts in Mr. Hamidi’s favor, and thus his e-mail speech is entitled to both federal and state constitutional protection.

conclusion

For the foregoing reasons, the Court of Appeal decision should be reversed.

 

 

 

 

                                                           
William M. McSwain, Esquire

Pa. State Bar No. 86499

Richard L. Berkman, Esquire

Pa. State Bar No. 17668

F. Gregory Lastowka, Esquire

Pa. State Bar No. 87529

Dechert

4000 Bell Atlantic Tower

1717 Arch Street

Philadelphia, PA  19103-2793

215-994-4000

 

                                                            
Karl Olson, Esquire

Calif. State Bar No. 104760

Erica L. Craven, Esquire
Calif. State Bar No. 199918

Levy, Ram, Olson & Rossi, LLP

639 Front Street, 4th Floor

San Francisco, CA  94111

415-433-4949

Attorneys for Kourosh Kenneth Hamidi

 

Dated:  May 16, 2002

 


CERTIFICATE OF COMPLIaNCE

I certify that this brief complies with the type-volume limitation of the California Rules of Court Rule 14(c)(1).

Exclusive of the exempted portions in California Rules of Court Rule 14(c)(3), the brief contains 13,986 words.

 

 

 

                                                           
Karl Olson

 


PROOF OF SERVICE

I hereby certify that on May 16, 2002, a true and correct copy of the Defendant/Appellant’s Opening Brief on the Merits was served upon the following by mailing a copy by regular First Class Mail to:

Counsel for Plaintiff/Respondent:

Michael A. Jacobs

Morrison & Foerster, LLP

425 Market Street

San Francisco, CA  94105-2482

 

Superior Court:

Superior Court of California

County of Sacramento

720 Ninth Street

Sacramento, CA  95814

 

Appellate Court:

Clerk of the Court

California Court of Appeal

Third Appellate District

900 “N” Street. Suite 400

Sacramento, CA  95814-4869

 

Amici:

Mark A. Lemley

Professor of Law

University of California

School of Law (Boalt Hall)

Berkeley, CA  94720-7200

 

Amici (cont.):

Ann Brick

ACLU Foundation of

  Northern California

1663 Mission Street, Suite 460

San Francisco, CA  94103

 

Lee Tien

Electronic Frontier
  Foundation (EFF)

454 Shotwell Street

San Francisco, CA  94110-1914

 

American Federation of Labor and

Congress of Industrial Organizations and California Federation of Labor, AFL-CIO

Stephen P. Berzon

Altshuler, Berzon, Nussbaum,

Rubin & Demain

177 Post Street, Suite 300

San Francisco, CA  94108

J. Joshua Wheeler
Thomas Jefferson Center for the
Protection of Free Expression
400 Peter Jefferson Place

Charlottesville, VA  22911-8691

 

 

 

 

                                                                                                                                

Ann M. Williams



[1].         Counsel for Intel has helpfully raised an additional argument, which Mr. Hamidi now adopts, that in the Internet context, injunctive relief is an inappropriate remedy for a trespass to chattel claim because the plaintiff has an adequate remedy at law.  Specifically, the plaintiff “can recover the value of any proven diminution in [its] computer system capacity from the date of the complaint until a judgment is entered.”  Brief for Appellant at 34-35, Register.com, Inc. v. Verio, Inc., No. 00-9596 (2d Cir.) (pending).  Counsel for Intel criticized the District Court for issuing an injunction, and attributed its error to “a confusion of the doctrines of trespass to chattels and trespass to land.”  Id. at 35.  In counsel for Intel’s view, the different treatment of trespass to chattels and trespass to land “is easily explained.”  Id.  Specifically:

Unlike real property, which the law considers unique, an adequate remedy at law exists with respect to interference with personal property because such interference can be compensated by money.  See Restatement (Second) of Torts § 946 cmt. a (In “an action for trespass to chattels [the] sole purpose is to recover damages for harm to the chattel or interference with its possession.”).  Here, for example, if Register proves that Verio wrongfully used a portion of its computer systems, that portion can be quantified and a dollar value for that use can be determined.

            Id. at 35-36 (emphasis added).  Of course, counsel for Intel’s argument applies with equal force here:  if Intel had proved that Mr. Hamidi wrongfully used a portion of its computer systems, that portion could have been quantified and a dollar value for that use could have been determined.  Because Intel could not prove any damage to its chattel, however, Mr. Hamidi cannot be liable for trespass to chattel.

[2].         A subsidiary, but related question, is whether the Court of Appeal in this case misinterpreted the case of Thrifty-tel, Inc. v. Bezenek, 46 Cal.App.4th 1559 (1996), which was the first California case to extend the trespass to chattel doctrine to the computer context.  The proper interpretation of Thrifty-tel takes on additional importance because the case has served as a launching pad not only for the Court of Appeal here, but also for many other courts both inside and outside California that have extended the trespass to chattel doctrine to the Internet context.  E.g., eBay, Inc. v. Bidder’s Edge, Inc., 100 F.Supp.2d 1058, 1069 (N.D. Cal. 2000); CompuServe Inc. v. Cyber Promotions, Inc., 962 F.Supp. 1015, 1021 (S.D. Ohio 1997).  In Thrifty-tel, two computer hackers used a confidential access code to penetrate Thrifty-tel’s long-distance telephone service.  Thrifty-tel, 46 Cal.App.4th at 1563-64.  In the process, the hackers overburdened the Thrifty-tel telephone system, thereby denying some subscribers access to phone lines.  Id. at 1564.  The Thrifty-tel court held that the hackers had committed a trespass to chattel under California tort law, citing for support previous California cases, Prosser & Keeton on Torts, and the Restatement (Second) of Torts -- all of which require a plaintiff to demonstrate either actual harm to the chattel, or that he has been dispossessed of his chattel.  Id. at 1566-67; supra pp. 9-10.  In Thrifty-tel itself, this requirement was met because the defendants had overburdened plaintiff’s telephone system, denying some subscribers access to phone lines.  Thrifty-tel, 46 Cal.App.4th at 1564.  The Court of Appeal in the instant case, however, inexplicably ignores the text of the Thrifty-tel opinion, and instead seizes on a footnote, in which the Thrifty-tel court noted that “[i]n our view, the electronic signals generated by the [defendants’] activities were sufficiently tangible to support a trespass cause of action.”  Hamidi, 94 Cal.App.4th at 334-35 (quoting Thrifty-tel, 46 Cal.App.4th at 1566 n.6).  Based solely on this footnote, the court concludes that electronic signals alone, without any associated physical disruption to the chattel itself, are sufficiently tangible to support a trespass cause of action.  Id.  This is a tortured reading of Thrifty-tel for several reasons.  First, this reading of the Thrifty-tel footnote is only possible if the language is completely divorced from the context of the case.  As explained above, the element of physical disruption to the chattel was present in Thrifty-tel, and thus the only sensible reading of the footnote is that electronic signals are “sufficiently tangible to support a cause of action” when such disruption is present.  Second, this interpretation creates unnecessary discord in the Thrifty-tel decision because it brings the footnote into direct conflict with every one of the relevant sources cited in the text of the opinion.  And third, even if this reading of the Thrifty-tel footnote were somehow plausible, it makes little sense that the key to the Thrifty-tel opinion would be buried in a footnote, while the text can be conveniently ignored. 

[3].         Notably, the decision even turns the courts into potential lawbreakers, as courts have already approved the use of e-mail as a means of federal service of process.  E.g., Rio, 2002 WL 431915, at *5-*7; Broadfoot v. Diaz, 245 B.R. 713, 719-20 (Bankr. N.D. Ga. 2000). 

[4].         See e.g., Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1318 (9th Cir. 1998) (“The Internet is a worldwide network of computers that enables various individuals and organizations to share information. The Internet allows computer users to access millions of web sites and web pages. A web page is a computer data file that can include names, words, messages, pictures, sounds, and links to other information.”).

[5].         FTP (or File Transfer Protocol) “is a method of directly transferring files between two computers.”  United States v. Hay, 231 F.3d 630, 632 n.2 (9th Cir. 2000).

[6].         Telnet is a popular protocol allowing users “to access and control remote computers.”  ACLU v. Reno, 929 F. Supp. 824, 835 (E.D. Pa. 1996).

[7].         As explained in Sections III. and IV., infra, Mr. Hamidi’s e-mail speech, which addressed Intel’s employment practices, is protected by state and federal labor law, and by the California and U.S. Constitutions.

[8].         The section also states that it will become inoperative upon the passage of a federal law regulating the transmission of unsolicited advertising by electronic mail.  Cal. Bus. & Prof. Code § 17538.4(i).

[9].         At the very least, sections 17538.4 and 17538.45 demonstrate an implicit policy decision by the Legislature not to regulate e-mail speech like Mr. Hamidi’s.  This alone provides ample reason to defer to the Legislature’s judgment and reverse the Court of Appeal decision.  E.g., Macias v. State of California, 10 Cal.4th 844, 858 (1995) (observing that “[w]e have recognized that certain areas of law are peculiarly appropriate to legislative judgment, and have deferred in such cases to the policies implicit in statutes . . . in determining a tort duty of care”).

[10].        Lastly, it is worth pointing out that judicial self-restraint counsels courts not to expand tort liability in a manner that is inconsistent with the policies expressed in statutory or constitutional provisions.  E.g., Kentucky Fried Chicken of California, Inc. v. Superior Court, 14 Cal.4th 814, 829 (1997) (noting that “[i]t is enough to observe that recognizing a duty to comply with an unlawful demand to surrender property would be inconsistent with the public policy reflected in article I, section 1 of the California Constitution and Civil Code section 50”).  This principle is fully applicable here, as the Court of Appeal decision violates state and federal labor law, as well as the free speech guarantees of both the California and the U.S. Constitutions.  Infra Sections III., IV.

[11].        Clearly, Intel’s censorship of Mr. Hamidi must be classed as a content-based speech restriction.  Intel’s company policies allow its employees reasonable personal use of e-mail, and therefore Intel’s censorship of Mr. Hamidi is not consistent with any content-neutral company policy.  C.T. at 293-94, 354.  More fundamentally, Intel has made no secret of its displeasure with the content of Mr. Hamidi’s e-mails, which is the principal motivation behind this lawsuit.

[12].        In fact, Intel’s company polices even permit its employees “to participate in public forums” on the Internet, “including newsgroups, chat environments, and so forth.”  C.T. at 70.

[13].        Mr. Hamidi maintains that he received only 450 requests to do so.  C.T. at 91, 343.