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Commentary
9/4/2003
04:50 PM
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On The Horizon: Court's Right: No Cybertrespassing Here

Court was right not to change a principle that underpins the Internet.

David Post
Bradford C. Brown

One of the interesting things about the common-law tradition we inherited from the British is the way it looks backward and forward simultaneously--backward to the prior precedents that form the principles to be applied in any particular case, and forward in the course of asking what kind of precedent this case will set, what effect a ruling will have on future cases that rely on it for guidance.

Earlier this summer, the California Supreme Court had to decide whether trespass law, a law whose roots stretch back more than 2,000 years, covers the electronic pulses zinging around the Internet. The setting was this: Ken Hamidi was a disgruntled former Intel employee who decided to air his grievances with the company in public. He obtained E-mail addresses of more than 35,000 Intel employees and sent them six separate E-mails attacking the company and its employment policies. When he refused Intel's request to stop, the company filed suit against him. Although Intel could have claimed that Hamidi was liable for causing a "nuisance," the company chose instead to use the venerable law of "trespass to chattels," the branch of trespass law that protects an owner's rights to the use and possession of personal property, the one that gives me a legal right against you if you, say, take my car for a spin without permission.

Intel argued that its mail server was its property and that Hamidi was using it without permission in sending his E-mails, just as if he actually entered a building and posted copies of his messages on the fifth-floor bulletin board.

Both lower courts ruled for Intel, enjoining Hamidi from sending anything to the company's mail server. But a divided California Supreme Court disagreed, ruling (4-3) in Hamidi's favor and declaring he wasn't trespassing on Intel's property.

In one sense, the case turned on a narrow, even arcane, legal issue. The tort of trespass to chattels, the court said, requires Intel to demonstrate not merely that it suffered some harm as a result of Hamidi's actions but that the harm was to the "chattel," i.e., the server. This, it said, Intel hadn't done; Hamidi's E-mails didn't measurably slow the server or cause any real damage. The harm Intel was complaining of was to the efficient operation of its workforce: the distractions and disgruntlements caused when each of the 35,000 employees read, or just deleted, Hamidi's E-mail. That kind of harm, the court said, may be real enough but isn't something that "trespass" protects Intel (or anyone else) against.

More, though, was at stake here than the interpretation of some obscure tort rule. Intel's position that Hamidi was trespassing on its property could have profound repercussions for the Internet. Connectivity on the global TCP/IP network, after all, has been built around open, distributed routing and packet-switching technologies.

We're not so sure that the California court didn't get it right. The Internet continues to be the fastest-growing communications network in history, and it has achieved that extraordinary growth without the benefit that a trespass rule might (or, perhaps, might not) provide. It ain't broke, and we think the California court was, quite properly, reluctant to try to reconfigure it by overturning the principles under which this growth has been achieved.

David Post is a Temple University law professor and senior fellow at the National Center for Technology and Law at the George Mason University School of Law. Reach him at postd@erols.com. Bradford C. Brown is chairman of the National Center for Technology and Law at George Mason University School of Law. Reach him at bbrown2@gmu.edu.


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