<DOCTYPE HTML PUBLIC "-//IETF//DTD HTML//EN"> <HTML> <HEAD> <META HTTP-EQUIV="CONTENT-TYPE" CONTENT="TEXT/HTML; CHARSET=ISO-8859-1"> <META NAME="GENERATOR" CONTENT="Tom W. Bell"> <META NAME="DESCRIPTION" CONTENT="Intel Corp. v. Hamidi"> <META Name="keywords" Content="Intel Corp. v. Hamidi, Hamidi, trespass to chattels, trespass, spam, free speech, Internet Law, Cyberspace Law, Law of Cyberspace, cyberlaw, Internet law and policy, Internet law, Internet classes, Internet courses"> <TITLE>Intel Corp. v. Hamidi</TITLE> </HEAD> <BODY BACKGROUND="../../utilities/Case_Bckgrnd.gif" BGCOLOR="#FFF8DC"TEXT="#000033" LINK="#0000FF" VLINK="#FF0000" ALINK="#00FF00"> <!-- COLORS: BACKGROUND = 3 MAGENTA + 14 YELLOW; LEFT BORDER = 100 CYAN + 100 MAGENTA; RED = 100 MAGENTA + 100 YELLOW--> <!-- TABLE W/ COLS OF 35, 15, 480, 15, 140--> <TABLE BORDER="0" CELLPADDING="1" CELLSPACING="2" WIDTH="680"> <TR> <TD ALIGN="LEFT" VALIGN="TOP" ROWSPAN="16" WIDTH="35"><A HREF="http://www.tomwbell.com/NetLaw.html"><IMG SRC="../../utilities/Title.gif" BORDER="0" ALT="Title" WIDTH="35" HEIGHT="130"></A><BR><IMG SRC="../../utilities/by.gif" BORDER="0" ALT="by" WIDTH="35" HEIGHT="25"><BR><A HREF="http://www.tomwbell.com"><IMG SRC="../../utilities/Editor.gif" BORDER="0" ALT="Editor" WIDTH="35" HEIGHT="80"></A></TD> <TD VALIGN="TOP" WIDTH="15">&nbsp;</TD> <TD VALIGN="TOP" COLSPAN="4" WIDTH="480"><H1 ALIGN="CENTER"><A NAME="Cite"><FONT COLOR="#000033" SIZE="5" FACE="Times, Times New Roman">Intel Corp. v. Hamidi</FONT></A></H1><P><CENTER>30 Cal.4th 1342, 71 P.3d 296, 1 Cal.Rptr.3d 32 (Cal. 2003)</CENTER><BR><IMG SRC="../../utilities/FFF8DC.gif" WIDTH="480" HEIGHT="10"></P></TD> <TD VALIGN="TOP" WIDTH="15">&nbsp;</TD> <TD VALIGN="TOP" COLSPAN="2" WIDTH="140">&nbsp;</TD> </TR> <TR> <TD VALIGN="TOP" WIDTH="15">&nbsp;</TD> <!-- TOP MENU BAR --> <TD ALIGN="CENTER" VALIGN="TOP" WIDTH="67"><A HREF="http://www.tomwbell.com/NetLaw/Ch06.html"><IMG SRC="../../utilities/Up.GIF" BORDER="0" ALT="Up" WIDTH="65" HEIGHT="20"></A> <A HREF="http://www.tomwbell.com/NetLaw/Ch06.html"><FONT SIZE="1" FACE="Times, Times New Roman">Chapter 06</FONT></A></TD> <TD ALIGN="CENTER" VALIGN="TOP" WIDTH="67"><A HREF="http://www.tomwbell.com/NetLaw.html"><IMG SRC="../../utilities/Up&Up.GIF" BORDER="0" ALT="Title Page" WIDTH="65" HEIGHT="20"></A> <A HREF="http://www.tomwbell.com/NetLaw.html"><FONT SIZE="1" FACE="Times, Times New Roman">Title Page</FONT></A></TD> <TD ALIGN="CENTER" VALIGN="TOP" WIDTH="74"><A HREF="mailto:netlawlist@tomwbell.com"><IMG SRC="../../utilities/List.GIF" BORDER="0" ALT="Email Listserve" WIDTH="69" HEIGHT="20"></A> <A HREF="mailto:netlawlist@tomwbell.com"><FONT SIZE="1" FACE="Times, Times New Roman">Email Listserve</FONT></A></TD> <TD ALIGN="CENTER" VALIGN="CENTER" WIDTH="256"><FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><FORM METHOD="GET" ACTION="http://search.atomz.com/search/"><FONT SIZE="2" FACE="Times, Times New Roman"><INPUT SIZE="15" NAME="sp-q"><INPUT TYPE="IMAGE" NAME="POINT" SRC="../../utilities/Search.gif" BORDER="0"><INPUT TYPE="HIDDEN" NAME="sp-a" VALUE="000a26f7-sp00000000"></FONT></FORM><IMG SRC="../../utilities/FFF8DC.gif" WIDTH="254" HEIGHT="1"></FONT></TD> <TD VALIGN="TOP" WIDTH="15">&nbsp;</TD> <TD ALIGN="CENTER" VALIGN="TOP" WIDTH="75">&nbsp;</TD> <TD VALIGN="TOP" WIDTH="60">&nbsp;</TD> </TR> <!-- SPACER ROW --> <TR> <TD VALIGN="TOP" WIDTH="15"><IMG SRC="../../utilities/FFF8DC.gif" WIDTH="15" HEIGHT="10"></TD> <TD VALIGN="TOP" COLSPAN="4" WIDTH="480"><IMG SRC="../../utilities/FFF8DC.gif" WIDTH="480" HEIGHT="10"></TD> <TD VALIGN="TOP" WIDTH="15"><IMG SRC="../../utilities/FFF8DC.gif" WIDTH="15" HEIGHT="10"></TD> <TD VALIGN="TOP" COLSPAN="2" WIDTH="140"><IMG SRC="../../utilities/FFF8DC.gif" WIDTH="140" HEIGHT="10"></TD> </TR> <TR> <TD VALIGN="TOP" ROWSPAN="10" WIDTH="15">&nbsp;</TD> <!-- TEXT STARTS HERE --> <TD VALIGN="TOP" COLSPAN="4" WIDTH="480"><FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P>[<STRONG>NOTE</STRONG>: This case has been edited for classroom use by the omission of text, citations, and footnotes. See this <A HREF="http://news.findlaw.com/hdocs/docs/intel/intelhamidi63003opn.pdf">alternate source</A> (PDF format) for the full opinion.]</P> <P>(Opinion by Werdegar, J., with Kennard and Moreno, JJ., and Perren, J., concurring. Concurring opinion by Kennard, J. Dissenting opinion by Brown, J. Dissenting opinion by Mosk, J., with George, C. J., concurring.)</P> <P>Werdegar, J.</P></FONT> <H2 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="4" FACE="Times, Times New Roman">Opinion</FONT></H2> <FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P>Intel Corporation (Intel) maintains an electronic mail system, connected to the Internet, through which messages between employees and those outside the company can be sent and received, and permits its employees to make reasonable nonbusiness use of this system. On six occasions over almost two years, Kourosh Kenneth Hamidi, a former Intel employee, sent e-mails criticizing Intel's employment practices to numerous current employees on Intel's electronic mail system. Hamidi breached no computer security barriers in order to communicate with Intel employees. He offered to, and did, remove from his mailing list any recipient who so wished. Hamidi's communications to individual Intel employees caused neither physical damage nor functional disruption to the company's computers, nor did they at any time deprive Intel of the use of its computers. The contents of the messages, however, caused discussion among employees and managers.</P> <P>On these facts, Intel brought suit, claiming that by communicating with its employees over the company's e-mail system Hamidi committed the tort of trespass to chattels. The trial court granted Intel's motion for summary judgment and enjoined Hamidi from any further mailings. A divided Court of Appeal affirmed.</P> <P>After reviewing the decisions analyzing unauthorized electronic contact with computer systems as potential trespasses to chattels, we conclude that under California law the tort does not encompass, and should not be extended to encompass, an electronic communication that neither damages the recipient computer system nor impairs its functioning. Such an electronic communication does not constitute an actionable trespass to personal property, i.e., the computer system, because it does not interfere with the possessor's use or possession of, or any other legally protected interest in, the personal property itself. The consequential economic damage Intel claims to have suffered, i.e., loss of productivity caused by employees reading and reacting to Hamidi's messages and company efforts to block the messages, is not an injury to the company's interest in its computers-which worked as intended and were unharmed by the communications-any more than the personal distress caused by reading an unpleasant letter would be an injury to the recipient's mailbox, or the loss of privacy caused by an intrusive telephone call would be an injury to the recipient's telephone equipment.</P> <P>Our conclusion does not rest on any special immunity for communications by electronic mail; we do not hold that messages transmitted through the Internet are exempt from the ordinary rules of tort liability. To the contrary, e-mail, like other forms of communication, may in some circumstances cause legally cognizable injury to the recipient or to third parties and may be actionable under various common law or statutory theories. Indeed, on facts somewhat similar to those here, a company or its employees might be able to plead causes of action for interference with prospective economic relations, interference with contract, or intentional infliction of emotional distress. And, of course, as with any other means of publication, third party subjects of e-mail communications may under appropriate facts make claims for defamation, publication of private facts, or other speech-based torts. Intel's claim fails not because e-mail transmitted through the Internet enjoys unique immunity, but because the trespass to chattels tort--unlike the causes of action just mentioned--may not, in California, be proved without evidence of an injury to the plaintiff's personal property or legal interest therein.</P> <P>Nor does our holding affect the legal remedies of Internet service providers (ISP's) against senders of unsolicited commercial bulk e-mail (UCE), also known as "spam." A series of federal district court decisions, beginning with CompuServe Inc. v. Cyber Promotions, Inc. (S.D. Ohio 1997) 962 F.Supp. 1015, has approved the use of trespass to chattels as a theory of spammers' liability to ISP's, based upon evidence that the vast quantities of mail sent by spammers both overburdened the ISP's own computers and made the entire computer system harder to use for recipients, the ISP's customers. In those cases, discussed in greater detail below, the underlying complaint was that the extraordinary quantity of UCE impaired the computer system's functioning. In the present case, the claimed injury is located in the disruption or distraction caused to recipients by the contents of the e-mail messages, an injury entirely separate from, and not directly affecting, the possession or value of personal property.</P> <H3 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="3" FACE="Times, Times New Roman">Factual and Procedural Background</FONT></H3> <FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P>We review a grant of summary judgment <EM>de novo;</EM> we must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. The pertinent undisputed facts are as follows.</P> <P>Hamidi, a former Intel engineer, together with others, formed an organization named Former and Current Employees of Intel (FACE-Intel) to disseminate information and views critical of Intel's employment and personnel policies and practices. FACE-Intel maintained a Web site (which identified Hamidi as Webmaster and as the organization's spokesperson) containing such material. In addition, over a 21-month period Hamidi, on behalf of FACE-Intel, sent six mass e-mails to employee addresses on Intel's electronic mail system. The messages criticized Intel's employment practices, warned employees of the dangers those practices posed to their careers, suggested employees consider moving to other companies, solicited employees' participation in FACE-Intel, and urged employees to inform themselves further by visiting FACE-Intel's Web site. The messages stated that recipients could, by notifying the sender of their wishes, be removed from FACE-Intel's mailing list; Hamidi did not subsequently send messages to anyone who requested removal.</P> <P>Each message was sent to thousands of addresses (as many as 35,000 according to FACE-Intel's Web site), though some messages were blocked by Intel before reaching employees. Intel's attempt to block internal transmission of the messages succeeded only in part; Hamidi later admitted he evaded blocking efforts by using different sending computers. When Intel, in March 1998, demanded in writing that Hamidi and FACE-Intel stop sending e-mails to Intel's computer system, Hamidi asserted the organization had a right to communicate with willing Intel employees; he sent a new mass mailing in September 1998.</P> <P>The summary judgment record contains no evidence Hamidi breached Intel's computer security in order to obtain the recipient addresses for his messages; indeed, internal Intel memoranda show the company's management concluded no security breach had occurred.<A NAME="n1" HREF="#1">n1</A> Hamidi stated he created the recipient address list using an Intel directory on a floppy disk anonymously sent to him. Nor is there any evidence that the receipt or internal distribution of Hamidi's electronic messages damaged Intel's computer system or slowed or impaired its functioning. Intel did present uncontradicted evidence, however, that many employee recipients asked a company official to stop the messages and that staff time was consumed in attempts to block further messages from FACE-Intel. According to the FACE-Intel Web site, moreover, the messages had prompted discussions between "[e]xcited and nervous managers" and the company's human resources department.</P> <P>Intel sued Hamidi and FACE-Intel, pleading causes of action for trespass to chattels and nuisance, and seeking both actual damages and an injunction against further e-mail messages. Intel later voluntarily dismissed its nuisance claim and waived its demand for damages. The trial court entered default against FACE-Intel upon that organization's failure to answer. The court then granted Intel's motion for summary judgment, permanently enjoining Hamidi, FACE-Intel, and their agents "from sending unsolicited e-mail to addresses on Intel's computer systems." Hamidi appealed; FACE-Intel did not.</P> <P>The Court of Appeal, with one justice dissenting, affirmed the grant of injunctive relief. The majority took the view that the use of or intermeddling with another's personal property is actionable as a trespass to chattels without proof of any actual injury to the personal property; even if Intel could not show any damages resulting from Hamidi's sending of messages, "it showed he was disrupting its business by using its property and therefore is entitled to injunctive relief based on a theory of trespass to chattels." The dissenting justice warned that the majority's application of the trespass to chattels tort to "unsolicited electronic mail that causes no harm to the private computer system that receives it" would "expand the tort of trespass to chattel in untold ways and to unanticipated circumstances."</P> <P>We granted Hamidi's petition for review.</P> <H3 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="3" FACE="Times, Times New Roman">Discussion</FONT></H3> <H4 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman">I. Current California Tort Law</FONT></H4> <FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P>Dubbed by Prosser the "little brother of conversion," the tort of trespass to chattels allows recovery for interferences with possession of personal property "not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered." (Prosser & Keeton, Torts (5th ed. 1984) 14, pp. 85-86.)</P> <P>Though not amounting to conversion, the defendant's interference must, to be actionable, have caused some injury to the chattel or to the plaintiff's rights in it. Under California law, trespass to chattels "lies where an intentional interference with the possession of personal property has proximately caused injury." (Thrifty-Tel, Inc. v. Bezenek, 46 Cal.App.4th 1559, 1566, 54 Cal.Rptr.2d 468 (1996) (italics added)) . . . . In modern American law generally, "[t]respass remains as an occasional remedy for minor interferences, resulting in some damage, but not sufficiently serious or sufficiently important to amount to the greater tort" of conversion. (Prosser & Keeton, Torts, supra, 15, p. 90, italics added.)</P> <P>The Restatement, too, makes clear that some actual injury must have occurred in order for a trespass to chattels to be actionable. Under section 218 of the Restatement Second of Torts, dispossession alone, without further damages, is actionable (see id., par. (a) & com. d, pp. 420-421), but other forms of interference require some additional harm to the personal property or the possessor's interests in it. . . .</P> <P>. . . . [W]hile a harmless use or touching of personal property may be a technical trespass (see Rest.2d Torts, 217), an interference (not amounting to dispossession) is not actionable, under modern California and broader American law, without a showing of harm. As already discussed, this is the rule embodied in the Restatement (Rest.2d Torts, 218) and adopted by California law.</P> <P>. . .</P> <P>The dispositive issue in this case, therefore, is whether the undisputed facts demonstrate Hamidi's actions caused or threatened to cause damage to Intel's computer system, or injury to its rights in that personal property, such as to entitle Intel to judgment as a matter of law. To review, the undisputed evidence revealed no actual or threatened damage to Intel's computer hardware or software and no interference with its ordinary and intended operation. Intel was not dispossessed of its computers, nor did Hamidi's messages prevent Intel from using its computers for any measurable length of time. Intel presented no evidence its system was slowed or otherwise impaired by the burden of delivering Hamidi's electronic messages. Nor was there any evidence transmission of the messages imposed any marginal cost on the operation of Intel's computers. In sum, no evidence suggested that in sending messages through Intel's Internet connections and internal computer system Hamidi used the system in any manner in which it was not intended to function or impaired the system in any way. Nor does the evidence show the request of any employee to be removed from FACE-Intel's mailing list was not honored. The evidence did show, however, that some employees who found the messages unwelcome asked management to stop them and that Intel technical staff spent time and effort attempting to block the messages. A statement on the FACE-Intel Web site, moreover, could be taken as an admission that the messages had caused "[e]xcited and nervous managers" to discuss the matter with Intel's human resources department.</P> <P>Relying on a line of decisions, most from federal district courts, applying the tort of trespass to chattels to various types of unwanted electronic contact between computers, Intel contends that, while its computers were not damaged by receiving Hamidi's messages, its interest in the "physical condition, quality or value" (Rest.2d Torts, 218, com. e, p. 422) of the computers was harmed. We disagree. The cited line of decisions does not persuade us that the mere sending of electronic communications that assertedly cause injury only because of their contents constitutes an actionable trespass to a computer system through which the messages are transmitted. Rather, the decisions finding electronic contact to be a trespass to computer systems have generally involved some actual or threatened interference with the computers' functioning.</P> <P>In Thrifty-Tel, Inc. v. Bezenek, <EM>supra,</EM> 46 Cal.App.4th at pages 1566-1567, the California Court of Appeal held that evidence of automated searching of a telephone carrier's system for authorization codes supported a cause of action for trespass to chattels. The defendant's automated dialing program "overburdened the [plaintiff's] system, denying some subscribers access to phone lines" (<EM>Thrifty-Tel, supra,</EM> 46 Cal.App.4th at p. 1564), showing the requisite injury.</P> <P>Following <EM>Thrifty-Tel,</EM> a series of federal district court decisions held that sending UCE through an ISP's equipment may constitute trespass to the ISP's computer system. . . .</P> <P>In each of these spamming cases, the plaintiff showed, or was prepared to show, some interference with the efficient functioning of its computer system. . . .</P> <P>Building on the spamming cases, in particular CompuServe, three even more recent district court decisions addressed whether unauthorized robotic data collection from a company's publicly accessible Web site is a trespass on the company's computer system. (eBay, Inc. v. Bidder's Edge, Inc., supra, 100 F.Supp.2d at pp. 1069-1072 (eBay); Register.com, Inc. v. Verio, Inc. (S.D.N.Y. 2000) 126 F.Supp.2d 238, 248-251; Ticketmaster Corp. v. Tickets.com, Inc., supra, 2000 WL 1887522, at p. *4.) The two district courts that found such automated data collection to constitute a trespass relied, in part, on the deleterious impact this activity could have, especially if replicated by other searchers, on the functioning of a Web site's computer equipment.</P> <P>. . .</P> <P>In the decisions so far reviewed, the defendant's use of the plaintiff's computer system was held sufficient to support an action for trespass when it actually did, or threatened to, interfere with the intended functioning of the system, as by significantly reducing its available memory and processing power. In <EM>Ticketmaster, supra,</EM> 2000 WL 1887522, the one case where no such effect, actual or threatened, had been demonstrated, the court found insufficient evidence of harm to support a trespass action. These decisions do not persuade us to Intel's position here, for Intel has demonstrated neither any appreciable effect on the operation of its computer system from Hamidi's messages, nor any likelihood that Hamidi's actions will be replicated by others if found not to constitute a trespass.</P> <P>That Intel does not claim the type of functional impact that spammers and robots have been alleged to cause is not surprising in light of the differences between Hamidi's activities and those of a commercial enterprise that uses sheer quantity of messages as its communications strategy. Though Hamidi sent thousands of copies of the same message on six occasions over 21 months, that number is minuscule compared to the amounts of mail sent by commercial operations. . . . The functional burden on Intel's computers, or the cost in time to individual recipients, of receiving Hamidi's occasional advocacy messages cannot be compared to the burdens and costs caused ISP's and their customers by the ever-rising deluge of commercial e-mail.</P> <P>Intel relies on language in the <EM>eBay</EM> decision suggesting that unauthorized use of another's chattel is actionable even without any showing of injury: "Even if, as [defendant] BE argues, its searches use only a small amount of eBay's computer system capacity, BE has nonetheless deprived eBay of the ability to use that portion of its personal property for its own purposes. The law recognizes no such right to use another's personal property." (<EM>eBay, supra,</EM> 100 F.Supp.2d at p. 1071.) But as the <EM>eBay</EM> court went on immediately to find that the defendant's conduct, if widely replicated, would likely impair the functioning of the plaintiff's system, we do not read the quoted remarks as expressing the court's complete view of the issue. In isolation, moreover, they would not be a correct statement of California or general American law on this point. While one may have no right temporarily to use another's personal property, such use is actionable as a trespass only if it "has proximately caused injury." (<EM>Thrifty-Tel, supra,</EM> 46 Cal.App.4th at p. 1566.) Short of dispossession, personal injury, or physical damage (not present here), intermeddling is actionable only if "the chattel is impaired as to its condition, quality, or value, or [] ... the possessor is deprived of the use of the chattel for a substantial time." (Rest.2d Torts, 218, pars. (b), (c).) In particular, an actionable deprivation of use "must be for a time so substantial that it is possible to estimate the loss caused thereby. A mere momentary or theoretical deprivation of use is not sufficient unless there is a dispossession ...." (Id., com. i, p. 423.) That Hamidi's messages temporarily used some portion of the Intel computers' processors or storage is, therefore, not enough; Intel must, but does not, demonstrate some measurable loss from the use of its computer system.<A NAME="n5" HREF="#5">n5</A></P> <P>In addition to impairment of system functionality, <EM>CompuServe</EM> and its progeny also refer to the ISP's loss of business reputation and customer goodwill, resulting from the inconvenience and cost that spam causes to its members, as harm to the ISP's legally protected interests in its personal property. Intel argues that its own interest in employee productivity, assertedly disrupted by Hamidi's messages, is a comparable protected interest in its computer system. We disagree.</P> <P>. . . . [E]ven if the loss of goodwill identified in <EM>CompuServe</EM> were the type of injury that would give rise to a trespass to chattels claim under California law, Intel's position would not follow, for Intel's claimed injury has even less connection to its personal property than did CompuServe's.</P> <P>CompuServe's customers were annoyed because the system was inundated with unsolicited commercial messages, making its use for personal communication more difficult and costly. Their complaint, which allegedly led some to cancel their CompuServe service, was about the functioning of CompuServe's electronic mail service. Intel's workers, in contrast, were allegedly distracted from their work not because of the frequency or quantity of Hamidi's messages, but because of assertions and opinions the messages conveyed. Intel's complaint is thus about the contents of the messages rather than the functioning of the company's e-mail system. . . .</P> <P>. . . . Intel's theory would expand the tort of trespass to chattels to cover virtually any unconsented-to communication that, solely because of its content, is unwelcome to the recipient or intermediate transmitter. . . . While unwelcome communications, electronic or otherwise, can cause a variety of injuries to economic relations, reputation and emotions, those interests are protected by other branches of tort law; in order to address them, we need not create a fiction of injury to the communication system.</P> <P>Nor may Intel appropriately assert a property interest in its employees' time. . . . Whatever interest Intel may have in preventing its employees from receiving disruptive communications, it is not an interest in personal property, and trespass to chattels is therefore not an action that will lie to protect it. Nor, finally, can the fact Intel staff spent time attempting to block Hamidi's messages be bootstrapped into an injury to Intel's possessory interest in its computers. . . .</P> <P>Intel connected its e-mail system to the Internet and permitted its employees to make use of this connection both for business and, to a reasonable extent, for their own purposes. In doing so, the company necessarily contemplated the employees' receipt of unsolicited as well as solicited communications from other companies and individuals. That some communications would, because of their contents, be unwelcome to Intel management was virtually inevitable. Hamidi did nothing but use the e-mail system for its intended purpose--to communicate with employees. The system worked as designed, delivering the messages without any physical or functional harm or disruption. These occasional transmissions cannot reasonably be viewed as impairing the quality or value of Intel's computer system. We conclude, therefore, that Intel has not presented undisputed facts demonstrating an injury to its personal property, or to its legal interest in that property, that support, under California tort law, an action for trespass to chattels.</P> <H4 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman">II. Proposed Extension of California Tort Law</FONT></H4> <FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P>We next consider whether California common law should be extended to cover, as a trespass to chattels, an otherwise harmless electronic communication whose contents are objectionable. We decline to so expand California law. Intel, of course, was not the recipient of Hamidi's messages, but rather the owner and possessor of computer servers used to relay the messages, and it bases this tort action on that ownership and possession. The property rule proposed is a rigid one, under which the sender of an electronic message would be strictly liable to the owner of equipment through which the communication passes--here, Intel--for any consequential injury flowing from the contents of the communication. The arguments of <EM>amici curiae</EM> and academic writers on this topic, discussed below, leave us highly doubtful whether creation of such a rigid property rule would be wise.</P> <P>. . .</P> <P>. . . [T]he metaphorical application of real property rules would not, by itself, transform a physically harmless electronic intrusion on a computer server into a trespass That is because, under California law, intangible intrusions on land, including electromagnetic transmissions, are not actionable as trespasses (though they may be as nuisances) unless they cause physical damage to the real property. Since Intel does not claim Hamidi's electronically transmitted messages physically damaged its servers, it could not prove a trespass to land even were we to treat the computers as a type of real property. Some further extension of the conceit would be required, under which the electronic signals Hamidi sent would be recast as tangible intruders, perhaps as tiny messengers rushing through the "hallways" of Intel's computers and bursting out of employees' computers to read them Hamidi's missives. But such fictions promise more confusion than clarity in the law.</P> <P>. . .</P> <P>. . . . Creating an absolute property right to exclude undesired communications from one's e-mail and Web servers might help force spammers to internalize the costs they impose on ISP's and their customers. But such a property rule might also create substantial new costs, to e-mail and e-commerce users and to society generally, in lost ease and openness of communication and in lost network benefits. In light of the unresolved controversy, we would be acting rashly to adopt a rule treating computer servers as real property for purposes of trespass law.</P> <P>The Legislature has already adopted detailed regulations governing UCE. It may see fit in the future also to regulate noncommercial e-mail, such as that sent by Hamidi, or other kinds of unwanted contact between computers on the Internet, such as that alleged in <EM>eBay, supra,</EM> 100 F.Supp.2d 1058. But we are not persuaded that these perceived problems call at present for judicial creation of a rigid property rule of computer server inviolability. We therefore decline to create an exception, covering Hamidi's unwanted electronic messages to Intel employees, to the general rule that a trespass to chattels is not actionable if it does not involve actual or threatened injury to the personal property or to the possessor's legally protected interest in the personal property. No such injury having been shown on the undisputed facts, Intel was not entitled to summary judgment in its favor.</P> <H4 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman">III. Constitutional Considerations</FONT></H4> <FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P>Because we conclude no trespass to chattels was shown on the summary judgment record, making the injunction improper on common law grounds, we need not address at length the dissenters' constitutional arguments. A few clarifications are nonetheless in order.</P> <P>Justice Mosk asserts that this case involves only "a private entity seeking to enforce private rights against trespass." (Dis. opn. of Mosk, J., post, at p. 1395.) But the injunction here was issued by a state court. While a private refusal to transmit another's electronic speech generally does not implicate the First Amendment, because no governmental action is involved, the use of government power, whether in enforcement of a statute or ordinance or by an award of damages or an injunction in a private lawsuit, is state action that must comply with First Amendment limits. Nor does the nonexistence of a "constitutional right to trespass" (dis. opn. of Mosk, J., post, at p. 1395) make an injunction in this case per se valid. . . . Hamidi [] had no tangible presence on Intel property, instead speaking from his own home through his computer. He no more invaded Intel's property than does a protester holding a sign or shouting through a bullhorn outside corporate headquarters, posting a letter through the mail, or telephoning to complain of a corporate practice. . . . <A NAME="n8" HREF="#8">n8</A></P> <P>Justice Brown relies upon a constitutional "right not to listen," rooted in the listener's "personal autonomy" (dis. opn. of Brown, J., post, at p. 1374), as compelling a remedy against Hamidi's messages, which she asserts were sent to "unwilling" listeners (id., at p. 1369). Even assuming a corporate entity could under some circumstances claim such a personal right, here the intended and actual recipients of Hamidi's messages were individual Intel employees, rather than Intel itself. The record contains no evidence Hamidi sent messages to any employee who notified him such messages were unwelcome. In any event, such evidence would, under the dissent's rationale of a right not to listen, support only a narrow injunction aimed at protecting individual recipients who gave notice of their rejection. The principle of a right not to listen, founded in personal autonomy, cannot justify the sweeping injunction issued here against all communication to Intel addresses, for such a right, logically, can be exercised only by, or at the behest of, the recipient himself or herself.</P> <H3 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="3" FACE="Times, Times New Roman">Disposition</FONT></H3> <FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P>The judgment of the Court of Appeal is reversed.</P><BR></FONT> </TD> </TR> <TR> <TD VALIGN="TOP" COLSPAN="4" WIDTH="480">&nbsp;</TD> <TD VALIGN="TOP" WIDTH="15">&nbsp;</TD> <TD VALIGN="TOP" COLSPAN="2" WIDTH="140">&nbsp;</TD> </TR> <TR> <TD VALIGN="TOP" COLSPAN="4" WIDTH="480"><H3 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="3" FACE="Times, Times New Roman">Footnotes to Opinion</FONT></H3> <FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P><A NAME="1" HREF="#n1">1</A>&nbsp;To the extent, therefore, that Justice Mosk suggests Hamidi breached the security of Intel's internal computer network by "circumvent[ing]" Intel's "security measures" and entering the company's "intranet" (dis. opn. of Mosk, J., post, at p. 1386), the evidence does not support such an implication. An "intranet" is "a network based on TCP/IP protocols (an internet) belonging to an organization, usually a corporation, accessible only by the organization's members, employees, or others with authorization." (<http://www.webopedia.com/TERM/i/intranet.html> [as of June 30, 2003].) Hamidi used only a part of Intel's computer network accessible to outsiders.</P> <P><A NAME="5" HREF="#n5">5</A>&nbsp;In the most recent decision relied upon by Intel, Oyster Software, Inc. v. Forms Processing, Inc. (N.D.Cal., Dec. 6, 2001, No. C-00-0724 JCS) 2001 WL 1736382, pages *12-*13, a federal magistrate judge incorrectly read eBay as establishing, under California law, that mere unauthorized use of another's computer system constitutes an actionable trespass. . . . [A]s just explained, we do not read <EM>eBay, supra,</EM> 100 F.Supp.2d 1058, as holding that the actual injury requirement may be dispensed with, and such a suggestion would, in any event, be erroneous as a statement of California law.</P> <P><A NAME="8" HREF="#n8">8</A>&nbsp;. . . . That a property owner may take physical measures to prevent the transmission of others' speech into or across the property does not imply that a court order enjoining the speech is not subject to constitutional limitations.</P><BR></FONT></TD> <TD VALIGN="TOP" WIDTH="15">&nbsp;</TD> <!-- 2ND MARGIN NOTE --> <TD VALIGN="TOP" COLSPAN="2" WIDTH="140"><FONT COLOR="#000033" SIZE="3" FACE="Times, Times New Roman"><STRONG>&nbsp;</STRONG></FONT> <P><FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman">&nbsp;</FONT></P> </TD> </TR> <TR> <TD VALIGN="TOP" COLSPAN="4" WIDTH="480">&nbsp;</TD> <TD VALIGN="TOP" WIDTH="15">&nbsp;</TD> <TD VALIGN="TOP" COLSPAN="2" WIDTH="140">&nbsp;</TD> </TR> <TR> <TD VALIGN="TOP" COLSPAN="4" WIDTH="480"> <H2 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="4" FACE="Times, Times New Roman">Dissenting Opinion of Brown, J.</FONT></H2> <FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P>I dissent.</P> <P>Candidate A finds the vehicles that candidate B has provided for his campaign workers, and A spray paints the water soluble message, "Fight corruption, vote for A" on the bumpers. The majority's reasoning would find that notwithstanding the time it takes the workers to remove the paint and the expense they incur in altering the bumpers to prevent further unwanted messages, candidate B does not deserve an injunction unless the paint is so heavy that it reduces the cars' gas mileage or otherwise depreciates the cars' market value. Furthermore, candidate B has an obligation to permit the paint's display, because the cars are driven by workers and not B personally, because B allows his workers to use the cars to pick up their lunch or retrieve their children from school, or because the bumpers display B's own slogans. I disagree.</P> <P>Intel Corporation has invested millions of dollars to develop and maintain a computer system. It did this not to act as a public forum but to enhance the productivity of its employees. Kourosh Kenneth Hamidi sent as many as 200,000 e-mail messages to Intel employees. The time required to review and delete Hamidi's messages diverted employees from productive tasks and undermined the utility of the computer system. . . .</P> <P>The majority repeatedly asserts that Intel objected to the hundreds of thousands of messages solely due to their content, and proposes that Intel seek relief by pleading content-based speech torts. This proposal misses the point that Intel's objection is directed not toward Hamidi's message but his use of Intel's property to display his message. Intel has not sought to prevent Hamidi from expressing his ideas on his Web site, through private mail (paper or electronic) to employees' homes, or through any other means like picketing or billboards. But as counsel for Intel explained during oral argument, the company objects to Hamidi's using Intel's property to advance his message.</P> <P>Of course, Intel deserves an injunction even if its objections are based entirely on the e-mail's content. Intel is entitled, for example, to allow employees use of the Internet to check stock market tables or weather forecasts without incurring any concomitant obligation to allow access to pornographic Web sites. A private property owner may choose to exclude unwanted mail for any reason, including its content. (Rowan v. U.S. Post Office Dept., 397 U.S. 728, 738 (1970); Tillman v. Distribution Systems of America Inc., 224 A.D.2d 79, 648 N.Y.S.2d 630, 635 (1996).)</P> <P>. . .</P> <P>Because I do not share the majority's antipathy toward property rights and believe the proper balance between expressive activity and property protection can be achieved without distorting the law of trespass, I respectfully dissent.</P> <H3 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="3" FACE="Times, Times New Roman">The Instant Finding of a Trespass Conforms the Law on Electronic Mail to That of Other Forms of Communication</FONT></H3> <FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P>The majority endorses the view of the Court of Appeal dissent, and review a finding of a trespass in this case as a radical decision that will endanger almost every other form of expression. Contrary to these concerns, the Court of Appeal decision belongs not to a nightmarish future but to an unremarkable past--a long line of cases protecting the right of an individual not to receive an unwanted message after having expressed that refusal to the speaker. It breaks no new legal ground and follows traditional rules regarding communication.</P> <P>It is well settled that the law protects a person's right to decide to whom he will speak, to whom he will listen, and to whom he will not listen. (Martin v. City of Struthers, 319 U.S. 141, 149 (1943).) As the United States Supreme Court observed, "we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes" (Frisby v. Schultz, 487 U.S. 474, 485 (1988)), whether the unwanted speech comes in the form of a door-to-door solicitor (<EM>see Martin,</EM> at pp. 147-148), regular "snail" mail (<EM>Rowan, supra,</EM> 397 U.S. 728), radio waves (FCC v. Pacifica Foundation, 438 U.S. 726 (1978)), or other forms of amplified sound (Kovacs v. Cooper, 336 U.S. 77 (1949)).</P> <P>Of course, speakers have rights too, and thus the result is a balancing: speakers have the right to initiate speech but the listener has the right to refuse to listen or to terminate the conversation. This simple policy thus supports Hamidi's right to send e-mails initially, but not after Intel expressed its objection.</P> <P>. . .</P> <P>The First Amendment does not shield Hamidi's speech, and the majority's authorities do not suggest it does. On the contrary, the high court recognized that the First Amendment does not preclude generally applicable laws, even where they incidentally restrict speech. There is thus no right to intrude upon privately owned property simply to generate speech.</P> <P>. . .</P> <P>The principle that a speaker's right to speak to a particular listener exists for only so long as the listener wishes to listen applies also to mail delivery. (<EM>Rowan, supra,</EM> 397 U.S. 728.) . . . .</P> <P>. . .</P> <P><EM>Rowan</EM> further held the recipient could reject a message for any subjective reason, including annoyance or discomfort at its content. (<EM>Rowan, supra,</EM> 397 U.S. at p. 738.) A private actor thus has no obligation to hear all messages just because he chooses to hear some. A homeowner's desire to receive letters from relatives or friends does not compel him to accept offensive solicitations. It is therefore possibly true but certainly immaterial that Intel might have expected that some unwanted messages would be sent to its employees. A store that opens its doors to the public should reasonably expect some individuals will attempt to shoplift, but the store does not thereby incur an obligation to accept their presence and the disruption they cause.</P> <P>If we did create an "accept one, accept all" rule, whereby a party's acceptance of outside mail abrogates the right to exclude any messages, the result would likely be less speech, not more. Courts have recognized the seeming paradox that permitting the exclusion of speech is necessary to safeguard it. . . . Furthermore, merely permitting exclusion may be insufficient absent a mechanism for enforcement. . . .</P> <P>The majority expresses its agreement with the dissent below, which found that if the lost productivity of Intel's employees serves as the requisite injury, "then every unsolicited communication that does not further the business's objectives (including telephone calls) interferes with the chattel. . . . Under Intel's theory, even lovers' quarrels could turn into trespass suits by reason of the receipt of unsolicited letters or calls from the jilted lover. Imagine what happens after the angry lover tells her fianc not to call again and violently hangs up the phone. Fifteen minutes later the phone rings. Her fianc wishing to make up? No, trespass to chattel." But just as private citizens may deny access to door-to-door solicitors or mailers, they may also maintain the integrity of their phone system from callers they wish to exclude. A telephone, no less than an envelope, may be an instrument of trespass.</P> <P>Individuals may not commandeer the communications systems of unwilling listeners, even if the speakers are jilted lovers who wish to reconcile. . . .</P> <P>The law on faxes is even stricter. As faxes shift the costs of speech from the speaker to the listener, senders of commercial e-mail must obtain prior consent from the recipient. (47 U.S.C. 227.) Likewise, the users of automated telephone dialers also must obtain prior consent where they result in costs to the recipient. (47 U.S.C. 227(b)(1)(A)(iii) . . . . [H]onoring the wishes of a party who requests the cessation of unwanted telecommunications, whether by phone, fax or e-mail, does nothing more than apply Martin to today's technology.</P> <P>Therefore, before the listener objects, the speaker need not fear he is trespassing. Afterwards, however, the First Amendment principle of respect for personal autonomy compels forbearance. . . . The First Amendment protects the right not to listen just as it protects the right to speak.</P> <H3 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="3" FACE="Times, Times New Roman">The Trial Court Correctly Issued the Injunction</FONT></H3> <FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P>Intel had the right to exclude the unwanted speaker from its property, which Hamidi does not dispute; he does not argue that he has a right to force unwanted messages on Intel. The instant case thus turns on the question of whether Intel deserves a remedy for the continuing violation of its rights. I believe it does, and as numerous cases have demonstrated, an injunction to prevent a trespass to chattels is an appropriate means of enforcement.</P> <P>The majority does not find that Hamidi has an affirmative right to have Intel transmit his messages, but denies Intel any remedy. . . .</P> <P>The majority denies relief on the theory that Intel has failed to establish the requisite actual injury. As discussed, post, however, the injunction was properly granted because the rule requiring actual injury pertains to damages, not equitable relief, and thus courts considering comparable intrusions have provided injunctive relief without a showing of actual injury. Furthermore, there was actual injury as (1) Intel suffered economic loss; (2) it is sufficient for the injury to impair the chattel's utility to the owner rather than the chattel's market value; and (3) even in the absence of any injury to the owner's utility, it is nevertheless a trespass where one party expropriates for his own use the resources paid for by another.</P> <H3 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="3" FACE="Times, Times New Roman">Harmless Trespasses to Chattels May Be Prevented</FONT></H3> <FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P>Defendant Hamidi used Intel's server in violation of the latter's demand to stop. This unlawful use of Intel's system interfered with the use of the system by Intel employees. This misconduct creates a cause of action. . . .</P> <P>Regardless of whether property is real or personal, it is beyond dispute that an individual has the right to have his personal property free from interference. There is some division among authorities regarding the available remedy, particularly whether a harmless trespass supports a claim for nominal damages. . . . The authorities agree, however, that (1) the chattel is inviolable, (2) the trespassee need not tolerate even harmless interference, and (3) the possessor may use reasonable force to prevent it. Both California law and the Restatement authorize reasonable force regardless of whether the property in question is real or personal. (Civ. Code, 51; Rest.2d Torts, 77.)</P> <P>. . .</P> <P>. . . . Notwithstanding the general rule that injunctive relief requires a showing of irreparable injury . . . there are exceptions to this rule where injunctive relief is appropriate; these include repetitive trespasses.</P> <P>"Injunction is a proper remedy against threatened repeated acts of trespass ... particularly where the probable injury resulting therefrom will be 'beyond any method of pecuniary estimation,' and for this reason irreparable."<A NAME="nd5" HREF="#d5">n5</A> (Uptown Enterprises v. Strand, 195 Cal.App.2d 45, 52, 15 Cal.Rptr. 486 (1961)). . . . [T]he principles of safeguarding a party's possessory interest in property and of not encouraging repetitive litigation apply no less to trespasses to chattels. Accordingly, several courts have issued injunctive relief to prevent interference with personal property.</P> <P>. . .</P> <H3 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="3" FACE="Times, Times New Roman">Intel Suffered Injury</FONT></H3> <FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P>Even if CompuServe and its progeny deem injury a prerequisite for injunctive relief, such injury occurred here. Intel suffered not merely an affront to its dignitary interest in ownership but tangible economic loss. Furthermore, notwithstanding the majority's doubts, it is entirely consistent with the Restatement and case law to recognize a property interest in the subjective utility of one's property. Finally, case law further recognizes as actionable the loss that occurs when one party maintains property for its own use and another party uses it, even if the property does not suffer damage as a result.</P> <H3 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="3" FACE="Times, Times New Roman">Intel Suffered Economic Loss</FONT></H3> <FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P>. . .</P> <P>The economic costs of unwanted e-mail exist even if Intel employees, unlike CompuServe subscribers, do not pay directly for the time they spend on the Internet. No such direct costs appear here, only the opportunity costs of lost time. But for Intel, "time is money" nonetheless. . . .</P> <P>. . .</P> <P>Although Hamidi claims he sent only six e-mails, he sent them to between 8,000 and 35,000 employees, thus sending from 48,000 to 210,000 messages. Since it is the effect on Intel that is determinative, it is the number of messages received, not sent, that matters. In any event, Hamidi sent between 48,000 and 210,000 messages; the "six" refers only to the number of distinct texts Hamidi sent. Even if it takes little time to determine the author of a message and then delete it, this process, multiplied hundreds of thousands of times, amounts to a substantial loss of employee time, and thus work product. . . .</P> <H3 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="3" FACE="Times, Times New Roman">Intel's Injury Is Properly Related to the Chattel</FONT></H3> <FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P>The majority does not dispute that Intel suffered a loss of work product as a matter of fact, so much as it denies that this loss may constitute the requisite injury as a matter of law. According to the majority, the reduced utility of the chattel to the owner does not constitute a sufficiently cognizable injury, which exists only where the chattel itself suffers injury, i.e., its "market value" falls. The Restatement and related case law are to the contrary.</P> <P>The Restatement recognizes that the measure of impairment may be subjective; a cognizable injury may occur not only when the trespass reduces the chattel's market value but also when the trespass affects its value to the owner. . . .</P> <P>. . .</P> <P>As the Court of Appeal's opinion below indicated, interference with an owner's ability to use the chattel supports a trespass. The opinion recalled the rule, which dates back almost 400 years, holding that chasing an owner's animal amounts to a trespass to chattels. These authorities do not require injury or damage to the animal; the interference with the owner's use of the animal suffices to create a trespass. . . .</P> <P>. . .</P><BR></TD> <TD VALIGN="TOP" WIDTH="15">&nbsp;</TD> <TD VALIGN="TOP" COLSPAN="2" WIDTH="140">&nbsp;</TD> </TR> <TR> <TD VALIGN="TOP" COLSPAN="4" WIDTH="480">&nbsp;</TD> <TD VALIGN="TOP" WIDTH="15">&nbsp;</TD> <TD VALIGN="TOP" COLSPAN="2" WIDTH="140">&nbsp;</TD> </TR> <TR> <TD VALIGN="TOP" COLSPAN="4" WIDTH="480"><H3 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="3" FACE="Times, Times New Roman">Footnotes to Brown's Dissenting Opinion</FONT></H3> <FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P><A NAME="d5" HREF="#nd5">5</A>&nbsp;The majority asserts Intel was not deprived of its computers "for any measurable length of time" (maj. opn., ante, at p. 1353), which supposedly fits this case within the rule that a " 'mere momentary or theoretical' " deprivation is insufficient to establish a trespass to chattel (maj. opn., ante, at p. 1357). There is a chasm between the two descriptions. The time needed to identify and delete 200,000 e-mail messages is not capable of precise estimation, but it is hardly theoretical or momentary. Most people have no idea of how many words they spoke yesterday, but that does not render the figure <EM>de minimis.</EM></P><BR></FONT></TD> <TD VALIGN="TOP" WIDTH="15"></TD> <TD VALIGN="TOP" COLSPAN="2" WIDTH="140"></TD> </TR> <TR> <TD VALIGN="TOP" COLSPAN="4" WIDTH="480">&nbsp;</TD> <TD VALIGN="TOP" WIDTH="15">&nbsp;</TD> <TD VALIGN="TOP" COLSPAN="2" WIDTH="140">&nbsp;</TD> </TR> <TR> <TD VALIGN="TOP" COLSPAN="4" WIDTH="480"><FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><H2 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="4" FACE="Times, Times New Roman">Dissenting Opinion of Mosk, J.</FONT></H2> <FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P>The majority hold that the California tort of trespass to chattels does not encompass the use of expressly unwanted electronic mail that causes no physical damage or impairment to the recipient's computer system. They also conclude that because a computer system is not like real property, the rules of trespass to real property are also inapplicable to the circumstances in this case. Finally, they suggest that an injunction to preclude mass, noncommercial, unwelcome e-mails may offend the interests of free communication.</P> <P>I respectfully disagree and would affirm the trial court's decision. In my view, the repeated transmission of bulk e-mails by appellant Kourosh Kenneth Hamidi (Hamidi) to the employees of Intel Corporation (Intel) on its proprietary confidential e-mail lists, despite Intel's demand that he cease such activities, constituted an actionable trespass to chattels. The majority fail to distinguish open communication in the public "commons" of the Internet from unauthorized intermeddling on a private, proprietary intranet. Hamidi is not communicating in the equivalent of a town square or of an unsolicited "junk" mailing through the United States Postal Service. His action, in crossing from the public Internet into a private intranet, is more like intruding into a private office mailroom, commandeering the mail cart, and dropping off unwanted broadsides on 30,000 desks. Because Intel's security measures have been circumvented by Hamidi, the majority leave Intel, which has exercised all reasonable self-help efforts, with no recourse unless he causes a malfunction or systems "crash." . . .</P> <P>The law of trespass to chattels has not universally been limited to physical damage. I believe it is entirely consistent to apply that legal theory to these circumstances-that is, when a proprietary computer system is being used contrary to its owner's purposes and expressed desires, and self-help has been ineffective. Intel correctly expects protection from an intruder who misuses its proprietary system, its nonpublic directories, and its supposedly controlled connection to the Internet to achieve his bulk mailing objectives--incidentally, without even having to pay postage.</P> <H3 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="3" FACE="Times, Times New Roman">I</FONT></H3> <FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P>Intel maintains an intranet--a proprietary computer network--as a tool for transacting and managing its business, both internally and for external business communications.<A NAME="ndd1" HREF="#dd1">n1</A> The network and its servers constitute a tangible entity that has value in terms of the costs of its components and its function in enabling and enhancing the productivity and efficiency of Intel's business operations. Intel has established costly security measures to protect the integrity of its system, including policies about use, proprietary internal e-mail addresses that it does not release to the public for use outside of company business, and a gateway for blocking unwanted electronic mail-a so-called firewall.</P> <P>. . .</P> <P>Hamidi, a former Intel employee who had sued Intel and created an organization to disseminate negative information about its employment practices, sent bulk electronic mail on six occasions to as many as 35,000 Intel employees on its proprietary computer system, using Intel's confidential employee e-mail lists and adopting a series of different origination addresses and encoding strategies to elude Intel's blocking efforts. He refused to stop when requested by Intel to do so, asserting that he would ignore its demands: "I don't care. I have grown deaf." Intel sought injunctive relief, alleging that the disruptive effect of the bulk electronic mail, including expenses from administrative and management personnel, damaged its interest in the proprietary nature of its network.</P> <P>. . .</P> <P>The Restatement Second of Torts explains that a trespass to a chattel occurs if "the chattel is impaired as to its condition, quality, or value" or if "harm is caused to some ... thing in which the possessor has a legally protected interest." (Rest.2d Torts, 218, subds. (b) & (d), p. 420, italics added.) . . . . The Restatement points out that, unlike a possessor of land, a possessor of a chattel is not given legal protection from harmless invasion, but the "actor" may be liable if the conduct affects "some other and more important interest of the possessor." (Rest.2d Torts, 218, com. e, p. 421)</P> <P>The Restatement explains that the rationale for requiring harm for trespass to a chattel but not for trespass to land is the availability and effectiveness of self-help in the case of trespass to a chattel. "Sufficient legal protection of the possessor's interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference." (Rest.2d Torts, 218, com. e, p. 422.) Obviously, "force" is not available to prevent electronic trespasses. As shown by Intel's inability to prevent Hamidi's intrusions, self-help is not an adequate alternative to injunctive relief.</P> <P>The common law tort of trespass to chattels does not require physical disruption to the chattel. It also may apply when there is impairment to the "quality" or "value" of the chattel. (Rest.2d Torts, 218, subd. b, p. 420) . . . .</P> <P>Here, Hamidi's deliberate and continued intermeddling, and threatened intermeddling, with Intel's proprietary computer system for his own purposes that were hostile to Intel, certainly impaired the quality and value of the system as an internal business device for Intel and forced Intel to incur costs to try to maintain the security and integrity of its server-efforts that proved ineffective. These included costs incurred to mitigate injuries that had already occurred. It is not a matter of "bootstrapp[ing]" (maj. opn., ante, at p. 1359) to consider those costs a damage to Intel. Indeed, part of the value of the proprietary computer system is the ability to exclude intermeddlers from entering it for significant uses that are disruptive to its owner's business operations.</P> <P>If Intel, a large business with thousands of former employees, is unable to prevent Hamidi from continued intermeddling, it is not unlikely that other outsiders who obtain access to its proprietary electronic mail addresses would engage in similar conduct, further reducing the value of, and perhaps debilitating, the computer system as a business productivity mechanism. Employees understand that a firewall is in place and expect that the messages they receive are from senders permitted by the corporation. Violation of this expectation increases the internal disruption caused by messages that circumvent the company's attempt to exclude them. The time that each employee must spend to evaluate, delete or respond to the message, when added up, constitutes an amount of compensated time that translates to quantifiable financial damage.</P> <P>All of these costs to protect the integrity of the computer system and to deal with the disruptive effects of the transmissions and the expenditures attributable to employee time constitute damages sufficient to establish the existence of a trespass to chattels, even if the computer system was not overburdened to the point of a "crash" by the bulk electronic mail.</P> <P>. . .</P> <P>The majority suggest that Intel is not entitled to injunctive relief because it chose to allow its employees access to e-mail through the Internet and because Hamidi has apparently told employees that he will remove them from his mailing list if they so request. They overlook the proprietary nature of Intel's intranet system; Intel's system is not merely a conduit for messages to its employees. As the owner of the computer system, it is Intel's request that Hamidi stop that must be respected. . . . Just as Intel can, and does, regulate the use of its computer system by its employees, it should be entitled to control its use by outsiders and to seek injunctive relief when self-help fails.</P> <P>The majority also propose that Intel has sufficient avenues for legal relief outside of trespass to chattels, such as interference with prospective economic relations, interference with contract, intentional infliction of emotional distress, and defamation; Hamidi urges that an action for nuisance is more appropriate. Although other causes of action may under certain circumstances also apply to Hamidi's conduct, the remedy based on trespass to chattels is the most efficient and appropriate. It simply requires Hamidi to stop the unauthorized use of property without regard to the content of the transmissions. Unlike trespass to chattels, the other potential causes of action suggested by the majority and Hamidi would require an evaluation of the transmissions' content and, in the case of a nuisance action, for example, would involve questions of degree and value judgments based on competing interests.</P> <P>. . .</P> <H3 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="3" FACE="Times, Times New Roman">III</FONT></H3> <FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P>As the Court of Appeal observed, connecting one's driveway to the general system of roads does not invite demonstrators to use the property as a public forum. Not mindful of this precept, the majority blur the distinction between public and private computer networks in the interest of "ease and openness of communication." (Maj. opn., ante, at p. 1363.) By upholding Intel's right to exercise self-help to restrict Hamidi's bulk e-mails, they concede that he did not have a right to send them through Intel's proprietary system. Yet they conclude that injunctive relief is unavailable to Intel because it connected its e-mail system to the Internet and thus, "necessarily contemplated" unsolicited communications to its employees. (Maj. opn., ante, at p. 1359.) Their exposition promotes unpredictability in a manner that could be as harmful to open communication as it is to property rights. It permits Intel to block Hamidi's e-mails entirely, but offers no recourse if he succeeds in breaking through its security barriers, unless he physically or functionally degrades the system.</P> <P>By making more concrete damages a requirement for a remedy, the majority have rendered speech interests dependent on the impact of the e-mails. The sender will never know when or if the mass e-mails sent by him (and perhaps others) will use up too much space or cause a crash in the recipient system, so as to fulfill the majority's requirement of damages. Thus, the sender is exposed to the risk of liability because of the possibility of damages. . . . Under the majority's position . . . . a business could never reliably invest in a private network that can only be kept private by constant vigilance and inventiveness, or by simply shutting off the Internet, thus limiting rather than expanding the flow of information.<A NAME="ndd6" HREF="#dd6">n6</A> Moreover, Intel would have less incentive to allow employees reasonable use of its equipment to send and receive personal e-mails if such allowance is justification for preventing restrictions on unwanted intrusions into its computer system. I believe the best approach is to clearly delineate private from public networks and identify as a trespass to chattels the kind of intermeddling involved here.</P> <P>The views of the <EM>amici curiae</EM> group of intellectual property professors that a ruling in favor of Intel will interfere with communication are similarly misplaced because here, Intel, contrary to most users, expressly informed appellant that it did not want him sending messages through its system. Moreover, as noted above, all of the problems referred to will exist under the apparently accepted law that there is a cause of action if there is some actionable damage.</P> <P>Finally, with regard to alleged constitutional free speech concerns raised by Hamidi and others, this case involves a private entity seeking to enforce private rights against trespass. Unlike the majority, I have concluded that Hamidi did invade Intel's property. His actions constituted a trespass-in this case a trespass to chattels. There is no federal or state constitutional right to trespass. Accordingly, the cases cited by the majority regarding restrictions on speech, not trespass, are not applicable. Nor does the connection of Intel's e-mail system to the Internet transform it into a public forum any more than any connection between private and public properties. Moreover, as noted above, Hamidi had adequate alternative means for communicating with Intel employees so that an injunction would not, under any theory, constitute a free speech violation. </P> <P>. . .</P> <P>For these reasons, I respectfully dissent.</P> <P>George, C. J., concurred.</P><BR></FONT></TD> <TD VALIGN="TOP" WIDTH="15"></TD> <TD VALIGN="TOP" COLSPAN="2" WIDTH="140"></TD> </TR> <TR> <TD VALIGN="TOP" COLSPAN="4" WIDTH="480"><H3 ALIGN="LEFT"><FONT COLOR="#000033" SIZE="3" FACE="Times, Times New Roman">Footnotes to Mosk's Dissenting Opinion</FONT></H3> <FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><P><A NAME="dd1" HREF="#ndd1">1</A>&nbsp;The Oxford English Dictionary defines an intranet as "A local or restricted computer network; spec. a private or corporate network that uses Internet protocols. An intranet may (but need not) be connected to the Internet and be accessible externally to authorized users." (OED Online, new ed., draft entry, Mar. 2003, <http://dictionary.oed.com/> [as of June 30, 2003]; see also Kokka, Property Rights on an Intranet, 3-Spring 1998 J. Tech.L. & Pol'y 3, WL 3 UFLJTLP 3 at *3, *6 [defining an intranet as "an internal network of computers, servers, routers and browser software designed to organize, secure, distribute and collect information within an organization" which in large organizations generally includes a wide range of services, including e-mail].) Contrary to the majority's assertion, there is nothing incorrect about characterizing Hamidi's unauthorized bulk e-mails as intrusions onto Intel's intranet.</P> <P><A NAME="dd6" HREF="#ndd6">6</A>&nbsp;Thus, the majority's approach creates the perverse incentive for companies to invest less in computer capacity in order to protect their property. In the view of the majority, Hamidi's massive e-mails would be actionable only if Intel had insufficient server or storage capacity to manage them.</P><BR></FONT></TD> <TD VALIGN="TOP" WIDTH="15">&nbsp;</TD> <TD VALIGN="TOP" COLSPAN="2" WIDTH="140">&nbsp;</TD> </TR> <TR> <TD VALIGN="BOTTOM" ROWSPAN="3" WIDTH="15"><FONT SIZE="3" FACE="Times, Times New Roman"><IMG SRC="../../utilities/FFF8DC.gif" WIDTH="15" HEIGHT="1"></FONT></TD> <!-- BOTTOM MENU BANNER --> <TD ALIGN="CENTER" VALIGN="TOP" WIDTH="67"><A HREF="#Cite"><IMG SRC="../../utilities/Top.GIF" BORDER="0" ALT="Top" WIDTH="65" HEIGHT="20"></A> <A HREF="#Cite"><FONT SIZE="1" FACE="Times, Times New Roman">Top of Page</FONT></A></TD> <TD ALIGN="CENTER" VALIGN="TOP" WIDTH="67"><A HREF="http://www.tomwbell.com/NetLaw/Ch06.html"><IMG SRC="../../utilities/Up.GIF" BORDER="0" ALT="Up" WIDTH="65" HEIGHT="20"></A> <A HREF="http://www.tomwbell.com/NetLaw/Ch06.html"><FONT SIZE="1" FACE="Times, Times New Roman">Chapter 06</FONT></A></TD> <TD ALIGN="CENTER" VALIGN="TOP" WIDTH="74"><A HREF="http://www.tomwbell.com/NetLaw.html"><IMG SRC="../../utilities/Up&Up.GIF" BORDER="0" ALT="Title Page" WIDTH="65" HEIGHT="20"></A> <A HREF="http://www.tomwbell.com/NetLaw.html"><FONT SIZE="1" FACE="Times, Times New Roman">Title Page</FONT></A></TD> <TD ALIGN="CENTER" VALIGN="CENTER" WIDTH="256"><FONT COLOR="#000033" SIZE="2" FACE="Times, Times New Roman"><FORM METHOD="GET" ACTION="http://search.atomz.com/search/"><FONT SIZE="2" FACE="Times, Times New Roman"><INPUT SIZE="15" NAME="sp-q"><INPUT TYPE="IMAGE" NAME="POINT" SRC="../../utilities/Search.gif" BORDER="0"><INPUT TYPE="HIDDEN" NAME="sp-a" VALUE="000a26f7-sp00000000"></FONT></FORM><IMG SRC="../../utilities/FFF8DC.gif" WIDTH="254" HEIGHT="1"></FONT></TD> <TD WIDTH="15">&nbsp;</TD> <TD ALIGN="CENTER" VALIGN="TOP" COLSPAN="2" WIDTH="140"><A HREF="mailto:netlawlist@tomwbell.com"><IMG SRC="../../utilities/List.GIF" BORDER="0" ALT="Email Listserve" WIDTH="69" HEIGHT="20"></A><IMG SRC="../../utilities/FFF8DC.gif" WIDTH="66" HEIGHT="1"> <A HREF="mailto:netlawlist@tomwbell.com"><FONT SIZE="1" FACE="Times, Times New Roman">Email Listserve</FONT></A><IMG SRC="../../utilities/FFF8DC.gif" WIDTH="66" HEIGHT="1"></TD> </TR> <TR> <TD ALIGN="CENTER" VALIGN="TOP" COLSPAN="4" WIDTH="480">&nbsp;</TD> <TD VALIGN="BOTTOM" WIDTH="15">&nbsp;</TD> <TD VALIGN="BOTTOM" COLSPAN="2" WIDTH="140">&nbsp;</TD> </TR> <TR> <TD ALIGN="CENTER" VALIGN="TOP" COLSPAN="4" WIDTH="480"><FONT COLOR="#9999FF" SIZE="2" FACE="Times, Times New Roman">(C) 2005 Tom W. 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