Intel
Corporation v. Hamidi
S103781 Ct.App. 3 C033076
Sacramento County
Super. Ct. No. 98AS05067
Intel Corporation (Intel) maintains an electronic mail system,
connected to the Internet, through which messages between employees and
those outside the company can be sent and received, and permits its employees
to make reasonable nonbusiness use of this system. On six occasions over
almost two years, Kourosh Kenneth Hamidi, a former Intel employee, sent
e-mails criticizing Intel’s employment practices to numerous current
employees on Intel’s electronic mail system. Hamidi breached no
computer security barriers in order to communicate with Intel employees.
He offered to, and did, remove from his mailing list any recipient who
so wished. Hamidi’s communications to individual Intel employees
caused neither physical damage nor functional disruption to the company’s
computers, nor did they at any time deprive Intel of the use of its computers.
The contents of the messages, however, caused discussion among employees
and managers.
On these facts, Intel brought suit, claiming that by communicating with
its employees over the company’s e-mail system Hamidi committed
the tort of trespass to chattels. The trial court granted Intel’s
motion for summary judgment and enjoined Hamidi from any further mailings.
A divided Court of Appeal affirmed.
After reviewing the decisions analyzing unauthorized electronic contact
with computer systems as potential trespasses to chattels, we conclude
that under California law the tort does not encompass, and should not
be extended to encompass, an electronic communication that neither damages
the recipient computer system nor impairs its functioning. Such an electronic
communication does not constitute an actionable trespass to personal property,
i.e., the computer system, because it does not interfere with the possessor’s
use or possession of, or any other legally protected interest in, the
personal property itself. (See Zaslow v. Kroenert (1946) 29 Cal.2d 541,
551; Ticketmaster Corp. v. Tickets.com, Inc. (C.D.Cal., Aug. 10, 2000,
No. 99CV7654) 2000 WL 1887522, p. *4; Rest.2d Torts, § 218.) The
consequential economic damage Intel claims to have suffered, i.e., loss
of productivity caused by employees reading and reacting to Hamidi’s
messages and company efforts to block the messages, is not an injury to
the company’s interest in its computers—which worked as intended
and were unharmed by the communications—any more than the personal
distress caused by reading an unpleasant letter would be an injury to
the recipient’s mailbox, or the loss of privacy caused by an intrusive
telephone call would be an injury to the recipient’s telephone equipment.
Our conclusion does not rest on any special immunity for communications
by electronic mail; we do not hold that messages transmitted through the
Internet are exempt from the ordinary rules of tort liability. To the
contrary, e-mail, like other forms of communication, may in some circumstances
cause legally cognizable injury to the recipient or to third parties and
may be actionable under various common law or statutory theories. Indeed,
on facts somewhat similar to those here, a company or its employees might
be able to plead causes of action for interference with prospective economic
relations (see Guillory v. Godfrey (1955) 134 Cal.App.2d 628, 630-632
[defendant berated customers and prospective customers of plaintiffs’
cafe with disparaging and racist comments]), interference with contract
(see Blender v. Superior Court (1942) 55 Cal.App.2d 24, 25-27 [defendant
made false statements about plaintiff to his employer, resulting in plaintiff’s
discharge]) or intentional infliction of emotional distress (see Kisesky
v. Carpenters’ Trust for So. California (1983) 144 Cal.App.3d 222,
229-230 [agents of defendant union threatened life, health, and family
of employer if he did not sign agreement with union].) And, of course,
as with any other means of publication, third party subjects of e-mail
communications may under appropriate facts make claims for defamation,
publication of private facts, or other speech-based torts. (See, e.g.,
Southridge Capital Management v. Lowry (S.D.N.Y. 2002) 188 F.Supp.2d 388,
394-396 [allegedly false statements in e-mail sent to several of plaintiff’s
clients support actions for defamation and interference with contract].)
Intel’s claim fails not because e-mail transmitted through the Internet
enjoys unique immunity, but because the trespass to chattels tort—unlike
the causes of action just mentioned—may not, in California, be proved
without evidence of an injury to the plaintiff’s personal property
or legal interest therein.
Nor does our holding affect the legal remedies of Internet service providers
(ISP’s) against senders of unsolicited commercial bulk e-mail (UCE),
also known as “spam.” (See Ferguson v. Friendfinders, Inc.
(2002) 94 Cal.App.4th 1255, 1267.) A series of federal district court
decisions, beginning with CompuServe, Inc. v. Cyber Promotions, Inc. (S.D.Ohio
1997) 962 F.Supp. 1015, has approved the use of trespass to chattels as
a theory of spammers’ liability to ISP’s, based upon evidence
that the vast quantities of mail sent by spammers both overburdened the
ISP’s own computers and made the entire computer system harder to
use for recipients, the ISP’s customers. (See id. at pp. 1022-1023.)
In those cases, discussed in greater detail below, the underlying complaint
was that the extraordinary quantity of UCE impaired the computer system’s
functioning. In the present case, the claimed injury is located in the
disruption or distraction caused to recipients by the contents of the
e-mail messages, an injury entirely separate from, and not directly affecting,
the possession or value of personal property.
Factual and Procedural Background
We review a grant of summary judgment de novo; we must decide independently
whether the facts not subject to triable dispute warrant judgment for
the moving party as a matter of law. (Galanty v. Paul Revere Life Ins.
Co. (2000) 23 Cal.4th 368, 374; Norgart v. Upjohn Co. (1999) 21 Cal.4th
383, 404; Code Civ. Proc., § 437c, subd. (c).) The pertinent undisputed
facts are as follows.
Hamidi, a former Intel engineer, together with others, formed an organization
named Former and Current Employees of Intel (FACE-Intel) to disseminate
information and views critical of Intel’s employment and personnel
policies and practices. FACE-Intel maintained a Web site (which identified
Hamidi as Webmaster and as the organization’s spokesperson) containing
such material. In addition, over a 21-month period Hamidi, on behalf of
FACE-Intel, sent six mass e-mails to employee addresses on Intel’s
electronic mail system. The messages criticized Intel’s employment
practices, warned employees of the dangers those practices posed to their
careers, suggested employees consider moving to other companies, solicited
employees’ participation in FACE-Intel, and urged employees to inform
themselves further by visiting FACE-Intel’s Web site. The messages
stated that recipients could, by notifying the sender of their wishes,
be removed from FACE-Intel’s mailing list; Hamidi did not subsequently
send messages to anyone who requested removal.
Each message was sent to thousands of addresses (as many as 35,000 according
to FACE-Intel’s Web site), though some messages were blocked by
Intel before reaching employees. Intel’s attempt to block internal
transmission of the messages succeeded only in part; Hamidi later admitted
he evaded blocking efforts by using different sending computers. When
Intel, in March 1998, demanded in writing that Hamidi and FACE-Intel stop
sending e-mails to Intel’s computer system, Hamidi asserted the
organization had a right to communicate with willing Intel employees;
he sent a new mass mailing in September 1998.
The summary judgment record contains no evidence Hamidi breached Intel’s
computer security in order to obtain the recipient addresses for his messages;
indeed, internal Intel memoranda show the company’s management concluded
no security breach had occurred. 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.
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.
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.”
We granted Hamidi’s petition for review.
Discussion
I. Current California Tort Law
Dubbed by Prosser the “little brother of conversion,” the
tort of trespass to chattels allows recovery for interferences with possession
of personal property “not sufficiently important to be classed as
conversion, and so to compel the defendant to pay the full value of the
thing with which he has interfered.” (Prosser & Keeton, Torts
(5th ed. 1984) § 14, pp. 85-86.)
Though not amounting to conversion, the defendant’s interference
must, to be actionable, have caused some injury to the chattel or to the
plaintiff’s rights in it. Under California law, trespass to chattels
“lies where an intentional interference with the possession of personal
property has proximately caused injury.” (Thrifty-Tel, Inc. v. Bezenek
(1996) 46 Cal.App.4th 1559, 1566, italics added.) In cases of interference
with possession of personal property not amounting to conversion, “the
owner has a cause of action for trespass or case, and may recover only
the actual damages suffered by reason of the impairment of the property
or the loss of its use.” (Zaslow v. Kroenert, supra, 29 Cal.2d at
p. 551, italics added; accord, Jordan v. Talbot (1961) 55 Cal.2d 597,
610.) In modern American law generally, “[t]respass remains as an
occasional remedy for minor interferences, resulting in some damage, but
not sufficiently serious or sufficiently important to amount to the greater
tort” of conversion. (Prosser & Keeton, Torts, supra, §
15, p. 90, italics added.)
The Restatement, too, makes clear that some actual injury must have occurred
in order for a trespass to chattels to be actionable. Under section 218
of the Restatement Second of Torts, dispossession alone, without further
damages, is actionable (see id., par. (a) & com. d, pp. 420-421),
but other forms of interference require some additional harm to the personal
property or the possessor’s interests in it. (Id., pars. (b)-(d).)
“The interest of a possessor of a chattel in its inviolability,
unlike the similar interest of a possessor of land, is not given legal
protection by an action for nominal damages for harmless intermeddlings
with the chattel. In order that an actor who interferes with another’s
chattel may be liable, his conduct must affect some other and more important
interest of the possessor. Therefore, one who intentionally intermeddles
with another’s chattel is subject to liability only if his intermeddling
is harmful to the possessor’s materially valuable interest in the
physical condition, quality, or value of the chattel, or if the possessor
is deprived of the use of the chattel for a substantial time, or some
other legally protected interest of the possessor is affected as stated
in Clause (c). Sufficient legal protection of the possessor’s interest
in the mere inviolability of his chattel is afforded by his privilege
to use reasonable force to protect his possession against even harmless
interference.” (Id., com. e, pp. 421-422, italics added.)
The Court of Appeal (quoting 7 Speiser et al., American Law of Torts (1990)
Trespass, § 23:23, p. 667) referred to “ ‘a number of
very early cases [showing that] any unlawful interference, however slight,
with the enjoyment by another of his personal property, is a trespass.’
” But while a harmless use or touching of personal property may
be a technical trespass (see Rest.2d Torts, § 217), an interference
(not amounting to dispossession) is not actionable, under modern California
and broader American law, without a showing of harm. As already discussed,
this is the rule embodied in the Restatement (Rest.2d Torts, § 218)
and adopted by California law (Zaslow v. Kroenert, supra, 29 Cal.2d at
p. 551; Thrifty-Tel, Inc. v. Bezenek, supra, 46 Cal.App.4th at p. 1566).
In this respect, as Prosser explains, modern day trespass to chattels
differs both from the original English writ and from the action for trespass
to land: “Another departure from the original rule of the old writ
of trespass concerns the necessity of some actual damage to the chattel
before the action can be maintained. Where the defendant merely interferes
without doing any harm—as where, for example, he merely lays hands
upon the plaintiff’s horse, or sits in his car—there has been
a division of opinion among the writers, and a surprising dearth of authority.
By analogy to trespass to land there might be a technical tort in such
a case . . . . Such scanty authority as there is, however, has considered
that the dignitary interest in the inviolability of chattels, unlike that
as to land, is not sufficiently important to require any greater defense
than the privilege of using reasonable force when necessary to protect
them. Accordingly it has been held that nominal damages will not be awarded,
and that in the absence of any actual damage the action will not lie.”
(Prosser & Keeton, Torts, supra, § 14, p. 87, italics added,
fns. omitted.)
Intel suggests that the requirement of actual harm does not apply here
because it sought only injunctive relief, as protection from future injuries.
But as Justice Kolkey, dissenting below, observed, “[t]he fact the
relief sought is injunctive does not excuse a showing of injury, whether
actual or threatened.” Indeed, in order to obtain injunctive relief
the plaintiff must ordinarily show that the defendant’s wrongful
acts threaten to cause irreparable injuries, ones that cannot be adequately
compensated in damages. (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading,
§ 782, p. 239.) Even in an action for trespass to real property,
in which damage to the property is not an element of the cause of action,
“the extraordinary remedy of injunction” cannot be invoked
without showing the likelihood of irreparable harm. (Mechanics’
Foundry v. Ryall (1888) 75 Cal. 601, 603; see Mendelson v. McCabe (1904)
144 Cal. 230, 232-233 [injunction against trespass to land proper where
continued trespasses threaten creation of prescriptive right and repetitive
suits for damages would be inadequate remedy].) A fortiori, to issue an
injunction without a showing of likely irreparable injury in an action
for trespass to chattels, in which injury to the personal property or
the possessor’s interest in it is an element of the action, would
make little legal sense.
The dispositive issue in this case, therefore, is whether the undisputed
facts demonstrate Hamidi’s actions caused or threatened to cause
damage to Intel’s computer system, or injury to its rights in that
personal property, such as to entitle Intel to judgment as a matter of
law. To review, the undisputed evidence revealed no actual or threatened
damage to Intel’s computer hardware or software and no interference
with its ordinary and intended operation. Intel was not dispossessed of
its computers, nor did Hamidi’s messages prevent Intel from using
its computers for any measurable length of time. Intel presented no evidence
its system was slowed or otherwise impaired by the burden of delivering
Hamidi’s electronic messages. Nor was there any evidence transmission
of the messages imposed any marginal cost on the operation of Intel’s
computers. In sum, no evidence suggested that in sending messages through
Intel’s Internet connections and internal computer system Hamidi
used the system in any manner in which it was not intended to function
or impaired the system in any way. Nor does the evidence show the request
of any employee to be removed from FACE-Intel’s mailing list was
not honored. The evidence did show, however, that some employees who found
the messages unwelcome asked management to stop them and that Intel technical
staff spent time and effort attempting to block the messages. A statement
on the FACE-Intel Web site, moreover, could be taken as an admission that
the messages had caused “[e]xcited and nervous managers” to
discuss the matter with Intel’s human resources department.
Relying on a line of decisions, most from federal district courts, applying
the tort of trespass to chattels to various types of unwanted electronic
contact between computers, Intel contends that, while its computers were
not damaged by receiving Hamidi’s messages, its interest in the
“physical condition, quality or value” (Rest.2d Torts, §
218, com. e, p. 422) of the computers was harmed. We disagree. The cited
line of decisions does not persuade us that the mere sending of electronic
communications that assertedly cause injury only because of their contents
constitutes an actionable trespass to a computer system through which
the messages are transmitted. Rather, the decisions finding electronic
contact to be a trespass to computer systems have generally involved some
actual or threatened interference with the computers’ functioning.
In Thrifty-Tel, Inc. v. Bezenek, supra, 46 Cal.App.4th at pages 1566-1567
(Thrifty-Tel), the California Court of Appeal held that evidence of automated
searching of a telephone carrier’s system for authorization codes
supported a cause of action for trespass to chattels. The defendant’s
automated dialing program “overburdened the [plaintiff’s]
system, denying some subscribers access to phone lines” (Thrifty-Tel,
supra, 46 Cal.App.4th at p. 1564), showing the requisite injury.
Following Thrifty-Tel, a series of federal district court decisions held
that sending UCE through an ISP’s equipment may constitute trespass
to the ISP’s computer system. The lead case, CompuServe, Inc. v.
Cyber Promotions, Inc., supra, 962 F.Supp. 1015, 1021-1023 (CompuServe),
was followed by Hotmail Corp. v. Van$ Money Pie, Inc. (N.D.Cal., Apr.
16, 1998, No. C 98-20064 JW) 1998 WL 388389, page *7, America Online,
Inc. v. IMS (E.D.Va. 1998) 24 F.Supp.2d 548, 550-551, and America Online,
Inc. v. LCGM, Inc. (E.D.Va. 1998) 46 F.Supp.2d 444, 451-452.
In each of these spamming cases, the plaintiff showed, or was prepared
to show, some interference with the efficient functioning of its computer
system. In CompuServe, the plaintiff ISP’s mail equipment monitor
stated that mass UCE mailings, especially from nonexistent addresses such
as those used by the defendant, placed “a tremendous burden”
on the ISP’s equipment, using “disk space and drain[ing] the
processing power,” making those resources unavailable to serve subscribers.
(CompuServe, supra, 962 F.Supp. at p. 1022.) Similarly, in Hotmail Corp.
v. Van$ Money Pie, Inc., supra, 1998 WL 388389 at page *7, the court found
the evidence supported a finding that the defendant’s mailings “fill[ed]
up Hotmail’s computer storage space and threaten[ed] to damage Hotmail’s
ability to service its legitimate customers.” America Online, Inc.
v. IMS, decided on summary judgment, was deemed factually indistinguishable
from CompuServe; the court observed that in both cases the plaintiffs
“alleged that processing the bulk e-mail cost them time and money
and burdened their equipment.” (America Online, Inc. v. IMS, supra,
24 F.Supp.2d at p. 550.) The same court, in America Online, Inc. v. LCGM,
Inc., supra, 46 F.Supp.2d at page 452, simply followed CompuServe and
its earlier America Online decision, quoting the former’s explanation
that UCE burdened the computer’s processing power and memory.
Building on the spamming cases, in particular CompuServe, three even more
recent district court decisions addressed whether unauthorized robotic
data 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.
In the leading case, eBay, the defendant Bidder’s Edge (BE), operating
an auction aggregation site, accessed the eBay Web site about 100,000
times per day, accounting for between 1 and 2 percent of the information
requests received by eBay and a slightly smaller percentage of the data
transferred by eBay. (eBay, supra, 100 F.Supp.2d at pp. 1061, 1063.) The
district court rejected eBay’s claim that it was entitled to injunctive
relief because of the defendant’s unauthorized presence alone, or
because of the incremental cost the defendant had imposed on operation
of the eBay site (id. at pp. 1065-1066), but found sufficient proof of
threatened harm in the potential for others to imitate the defendant’s
activity: “If BE’s activity is allowed to continue unchecked,
it would encourage other auction aggregators to engage in similar recursive
searching of the eBay system such that eBay would suffer irreparable harm
from reduced system performance, system unavailability, or data losses.”
(Id. at p. 1066.) Again, in addressing the likelihood of eBay’s
success on its trespass to chattels cause of action, the court held the
evidence of injury to eBay’s computer system sufficient to support
a preliminary injunction: “If the court were to hold otherwise,
it would likely encourage other auction aggregators to crawl the eBay
site, potentially to the point of denying effective access to eBay’s
customers. If preliminary injunctive relief were denied, and other aggregators
began to crawl the eBay site, there appears to be little doubt that the
load on eBay’s computer system would qualify as a substantial impairment
of condition or value.” (Id. at pp. 1071-1072.)
Another district court followed eBay on similar facts—a domain name
registrar’s claim against a Web hosting and development site that
robotically searched the registrar’s database of newly registered
domain names in search of business leads—in Register.com, Inc. v.
Verio, Inc., supra, 126 F.Supp.2d at pages 249-251. Although the plaintiff
was unable to measure the burden the defendant’s searching had placed
on its system (id. at pp. 249-250), the district court, quoting the declaration
of one of the plaintiff’s officers, found sufficient evidence of
threatened harm to the system in the possibility the defendant’s
activities would be copied by others: “ ‘I believe that if
Verio’s searching of Register.com’s WHOIS database were determined
to be lawful, then every purveyor of Internet-based services would engage
in similar conduct.’ ” (Id. at p. 250.) Like eBay, the court
observed, Register.com had a legitimate fear “that its servers will
be flooded by search robots.” (Id. at p. 251.)
In the third decision discussing robotic data collection as a trespass,
Ticketmaster Corp. v. Tickets.com, Inc., supra, 2000 WL 1887522 (Ticketmaster),
the court, distinguishing eBay, found insufficient evidence of harm to
the chattel to constitute an actionable trespass: “A basic element
of trespass to chattels must be physical harm to the chattel (not present
here) or some obstruction of its basic function (in the court’s
opinion not sufficiently shown here). . . . The comparative use [by the
defendant of the plaintiff’s computer system] appears very small
and there is no showing that the use interferes to any extent with the
regular business of [the plaintiff]. . . . Nor here is the specter of
dozens or more parasites joining the fray, the cumulative total of which
could affect the operation of [the plaintiff’s] business.”
(Id. at p. *4, italics added.)
In the decisions so far reviewed, the defendant’s use of the plaintiff’s
computer system was held sufficient to support an action for trespass
when it actually did, or threatened to, interfere with the intended functioning
of the system, as by significantly reducing its available memory and processing
power. In Ticketmaster, supra, 2000 WL 1887522, the one case where no
such effect, actual or threatened, had been demonstrated, the court found
insufficient evidence of harm to support a trespass action. These decisions
do not persuade us to Intel’s position here, for Intel has demonstrated
neither any appreciable effect on the operation of its computer system
from Hamidi’s messages, nor any likelihood that Hamidi’s actions
will be replicated by others if found not to constitute a trespass.
That Intel does not claim the type of functional impact that spammers
and robots have been alleged to cause is not surprising in light of the
differences between Hamidi’s activities and those of a commercial
enterprise that uses sheer quantity of messages as its communications
strategy. Though Hamidi sent thousands of copies of the same message on
six occasions over 21 months, that number is minuscule compared to the
amounts of mail sent by commercial operations. The individual advertisers
sued in America Online, Inc. v. IMS, supra, 24 F.Supp.2d at page 549,
and America Online, Inc. v. LCGM, Inc., supra, 46 F.Supp.2d at page 448,
were alleged to have sent more than 60 million messages over 10 months
and more than 92 million messages over seven months, respectively. Collectively,
UCE has reportedly come to constitute about 45 percent of all e-mail.
(Hansell, Internet Is Losing Ground in Battle Against Spam, N.Y. Times
(Apr. 22, 2003) p. A1, col. 3.) The functional burden on Intel’s
computers, or the cost in time to individual recipients, of receiving
Hamidi’s occasional advocacy messages cannot be compared to the
burdens and costs caused ISP’s and their customers by the ever-rising
deluge of commercial e-mail.
Intel relies on language in the eBay decision suggesting that unauthorized
use of another’s chattel is actionable even without any showing
of injury: “Even if, as [defendant] BE argues, its searches use
only a small amount of eBay’s computer system capacity, BE has nonetheless
deprived eBay of the ability to use that portion of its personal property
for its own purposes. The law recognizes no such right to use another’s
personal property.” (eBay, supra, 100 F.Supp.2d at p. 1071.) But
as the eBay court went on immediately to find that the defendant’s
conduct, if widely replicated, would likely impair the functioning of
the plaintiff’s system (id. at pp. 1071-1072), we do not read the
quoted remarks as expressing the court’s complete view of the issue.
In isolation, moreover, they would not be a correct statement of California
or general American law on this point. While one may have no right temporarily
to use another’s personal property, such use is actionable as a
trespass only if it “has proximately caused injury.” (Thrifty-Tel,
supra, 46 Cal.App.4th at p. 1566.) “[I]n the absence of any actual
damage the action will not lie.” (Prosser & Keeton, Torts, supra,
§ 14, p. 87.) Short of dispossession, personal injury, or physical
damage (not present here), intermeddling is actionable only if “the
chattel is impaired as to its condition, quality, or value, or [] . .
. the possessor is deprived of the use of the chattel for a substantial
time.” (Rest.2d Torts, § 218, pars. (b), (c).) In particular,
an actionable deprivation of use “must be for a time so substantial
that it is possible to estimate the loss caused thereby. A mere momentary
or theoretical deprivation of use is not sufficient unless there is a
dispossession . . . .” (Id., com. i, p. 423.) That Hamidi’s
messages temporarily used some portion of the Intel computers’ processors
or storage is, therefore, not enough; Intel must, but does not, demonstrate
some measurable loss from the use of its computer system.
In addition to impairment of system functionality, CompuServe and its
progeny also refer to the ISP’s loss of business reputation and
customer goodwill, resulting from the inconvenience and cost that spam
causes to its members, as harm to the ISP’s legally protected interests
in its personal property. (See CompuServe, supra, 962 F.Supp.2d at p.
1023; Hotmail Corp. v. Van$ Money Pie, Inc., supra, 1998 WL 388389 at
p. *7; America Online, Inc. v. IMS, supra, 24 F.Supp.2d at p. 550.) Intel
argues that its own interest in employee productivity, assertedly disrupted
by Hamidi’s messages, is a comparable protected interest in its
computer system. We disagree.
Whether the economic injuries identified in CompuServe were properly considered
injuries to the ISP’s possessory interest in its personal property,
the type of property interest the tort is primarily intended to protect
(see Rest.2d Torts, § 218 & com. e, pp. 421-422; Prosser &
Keeton, Torts, supra, § 14, p. 87), has been questioned. “[T]he
court broke the chain between the trespass and the harm, allowing indirect
harms to CompuServe’s business interests—reputation, customer
goodwill, and employee time—to count as harms to the chattel (the
server).” (Quilter, The Continuing Expansion of Cyberspace Trespass
to Chattels, supra, 17 Berkeley Tech. L.J. at pp. 429-430.) “[T]his
move cuts trespass to chattels free from its moorings of dispossession
or the equivalent, allowing the court free reign [sic] to hunt for ‘impairment.’
” (Burk, The Trouble with Trespass (2000) 4 J. Small & Emerging
Bus.L. 27, 35.) But even if the loss of goodwill identified in CompuServe
were the type of injury that would give rise to a trespass to chattels
claim under California law, Intel’s position would not follow, for
Intel’s claimed injury has even less connection to its personal
property than did CompuServe’s.
CompuServe’s customers were annoyed because the system was inundated
with unsolicited commercial messages, making its use for personal communication
more difficult and costly. (CompuServe, supra, 962 F.Supp. at p. 1023.)
Their complaint, which allegedly led some to cancel their CompuServe service,
was about the functioning of CompuServe’s electronic mail service.
Intel’s workers, in contrast, were allegedly distracted from their
work not because of the frequency or quantity of Hamidi’s messages,
but because of assertions and opinions the messages conveyed. Intel’s
complaint is thus about the contents of the messages rather than the functioning
of the company’s e-mail system. Even accepting CompuServe’s
economic injury rationale, therefore, Intel’s position represents
a further extension of the trespass to chattels tort, fictionally recharacterizing
the allegedly injurious effect of a communication’s contents on
recipients as an impairment to the device which transmitted the message.
This theory of “impairment by content” (Burk, The Trouble
with Trespass, supra, 4 J. Small & Emerging Bus.L. at p. 37) threatens
to stretch trespass law to cover injuries far afield from the harms to
possession the tort evolved to protect. Intel’s theory would expand
the tort of trespass to chattels to cover virtually any unconsented-to
communication that, solely because of its content, is unwelcome to the
recipient or intermediate transmitter. As the dissenting justice below
explained, “ ‘Damage’ of this nature—the distraction
of reading or listening to an unsolicited communication—is not within
the scope of the injury against which the trespass-to-chattel tort protects,
and indeed trivializes it. After all, ‘[t]he property interest protected
by the old action of trespass was that of possession; and this has continued
to affect the character of the action.’ (Prosser & Keeton on
Torts, supra, § 14, p. 87.) Reading an e-mail transmitted to equipment
designed to receive it, in and of itself, does not affect the possessory
interest in the equipment. [] Indeed, if a chattel’s receipt of
an electronic communication constitutes a trespass to that chattel, then
not only are unsolicited telephone calls and faxes trespasses to chattel,
but unwelcome radio waves and television signals also constitute a trespass
to chattel every time the viewer inadvertently sees or hears the unwanted
program.” We agree. While unwelcome communications, electronic or
otherwise, can cause a variety of injuries to economic relations, reputation
and emotions, those interests are protected by other branches of tort
law; in order to address them, we need not create a fiction of injury
to the communication system.
Nor may Intel appropriately assert a property interest in its employees’
time. “The Restatement test clearly speaks in the first instance
to the impairment of the chattel. . . . But employees are not chattels
(at least not in the legal sense of the term).” (Burk, The Trouble
with Trespass, supra, 4 J. Small & Emerging Bus.L. at p. 36.) Whatever
interest Intel may have in preventing its employees from receiving disruptive
communications, it is not an interest in personal property, and trespass
to chattels is therefore not an action that will lie to protect it. Nor,
finally, can the fact Intel staff spent time attempting to block Hamidi’s
messages be bootstrapped into an injury to Intel’s possessory interest
in its computers. To quote, again, from the dissenting opinion in the
Court of Appeal: “[I]t is circular to premise the damage element
of a tort solely upon the steps taken to prevent the damage. Injury can
only be established by the completed tort’s consequences, not by
the cost of the steps taken to avoid the injury and prevent the tort;
otherwise, we can create injury for every supposed tort.”
Intel connected its e-mail system to the Internet and permitted its employees
to make use of this connection both for business and, to a reasonable
extent, for their own purposes. In doing so, the company necessarily contemplated
the employees’ receipt of unsolicited as well as solicited communications
from other companies and individuals. That some communications would,
because of their contents, be unwelcome to Intel management was virtually
inevitable. Hamidi did nothing but use the e-mail system for its intended
purpose—to communicate with employees. The system worked as designed,
delivering the messages without any physical or functional harm or disruption.
These occasional transmissions cannot reasonably be viewed as impairing
the quality or value of Intel’s computer system. We conclude, therefore,
that Intel has not presented undisputed facts demonstrating an injury
to its personal property, or to its legal interest in that property, that
support, under California tort law, an action for trespass to chattels.
II. Proposed Extension of California Tort Law
We next consider whether California common law should be extended to cover,
as a trespass to chattels, an otherwise harmless electronic communication
whose contents are objectionable. We decline to so expand California law.
Intel, of course, was not the recipient of Hamidi’s messages, but
rather the owner and possessor of computer servers used to relay the messages,
and it bases this tort action on that ownership and possession. The property
rule proposed is a rigid one, under which the sender of an electronic
message would be strictly liable to the owner of equipment through which
the communication passes—here, Intel—for any consequential
injury flowing from the contents of the communication. The arguments of
amici curiae and academic writers on this topic, discussed below, leave
us highly doubtful whether creation of such a rigid property rule would
be wise.
Writing on behalf of several industry groups appearing as amici curiae,
Professor Richard A. Epstein of the University of Chicago urges us to
excuse the required showing of injury to personal property in cases of
unauthorized electronic contact between computers, “extending the
rules of trespass to real property to all interactive Web sites and servers.”
The court is thus urged to recognize, for owners of a particular species
of personal property, computer servers, the same interest in inviolability
as is generally accorded a possessor of land. In effect, Professor Epstein
suggests that a company’s server should be its castle, upon which
any unauthorized intrusion, however harmless, is a trespass.
Epstein’s argument derives, in part, from the familiar metaphor
of the Internet as a physical space, reflected in much of the language
that has been used to describe it: “cyberspace,” “the
information superhighway,” e-mail “addresses,” and the
like. Of course, the Internet is also frequently called simply the “Net,”
a term, Hamidi points out, “evoking a fisherman’s chattel.”
A major component of the Internet is the World Wide “Web,”
a descriptive term suggesting neither personal nor real property, and
“cyberspace” itself has come to be known by the oxymoronic
phrase “virtual reality,” which would suggest that any real
property “located” in “cyberspace” must be “virtually
real” property. Metaphor is a two?edged sword.
Indeed, the metaphorical application of real property rules would not,
by itself, transform a physically harmless electronic intrusion on a computer
server into a trespass. That is because, under California law, intangible
intrusions on land, including electromagnetic transmissions, are not actionable
as trespasses (though they may be as nuisances) unless they cause physical
damage to the real property. (San Diego Gas & Electric Co. v. Superior
Court (1996) 13 Cal.4th 893, 936-937.) Since Intel does not claim Hamidi’s
electronically transmitted messages physically damaged its servers, it
could not prove a trespass to land even were we to treat the computers
as a type of real property. Some further extension of the conceit would
be required, under which the electronic signals Hamidi sent would be recast
as tangible intruders, perhaps as tiny messengers rushing through the
“hallways” of Intel’s computers and bursting out of
employees’ computers to read them Hamidi’s missives. But such
fictions promise more confusion than clarity in the law. (See eBay, supra,
100 F.Supp.2d at pp. 1065-1066 [rejecting eBay’s argument that the
defendant’s automated data searches “should be thought of
as equivalent to sending in an army of 100,000 robots a day to check the
prices in a competitor’s store”].)
The plain fact is that computers, even those making up the Internet, are—like
such older communications equipment as telephones and fax machines—
personal property, not realty. Professor Epstein observes that “[a]lthough
servers may be moved in real space, they cannot be moved in cyberspace,”
because an Internet server must, to be useful, be accessible at a known
address. But the same is true of the telephone: to be useful for incoming
communication, the telephone must remain constantly linked to the same
number (or, when the number is changed, the system must include some forwarding
or notification capability, a qualification that also applies to computer
addresses). Does this suggest that an unwelcome message delivered through
a telephone or fax machine should be viewed as a trespass to a type of
real property? We think not: As already discussed, the contents of a telephone
communication may cause a variety of injuries and may be the basis for
a variety of tort actions (e.g., defamation, intentional infliction of
emotional distress, invasion of privacy), but the injuries are not to
an interest in property, much less real property, and the appropriate
tort is not trespass.
More substantively, Professor Epstein argues that a rule of computer server
inviolability will, through the formation or extension of a market in
computer?to?computer access, create “the right social result.”
In most circumstances, he predicts, companies with computers on the Internet
will continue to authorize transmission of information through e-mail,
Web site searching, and page linking because they benefit by that open
access. When a Web site owner does deny access to a particular sending,
searching, or linking computer, a system of “simple one-on-one negotiations”
will arise to provide the necessary individual licenses.
Other scholars are less optimistic about such a complete propertization
of the Internet. Professor Mark Lemley of the University of California,
Berkeley, writing on behalf of an amici curiae group of professors of
intellectual property and computer law, observes that under a property
rule of server inviolability, “each of the hundreds of millions
of [Internet] users must get permission in advance from anyone with whom
they want to communicate and anyone who owns a server through which their
message may travel.” The consequence for e-mail could be a substantial
reduction in the freedom of electronic communication, as the owner of
each computer through which an electronic message passes could impose
its own limitations on message content or source. As Professor Dan Hunter
of the University of Pennsylvania asks rhetorically: “Does this
mean that one must read the ‘Terms of Acceptable Email Usage’
of every email system that one emails in the course of an ordinary day?
If the University of Pennsylvania had a policy that sending a joke by
email would be an unauthorized use of their system, then under the logic
of [the lower court decision in this case], you commit ‘trespass’
if you emailed me a . . . cartoon.” (Hunter, Cyberspace as Place,
and the Tragedy of the Digital Anticommons (2003) 91 Cal. L.Rev. 439,
508-509.)
Web site linking, Professor Lemley further observes, “would exist
at the sufferance of the linked-to party, because a Web user who followed
a ‘disapproved’ link would be trespassing on the plaintiff’s
server, just as sending an e-mail is trespass under the [lower] court’s
theory.” Another writer warns that “[c]yber-trespass theory
will curtail the free flow of price and product information on the Internet
by allowing website owners to tightly control who and what may enter and
make use of the information housed on its Internet site.” (Chang,
Bidding on Trespass: eBay, Inc. v. Bidder’s Edge, Inc. and the Abuse
of Trespass Theory in Cyberspace Law (2001) 29 AIPLA Q.J. 445, 459.) A
leading scholar of Internet law and policy, Professor Lawrence Lessig
of Stanford University, has criticized Professor Epstein’s theory
of the computer server as quasi-real property, previously put forward
in the eBay case (eBay, supra, 100 F.Supp.2d 1058), on the ground that
it ignores the costs to society in the loss of network benefits: “eBay
benefits greatly from a network that is open and where access is free.
It is this general feature of the Net that makes the Net so valuable to
users and a source of great innovation. And to the extent that individual
sites begin to impose their own rules of exclusion, the value of the network
as a network declines. If machines must negotiate before entering any
individual site, then the costs of using the network climb.” (Lessig,
The Future of Ideas: The Fate of the Commons in a Connected World (2001)
p. 171; see also Hunter, Cyberspace as Place, and the Tragedy of the Digital
Anticommons, supra, 91 Cal. L.Rev. at p. 512 [“If we continue to
mark out anticommons claims in cyberspace, not only will we preclude better,
more innovative uses of cyberspace resources, but we will lose sight of
what might be possible”].)
We discuss this debate among the amici curiae and academic writers only
to note its existence and contours, not to attempt its resolution. Creating
an absolute property right to exclude undesired communications from one’s
e-mail and Web servers might help force spammers to internalize the costs
they impose on ISP’s and their customers. But such a property rule
might also create substantial new costs, to e?mail and e-commerce users
and to society generally, in lost ease and openness of communication and
in lost network benefits. In light of the unresolved controversy, we would
be acting rashly to adopt a rule treating computer servers as real property
for purposes of trespass law.
The Legislature has already adopted detailed regulations governing UCE.
(Bus. & Prof. Code, §§ 17538.4, 17538.45; see generally
Ferguson v. Friendfinders, Inc., supra, 94 Cal.App.4th 1255.) It may see
fit in the future also to regulate noncommercial e-mail, such as that
sent by Hamidi, or other kinds of unwanted contact between computers on
the Internet, such as that alleged in eBay, supra, 100 F.Supp.2d 1058.
But we are not persuaded that these perceived problems call at present
for judicial creation of a rigid property rule of computer server inviolability.
We therefore decline to create an exception, covering Hamidi’s unwanted
electronic messages to Intel employees, to the general rule that a trespass
to chattels is not actionable if it does not involve actual or threatened
injury to the personal property or to the possessor’s legally protected
interest in the personal property. No such injury having been shown on
the undisputed facts, Intel was not entitled to summary judgment in its
favor.
III. Constitutional Considerations
Because we conclude no trespass to chattels was shown on the summary judgment
record, making the injunction improper on common law grounds, we need
not address at length the dissenters’ constitutional arguments.
A few clarifications are nonetheless in order.
Justice Mosk asserts that this case involves only “a private entity
seeking to enforce private trespass rights.” (Dis. opn. of Mosk,
J., post, at p. 14.) But the injunction here was issued by a state court.
While a private refusal to transmit another’s electronic speech
generally does not implicate the First Amendment, because no governmental
action is involved (see Cyber Promotions, Inc. v. America Online, Inc.
(E.D.Penn. 1996) 948 F.Supp. 436, 441-445 [spammer could not force private
ISP to carry its messages]), the use of government power, whether in enforcement
of a statute or ordinance or by an award of damages or an injunction in
a private lawsuit, is state action that must comply with First Amendment
limits. (Cohen v. Cowles Media Co. (1991) 501 U.S. 663, 668; NAACP v.
Claiborne Hardware Co. (1982) 458 U.S. 886, 916, fn. 51; New York Times
v. Sullivan (1964) 376 U.S. 254, 265.) Nor does the nonexistence of a
“constitutional right to trespass” (dis. opn. of Mosk, J.,
post, at p. 14) make an injunction in this case per se valid. Unlike,
for example, the trespasser-to-land defendant in Church of Christ in Hollywood
v. Superior Court (2002) 99 Cal.App.4th 1244, Hamidi himself had no tangible
presence on Intel property, instead speaking from his own home through
his computer. He no more invaded Intel’s property than does a protester
holding a sign or shouting through a bullhorn outside corporate headquarters,
posting a letter through the mail, or telephoning to complain of a corporate
practice. (See Madsen v. Women’s Health Center (1994) 512 U.S. 753,
765 [injunctions restraining such speakers must “burden no more
speech than necessary to serve a significant government interest”].)
Justice Brown relies upon a constitutional “right not to listen,”
rooted in the listener’s “personal autonomy” (dis. opn.
of Brown, J., post, at p. 11), as compelling a remedy against Hamidi’s
messages, which she asserts were sent to “unwilling” listeners
(id., at p. 4). Even assuming a corporate entity could under some circumstances
claim such a personal right, here the intended and actual recipients of
Hamidi’s messages were individual Intel employees, rather than Intel
itself. The record contains no evidence Hamidi sent messages to any employee
who notified him such messages were unwelcome. In any event, such evidence
would, under the dissent’s rationale of a right not to listen, support
only a narrow injunction aimed at protecting individual recipients who
gave notice of their rejection. (See Bolger v. Youngs Drug Products Corp.
(1983) 463 U.S. 60, 72 [government may not act on behalf of all addressees
by generally prohibiting mailing of materials related to contraception,
where those recipients who may be offended can simply ignore and discard
the materials]; Martin v. City of Struthers (1943) 319 U.S. 141, 144 [anti-canvassing
ordinance improperly “substitutes the judgment of the community
for the judgment of the individual householder”]; cf. Rowan v. U.S.
Post Office Dept. (1970) 397 U.S. 728, 736 [“householder”
may exercise “individual autonomy” by refusing delivery of
offensive mail].) The principal of a right not to listen, founded in personal
autonomy, cannot justify the sweeping injunction issued here against all
communication to Intel addresses, for such a right, logically, can be
exercised only by, or at the behest of, the recipient himself or herself.
Disposition
The judgment of the Court of Appeal is reversed.
|