EFF Amicus Curiae Letter to CA Supreme Court

Intel v. Hamidi (Case No. S103781)    1    Letter of Amicus EFF

                                February 1, 2002

Honorable Ronald M. George, Chief Justice
  and the Associate Justices
Supreme Court of California
350 McAllister Street
San Francisco, CA 94102-4783

    Re:  Intel Corp. v. Hamidi, (2001) 94 Cal.App. 4th 325
    California Supreme Court No. S103781
    (Third District Court of Appeal No. C033076)

Dear Chief Justice George and Associate Justices:

This letter of amicus curiae in support of a petition for
review is respectfully submitted by the Electronic Frontier

I.    The Nature of the ApplicantÕs Interest

The Electronic Frontier Foundation (ÒEFFÓ) is a non-
profit, civil liberties group working to protect rights in the
digital world.  EFF is based in San Francisco with members
all over the United States, and maintains one of the most-
linked-to Web sites (http://www.eff.org) in the world.  EFF
encourages and challenges industry and government to
support free expression, privacy, and openness in the
information society.  EFF has litigated and filed amicus briefs
in many Internet cases.  Thus, EFFÕs interest in this case.  

II.    Why This Court Should Grant Review

The facts of the case are simple:  After defendant
Kourosh Kenneth Hamidi was fired by plaintiff Intel
Corporation (ÒIntelÓ), he sought to communicate with Intel
employees at their Intel e-mail addresses.  On six occasions,
he sent e-mail to thousands of Intel employees.  Intel
demanded that Hamidi stop, but he refused.  Intel sought, and
ultimately received, an injunction prohibiting Hamidi from
sending e-mail to Intel employees at their Intel e-mail
addresses, based on the common-law tort of trespass to

Despite the apparent simplicity of these facts, however --
a company seeking to stop unwanted e-mail from a former
employee -- this case now has important implications for the
future of the Internet as a medium of free speech and of

On the surface, the decision of the Court of Appeal
injures the freedom of speech guaranteed by both the federal
and state constitutions by upholding an injunction against
protected speech.   

But that result is not the most egregious aspect of this
case.  The free speech issue should never have been reached.  
The Court of Appeal majority only reached this constitutional
issue by unnecessarily and unjustifiably distorting the ancient
doctrine of trespass to chattels by removing any requirement
of actual physical damage to the chattel.  The majority
ignored crucial differences between property in land and in
chattels that have been emphasized by this Court.  As a result,
under the majorityÕs analysis any unwanted electronic signal
to an electronic device -- an e-mail message, even a click on a
hyperlink -- can create tort liability.  In so doing, the Court of
Appeal not only committed serious legal errors that require
correction, but resolved this case without considering the
likely effects of its interpretation on speech and commerce on
the Internet.

Given the inconvenience and annoyance of unwanted e-
mail to computer network administrators and computer users,
the desire to reduce it is understandable.[1]  But the majorityÕs
analysis not only leads to a wrong outcome in this case but
also creates an unnecessary new tort that threatens the free
flow of information on the Internet.  Put simply, the
majorityÕs cure is far worse than the disease.

A.    The Court of Appeal erroneously distorted the
doctrine of trespass to chattels.

Had the Court of Appeal simply followed the law, this
case would be unremarkable.  Intel would have no cause of
action, because HamidiÕs e-mails did not physically damage
IntelÕs computers or impair their condition, quality, or value.  
Nor was Intel dispossessed of its computers in any way.  

In order to uphold the injunction against HamidiÕs
speech, however, the majority wrongly extended the doctrine
of trespass to chattels.  The majorityÕs fundamental errors
were to conflate real and personal property, and the physical
with the electronic, online world.  IntelÕs e-mail servers are
personal, not real, property, and the contacts at issue are
online, electronic contacts.  A chattel ownerÕs interest in the
inviolability of a chattel has always been deemed weaker than
a landownerÕs interest in the inviolability of land.  Yet the
majority invokes the notion of ÒtrespassÓ to Òprivate propertyÓ
as though Hamidi had physically entered IntelÕs land and
damaged IntelÕs servers.  

Indeed, even if IntelÕs servers were considered real
property, no trespass action would lie.  As this Court has held,
even recovery for trespass to land must be "predicated upon
the deposit of particulate matter upon the plaintiffs' property
or on actual physical damage thereto. . . . All intangible
intrusions, such as noise, odor, or light alone, are dealt with as
nuisance cases, not trespass." (San Diego Gas & Electric Co.
v. Superior Court (1996) 13 Cal.4th 893, 936, quoting Wilson
v. Interlake Steel Co. (1982) 32 Cal.3d 229, 232-233
(citations omitted).)  Thus, the Court of Appeal actually
extended the reach of trespass to chattels beyond that of
trespass to land.

1.    Under California law, trespass to chattels
requires significant physical harm to the

The tort of trespass to chattels Òlies where an intentional
interference with the possession of personal property has
proximately caused injury.Ó (Thrifty-Tel, Inc. v. Bezenek
(1996) 46 Cal.App.4th 1559, 1566 (fn. omitted); see
RESTATEMENT (SECOND) OF TORTS (1977) § 217 cmt. e
(liability only if Òintermeddling is harmful to the possessorÕs
materially valuable interest in the physical condition, quality,
or value of the chattelÓ).) The only exceptions were for loss of
possession, which was deemed to constitute actual damage, or
harm to some person or thing in which the possessor has a
legally protected interest.  

In Thrifty-Tel, electronic signals generated by computers
that minors used to access plaintiff's telephone system
overburdened plaintiffÕs telephone system, denying some
subscribers access to phone lines.  (Id. at 1564.)  In this
context, the electronic signals were deemed sufficiently
tangible to maintain action for trespass to chattels.    

Thus, the majority opinion distorts trespass to chattels in
a basic but crucial way:  it effectively eliminates the
traditional requirement that the chattel (or the ownerÕs
possession thereof) itself be significantly harmed by the
defendantÕs physical contact with the chattel.  As Judge
Kolkey noted in dissent, the majority either eliminated any
requirement of actual injury or treated the time spent reading
and blocking unwanted e-mail as Òactual injuryÓ -- neither of
which is consistent with California law.  (Hamidi, 94
Cal.App.4th at 344, 347-348 (Kolkey, J., dissenting).)

To be sure, the Court of Appeal did not take the first step
in this direction.  It relied on Thrifty-Tel to eliminate the
requirement of actual physical contact with the chattel.  But
the reasoning of Thrifty-Tel is dubious to begin with.  The
authorities it relied on involved trespass to land, not trespass
to chattels.  (Burk (2000) The Trouble with Trespass, 4 J.
SMALL & EMERGING BUS. L. 27, 33 (ÒThe Thrifty-Tel opinion
blithely glosses over this distinction, noting simply that both
legal theories share a common ancestryÓ); id. at n.52 (citing

An ownerÕs interest in the ÒinviolabilityÓ of personal
property is far weaker than that for real property.  (PROSSER
AND KEETON ON TORTS (5th ed.1984) § 14, p. 87 (fns.
omitted) (Òthe dignitary interest in the violability 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 themÓ); REST.2D TORTS,
§ 218, cmt. e ("The interest of a possessor of a chattel in
its inviolability, unlike the similar interest of a possessor of
land, is not given legal protection by an action for nominal
damages for harmless intermeddlings with the chattelÓ).)    

Moreover, electronic trespasses are not like physical
trespasses; they lack Òthe immediacy and opportunity for
physical confrontation that provides a policy basis for the
trespass cause of action.Ó  (OÕRourke, Shaping Competition
on the Internet:  Who Owns Pricing Information (2000) 53
VAND.L.REV. 1965, 1994.)   Accordingly, the social interest
in protecting against virtual trespass that causes no damage is
weaker than that for physical trespass, whether to land or

But while Thrifty-Tel distorted the traditional meaning of
ÒphysicalÓ contact with the chattel to include electronic
signals (46 Cal.App.4th at 1566 n. 6), in itself that extension
was less fateful because Thrifty-Tel still required actual injury
to the chattel, either to its value or operation.  (Id. at 1567
(noting that Òmigrating intangibles . . . may result in a
trespass, provided they do not simply impede an ownerÕs use
or enjoyment of property, but cause damageÓ); id. at 1568-
1569 (denying recovery for first trespass where plaintiff failed
to mitigate damages); id. at 1569-1570 (requiring plaintiff to
prove actual damages in order to recover under trespass to
chattels theory).)    

Here, there admittedly is no such harm.  Rather than
follow Thrifty-Tel, however, the majority relied on two other,
consequential harms:  Òloss of productivity caused by the
thousands of employees distracted from their work and by the
time its security department spent trying to halt the
distractions after Hamidi refused to respect Intel's request to
stop invading its internal, proprietary e-mail system.Ó  
(Hamidi, 94 Cal.App.4th at 333.)  In short, the majority went
beyond Thrifty-Tel.  

As Judge Kolkey noted, Òit 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.Ó  (Id. at 348
(Kolkey, J., dissenting).)  

The majority appeared to believe that HamidiÕs e-mails
caused some physical disruption to IntelÕs e-mail system,
saying that Hamidi should not be allowed to Òflood IntelÕs
system to the penultimate extent before causing a computer
crash.Ó  (Id. at 335.)  But nothing remotely resembling a
Òcomputer crashÓ occurred, and nothing in the record even
suggests that the computer systems were or ever would be
overloaded by HamidiÕs e-mails.  Hamidi simply wanted to
communicate with Intel employees.  As one commentator
noted, Ò[t]he trouble that the [Intel] employees are addressing
is not that the computer systems are functioning improperly,
but rather that they are functioning properly, receiving
transmitted bits precisely as they were designed and intended
to do.Ó  (Burk, supra, 4 J. SMALL & EMERGING BUS. L. at 36.)  

Judge Kolkey also noted: ÒNor can a loss of employees'
productivity (by having to read an unwanted e- mail on six
different occasions over a nearly two-year period) qualify as
injury of the type that gives rise to a trespass to chattel. . . .  
Reading an e-mail transmitted to equipment designed to
receive it, in and of itself, does not affect the possessory
interest in the equipment.Ó  (Hamidi, 94 Cal.App.4th at 348
(Kolkey, J., dissenting).)  ÒNo case goes so far as to hold that
reading an unsolicited message transmitted to a computer
screen constitutes an injury that forms the basis for trespass to
chattel.Ó  (Ibid.)  In every modern trespass to chattels case,
there arguably was a significant effect upon the ownerÕs
possessory interest.  

Even in actions for trespass to land, such harm is
insufficient.  In Wilson, supra, the plaintiffsÕ use and
enjoyment of their property was substantially disrupted by
noise emanating from defendantÕs plant; the noise lowered the
market value of their homes, but did not cause any physical
damage.  This Court made clear that trespass to land requires
Òthe deposit of particulate matter upon the plaintiffsÕ property
or actual physical damage thereto. . . .  actionable trespass
may not be predicated upon nondamaging noise, odor, or light
intrusion.Ó  (32 Cal.3d. at 232-233 (citations omitted).)  

This Court reiterated this principle in San Diego Gas,
supra, where the plaintiffs alleged that electric and magnetic
fields rendered their property Òunsafe and uninhabitable.Ó (13
Cal.4th at 937.)  Explaining that this allegation referred only
to Òa risk of personal harm to its occupants, which is
manifestly different from damage to the property itselfÓ (Ibid
(emphasis in original).), this Court rejected the attempt to
characterize loss of market value as physical damage:  ÒA
diminution in property value . . . is not a type of physical
damage to the property itself, but an element of the measure
of damages when such damage is otherwise proved.Ó  (Ibid
(emphasis in original).)  

Clearly, the harms on which the majority here relied are
directly analogous to the harms that this Court has clearly
rejected in trespass to land cases.  As a result, the Court of
AppealÕs distortion of trespass to chattels doctrine gives
chattel owners more protection than land owners.   

The majority also sought to evade the requirement of
actual injury to the chattel by noting that Intel sought an
injunction, not damages.  But as Judge Kolkey cogently
observed, Ò[t]he fact the relief sought is injunctive does not
excuse a showing of injury, whether actual or threatened. . . .  
The majority therefore cannot avoid the element of injury by
relying on the fact that injunctive relief is sought here.Ó  
(Hamidi, 94 Cal.App.4th at 347 (Kolkey, J., dissenting).)  
Moreover, the issuance of injunctive relief traditionally
requires consideration of the public interest, which, as shown
below, militates strongly against the injunction here.

In short, the majority conflated electronic trespass to
chattels with physical trespass to chattels, then with physical
trespass to land -- and then went even further.  Now,
whenever electronic signals impinge upon a device without
the ownerÕs consent, trespass to chattels may be invoked
simply by giving notice to the sender of the signals.  

2.    The Court of AppealsÕ distortion of trespass-
to-chattels doctrine threatens the Internet.

Judge Kolkey said in dissent that Ò[t]o apply this tort to
electronic signals that do not damage or interfere with the
value or operation of the chattel would expand the tort of
trespass to chattel in untold ways and to unanticipated
circumstances.Ó  (Id. at 345; id. at 348 (Òif 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

Judge Kolkey was right; the majorityÕs approach creates
enormous problems for the Internet and other forms of
electronic communication.  First, as an architectural matter,
the majorityÕs approach would transform many commonly
accepted Internet activities into potential trespasses.  An
example is the activities of search engines like Google, which
automatically ÒcrawlÓ websites, indexing the information
contained there.  Under the majorityÕs approach, any website
owner may simply inform a search engine that it may not
ÒbrowseÓ his or her website -- or even post a Òno trespassingÓ
sign on its website -- making any subsequent ÒcontactÓ by the
search engine a trespass without any damage.  

Similarly, trespass to chattels poses a threat to linking.  
Under the majorityÕs approach, any website could post a Òno
linkingÓ sign.  Although the law is unsettled as to whether
websites have any legal right to prohibit unauthorized links,
the majorityÕs extension of trespass to chattels doctrine would
make the unwitting user who clicks on an unauthorized link a
trespasser.  (See Caffarelli, Note, Crossing Virtual Lines:  
Trespass on the Internet (1999), 5 B.U.J. SCI. & TECH. L. 6,
26-27 (noting that visiting and copying data from authorÕs
website could potentially qualify as trespass).)  That the
websites being searched or linked to were publicly accessible
would make no difference under the majorityÕs approach;
after all, anyone can send e-mail to IntelÕs e-mail servers.  

Both search engines and links are critical to the Internet.  
Because the Internet is so vast, only search engines give users
the ability to find information of interest to them easily and
quickly.  Meanwhile, Òthe ability to link from one computer to
another, from one document to another . . . regardless of its
status or physical location is what makes the Web unique.Ó  
(ACLU v. Reno (E.D. Pa. 1999) 31 F.Supp.2d 473, 483, affÕd
(3d Cir. 2000) 217 F.3d 162, cert. granted sub nom. ACLU v.
Ashcroft (2001) 121 S.Ct. 1997, argued, Nov. 28, 2001.)  
Requiring permission to link, the predictable outcome of
creating a cause of action for unauthorized linking, would
fundamentally alter the character of the Internet.

Moreover, such changes in the InternetÕs architecture are
likely to have significant consequences for competition.  In
two federal cases, trespass to chattels has been used to prevent
firms from aggregating price information.  (Register.com, Inc.
v. Verio, Inc. (S.D.N.Y.2000) 126 F.Supp.2d 238, 250; eBay,
Inc. v. Bidder's Edge, Inc. (N.D.Cal. 2000) 100 F.Supp.2d
1058, 1066, 1071.)  Company control over the dissemination
of price information for products sold on the open market
harms competition.  

Unsurprisingly, several law review articles have
criticized the application of this distorted trespass to chattels
doctrine to the Internet.  (OÕRourke, Property Rights and
Competition on the Internet: In Search of An Appropriate
Analogy (2001) 16 BERKELEY TECH. L.J. 561 (criticizing
distortion of trespass to chattels in Register.com and eBay);
Ballantine, Note: Computer Network Trespasses: Solving New
Problems with Old Solutions (2000) 57 WASH & LEE L. REV.
209, 248 (Òfailure to allege or to support a showing of actual
harm should have precluded Intel from prevailing on a
trespass to chattels theoryÓ); Burk, supra, 4 J. SMALL &
EMERGING BUS. L. at 39-54; Developments in the Law -- The
Law of Cyberspace (1999) 112 HARV. L. REV. 1574, 1622-34
(ÒDevelopmentsÓ); cf. Warner, Border Disputes:  Trespass to
Chattels on the Internet (2002) 47 VILL. L. REV. 117 (arguing
for modified form of trespass to chattels but not discussing

B.    The Court of Appeals erroneously decided that the
injunction did not infringe HamidiÕs right to free

These problems are only exacerbated given that many of
the activities affected by trespass to chattels in cyberspace are
speech activities.  Developments, supra, 112 HARV. L. REV. at
1628 (Òplaintiffs are aggressively using the theory of
electronic trespass to block unwanted speechÓ).  Search
engines and links are often used for academic, research,
cultural and political purposes.Ê Hamidi was exercising his
right to free speech; his sending e-mail to Intel employees at
their Intel e-mail addresses was protected Òpeaceful
pamphleteering.Ó  (See Organization for a Better Austin v.
Keefe (1971) 402 U.S. 415, 419  (Òpeaceful pamphleteering is
a form of communication protected by the First Amendment .
. . so long as the means are peaceful, the communication need
not meet standards of acceptabilityÓ).)

Thus, after distorting a sound common-law doctrine
limited to the protection of possessory interests, the majority
was forced to consider the consequences of its reasoning:  
upholding a judicial order prohibiting HamidiÕs speech.  It is
no accident that the majority devotes nearly half of its opinion
to an attempt to explain why a judicial prohibition on sending
e-mail does not violate HamidiÕs right to free speech under
both the federal and state constitutions.  

1.    The Court of Appeal wrongly concluded that
the injunction does not implicate the First

The majority found that Òthis lawsuit does not implicate
federal constitutional rights, for lack of state action.Ó  
(Hamidi, 94 Cal.App.4th at 337.)  This decision was
erroneous as a matter of law, because the Court of Appeal
misunderstood the underlying law of First Amendment limits
on state authority.
Judicial action aimed at restricting speech generally
triggers constitutional scrutiny, even when the government is
not a party.  Defamation cases are the most obvious example.  
As the U.S. Supreme Court said,

    Although this is a civil lawsuit between private parties, the
    Alabama court have applied a state rule of law which
    petitioners claim to impose invalid restrictions on their
    constitutional freedoms of speech and press. It matters not
    that that law has been applied in a civil action and that it is
    common law only, though supplemented by statute. . . . The
    test is not the form in which state power has been applied
    but, whatever the form, whether such power has in fact been

(New York Times v. Sullivan (1964) 376 U.S. 254, 265
(citations omitted).)

The principle is not confined to defamation.  (See, e.g.,
Hustler Magazine, Inc. v. Falwell (1988) 485 U.S. 46, 50, 56
(liability for intentional infliction of emotional distress must
take into account First Amendment standards); NAACP v.
Claiborne Hardware Co.  (1982) 458 U.S. 886; Keefe, supra;
Blatty v. New York Times Co. (1986) 42 Cal.3d 1033.)  

To distinguish this well-settled line of cases, the Court of
Appeals seized upon doubt about the state action doctrine as
expressed in Shelley v. Kraemer (1947) 334 U.S. 1.  But
Shelley was not a First Amendment case.  The rule of
Sullivan and its progeny is not about ÒclassicÓ state action and
is not related to the Ògovernmental functionÓ reasoning of
Marsh v. Alabama (1946) 326 U.S. 501, 502 (addressing
criminal liability of individual who Òundertakes to distribute
religious literature on the premises of a company-owned
Rather, it is about First Amendment limitations on state
or common law.  (E.g., Hustler, supra, 485 U.S. at 50
(referring to ÒFirst Amendment limitations upon a StateÕs
authority to protect its citizens from the intentional infliction
of emotional distressÓ).)  The central concern of these cases is
to create Òbreathing spaceÓ for individual speech.  (Id. at 52.)  
Put simply, states may not ignore the effects of their laws on
First Amendment liberties, even when these laws are invoked
by private parties to protect private rights.

Much of the majorityÕs reasoning talismanically invokes
the notion of Òprivate property.Ó  (Hamidi, 94 Cal.App.4th at
339 (distinguishing Claiborne Hardware, Keefe, and Blatty as
involving Òprivate tort actions,Ó not Òprivate propertyÓ).)  But
there is nothing magical about Òprivate propertyÓ in the
speech context.[2]  That something may be labeled private
property does not eliminate First Amendment considerations.  
The U.S. Supreme CourtÕs accommodation of private property
and free speech carefully balanced the property rights of a
shopping center owner against the rights of leafleters -- with
no mention of state action at all. (Pruneyard Shopping Center
v. Robins (1980) 447 U.S. 74, 88.)  Copyright law, which
creates a species of private property in information, is
bounded by the First Amendment in at least two ways:  the
idea-expression dichotomy, and the fair use doctrine.  The fair
use doctrine allows a form of ÒtrespassÓ onto anotherÕs private
informational property.  Similarly, the state right of publicity
is bounded by the First Amendment.  (Comedy III
Productions, Inc. v. Saderup (2001) 25 Cal.4th 387.)  

Finally, the Court of Appeal reasoned that trespass cases
are unlike defamation cases because the latter cases Òpit
common law rights protecting reputation against the
constitutional right of a newspaper to publish,Ó while in the
former cases Òthe speakerÕs rights are pitted against a property
ownerÕs rights -- of at least equal constitutional force.Ó  
(Hamidi, 94 Cal.App.4th at 337.)  

This distinction makes no difference here.  That a
property owner has constitutional rights is not in doubt.  But
the quality of the rights at stake implicates only the question
of how such rights should be balanced, not the question of
whether judicial enforcement of those rights implicates the
First Amendment at all.  The U.S. Supreme Court confirmed
this point in holding that a landowner has no Fifth
Amendment takings claim against a state-created right to
speak on private property.  (Pruneyard, 447 U.S. at 82-88; cf.
Nebraska Press AssÕn v. Stuart (1976) 427 U.S. 539 (judicial
gag order intended to protect criminal defendantÕs Sixth
Amendment right to a fair trial found to be invalid prior

2.    The Court of Appeals wrongly concluded that
state action was lacking under the California

The majority also erred in finding that the injunction did
not implicate the state constitutional right of free speech.[3]  
The majority used the rule:  Òactions to halt expressive
activity on oneÕs private property do not contravene the
California Constitution unless the property is freely open to
the public.Ó  (Hamidi, 94 Cal.App.4th at 341, citing Golden
Gateway Center v. Golden Gateway Tenants Association
(2001) 26 Cal.4th 1013, 1033; id. at 1036.)  It then assessed
IntelÕs e-mail servers in terms of the public forum doctrine.

Here again the majority elides the distinctions between
ÒvirtualÓ and physical property and between chattels and land.   
Tellingly, the majority says that ÒIntel is as much entitled to
control its e-mail system as it is to guard its factories and
hallways.Ó  (Hamidi, 94 Cal.App.4th at 342.)  Golden
Gateway and its predecessor, Robins v. Pruneyard Shopping
Center (1979) 23 Cal.3d 899, affÕd. sub nom. Pruneyard,
supra, are cases involving property in land.  This case is about
trespass to chattels, not trespass to land.  

The majority compounds its error by analyzing the
speech issues in terms of the public forum doctrine.  The
question is not, however, whether IntelÕs e-mail servers can be
deemed a public forum; EFF does not claim that they are a
public forum.  Rather, EFF claims that state or common-law
doctrines underlying such judicial relief must provide
breathing space for free speech, and that judicial action that
restrains communications based on the content of those
communications requires speech scrutiny.  

Thus, even assuming that trespass to chattels can be
applied in this case, the Court of Appeals completely failed to
address the free speech issues and for this reason alone this
case should be reviewed by this Court.[4]  

III.    Conclusion

The Court of Appeal first distorted trespass to chattels
doctrine and was then forced into constitutional terrain that it
should not have entered in the first place.  In neither step did
the Court of Appeal manifest any recognition of the potential
effects of its reasoning on commerce and speech over the
Internet.  The petition for review should be granted in order to
correct these errors and avoid the unnecessary decision of
constitutional issues.

        Sincerely yours,

        Lee Tien    
        Attorney for Amicus Curiae
        Electronic Frontier Foundation


1 The state legislature has already addressed the problem of
unwanted e-mail.  (Hamidi, 94 Cal.App.4th at 352 (Kolkey,
J., dissenting) (citing Bus. & Prof. Code, §§
17538.4, 17538.45); Ferguson v. Friendfinders, Inc.
(2002)___ Cal.App.4th ___, 15 Cal.Rptr.2d 258 (upholding
Bus. & Prof. Code, §17538.4 against dormant
Commerce Clause challenge).)  

2 Judicial application of trespass to chattels is unlikely to raise
speech issues.  But the fact that a tort typically is not used
against speech does not insulate judicial enforcement when it
is so used.  (See generally NAACP v. Claiborne Hardware
(1981) 458 U.S. 886 (applying First Amendment scrutiny to
state application of common-law tort of malicious interference
with business).)  The harms alleged by Intel here stem
primarily from the communicative impact of HamidiÕs speech
on Intel and its employees, which is necessarily based on
content.  (Forsyth County v. Nationalist Movement (1992)
505 U.S. 123, 134 (ÒListenersÕ reaction to speech is not a
content-neutral basis for regulation.Ó).)  Thus, while trespass
to chattels may typically raise no speech issues, its application
here does.

3 Its analysis is somewhat unclear:  while the majority
appears to suggest that there was no state action and thus no
constitutional claim, it goes on to analyze the propriety of the
injunction on free speech grounds.

4 EFF does not address the proper resolution of the speech
issue in this letter, although EFF will do so if this Court
accepts the petition for review and permits EFF to submit an
amicus brief.