The California Supreme Court is considering whether unsolicited e-mail constitutes an illegal trespass to another’s computer system. One Electron Too Far?: Trespassing Via the Internet

You get to the office, pour the obligatory cup of coffee, turn on the computer, and the work day begins. Most likely, your first order of business is checking your messages, which in this information age means checking your e-mail. Inevitably, the inbox opens to page after page of new e-mail messages that have piled up overnight, and now your sole goal is to quickly determine how many you can delete in one swift click without ever reading past the subject line. After all, although there might be one or two messages from colleagues at work or friends from college, most of your inbox is full with the Internet equivalent of direct mail advertisements and telephone solicitations – junk.

You didn’t ask for those e-mails, nor do you want them. But there they are, demanding that you choose between reading and deleting them. Thus, you embark on your daily guessing game. "Is this message from someone I actually know?" "Do I really need to read this?" The answer is almost always "No," so you make a clean sweep without ever reading the contents of e-mails you quickly throw into your electronic trash can. All the while you wonder why your inbox has become just another way you can be reached by annoying unsolicited communications.

The California Supreme Court is now pondering that same question. Specifically, the court is considering whether unsolicited e-mail constitutes an illegal trespass to another’s computer system.

The case arose after Kourosh Kenneth Hamidi, a disgruntled former Intel employee, sent e-mail messages to thousands of Intel employees highlighting what he believed to be the company’s abusive and discriminatory employment practices. Intel didn’t take kindly to the messages and tried to block them from reaching Intel inboxes. The Company also demanded that Hamidi stop his e-mail campaign. But neither of those measures worked: Hamidi refused to end his e-mail barrage, and computer security teams were unable to block the incoming messages as the sender employed evasive maneuvers. As a result, Intel went to court to enjoin Hamidi from sending e-mail to Intel employees.

Intel sued under the theory that sending unsolicited and unwanted e-mail messages to its inboxes constituted a trespass to the company’s computer systems – a trespass to chattels in legalese. Intel’s approach is quite novel considering that Hamidi did not himself hack into Intel-owned hardware or software. Instead, he merely sent e-mail messages that were received by Intel’s machines on the other end.

Both the trial court and intermediate appellate court found in favor of Intel and ordered that Hamidi cease sending any e-mail to Intel-owned mailboxes. But Hamidi has appealed to the California Supreme Court with the help of a big-time Philadelphia law firm, and now the California high court is considering whether someone can go one electron too far by trespassing via e-mail. The case not only presents a novel legal theory but could also go a long way toward defining property rights and boundaries in cyberspace.

As Hamidi points out, "the Internet is nothing more than billions of electronic signals traveling between individual private computers." Thus, unlike physical trespass, defined by intrusions into well-understood three-dimensional space, virtual trespass suffers from the absence of any recognized electronic boundaries.

To solve the virtual boundary problem, the lower court simply imposed physical boundaries on the virtual world. According to the lower court, "[e]lectronic signals generated and sent by computer [are] sufficiently... tangible to support a trespass cause of action." Thus, Hamidi trespassed onto Intel’s computer systems when his e-mail reached Intel-owned hardware and software uninvited and unwelcome.

But the reduction of electronic signals to physically-tangible blips intruding into computers and software owned by specific individuals and corporations is far from satisfactory. As Professor Dan Burk of the University of Minnesota Law School explained, "the impingement of electrons . . . is inherent in connecting a machine to the Internet." Thus, if an uninvited and unwanted electronic signal alone can supply the basis for trespassing onto another’s computer system, then trespass is the all-purpose Internet tort and would make innumerable transmissions actionable.

On the other hand, it seems unfair to expect computer hardware and software owners to bear the economic burden for uninvited and unsolicited communications. Like physical reality, the virtual world is made up of scarce resources, such as bandwidth and storage space on servers and hard drives. Unsolicited and unwanted electronic communications diminish these scarce resources, at a significant cost to the receivers and no cost to the senders. This wholesale imposition of costs on the receiver is much different from direct mail or other physically tangible communications that cost the sender at least the price of postage. Thus, given the disparity in shouldering the burden of costs, surely the electronic receiver must have some means of protecting himself from the virtual taking of the scarce electronic property he paid for.

The California high court must navigate these hostile waters between imposing incompatible physical boundaries on a virtual world and surrendering the property rights of those who paid to own and control their computer systems and electronic space. The case is fully briefed and a decision can be expected within the next year.

September 12, 2002
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