Justices Appear Split Over Intel E-Mail Case

Can a judge bar an individual from sending mass e-mails to a private company if the messages are not advertisements and do not impair the company’s computer system?

The California Supreme Court appeared divided over the question during a hearing Wednesday on a widely watched Internet case.

The question is at the heart of a dispute between Intel Corp. and a fired employee who sent Intel workers messages critical of the company. The giant chip maker obtained a court order to prevent Ken Hamidi, the fired worker, from sending any more messages.

During lively arguments in Los Angeles, four of the court’s seven justices asked questions that appeared to indicate support for Hamidi’s position. Lawyers on both sides of the dispute said it was impossible to predict how the court would eventually rule in the case, which pits freedom of speech against private property rights.

After losing his job in 1995 following a workers’ compensation dispute, Hamidi sent Intel workers six batches of e-mail ranging from 8,000 to 35,000 messages at a time. His messages warned employees that they too might be fired.

Justice Kathryn Mickle Werdegar suggested that Intel tried to stop the e-mails because they were highly critical of the corporation’s labor policies. The 1st Amendment guarantees freedom of speech.

She questioned whether Intel would have been disturbed by a mass e-mail that informed employees of company reunions. “I doubt very much Intel would be seeking to enjoin” in that case, Werdegar said.

On the other side, Chief Justice Ronald M. George pointed out that the e-mail, which Intel estimated to amount to a total of 100,000 messages, may have been disruptive. Can that kind of “barrage” be viewed as reasonable? he asked.

Lower courts have sided with Intel, ruling that Hamidi’s e-mails amounted to a trespass of the company’s computer system and disrupted Intel. When the trespass is of property other than real estate, courts have usually held that some harm must have been done to the property.

Several members of the court pointed out that Intel’s computer system had neither crashed nor slowed because of the e-mail. Other justices suggested the loss of employee productivity and lower morale amounted to harm.

Michael A. Jacobs, a lawyer for Intel, told the court that Intel has a robust computer system that was able to withstand the mass e-mail. Still, it may be impossible to predict how many messages would cause a particular company computer problems, he said.

“We can’t tell which straw breaks the camel’s back,” he said. Jacobs likened Hamidi’s e-mail to physical trespass on Intel property.

“If he entered the facility and tried to leaflet, he could be thrown out,” Jacobs said.

William M. McSwain, representing Hamidi, said it would be “extremely rare” for mass e-mails from an individual to disrupt a computer system. He said it would take millions of commercial e-mails, or spam, to damage a server.

Court of Appeal Justice Steven Z. Perren, sitting in for a justice who recused himself, noted that Hamidi had sent employees about one e-mail every three weeks. He observed that Intel could have sought a court order based on nuisance or defamation, which might have been harder for Intel to prove, instead of trespass.

Justice Joyce Kennard suggested that the court would be creating “a brand new” legal theory if it found Hamidi had legally trespassed on Intel’s property with his e-mail. She also questioned how Intel was hurt by the messages.

Justice Janice Rogers Brown appeared more critical of Hamidi’s position. She indicated that blocking one person from sending e-mail would be less severe than ordering employees to refrain from reading personal messages.

“It would be better for the company to restrict access to all outside e-mail rather than just exclude messages they don’t want?” Brown asked Hamidi’s lawyer. “How is that better?”

McSwain said creating a company policy about use of the e-mail system was simply one tool at Intel’s disposal.

Hamidi, 56, who lives near Sacramento and works as a compliance officer for the California Franchise Tax Board, left the hearing with guarded optimism. Although he remains barred from e-mailing Intel employees, he runs a Web site devoted to exposing what he views as problems at Intel.

Hamidi predicted the vote on his case, Intel v. Hamidi, S103781, would be close.

“I am hoping it will be in my favor,” he said. “Let’s say, I wasn’t totally disappointed.”

A ruling is expected within 90 days.