A Move to Muzzle E-Mail
Ken Hamidi lost his job at Intel Corp. after a long fight over a workers’ compensation claim, but he did not go quietly.
The engineer, 55, formed a support group for current and past Intel workers. He then sent six waves of e-mails critical of the company’s labor practices to thousands of the firm’s employees.
Eventually the giant chip maker obtained a court order preventing Hamidi from “trespassing” on the company’s e-mail system. The ruling, now on appeal before the California Supreme Court, has sparked a loud outcry from dozens of civil libertarians but won plaudits from industry.
The outcome of the battle, pitting private property rights against free speech, will help determine whether the Internet is a public forum regardless of the ownership of the servers and computers that make up the world wide system.
The decision is expected to be a milestone in the still-emerging field of cyber law. Because California has so much high-tech industry, many of the rulings on Internet law have come in California cases. It was one of the first states to regulate commercial e-mail, or spam.
Hamidi’s case breaks new ground because his messages expressed personal views, which the 1st Amendment generally prevents the government from censoring.
“We look at the Internet as a public resource, but that does not have to be true,” said Jennifer Granick, director of the Center for Internet and Society at Stanford University.
If the trespass ruling stands, “it means any Internet provider can become a gatekeeper and keep out e-mail it doesn’t like because of its political content,” said Ann Brick of the American Civil Liberties Union Foundation of Northern California.
But the U.S. Chamber of Commerce and other business groups said in a brief in the case that courts must assure “American businesses that e-mail is a tool worth having in the workplace, rather than a time bomb waiting to explode.”
No one has free-speech rights on private property that is not generally open to the public, said University of Chicago law professor Richard A. Epstein, who was selected by Intel to represent other industries in the case.
“There is no 1st Amendment right to go into the lobby of Intel to speak to its employees, and if he can’t use the lobby, why can he use the equipment,” which in this case is Intel’s server, asked Epstein.
Hamidi, who is married and has two daughters, describes his saga with Intel with the kind of emotion a jilted husband might have toward the wife who left him years earlier.
He began working for Intel in Folsom, Calif., in 1986. He said he loved his job, and believed he would spend the rest of his career with Intel.
Hamidi filed for workers’ compensation in 1992 after suffering a back injury in an automobile accident while returning from a conference.
He began gulping down Vicodin for pain, couldn’t sleep and was depressed, he said. He eventually asked for workers’ compensation for his depression too, contending it stemmed from his chronic back pain. Intel finally gave him a three-month medical leave, he said, but stopped paying for his medical treatments the day the leave started.
“They picked on the wrong guy,” Hamidi said over lunch in Sacramento, where he works as a compliance representative for a state agency. “They could not bring me to my knees.”
During his protracted struggle, Hamidi described having to wait for months and to drive long distances to see doctors specified by Intel. The firm videotaped him changing a tire after it had been slashed and used the videotape against him, he said.
Intel fired Hamidi in 1995 for failing to return to work after a medical leave. A state workers’ compensation appeals board eventually ruled against Hamidi on his psychiatric claim.
The appeals board found that his depression did not stem from his back injury and that he had exaggerated his problems to his doctors.
During his battle with Intel, Hamidi said, he entered a mental hospital twice and was placed under a suicide watch.
Hamidi credits the formation of FACE-Intel, a support group and Web site, with turning his life around. He said he has saved jobs at Intel by counseling employees not to file for workers’ compensation and has prevented suicides. Focusing on others’ problems distracted him from his own and gave him a voice, he said.
“Annual review time is very close,” warned one of six e-mails Hamidi sent over a two-year period. “Unfortunately many of you ... will be terminated.... We can help.”
In another e-mail to Intel, Hamidi wrote: “If you are on redeployment, it is highly likely that you are targeted for termination and there will not be any jobs available for you.... NEVER, EVER believe there is something wrong with you. Based on testimonies of numerous Intel victims, there is life after Intel that is rewarding.”
When Intel took Hamidi to Sacramento County Superior Court in 1998 to stop his e-mails, the out-of-work engineer could not afford a lawyer and initially represented himself.
His six e-mails had been sent in bunches that ranged from 8,000 to 35,000 at a time, meaning that Intel employees received an average of one e-mail from Hamidi every four months.
His case attracted the attention of legal scholars only after a Court of Appeal in Sacramento upheld the injunction last December, ruling 2 to 1 that he was committing “trespass to chattels.”
Chattel is private property other than real estate, and for decades courts have held that that someone can be liable for such a wrong only if the property was damaged or temporarily taken away from the owner.
A simple analogy is this: “If I kicked your dog, it would not be actionable unless the dog was hurt,” said UC Berkeley law professor Stephen Barnett, who teaches tort law.
Intel’s computer system was not damaged, nor was there even any evidence that Hamidi’s messages slowed the company’s e-mail service.
But the company said Hamidi’s e-mail had distracted employees, reduced morale, forced managers to spend time reassuring workers that their jobs were safe and required technical employees to work on efforts to block future e-mail from Hamidi.
The state Supreme Court has agreed to hear the case, which means it will be the first state high court to rule on the legal theory of “trespass to chattels” as applied to the Internet.
Because of the case’s potential impact, many in the legal community have rushed to embrace Hamidi’s case. The ACLU, a labor group, 41 law professors and other civil libertarian and Internet activist groups agreed to weigh in on Hamidi’s behalf. The state high court has yet to schedule arguments in the case, Intel vs. Hamidi.
William M. McSwain, who is representing Hamidi, wrote a law review article about the case while he was a student at Harvard Law School. McSwain has arranged for the international corporate law firm where he now works in Philadelphia to represent Hamidi at no charge.
No court would have issued an injunction based on trespass if Hamidi had sent his messages through the U.S. Postal Service, and e-mail should not be any different, McSwain maintains.
“We’re not talking about commercial advertising here,” said McSwain. “This is a gentleman trying to disseminate a message of important public concern to people who want to hear it.”
The ruling against Hamidi, if allowed to stand, could potentially turn millions of Americans who use the Internet into law breakers, McSwain said.
“You cannot have a situation where anything, even the movement of electrons, constitutes trespass,” he said. “The court needs to put a stop to this madness.”
Critics of the early rulings in the Intel case say courts should insist that companies deal with the Hamidis of the world by bringing nuisance or defamation cases against them. Under those legal theories, Hamidi probably would have fared better, analysts said.
The ACLU has asked the court to apply the trespass doctrine only in cases in which there is physical damage or impairment to the computers or the company server. If a barrage of e-mail caused computers to crash or slow down, the company would have a claim against the sender, they say.
But if the content of the message is at issue, free speech guarantees protect it, the ACLU’s Brick wrote. In Hamidi’s case, the content was the issue because Intel would not have objected if the messages had been laudatory, she said.
Intel declined to allow its lawyer in the case to be interviewed.
But Epstein, who represents industry groups aligned with Intel, said in a brief to the state high court that the uproar over the ruling stems from the fact that people tend to “wax mystical” when it comes to the Internet.
“I think the Internet is a communications tool, not a transformative social revolution,” Epstein said
“Intel runs its e-mail system beside -- not on -- the Internet highway,” he argued in the brief. “It is no more a part of the public infrastructure of the Internet than an office building or factory that is not open to the public but which happens to operate alongside the public highways.”
The United States Chamber of Commerce contends that the case is about a vengeful former employee trying to destroy a corporation that fired him for incompetence.
“If this court permits Hamidi’s conduct to continue unchecked in the absence of criminal and civil penalties, American businesses may choose to curb technological development and e-mail privileges in the workplace,” wrote Mark Theodore, who is representing the U.S. and California chambers in the case.
In its brief, Intel said Hamidi evaded Intel security measures put in place to block his mail.
“To avoid detection and the various measures Intel might take to block his messages,” the brief said, “Hamidi sent e-mails in the dead of night and from different computers.”
Hamidi smiled when asked about this. He said he sent the e-mails late at night because computers at the time were slower than they are now, and he had to send his bulk messages when there was less Internet traffic.
He evaded Intel’s attempted blocks by switching servers and adding dashes or periods to his name and the name of his organization, he said. He obtained the e-mail addresses of Intel employees from someone inside Intel who sent him the directory anonymously, he said.
Chuck Mulloy, an Intel spokesman, described Intel as a “meritocracy,” and “a fair place to work,” headquartered in Santa Clara with 80,000 employees worldwide.
He said Intel has not tried to stop Hamidi from expressing his views on his own Web site, in leaflets or in media interviews. “But when he sends e-mail in the volume he does, in our view he is trespassing on our property.”
Hamidi’s messages contained a section in which recipients could ask to be removed from Hamidi’s list. He said he honored about 450 such requests.
When the court barred him from sending e-mails to Intel employees, Hamidi rented a horse and buggy and delivered leaflets to Intel’s headquarters. Another time he went to Intel on horseback.
Hamidi runs his support group out of his home office in a working-class neighborhood north of Sacramento. He has two computers, an array of office equipment and a book of press clippings.
“Did you know I was ‘Disgruntled Employee of the Year’ in 1997?” he asked with a grin. An Internet magazine gave him the title.
Hamidi continues to counsel Intel workers who contact his Web site, www.FaceIntel.com, and he is helping to facilitate three possible class-action lawsuits against the chip maker. He receives e-mail on his site from people around the world, and spends hours each evening at his computers.
“They cannot force me into submission,” Hamidi said. “If I have been wronged, I will stand up and say, ‘You have wronged me.’ That is my constitutional right.”
