No. S103781 IN THE SUPREME COURT OF CALIFORNIA
INTEL CORPORATION
PlaintifflRespondent
v.
KOUROSH KENNETH HAMIDI
Defendant!Appellant
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)
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Court of Appeals No.
C033076
Superior Court No.
98-AS-05067
(Hon. John R. Lewis,
Judge Presiding)
BRIEF OF AMICUS CURiAE THE THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE EXPRESSION SUPPORTING APPELLANT AND REVERSAL O/Counsel:
Robert M. O'Neil
The Thomas Jefferson Center for
the Protection of Free Expression
400 Peter Jefferson Place
Charlottesville, VA 22911
(434) 295-4784
J. Joshua Wheeler, Esquire
Calif. State BarNo. 162911
The Thomas Jefferson Center for
the Protection of Free Expression
400 Peter Jefferson Place
Charlottesville, VA 22911
(434) 295-4784
ATTORNEYS FOR AMICUS CURIAE TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................................................... ii APPLICATION TO THE HONORABLE CHIEF JUSTICE FOR LEAVE
TO FILE AS AMICUS CURIAE .................................................................. 1
FACTUAL AND PROCEDURAL BACKGROUND ................................... 3 SUMMARY OF ARGUMENT .................................................................... 4 1. AN INJUNCTION PROHIBITING THE TRANSMISSION OF E­
MAIL MESSAGES CONTAINING NON-COMMERCIAL AND
FULL Y PROTECTED SPEECH POSES GRAVE
CONSTITUTIONAL CONCERNS AND THREATENS THE
INTERNET'S DEVELOPMENT AS A NEW MEDIUM OF
COMMlJNICATION .......................................................................... 7
A. California Trespass Law Should Not be Construed to Reach Such
Electronic Communications as Defendant/Appellant's E-Mail
Messages ............................................................................................ 7
B. Similar Cases Involving Alleged Electronic Trespass Are Only
Superficially Similar and Readily Distinguishable .............................. 9
C. The Non-Commercial and Fully Protected Nature of
Defendant!Appellant's Messages Merits Strict Scrutiny of Any Order
Barring Their Future Transmission ................................................... 11
D. Non-commercial Speech, Even on Private Property, Merits Special
Protection Under this Court's Decisions ........................................... 15
E. An injunction Against the Sending of Unwelcome E-Mails
Threatens the Very Nature of the Internet as an Exciting New Medium
of Communication ............................................................................ 18
CONCLUSION .......................................................................................... 23 TABLE OF AUTHORITIES Cases: Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826, 24 P.3d 493 (2001) ........ 12 America Online, Inc., v. LCGM, Inc., 46 F. Supp. 2d 444 (E.D. Va. 1998) ........................................................................................................... 6, 9, 10 Ashcroft v. ACLU, 122 S. Ct. 1700 (2002) .................................................. 18 CompuServe Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997) .................................................................................................. 6, 9, 10 Diamondv. Bland, 11 Cal. 3d 331,521 P.2d 460 (1974) ............................ 13 Diamondv. Bland, 3 Cal. 3d 653,477 P.2d 733 (1970) .............................. 15 eBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d.l058 (N.D. Cal. 2000) .... 6 Golden Gateway Center v. Golden Gateway Tenants Association, 26 Cal. 4th 1013,29 P.3d 797 (2001) ........................................................................ 5, 15 Intel Corp. v. Hamidi, 94 Cal. AppAth 325 (Ct. App. 2001) .......................... 7 Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980) .................... 5, 15 Reno v. ACLu, 521 U.S. 844 (1997) ............................................... 18, 19,21 Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899, 592 P.2d 341 (1979) . ................................................................................................................... 15 Schwartz-Torrance Investment Corp. v. Bakery and Confectionery Workers Union, Local No. 31,61 Cal. 2d 766,394 P.2d 921 (1964) ..................... 5, 15 ~Vhitney
v. California, 274 U.S. 357 (1927) ............................................ 4, 14 11 Wollam v. City ofPalm Springs, 59 Cal. 2d 276,379 P.2d 481 (1963) ....... 13 Constitution, Statutes, Regulations and Rules: U.S. Const.: Amend. I ............................................................................................ passim Cal. Bus. & Prof. Code §§ 17538.4 .............................................................. 9 Cal. Bus. & Prof. Code §§ 17538.45 ............................................................9 Cal. Penal Code § 653 (m) ............................................................................ 9 15 U.S.C. § 1692(d) (2001) ........................................................................... 9 15 U.S.C. § 6102 (2001) ............................................................................... 9 47 U.S.C. § 230 (a) (3) (1994 ed., Supp. V.) ............................................... 18 Other: Dan L. Burk, The Trouble With Trespass, 4 J. Small & Emerging Business L. 27 (2000) ................................................................................................ 22 III
APPLICATION TO THE HONORABLE CHIEF JUSTICE
FOR LEAVE TO FILE AS AMICUS CURIAE
The Thomas Jefferson Center for the Protection of Free Expression
("the Center") respectfully requests permission to file a brief as amicus
curiae in support of Defendant/Appellant Kourosh Hamidi. The Center is
well-familiar with the facts and issues of this case having previously filed a
letter with this Court urging review of the lower court's decision. Located in
Charlottesville, Virginia, the Center is a non-profit, non-partisan
organization whose sole mission is the protection of the First Amendment
rights of free speech and free press. Founded in 1990, the Center has
participated actively in the litigation of First Amendment issues in federal
and state courts across the country, including this Court. A number of these
cases have involved the issue of First Amendment protections for expression
on the Internet.
The Center also pursues its mission through a variety of educational
programs aimed at engaging the public in discussion of the role that free
expression has played, and continues to play, in American society. The
Center believes that the decision of the lower court, if allowed to stand, has
ominous implications for the right to speak freely both in California and
across the United States. Additional briefing is necessary to fully explore the
constitutional implications that this case will have for free speech on the
Internet and in more traditional venues.
For the foregoing reasons, the Center applies to the Honorable Chief
Justice for leave to file as amicus curiae.
Respectfully submitted,
rO
.
. J6shua Wheeler, Esquire
Calif. State Bar No. 162911
The Thomas Jefferson Center for
the Protection of Free Expression
400 Peter Jefferson Place
Charlottesville, VA 22911
(434) 295-4784
O/Counsel:
Robert M. O'Neil, Esquire
The Thomas Jefferson Center for
the Protection of Free Expression
400 Peter Jefferson Place
Charlottesville, VA 22911
(434) 295-4784
2
"
..
FACTUAL AND PROCEDURAL BACKGROUND The PlaintifflRespondent Intel Corporation has invoked the authority
of the California courts in an effOli to prevent futiher electronic
communication between Defendant/Appellant Kourosh Hamidi and several
thousand former fellow employees on matters of public importance and
concern. Specifically, the e-mail messages which Hamidi had previously
sent to between 8,000 and 35,000 of Intel's employees addressed allegedly
abusive and discriminatory employment practices. Although the sending of
such messages through Intel's e-mail system caused no harm to that system,
nor did the transmission in any respect disrupt the company's normal
business operations, Intel alleged that the mere posting of such messages
constituted a nuisance and a trespass to chattel in violation of California
law.! The Superior Court found Hamidi's actions constituted a trespass to
chattel and issued an injunction against any further sending of such
messages. The Court of Appeals, over a vigorous dissent, affirmed the
injunction and this Court agreed to review the case.
! Intel subsequently dropped the nuisance charge.
3
SUMMARY OF ARGUMENT
If there be time to expose through discussion the falsehood
and fallacies, to avert the evil by the process of education,
the remedy to be applied is more speech, not enforced
silence.
Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J. concurring)
The disposition of this case is of the utmost importance to the future
of electronic and digital communications. If trial courts may enter decrees
of the type challenged here, the freedom to communicate via the Internet
will be severely hampered. Under such a precedent, information of great
potential value to recipients, and to society as a whole, may be suppressed
simply because the manager of a digital communication system fInds the
content of the messages abhorrent in any respect. If the only harm or
disruption that need be shown is the time that a person devotes to reading ­
or deleting - unsolicited messages, the potential for such constraints seems
limitless and has ominous implications both for the development of e-mail as
a medium of expression and for more traditional forms of written
communication.
The entry of such an injunction by a California judge poses a special
irony in view of this Court's consistent protection of free expression without
4
regard to the nature of the property on which communication takes place.
For nearly four decades, since Schwartz-Torrance Investment Corp. v.
Bakery and Confectionery Workers Union, Local No. 31,61 Cal. 2d 766,
394 P.2d 921 (1964), this Court has emphasized the transcendent nature of
free expression, without regard to the locus of title to the property on which
protected communication occurs. This principle was squarely recognized
and approved by the United States Supreme Court as an appropriate
application of California law in Pruneyard Shopping Center v. Robins, 447
U.S. 74 (1980), and has been reaffinned by this Court as recently as Golden
Gateway Center v. Golden Gateway Tenants Association, 26 Cal.
4th
1013,
29 P.3d 797 (200 1). While of course not every communication on private
property claims constitutional protection, and the general laws of trespass
apply in California as elsewhere to protect proprietary interests from various
forms of invasion and intrusion, there is a striking analogy between the
physical mall or shopping center where free speech has been a special
concern of this Court, and the electronic or digital spaces which increasingly
provide the expressive forum for the twenty-first century. Given the
steadfast commitment of this Court to protect communication in the physical
forum, it would be ironic in the extreme were this Court to afford less
5
protection to speech in the electronic forum upon which society will
increasingly depend for future communication and receipt of information.
While other courts have addressed superficially similar questions, the
facts in those cases have differed dramatically from the facts that are now
before this Court. Some such cases have involved unsolicited and purely
commercial e-mail messages of the type the California Legislature has
specifically regulated. See, e.g., CompuServe Inc. v. Cyber Promotions, Inc.,
962 F. Supp. 1015 (S.D. Ohio 1997); America Online, Inc. v. LCGM, 46 F.
Supp. 2d. 444 (E.D. Va. 1998). Other cases that bear a superficial
resemblance to the instant litigation have implicated substantially greater
interests on the part of a digital system operator -- for example,
demonstrable preemption or displacement of the normal operations of that
system. See eBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d.1058, 1066,
1071 (N.D. Cal. 2000). Where neither of those circumstances is present­
where the messages are non-commercial and fully protected, and where the
electronic mail system has suffered no harm or even diversion - the
interests of free speech far outweigh any countervailing interests.
6
I. AN INJUNCTION PROHIBITING THE TRANSMISSION OF E­
MAIL MESSAGES CONTAINING NON-COMMERCIAL AND
FULL Y PROTECTED SPEECH POSES GRAVE
CONSTITUTIONAL CONCERNS AND THREATENS THE
INTERNET'S DEVELOPMENT AS A NEW MEDIUM OF
COMMUNICATION.
A. California Trespass Law Should Not be Construed to Reach Such
Electronic Communications as Defendant/Appellant's E-Mail
Messages.
California's law of trespass to chattels, like that of most states, requires
evidence of injury or harm to the affected property as an indispensable basis
for relief against an alleged trespass. In this case, there was no claim that
the transmission or distribution of the e-mail messages, even to thousands of
addresses, in any way actually damaged the server--the very object in which
Intel had a possessory interest. As the dissenting judge in the Court of
Appeals noted with much force, the vital element that has always been
required as a basis for relief at the behest of an aggrieved personal property
owner is simply absent, and cannot be inferred or implied from any of the
circumstances presented here. Intel Corp. v. fIamidi, 94 Cal. App. 4th 325,
352 (Ct. App. 2001) (Kolkey, J. dissenting). Nonetheless, the lower court
identified (I) the loss of productivity of Intel's employees who were
distracted from their work while they read and deleted Mr. Hamidi's e-mails
7
and (2) the time Intel's security department spent trying to halt the
distractions as harms sufficient to support a claim of trespass to chattel. Id
at 333. By identifying the harm as Intel's lost productivity, the lower court
equates the tort with the steps taken to prevent it from occurring. This
analysis puts the cart before the horse and makes it possible to raise a
number of tort claims despite not having suffered an actual injury. Had these
messages been sent instead to fonner colleagues through the United States
Postal Service, the time taken to open and read the letters could hardly have
rendered trespassory an otherwise protected communication.
The situation might well have been different if, for example, the
content of the messages were so dense - containing complex graphics rather
than the simple text which they in fact contained - that the capacity of
corporate system had been, even temporarily, diverted or preempted by the
handling of such unwelcome messages. That issue is not now before the
Court, nor is there any need to detennine what level of preemption or
diversion of system capacity might constitute a trespass to chattels. The
simple fact is that the essential element of "harm" or "injury" does not exist
in the record. On that basis, ifno other, the judgment below should be
reversed.
8
B. Similar Cases Involving Alleged Electronic Trespass Are Only
Superficially Similar and Readily Distinguishable.
Several other courts have dealt with trespass claims based upon
electronic messages, and a few have granted relief on a trespass theory.
Such cases as CompuServe, Inc. v. CyberPromotions, Inc., 962 F. Supp.
1015 (S.D. Ohio 1997) and America Online, Inc. v. LCGM, 46 F. Supp. 2d
444 (E.D. Va. 1998) are readily distinguishable on two grounds. For one,
the content of the communications in such cases was "spam" or unsolicited
commercial e-mail, of the very type the California Legislature has
determined should be unlawful. See Cal. Bus. & Prof. Code §§ 17538.4 and
17538.45. 2 Indeed, the Legislature's judgment that such a prohibition would
In many ways, the problem of unsolicited e-mail is similar to the much
older problem of unsolicited phone calls. Both systems involve one-on-one
communication between individuals through electronic means, and both
mediums face a similar risk of unsolicited communication. In dealing with
the problem of unwanted telephone calls, the federal and state legislatures
responded with numerous pieces of legislation. For instance, Congress has
dealt with the problems of unwanted telemarketing through the
Telemarketing and Consumer Fraud & Abuse Prevention Act, 15 U.S.C. §
6102 (2001), and phone harassment by debt collection agencies through the
Fair Debt Collection Practices Act, 15 U.S.C. § 1692(d) (2001). The
California Legislature has also responded with measures such as Cal. Penal
Code § 653(m), which makes it a misdemeanor to use obscene or threatening
language in an attempt to harass someone on the telephone. Thus, both the
federal and state legislatures proved themselves capable at dealing with
unprotected and unsolicited telephone calls.
2
9
not extend beyond bulk commercial messages strongly implies that non­
commercial messages which convey a fully protected message of public
importance should be treated very differently.
The other basis on which such earlier cases may be distinguished
concerns not the content of the messages but the consequences of their
posting. The courts in these cases emphasized the degree to which, and the
. ways in which, the dispatch of such messages adversely and tangibly
affected the server and the owner's normal activities. In CompuServe, for
example, the cowi stressed the fact that the mass commercial mailings
"demanded the disk space and drained the processing power of plaintiffs
computer equipment, making those resources not available to serve
CompuServe's subscribers." 962 F. Supp. at 1022. As a result, some
subscribers had not only complained but had actually terminated their
accounts, causing a loss of the company's customer base, good will and
future earning potential. Id. at 1023. Similarly, in America Online, Inc., v.
LCGM, 46 F. Supp. 2d 444 (E.D. Va. 1998), the court noted with concern
the degree to which massive spam transmissions had "burdened [AOL's]
equipment" and had impaired the company's corporate standing and good
will with present and potential subscribers. Id. at 449. Such circumstances
10 are as clearly absent in the present case as they were compelling in the
earlier cases. One might add that broader band width, changes in system
capacity, and the progress of technology reduce the likelihood that even
massive transmissions in the future will create the SOlis of displacement or
diversion problems they created in the mid to late 1990's. In any event, the
likelihood that several thousand pure text messages would today pose a
comparable threat to system capacity seems inconceivable - and, most
important, no such consequences have been alleged here.
C. The Non~Commercial and Fully Protected Nature of
Defendant/Appellant's Messages Merits Strict Scrutiny of Any Order
Barring Their Future Transmission.
Unlike the commercial bulk e-mails that have been the focus of much
of the earlier litigation (and of California's anti -spam statute) the content of
Hamidi's messages to his former colleagues deserves full protection under
both the United States and California Constitutions. In fact, the theme of
these messages - allegedly abusive and discriminatory employment
practices on Intel's part -- deserves special recognition in a set of
communications between ±olmer and continuing employees of a highly
visible and successful company. Whatever might have been the merits of
11 such allegations, they are not in issue here, but rather the appropriateness of
such concerns as a topic of discussion among past and present workers in a
large company. Any suggestion that an employer may be legally obligated
to protect its employees from receiving such messages (see Brief of
Respondent/Plaintiff, p. 14, n.3) seems perverse, and the reliance on Aguilar
v. Atlantic Richfield Co., 25 Cal. 4th 826, 24 P.3d 493 (2001) wholly
misplaced. Granting that the content of incoming messages might
occasionally evoke employer concern, and even warrant intervention to
insulate employees (for example, from a racially or sexually hostile work
environment), the content of Hamidi's messages, however unwelcome they
may have been to management, inflicted no harm on Intel's employees that
required shielding by corporate supervision of the communications system.
If a response to Hamidi's allegations was warranted, as it may well have
been to one or more of his messages, the company's senior management
would be ideally positioned to commandeer the system for responsive
purposes. The remedy in such a case, classically, is more speech, not
suppression of an unwelcome message.
The character of these communications bears upon a related issue.
The severity of a restraint on speech depends in part on the extent to which
12 alternative channels survive. This Court has recognized that where ample
alternatives exist by which to convey a message or reach an audience, the
closing of one channel may be less suspect. Diamond v. Bland, 11 Ca1.3d at
335, 521 P.2d at 463. Conversely, this Court has stressed, at least since
Wollam v. City o/Palm Springs, 59 Cal. 2d 276,379 P.2d 481 (1963), that
even a seemingly content-neutral restriction on speech may be suspect,
whatever its intent, if it has the effect of silencing a particular message. Id.
at 288, 379 P.2d at 488. In the present case, the growing primacy of e-mail
as a way to reach and share concerns with fellow employees, or other like­
minded or interest groups, heightens the severity of the impact of an order
such as that which the Superior Court entered. It may be that Hamidi could
have sent at least one batch of individually addressed and stamped letters to
a1135,OOO of his former colleagues, or could have compiled and used a roster
of telephone numbers, or could have resorted to paid advertisements in some
medium likely to reach at least some Intel workers. Yet the realities of the
digital age point increasingly to the inevitability of e-mail as the nearly
exclusive, and surely the primary and preferred means by which to convey a
particular message to its intended audience. Under such conditions, the
teaching of the Wollam decision is that curbing such a dominant channel is
13 far more than simply the regulation of the time, place and manner of
expressIOn.
Before leaving the subject of alternatives, it is worth noting that an
employer like Intel has available less restrictive means by which to protect
its interests. As noted earlier, such an employer can respond immediately by
sending a counter message to the very same employees, at little or no added
expense, and with certainty that the very same audience will be reached.
Presumably responses could be posted through other corporate
communications channels, to which individual employees would have access
only to read and not (unless the employer so wished) to respond. When
hostile messages appear in Internet chat rooms and news groups, albeit
beyond direct corporate control, various lawful and nonrestrictive rej oinders
have been developed. Given the abundance of alternative means by which an
employer's interests may be protected, the burden accompanying an
injunctive request seems especially heavy, and not easily met in a case like
this where less restrictive options seem not to have been invoked. Cf
rVhitney v. California, 274 U.S. 357,277 (1927) (Brandeis, J. concurring).
14 D. Non-commercial Speech, Even on Private Property, Merits Special
Protection Under this Court's Decisions.
Whatever may be the state of speech on private propeliy in states
other than California, this Court has been singularly protective of such
expression against trespass claims similar to that which Plaintifti'Respondent
has advanced here. Even in the context of real property, where a trespass
claim requires no showing of hann or injury, California law has consistently
favored the speaker's interest against a property owner's "theoretical right to
control and possession of private property." Schwart=- Torrance Investment
Co. v. Bakery and Confectionery Workers Union, Local No. 31, 61 Cal. 2d
766, 772, 394 P.2d 921, 924 (1964). This balance was reaffirmed later in
Diamondv. Bland, 3 Cal 3d 653, 477 P.2d 733 (1970) and Robins v.
Pruneyard Shopping Center, 23 Cal. 3d 899, 592 P.2d 341 (1979), aff'd sub
nom, Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). Although
the earlier cases, notably Schwartz-Torrance, relied in part on the special
protections which law and policy accord the speech of a labor organization,
Pruneyard involved not a union but a group of students seeking suppOli for a
position on Middle Eastern policy which the mall's owners found abhorrent
and sought to enjoin. 447 U.S. at 77. The most recent such case, Golden
Gateway Center v. Golden Gateway Tenants Association, 26 Cal.
15 4th
1013,
29 P.3d 797 (2001), also arose well outside the labor organizing context,
suggesting a substantially broader focus to the doctrine.
A second distinction might seem more troubling to the proposed
analogy. This Court has indicated that a propeliy owner's injunctive claim
is to be qualified in this way "only if the property is freely and openly
accessible to the public." Id. at 1031, 29 P.3d at 809. Arguably a
corporation's internal e-mail system would thus be exempt from this
balancing process. There are, however, two crucial countervailing factors.
For one, the proprietary interests that have been subordinated to speech
claims have heretofore invariably been those of real property owners ­
interests that are potentially impaired by a trespassor who does no more than
set foot on the premises without permission. If real property owners'
trespass claims are subject to such a balance, and must often yield to a
speaker's choice of forum, then the interests of personal property or chattel
owners should yield even more readily to a comparable expressive interest.
The other qualification concerns the very nature of the medium or
property. While the core purpose of a mall, shopping center or apartment
complex can hardly be said to be communication of information and ideas,
an e-mail system surely envisions expressive activity as its principal role.
16 Intel's e-mail system was not limited to employee-to-employee
communication. In that sense, Hamidi's use of Intel's server was of the very
type that the company intended - even if the content of his messages hardly
met their hopes and expectations. Unlike the leafletter or pamphleteer at the
mall, or the newsletter distributor in the apmiment complex, whose activity
and message both diverge sharply from the owner's expectations, the former
employee who wishes to e-mail his co-workers is at least using the system in
the way it was intended to be used, however unwelcome to management
may be his message. Given this concordance, Golden Gateway's view of
the nature of property subject to expressive claims surely does not bar the
extension of the analogy to situations such as the one now before this Court.
Moreover, the balancing process itself seems even more appropriate to
intangible property such as a digital network than to the real property such as
malls and apartment complexes to which this COUli has consistently applied
it for nearly four decades. It would be ironic indeed if a corporate plaintiff
were protected against alleged electronic trespass to a greater degree than it
would be protected if it sought to bar a disgruntled former worker from
handing out hostile leaflets at the entrance to the company parking lot.
17 E. An injunction Against the Sending of Unwelcome E-Mails
Threatens the Very Nature of the Internet as an Exciting New Medium
of Communication.
The United States Supreme Court has consistently described the Internet
as a "vast democratic forum" that is "open to all comers" and which has
created a "new marketplace of ideas [with] content that is as diverse as
human thought," Reno v. ACLU, 521 U.S. 844, 868, 870, 888, 885 (1997).
Quite recently the Justices reaffirmed that view, noting that "[t]he Internet
offer[s] a forum for true diversity of political discourse, unique opportunities
for cultural development, and myriad avenues for intellectual activity."
Ashcroft v. ACLU, 122 S. Ct. 1700, 1703 (2002) (quoting 47 U.S.C. § 230
(a) (3) (1994 ed., Supp. V.». While the high Court has also acknowledged
the appropriateness of some regulation of the Internet and the material to
which it provides access, the early cases establish a level of protection
comparable to that which has long been accorded to the most favored of
traditional expressive media. These rulings also reflect a strong presumption
in favor of protection for digital communication whenever interests collide
or conflict. In such a context, the present case offers this Court its first
opportunity to define the nature and legal status of the Internet under
California law. The stakes are especially high in the state where so many of
18 the pioneering and continuing developments in digital communication have
occulTed, and where much of the maturation of the Internet is bound to take
place in the years ahead.
A review of the basic technology that provides e-mail service reveals
that applying the tort of trespass to chattels to e-mail messages would
significantly reduce the content of expression on the Internet -- content that
the U.S. Supreme Court stated "is as diverse as human thought." Reno, 521
U.S. at 852. The lower court's holding forbids transmission of e-mail
messages across Intel's servers on the ground that this constitutes "touching"
(and hence trespass) to Intel's chattel (the server). "Touching," in this
instance, is highly theoretical in that it is nothing more than electron
impulses. All information which travels over the Internet is transmitted as
digital packets--sequences of 1's and O's which, when reassembled by the
recipient's hardware, re-form the sender's message, Web page, or sales
order. When transmitted, these digital packets can pass through a myriad of
privately and publicly owned Internet servers. Two transmissions to the
same destination will follow different routes when they are initiated from
different Internet connections (the unique "IP address"). The Internet user,
however, has no control over the route a transmission takes. Given that a
19 transmission incurs no cost to the sender as it travels from server to server,
the route it takes is irrelevant to the sender. This is the architecture of the
Web.
Recognition of a private "trespass" action based solely on data packet
transfer would fundamentally reshape the Internet as we know it. A new
body of digital/electron contact "property" rights would develop. Such
rights would require new technology that would allow users to control the
paths of their transmissions which, in turn, would create the potential of
servers charging fees for passage through their hard drive or server
"property." This would introduce the need for Federal regulation just as the
airwaves, telephone lines, and TV cables are regulated. Until such changes
are made, the fact that one could be charged with trespass for sending an e­
mail, coupled with the fact that one cannot control the servers through which
an e-mail passes, creates the potential for a severe chilling effect on who
says what on the Internet. In addition, the legislative and technological
changes required in response to the lower court's ruling would obviously
increase the cun"ent (often negligible) costs associated with using the
Internet thereby reducing the number of people who can take advantage of
this tremendous resource. As a result, the Internet would no longer be "the
20 vast democratic fora" as the U.S. Supreme Court has described it. Reno, 521
U.S. at 868.
In addition, the lower court's decision raises the potential of chilling
expression by other means of electronic communication such as telephone
calls, fax messages, radio and television signals. In each of these mediums,
the only physical contact is electrons flowing from one machine to another.
The reasoning that allows a plaintiff to bring a trespass action for unsolicited
e-mails applies equally well to these other forms of electronic
communication.
The specific consequences of an adverse ruling in this case thus span
a broad range of potentially harmful effects. While the corporate e-mail
system is an important element in the burgeoning universe of electronic and
digital communications, such a precedent could hardly be limited to the
precise circumstances of this case. Virtually any private entity that controls
a server could now obtain injunctive relief against dissemination of
unwelcome digital comments; as a prominent commentator has warned,
given such a precedent, it would be quite possible to "torture the doctrine of
trespass to chattels to, cover any number of ... inconvenient
communications," so that "all that any user needs to fulfill the elements of
21 trespass is to withdraw consent for some real or imagined offense." Dan L.
Burk, The Trouble With Trespass, 4 J Small & Emerging Business L. 27,47
(2000). Finally, this field of law is not without relevant and helpful
guidance. The California Legislature has recently drawn a clear line which
offers a standard for the resolution of this and other cases likely to emerge in
its wake: Certain forms of massive commercial junk e-mail are not only
unwelcome, but present such additional risks to electronic communication
that they may be barred and are properly the subject of civil and criminal
sanctions in the California courts. While the "spam" statute does not
expressly exempt communications such as those now before this Court,
close attention to the special nature of such material strongly implies that
other digital communications, even those of large volume, should be
tolerated both by recipients and by the courts.
22 CONCLUSION
For the foregoing reasons, amicus curiae respectfully urges this Court
to reverse the judgment below and to order the dismissal of the complaint.
Respectfully submitted,
J Jos ua Wheeler, Esquire
. aUf. State Bar No. 162911
The Thomas Jefferson Center for
the Protection of Free Expression
400 Peter Jefferson Place
Charlottesville, VA 22911
(434) 295-4784
O/Counsel:
Robert M. O'Neil, Esquire
The Thomas Jefferson Center for
the Protection of Free Expression
400 Peter Jefferson Place
Charlottesville, VA 22911
(434) 295-4784
23 CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation of the
California Rules of Court Rule 14(c)(1).
Exclusive of the exempted portions in California Rules of Court Rule
14(d)(3), the brief contains 4,951 words.
Vr(/~
1. Joshua Wheeler, Esquire
Calif. State Bar No. 162911
The Thomas Jefferson Center for
the Protection of Free Expression
400 Peter Jefferson Place
Charlottesville, VA 22911
(434) 295-4784
Of Counsel:
Robert M. O'Neil, Esquire
The Thomas Jefferson Center for
the Protection of Free Expression
400 Peter Jefferson Place
Charlottesville, VA 22911
(434) 295-4784
Dated: August 7, 2002
24 PROOF OF SERVICE
I, Amy D. McClung, celiify and declare as follows:
I am over the age of 18 years, not a party to this cause, and employed
in the county where the mailing took place. My business address is The
Thomas Jefferson Center for the Protection of Free Expression, 400 Peter
Jefferson Place, Charlottesville, VA 22911, which is located in Albemarle
County, VA.
On August 7, 2002, I served the following document(s):
BRIEF OF AMICUS CURIAE THE THOMAS JEFFERSON CENTER FOR
THE PROTECTION OF FREE EXPRESSION, SUPPORTING
APPELLANT AND REVERSAL
By placing a true copy thereof in a sealed envelope and served to each party
herein by delivery via regular first class mail to:
Counsel for Plaintiff/Respondent:
Michael A. Jacobs
Morrison & Foerster, LLP
425 Market Street
San Francisco, CA 94105-2482
25 Counsel for Defendant/Appellant:
Michael M. McSwaine
Richard L. Berkman
F. Gregory Lastowka
Dechert
4000 Bell Atlantic Tower
171 7 Arch Street
Philadelphia, PA 19103-2793
Karl Olson
Erica L. Craven
Levy, Ram, Olson & Rossi, LLP
639 Front Street, 4th Floor
San Francisco, CA 94111
Superior Court:
Hon. John R. Lewis
Superior Court of California
County of Sacramento
720 Ninth Street
Sacramento, CA 95814
Appellate Court:
Clerk of the Court
California Court of Appeal
Third Appellate District
900 "N" Street, Suite 400
Sacramento, CA 95814-4869
Amici:
Ann Brick
ACLU Foundation of Northern California
1663 Mission Street, Suite 460
San Francisco, CA 94103
26 Lee Tien
Electronic Frontier Foundation (EFF)
454 Shotwell Street
San Francisco, CA 94110-1914
American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO) and California Federation of Labor
Stephen P. Berzon
Altshuler, Berzon, Nussbaum, Rubin & Demain
177 Post Street, Suite 300
San Francisco, CA 94108
Mark A. Lemley, Esq.
Dierdre K. Mulligan, Esq.
Boalt Hall School of Law
University of California
396 Simon Hall
Berkeley, CA 94720
Dated: August 7,2002
27