In a case closely monitored by employers, unions, and free-speech experts, the California Supreme Court refused to extend state trespass law to protect an employer's electronic communication system from unauthorized access by a disgruntled former employee. (Intel Corp. v. Hamidi, Cal., No. S103781, 6/30/03)
The facts of the case are relatively simple. Intel Corporation discharged Kourosh Hamidi after successfully disputing the basis for his workers' compensation claim. Distraught over his termination, Hamidi sent approximately 200,000 e-mail messages to 35,000 company employees over a 21-month period.
In the messages, he complained about Intel's treatment of him, warned the recipients that they might be treated similarly, and invited them to contact him for more information. For instance, in one message Hamidi told employees to beware of "key concurrent, contradictory, and questionable events at Intel," including "redeployment of over 2,000 employees," "aggressive hiring from colleges," and "nationally claiming a severe shortage of skilled labor to obtain cheap foreign labor." Upon request, Hamidi removed from his mailing list any employee who did not wish to receive his messages.
In an effort to curtail Hamidi's e-mail campaign, Intel sought an order from the Sacramento County Superior Court precluding him (as a former employee) from accessing the company's internal computer system. Intel claimed Hamidi was engaging in trespass-to-chattels by interfering with its personal property (the computer system). However, it conceded the messages did not breach any computer barriers to communicate with the employees, and did not cause physical damage or functional disruption to the company's computer system.
In opposition to the injunction, the ex-employee claimed his conduct was privileged under the First Amendment. He argued Intel's electronic communication system, which could be accessed via the internet, was akin to a public forum, and the e-mail messages did not constitute a substantial burden on Intel, especially when weighed against his free speech rights. The trial court rejected Hamidi's argument, and issued the order requested by Intel.
The California Supreme Court's Decision
Rejected by the state trial and first level appellate courts, the ex-employee found relief at the California Supreme Court. The court found the economic damage claimed by the employer (lost productivity) was not an interference with the company's interest in its computers any more than the personal distress caused by reading an unpleasant letter would be an injury to the recipient's mailbox, or the loss of privacy caused by an intrusive telephone call would be an injury to the recipient's telephone equipment.
In the Court's view, to prevail on a trespass-to-chattel claim, Intel was required to prove actual damage or impairment to its computer system. A general loss of productivity was insufficient to satisfy this standard.
The only good news for employers was the Court's comment that its decision did not limit other legally cognizable claims available to employers, including interference with prospective economic relations, interference with contract, intentional infliction of emotional distress, defamation, publication of private facts and other speech-based torts. The Court also stated that its decision did not affect legal remedies available to internet service providers against senders of unsolicited commercial bulk e-mail.
Recommendations for Employers
As e-mail usage continues to grow, employers must be prepared for the various issues raised by electronic communications. To the extent feasible, employers should maintain records of the cost of, and damage caused by, the receipt of unauthorized e-mail messages, including the negative effects on and damage to the processing and storage capabilities of their computer systems.
In addition, employers should implement general electronic communications policies to establish appropriate and inappropriate uses of employer-provided computers, telephones, internet access, and other electronic resources. The policy should be drafted to diminish employees' expectation of privacy in the employer's electronic communications system. In particular, employees should be informed that all employer-provided computers and telephones are property of the employer and may be monitored for compliance with internal policy and the law. The policy also should contain prohibitions against sending offensive or harassing e-mail messages and cross reference the employer's harassment prevention policy.
Employers also should assess whether computer system "filtering devices" are warranted to block unauthorized e-mail messages. Finally, employers must safeguard against the unauthorized disclosure of employee e-mail address lists. Hamidi reportedly obtained two diskettes containing the electronic files of Intel's employee telephone book from an anonymous source. The telephone book obviously provided Hamidi with the information he needed to launch his e-mail campaign about Intel.
By proactively adopting and monitoring an effective electronic communications policy, employers may not only guard against improper use by current employees, but also protect against unauthorized intrusions from third parties (including former employees).
Note: This article appears in the August 6, 2003 edition of the Daily Recorder.