Free Speech Thwarted on the Net

By Robin D. Gross
December 1998

In an unprecedented decision that sent a chilling message to cyberspace rights activists, a Sacramento Superior Court Judge ordered a former Intel employee to halt his mass e-mailings critical of the Santa Clara chipmaker to it's employees. In November 1998, Judge John R. Lewis issued a preliminary injunction, ordering Ken Hamidi and the organization he founded, Former and Current Employees of Intel (FACE Intel), to halt their sending of bulk e-mail to addresses on the company's internal network. Intel Corporation v. Kourosh Kenneth Hamidi, et. al. Civil Action No. 98AS05067.

The salient issue in this case is whether an individual has the right to send bulk e-mail critical of a company directly to the company's employees at their offices. Such a ruling could potentially set a precedent effecting whether the same free speech rights enjoyed in regular mail will apply to correspondence in the electronic realm as well.

Hamidi and Intel have been locking horns in court battles with one another since 1995, when Intel fired Hamidi from his engineering job with the corporation over unresolved work related injuries. After Hamidi and FACE Intel, whose stated purpose is to expose how Intel mistreats its employees, sent their sixth mass e-mailing to Intel employees, claiming that the chip giant practices age and disability discrimination and other abusive employment practices, they received a warning from Intel's attorneys informing them that if they sent another mass mailing to the company, legal action would be taken against them.

Hamidi said he launched his e-mail campaign "to inform and educate Intel employees and support them." The world's largest chip-maker contends its engineers tried several technological methods to prevent the delivery of Hamidi's messages to its employees, but his messages usually managed to slip through successfully, fooling Intel's system by changing the servers from which his messages were sent and hiding their origination addresses.

Then in September 1998, Hamidi and his organization sent another mass e-mailing, reaching nearly 30,000 Intel employees cautioning them of the company's "sly strategies" and "devious tactics" in dealing with employees. After this seventh and final mailing, Intel's lawyers filed for a preliminary injunction against Hamidi and FACE Intel asking the Court to ban them from sending such e-mails again, claiming that the messages amounted to an unwarranted trespass and disrupted the company's business.

Intel's court documents contended that, "if each of the 29,000 employees targeted by these e-mailings only spent two minutes evaluating, questioning and resolving these highly disruptive and critical attacks on Intel, evident from the text of the messages, Intel would lose almost 1,000 person-hours of productive labor for each e-mail." According to Judge Lewis' November 24th preliminary ruling, this "virtual trespass" charge stems from Intel's suffering of "immeasurable'' and "irreparable'' harm due to "the impact on employee morale and productivity'' caused by Hamidi's seven spammings.

Intel's lawyers claim that this case is analogous to the recent "spam" case, CompuServe v. Cyber Promotions 962 F. Supp. 1015 (S.D. Ohio 1997) which held that the sending of unsolicited bulk e-mail advertisements can amount to a legally actionable trespass to chattel. ``We think he's crossed that line between free speech and invasion of private property,'' said the computer giant's spokesman Chuck Mulloy.

But cyberspace free speech activists disagree, contending this case represents the first time a "virtual" property right has trumped the First Amendment. Such critics charge that Hamidi's case differs importantly from Cyber Promotions and other spam cases because those cases pertained to commercial speech such as advertisements, while the speech that was restricted here was Hamidi's opinions and ideas which were critical of the corporation. Many feel that if Intel can successfully shut-off the flow of messages to which it objects, a dangerous precedent could be set allowing other companies to muzzle speech they find displeasing. "This case is going to determine if all of us, if any one of us, have any right to freedom of speech on the Internet or not," Hamidi stated.

Bankrupt and unable to afford an attorney, Hamidi represents himself in court while FACE Intel is without representation. With the stage set for a Constitutional battle, the Electronic Frontier Foundation (EFF) and the Americans for Civil Liberties Union (ACLU) are considering involvement in the case on Hamidi's behalf. The pending case is currently in the discovery phase with a court date set for April 15, 1999.