A New York Perspective on Workplace 'Spam'

When employees lose their jobs, bitterness may breed revenge – revenge that goes well beyond the pilfering of pens on the way out. Disgruntled former employees have been known to defame the company to its clients, offer inside information to competitors, and initiate frivolous litigation, all at great cost to their former employers. But there is another problem that may be on the rise: spam, the Internet's version of junk mail.

Background: California

In 1995, Kourosh Kenneth Hamidi was fired from his job at Intel. In response, Hamidi set up an organization dedicated to exposing the alleged faults in Intel's employment policies. In the course of 21 months Hamidi proceeded to spam Intel with over 175,000 e-mails addressed to Intel employees, urging them to join his cause. Intel requested that Hamidi stop spamming, but he refused. Rather than close its eyes to this abuse, Intel sought to enjoin Hamidi from sending mass e-mails, claiming trespass to chattels under California law.

In a close and controversial decision, the California Supreme Court in Intel Corp. v. Hamidi, 2003 WL 21488209 (June 30, 2003), disagreed with its two lower courts and ruled in favor of Hamidi. The 4-3 majority believed that the damage done to Intel's computer network was minimal and did not satisfy the harm requirement in a trespass to chattel action. It also concluded that the prospect of potential damage (ie, others doing the same, thereby significantly slowing Intel's network) was nonexistent.

But is that really so? The California court focused only on the harm to Intel's physical network, but ignored the harm to the network's principal function: workplace productivity. In addition to the slowing of networks, the over-riding value and purpose of corporate e-mail – employee efficiency and productivity – is undermined by a spam attack. In Hamidi's case, the loss of time and focus in tending to his spam, spread across thousands of e-mail terminals, must have been significant, not to mention the blow to morale caused by his using Intel's internal system to spread his criticism. Certainly, there can be no dispute that corporate spam is pervasive. Harry Segal of Networks Unlimited, Inc., a Massachusetts technology firm that provides anti-spam solutions to corporate customers, has informed us that spam accounts for an estimated 30% to 70% of all corporate e-mail. The business cost, to the extent it may be quantifiable, is staggering. According to a recent Wall Street Journal report (Dreazen YJ: Why Some Big Spammers Are Backing Spam-Control Laws, WSJ at B1 (July 18, 2003)), business productivity loss due to spamming is estimated to have reached the level of $10 billion a year. Unfortunately, Hamidi's example is as easy to replicate as depressing the send key. Spamming costs little. All it takes is an e-mail account and some recently freed-up time. Certainly after the California court's dispensation, it would not be surprising if post-employment spamming becomes de riguer. In a flat economy, it would take only a small number of (former) employees, armed with a list of internal firm-wide e-mail addresses, to wreak havoc either directly, as Hamidi apparently has done, or clandestinely by transferring corporate e-mail address books to known third-party spammers.

Spam in New York

A recent New York case, Register.com, Inc. v. Verio, Inc., 126 F.Supp.2d 238 (S.D.N.Y. 2000), cited in the reversed Intel appellate court decision, Intel Corp. v. Hamidi, 114 Cal.Rptr.2d 244, 249 (Cal. App. 3d Dist. 2001), applied New York trespass to chattel law to analogous circumstances and emerged with a far different and more credible result.

Register.com primarily sells domain names, ie, Internet addresses. Verio builds Web sites. Verio, to attract more business, conceived of a plan in which it would regularly search Register.com's database to find out who recently purchased a domain name, information that is public, but accessible only under certain conditions. Verio would then contact these individuals and solicit Web site-building business. Register. com, which also offers Web site design services, objected and sued, raising trespass to chattel, and other causes of action, to enjoin Verio from running its mass searches.

The federal court, applying New York law, ruled in Register.com's favor and issued a permanent injunction, holding that “[a]lthough Register.com's evidence of any burden or harm to its computer system caused by the successive queries performed by search robots is imprecise, evidence of mere possessory interference is sufficient to demonstrate the quantum of harm necessary to establish a claim for trespass to chattels.” The court concluded that, “ Register.com's evidence that Verio's search robot's have presented and will continue to present an unwelcome interference with, and a risk of interruption to, its computer system and servers is sufficient to demonstrate a likelihood of success on the merits of its trespass to chattels claim.” (Emphasis added). Clearly, the federal court in New York saw what the California Supreme Court did not: Invading another's computer network with unwanted interference is the formula for disaster.

Interestingly, aside from a strictly trespass to chattels analysis, Intel also may be analyzed under New York law from the perspective of a recent Appellate Division decision that recognized that the right to prevent the dumping of unwanted printed materials onto private property is not constitutionally restricted. Tillman v. Distribution Systems of America, Inc., 648 N.Y.S.2d 630 (N.Y. App. Div. 2d Dep't 1996), cited in the Intel dissent, involved a homeowner who sued a newspaper distributor for regularly throwing a newspaper onto his property despite his repeated objections. The distributor argued that newspaper distribution was permitted under the First Amendment, much the same way that proponents of the Intel decision argue that Hamidi's spamming is protected speech.

The Appellate Division disagreed. Citing a long line of New York and U.S. Supreme Court decisions, the court held, “There is, in our view, nothing in either the Federal or State Constitutions which requires a landowner to tolerate a trespass whenever the trespasser is a speaker, or the distributor of written speech, who is unsatisfied with the fora which may be available on public property, and who thus attempts to carry his message to private property against the will of the owner.” The court concluded that, “[t]he constitutional right of free speech does not correspond to the 'right' to force others to listen to whatever one has to say.”

Ultimately, because so much is at stake when it comes to spamming by employees or former employees, corporations may consider protecting themselves contractually instead of relying on a court's application of common law principles.

Corporate E-Mail Policies

Most corporate e-mail policies already include restrictions on Internet use. These policies are designed to ensure productivity, to prevent misuse of corporate e-mail and other electronic systems, and to protect employers and employees from potential liability. Because the disruption and exposure potential is so high, most are written in an agreement format and require written confirmation of the employee as a condition of employment. To meet the specter of spamming, these agreements could easily include prohibitions on spamming and the misuse of the firm's e-mail address lists that would survive termination of employment. Aside from other remedies, the employee would acknowledge that spamming and the transfer of e-mail lists is harmful and would agree that because proof of monetary damages may be difficult to ascertain, an injunction would be warranted and any defense or objection is waived.

Conclusion

The reality is that in today's cyber-workplace, spam is the equivalent of throwing a monkey wrench into the machinery. In the final analysis, whether the New York law of trespass or contracts is applied, disgruntled former employees must understand that the harm done in receiving spam will equal the harm of sending it.

When employees lose their jobs, bitterness may breed revenge – revenge that goes well beyond the pilfering of pens on the way out. Disgruntled former employees have been known to defame the company to its clients, offer inside information to competitors, and initiate frivolous litigation, all at great cost to their former employers. But there is another problem that may be on the rise: spam, the Internet's version of junk mail.

Background: California

In 1995, Kourosh Kenneth Hamidi was fired from his job at Intel. In response, Hamidi set up an organization dedicated to exposing the alleged faults in Intel's employment policies. In the course of 21 months Hamidi proceeded to spam Intel with over 175,000 e-mails addressed to Intel employees, urging them to join his cause. Intel requested that Hamidi stop spamming, but he refused. Rather than close its eyes to this abuse, Intel sought to enjoin Hamidi from sending mass e-mails, claiming trespass to chattels under California law.

In a close and controversial decision, the California Supreme Court in Intel Corp. v. Hamidi, 2003 WL 21488209 (June 30, 2003), disagreed with its two lower courts and ruled in favor of Hamidi. The 4-3 majority believed that the damage done to Intel's computer network was minimal and did not satisfy the harm requirement in a trespass to chattel action. It also concluded that the prospect of potential damage (ie, others doing the same, thereby significantly slowing Intel's network) was nonexistent.

But is that really so? The California court focused only on the harm to Intel's physical network, but ignored the harm to the network's principal function: workplace productivity. In addition to the slowing of networks, the over-riding value and purpose of corporate e-mail – employee efficiency and productivity – is undermined by a spam attack. In Hamidi's case, the loss of time and focus in tending to his spam, spread across thousands of e-mail terminals, must have been significant, not to mention the blow to morale caused by his using Intel's internal system to spread his criticism. Certainly, there can be no dispute that corporate spam is pervasive. Harry Segal of Networks Unlimited, Inc., a Massachusetts technology firm that provides anti-spam solutions to corporate customers, has informed us that spam accounts for an estimated 30% to 70% of all corporate e-mail. The business cost, to the extent it may be quantifiable, is staggering. According to a recent Wall Street Journal report (Dreazen YJ: Why Some Big Spammers Are Backing Spam-Control Laws, WSJ at B1 (July 18, 2003)), business productivity loss due to spamming is estimated to have reached the level of $10 billion a year. Unfortunately, Hamidi's example is as easy to replicate as depressing the send key. Spamming costs little. All it takes is an e-mail account and some recently freed-up time. Certainly after the California court's dispensation, it would not be surprising if post-employment spamming becomes de riguer. In a flat economy, it would take only a small number of (former) employees, armed with a list of internal firm-wide e-mail addresses, to wreak havoc either directly, as Hamidi apparently has done, or clandestinely by transferring corporate e-mail address books to known third-party spammers.

Spam in New York

A recent New York case, Register.com, Inc. v. Verio, Inc. , 126 F.Supp.2d 238 (S.D.N.Y. 2000), cited in the reversed Intel appellate court decision, Intel Corp. v. Hamidi , 114 Cal.Rptr.2d 244, 249 (Cal. App. 3d Dist. 2001), applied New York trespass to chattel law to analogous circumstances and emerged with a far different and more credible result.

Register.com primarily sells domain names, ie, Internet addresses. Verio builds Web sites. Verio, to attract more business, conceived of a plan in which it would regularly search Register.com's database to find out who recently purchased a domain name, information that is public, but accessible only under certain conditions. Verio would then contact these individuals and solicit Web site-building business. Register. com, which also offers Web site design services, objected and sued, raising trespass to chattel, and other causes of action, to enjoin Verio from running its mass searches.

The federal court, applying New York law, ruled in Register.com's favor and issued a permanent injunction, holding that “[a]lthough Register.com's evidence of any burden or harm to its computer system caused by the successive queries performed by search robots is imprecise, evidence of mere possessory interference is sufficient to demonstrate the quantum of harm necessary to establish a claim for trespass to chattels.” The court concluded that, “ Register.com's evidence that Verio's search robot's have presented and will continue to present an unwelcome interference with, and a risk of interruption to, its computer system and servers is sufficient to demonstrate a likelihood of success on the merits of its trespass to chattels claim.” (Emphasis added). Clearly, the federal court in New York saw what the California Supreme Court did not: Invading another's computer network with unwanted interference is the formula for disaster.

Interestingly, aside from a strictly trespass to chattels analysis, Intel also may be analyzed under New York law from the perspective of a recent Appellate Division decision that recognized that the right to prevent the dumping of unwanted printed materials onto private property is not constitutionally restricted. Tillman v. Distribution Systems of America, Inc. , 648 N.Y.S.2d 630 (N.Y. App. Div. 2d Dep't 1996), cited in the Intel dissent, involved a homeowner who sued a newspaper distributor for regularly throwing a newspaper onto his property despite his repeated objections. The distributor argued that newspaper distribution was permitted under the First Amendment, much the same way that proponents of the Intel decision argue that Hamidi's spamming is protected speech.

The Appellate Division disagreed. Citing a long line of New York and U.S. Supreme Court decisions, the court held, “There is, in our view, nothing in either the Federal or State Constitutions which requires a landowner to tolerate a trespass whenever the trespasser is a speaker, or the distributor of written speech, who is unsatisfied with the fora which may be available on public property, and who thus attempts to carry his message to private property against the will of the owner.” The court concluded that, “[t]he constitutional right of free speech does not correspond to the 'right' to force others to listen to whatever one has to say.”

Ultimately, because so much is at stake when it comes to spamming by employees or former employees, corporations may consider protecting themselves contractually instead of relying on a court's application of common law principles.

Corporate E-Mail Policies

Most corporate e-mail policies already include restrictions on Internet use. These policies are designed to ensure productivity, to prevent misuse of corporate e-mail and other electronic systems, and to protect employers and employees from potential liability. Because the disruption and exposure potential is so high, most are written in an agreement format and require written confirmation of the employee as a condition of employment. To meet the specter of spamming, these agreements could easily include prohibitions on spamming and the misuse of the firm's e-mail address lists that would survive termination of employment. Aside from other remedies, the employee would acknowledge that spamming and the transfer of e-mail lists is harmful and would agree that because proof of monetary damages may be difficult to ascertain, an injunction would be warranted and any defense or objection is waived.

Conclusion

The reality is that in today's cyber-workplace, spam is the equivalent of throwing a monkey wrench into the machinery. In the final analysis, whether the New York law of trespass or contracts is applied, disgruntled former employees must understand that the harm done in receiving spam will equal the harm of sending it.