Course No.: 9200 710 801
Course ID:  17261
Tu 6:30-9:30 p.m.
Room W-215
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008   Jay Dratler, Jr.  
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Questions and Notes on Intel Corp. v. Hamidi

1.  Is Hamidi a case about property rights in tangible personal property, or a case about communication?  The various opinions address both issues, but which is more important?  Doesn't your answer to that question largely determine your view of the result?  Does this matter of emphasis help explain the differences between the majority and dissenters?

2.  Quoting Justice Holmes in footnote 12, Justice Mosk finds it "revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV."  The law of trespass indeed dates from that early era.

At that time, most people's personal possessions were simple things, such as farm animals, clothes, armor, weapons, cooking implements, and tools.  Animals were indeed among the most important personal property, for they often provided not only food and clothing, but a well-recognized form of wealth.  Hence the law's preoccupation with animals as chattels, the unlawful chasing of which could constitute trespass, as Justice Brown notes in her dissent.

Today, of course, the cost, variety, and importance of chattels possessed by common people is vastly greater, and today most common chattels are inanimate.  Partly as a result of the industrial philosophy of planned obsolescence, and partly due to the accelerating advance of technology, many chattels lie unused in garages, storage rooms, and attics.  Should the rules established in ancient times to protect the inviolability of possessions needed to insure individuals' livelihoods and constituting their chief measure of personal wealth have the same force when applied to the vast variety of personal effects which individuals possess today?

Should rules established in part to protected individuals' livelihoods and sustenance apply with equal force to vast corporate entities like Intel, with tens of thousands of employees?  Has the law of trespass evolved properly to reflect the vast expansion in the nature of chattels owned and the diverse nature of their owners?  Is it appropriate today to focus more on the consequences of a trespass than the mere unlawful assertion of dominion, for example, by word or by touching the chattel?

3.  One of the most important tenets of Anglo-American common law is the notion that every wrong has a remedy.  As Justice Mosk notes, California Civil Code § 3523 explicitly says as much.  The old courts of equity developed the remedy of restitution (i.e., disgorgement of unlawful gains) in part to deal with cases in which unlawful dominion over someone else's property did not harm the owner but enriched the wrongful appropriator.

A classic case was defendant's unlawful use of plaintiff's egg-washing machine.  See Olwell v. Nye & Nissen Co., 26 Wash.2d 282, 173 P.2d 652 (1946).  The owner had stored the machine and was not using it, and the defendant "borrowed" it without permission to wash eggs for sale.  See 26 Wash.2d at 283-284.  The court allowed the plaintiff to recover the defendant's unlawful gains from use of the egg-washer, although the defendant's unauthorized use had harmed neither the plaintiff nor the machine.  See 26 Wash.2d at 285-288.  The case is oft cited as an example of how the remedy of restitution vindicates property rights.

The Hamidi majority, citing the Restatement, says that restitution is not an appropriate remedy for trespass to chattels, as distinguished from their complete conversion.  But is that invariably an appropriate result?  Suppose Hamidi, instead of using Intel's computer systems to communicate, had found a way to use them surreptitiously to do engineering work for other employers.  Suppose also that, because of the excess capacity of Intel's computer systems, Hamidi's doing so had had no adverse effect on use of the systems by Intel and its employees.  Should Intel have a remedy of restitution for this wrong, i.e., the right to extract from Hamidi and his new employers the profits from their unauthorized use of Intel's computer systems, or at least the fair market value of that unlawful use?

Wouldn't such a remedy be entirely consistent with the Olwell decision?  Some state laws would treat these facts as a criminal theft of services.  See N.Y. Penal Code § 165.15(11) (2003) (defining theft of computer time as theft of services).  But shouldn't Intel also have a civil remedy?  If so, how does this case differ from the hypothetical case of Hamidi's unauthorized use of Intel's computer time?  Doesn't the comparison suggest that this case is really about communication after all?

4.   Does the importance of communication in this case change the legal calculus?  In our "theft of computer time" hypothetical in Note 3, is there any important countervailing social value supporting Hamidi's appropriation to himself (or his new employer) of the use of Intel's computers?  Is there such a value in allowing him to use Intel's computer systems to communicate with Intel's employees?  If so, what is that value, and how important is it in our democratic society?

5.  Both the majority and dissenters in Hamidi note the First-Amendment right of an audience to reject a proffered communication.  Is this right consistent with the Supreme Court's pronouncement, in Red Lion , that the rights of the audience, not the speaker, are paramount?

But who is the audience in this case?  Is it the individual Intel employees, whom Hamidi did give the right and ability to reject his communications?  Or is it Intel, which was the subject of the communications, and whose computer systems were used to convey them?  Is giving Intel a right, by a single objection, to eliminate Hamidi's communications with tens of thousands of Intel employees (some of whom may want to hear Hamidi's message) consistent with the First-Amendment rights of audiences generally?

6.   Justices Brown and Mosk, dissenting, emphasize Intel's property rights as the owner of its computer systems.  Trespass doctrine, they imply, gives Intel—which bought, paid for, and maintains those systems, all at private expense—the right to determine whether others can use them for communicative purposes, especially without charge.   For them, the issue is not one of communication, but of control over one's property.

Justice Mosk's reasoning depends implicitly on two subsidiary points.  First, he emphasizes that Intel's putative rights to exclude applies to all outsiders, regardless of the content of their messages.  In making this point, he notes that black-letter First-Amendment doctrine is most concerned with content-based restrictions on speech but permits restrictions on the time, place and manner of communication.  Here, he implies, the use of Intel's computer systems by someone who is no longer an Intel employee is part of the "manner" of speech that the law may restrict.

Is Justice Mosk's approach to this point consistent with the facts of the case?  Was Intel concerned about Hamidi's messages because Hamidi was no longer employed by Intel, or because those messages criticized Intel's employment practices and attempted to organize Intel's employees?  Would Intel have been so concerned, for example, if Hamidi's messages had been commercial advertisements to Intel employees offering them paid courses to improve their computer skills?

7.  Another subsidiary point on which Justice Mosk's reasoning implicitly depends is the notion of "state action."  Under black-letter constitutional law, all the prohibitions of the Bill of Rights, including the First Amendment's prohibition on restriction of speech, restrain only government or "state" action, not private action.  Since Intel is a private corporation, Justice Mosk implies, it can control speech flowing through its privately-owned computer systems however it wants, without the slightest First-Amendment objection.  (Justice Brown, in a portion of her opinion excluded from our edited version, also distinguishes cases involving governmental restraint from private restrictions on postal "snail" mail.)

The requirement for state action is, of course, fundamental.  Yet, as the majority implies, doesn't state action enter the picture when Intel seeks the state's help, through injunctive relief, to enforce its putative private rights?  Does the mere fact that Intel is a private company and its computer systems are privately owned ipso facto preclude First-Amendment scrutiny of its attempt to use the state's coercive power to exclude Hamidi from its computer systems?  Doesn't the fact that Intel failed in its "self help" attempts to exclude Hamidi's messages from its systems by technological means put this question in stark relief?

8.  The tension between private property rights and our nation's "free marketplace of ideas" under the First Amendment is hardly new with the advent of the Internet.  Three key Supreme Court decisions are relevant.  In Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 309, 311, 324-325, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), the Court concluded that a blanket ban on all "picketing and trespassing" in a private shopping center, including picketing relating to tenants' operations, was inconsistent with the First Amendment.  Four years later, however, the Court held that a complete ban on leafleting inside a private shopping mall could withstand First Amendment scrutiny, at least as applied to matters (a protest against the War in Vietnam) unrelated to the mall's commercial purpose.  See Lloyd Corp. v. Tanner, 407 U.S. 551, 569-570, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972).  The Lloyd Corp. majority distinguished Logan Valley on the ground that the picketing there (in a labor dispute with a shopping-center tenant) had been related to the shopping center's commercial operations, see 407 U.S. at 564; and indeed the Logan Valley Court had explicitly reserved the issue of unrelated speech.  See 391 U.S. 320 n.9.  Eight years later, the Court ruled that State constitutions (and California's in particular) may provide greater protection of free speech, in effect prohibiting private shopping centers from banning even unrelated free-speech activity on their premises.  See Pruneyard Shopping Center v. Robins, 447 U.S. 74, 80-81, 88, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980).

Which of these three cases is the most relevant precedent for the First-Amendment aspects of Hamidi, and why?  Can you distinguish the other two cases?

Does it matter that Intel's main offices and corporate headquarters are in California, whose state constitution provides the strong protection of free speech recognized in Pruneyard?  Does/should it make any difference that Intel also has plants and offices in several other states, including Colorado and New Mexico?  if the constitutions of those states do not provide the same strong protection of free speech as does California's Constitution?

9.  Among other things, the three First-Amendment decisions cited above addressed the notion of a "public forum."   Those seeking First-Amendment protection had argued that, under modern demographic, social, and economic conditions, a shopping mall, even if privately owned, is the equivalent of the "town square" of Colonial times—a place where free-speech activities are expected and should be encouraged.  Although the Logan Valley decision appeared to accept this notion, see 391 U.S. at 324-325 (citing statistics on the growing number and importance of shopping malls nationwide), the Lloyd Corp. Court repudiated it as too expansive, see 407 U.S. at 569-570, saying, "[t]he argument reaches too far.  The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use."  407 U.S. at 569.  The Lloyd Corp. majority distinguished private property to which the public is invited for particular purposes (in this case, shopping) from a municipality's property, to which the public is invited for any lawful purpose.  See id. at 568-569.

How should these arguments apply to the metaphorical property of "cyberspace"?  Should the part of "cyberspace" existing within and controlled by Intel's computer systems be deemed a "public forum" because it is connected to and part of the Internet and World Wide Web generally?  Does/should it make any difference if the use of Intel's computer systems is the best and most efficient way to contact Intel's employees as a group?

What about Intel's arguments regarding invasion of its private property for purposes for which the public is not invited?  Are those arguments stronger or weaker in cyberspace than in the real estate of a shopping mall?  What about arguments relating to expense and possible interference with Intel's legitimate private purposes—namely, making computer chips and making money?

10.   Another issue addressed in Hamidi is the notion of a "common carrier."  The Communications Act of 1934, as amended, defines common carrier somewhat circularly as "any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy," except for broadcasters and other excepted carriers.  47 U.S.C. § 153(10).

The underlying notion, derived from common law, is of a person or entity that holds itself out as offering communication services to the public generally.  Under federal communications law, regulated common carriers must: (1) provide service to anyone upon "reasonable request" and at "just and reasonable" rates and terms, 47 U.S.C. § 201; (2) not discriminate among customers in services, rates or terms, see 47 U.S.C. § 202; (3) publish their rates and charges and abide by governmental rate regulations, see 47 U.S.C. §§ 201(a), 203-205; (3) not reduce or eliminate service without governmental approval, see 47 U.S.C. § 214(a); (4) obtain governmental approval to expand their facilities, see 47 U.S.C. § 214; and (5), where directed by government regulators, even construct additional facilities to avoid discrimination and provide complete coverage, 47 U.S.C. § 201(a).  In other words, a "common carrier," by holding itself out as such, in effect agrees to serve everyone, and the public interest, on nondiscriminatory terms and subject to applicable governmental regulation.

A second question implicit in Hamidi is whether Intel's privately owned "intranet" should be viewed as a common carrier in whole or in part.  Justice Mosk indignantly rejects that characterization, apparently on the ground that Intel's primary business is not communication, but making computer chips.

Yet the question will not go away.  Stripped to its common-law essence, the notion of a "common carrier" is very simple: if you hold yourself out as providing a general communication service, you cannot discriminate among customers, content, or messages, but must provide a neutral, nondiscriminatory service to all and for all lawful purposes.  Does Intel, by connecting its employees to the Internet and the World Wide Web through its computer systems, become such a common carrier, or at least part of one?

11.  Today virtually every employed individual has an e-mail account and Web access at work, controlled by his or her employer.  Similarly, nearly all college and postgraduate students have e-mail accounts and Web access controlled by their colleges and universities.  Even many secondary students have accounts controlled by their schools.  The employees and students in these institutions may have no other e-mail or Web access, or any alternative access that they may have may be slower, more expensive or less convenient.

At what point does an institution that controls access to communication—or at least the most efficient form of communication—by tens of thousands of people become a "public forum" or a "common carrier" with First-Amendment obligations beyond its own narrow private or commercial interests?  Doesn't the answer to this question have profound implications for communication and free speech in a society increasingly dominated by large organizations?

12.  Unlike some foreign countries, the United States has virtually no public communications media that are directly owned by the federal government.  (The Corporation for Public Broadcasting, which supplies funds and programming for many nonprofit public broadcasters, is by law a nonprofit corporation, which "will not be an agency or establishment of the United States Government."  47 U.S.C. § 396(b).)  Most communications facilities in our country, except those owned and controlled by the military, are privately owned.  Therefore, if the free speech that is the foundation of our democracy is to survive, the law must somehow avoid the use of private property rights to control the content of speech flowing through privately-owned communications media, whether under the "public forum" doctrine, the notion of "common carrier," or another legal doctrine.

Once this fundamental point is recognized, the extent to which private ownership of the means of communications permits control of communication becomes a matter of balance and degree.  Should the First Amendment allow a private company that controls, for example, a substantial percentage of the Internet's backbone to seek the courts' aid in controlling the content that flows through its part of that backbone?  On the other hand, does the First Amendment justify allowing a putative speaker to commandeer an individual's personal computer and Internet connection to make a public statement?

Between these two extremes, the extent of private control over communication—through private property rights governing the means of communication—must be a matter of degree.  No doubt the legitimacy of private control will depend upon such things as the number of people affected, the nature and degree of the control that ownership of private property and the capabilities of existing technology give those who own the means of communication, and the extent of interference with private property rights that free communication may cause.

13.  In deciding these delicate questions, should it make a difference how convenient and efficient the means of communication under private control may be?  Can you imagine any means of communication (existing today) that would be more convenient and efficient for Hamidi's purposes than e-mailing to a list of Intel's employees?  Is it true, as Justice Mosk implies, that setting up a Website would be just as effective?  Would Intel's employees have their attention drawn to that Website, or would it become just another small part of the "noise" on the Web?  In cases like this, should the law treat Intel's "intranet" like the Internet's backbone, like an individual's PC, or like something in between?

What about the common practice, in many large institutions, of maintaining e-mail "lists" of individuals similarly situated, or with common interests?  Are these lists like the Internet's backbone, a large private institution's computer systems, or an individual's PC?  Can the private institution control access to them, or should they be viewed as entry points to a "common carrier" or a "public forum"?

If the First Amendment or its influence allows Hamidi to use Intel's intranet, what about spammers?  Can you distinguish Hamidi's messages from spam?  If so, how?  In order to seek the law's coercive aid in excluding spam from its systems, must Intel wait until the spam has overloaded them and caused palpable damage, as the majority's interpretation of the tort of trespass implies?

And what about permission?  If Intel's withdrawal of permission is not sufficient to exclude Hamidi's messages, what about spam?  Must each Intel employee individually "opt out" of receiving messages from each of thousands of spammers, or can Intel use the law to exclude spam categorically for all its employees?  If so, how can it define "spam" and distinguish "spam" from what Hamidi was doing?

14.  Questions like these will no doubt perplex the courts and legislators in the coming decades, as they seek to determine the appropriate scope not only of trespass doctrine and the First Amendment, but of statutes and common-law doctrines affecting every aspect of communication policy.  How well they do their jobs may ultimately determine not only the vibrancy of the "free marketplace of ideas" that the First Amendment promotes, but whether our society will remain a democracy.

Our society values free communication above almost all else, and rightly so. For we depend on freedom of speech to formulate wise public policy, protect the rights of minorities, and advance science and technology. With these points in mind, can you think of many Internet-related questions that are more important than these?

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