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[ba-unrev-talk] NYTimes.com Article: Fighting for the Right to Communicate

This article from NYTimes.com 
has been sent to you by garyrichmond@rcn.com.    (01)

 FYI: [from the article]Two weeks ago, the California Supreme Court overturned two lower court decisions and sided with Mr. Hamidi rather than Intel, arguing that Intel could not properly use state trespass laws to block Mr. Hamidi's e-mail messages since its property had not been damaged by them.    (02)

Already, the ruling has come to be viewed as a landmark decision affecting the future of the Internet. Other states are likely to follow California's legal precedent, according to lawyers, legal scholars and cyberspace rights advocates. The decision is not expected to be appealed to the United States Supreme Court, since "trespass" is a state issue.    (03)

garyrichmond@rcn.com    (04)

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Fighting for the Right to Communicate    (07)

July 13, 2003

IN its simplest terms, this is all about one man, one
company and six e-mail messages. Oh yes, and one lawsuit,
which took nearly five years to wind its way through the
California court system.     (09)

Yet the Intel Corporation v. Hamidi never has been all that
simple.     (010)

It originated in a battle against Intel, the giant
semiconductor manufacturer, by Kourosh Kenneth Hamidi,
known as Ken, who has spent eight years trying to rally
employees at Intel, his former employer, to resist what he
considers abusive workplace practices. Mr. Hamidi, who was
fired by Intel in 1995 for what it terms cause, sent six
e-mail messages after his departure to thousands of company
employees, prompting Intel to sue him for trespassing.     (011)

Over the last few years, the case has assumed importance
far beyond one man and one company. A range of public
interest activists, cyberlaw experts and labor organizers
believed that the suit's decision, if it favored Intel,
would restrict free speech and other activities that people
now take for granted on the Internet. Business leaders like
the National Association of Manufacturers sided with Intel,
arguing that the company had the right to block the
electronic transmissions since they passed through Intel's
private property.     (012)

Two weeks ago, the California Supreme Court overturned two
lower court decisions and sided with Mr. Hamidi rather than
Intel, arguing that Intel could not properly use state
trespass laws to block Mr. Hamidi's e-mail messages since
its property had not been damaged by them.     (013)

Already, the ruling has come to be viewed as a landmark
decision affecting the future of the Internet. Other states
are likely to follow California's legal precedent,
according to lawyers, legal scholars and cyberspace rights
advocates. The decision is not expected to be appealed to
the United States Supreme Court, since "trespass" is a
state issue.     (014)

The consequences of this victory, meanwhile, are equally
great for Mr. Hamidi, who has struggled against enormous
odds, in the face of public ridicule, financial ruin and a
number of stinging legal defeats. With the California
Supreme Court's decision, he has quickly become a symbol of
initiatives for cyberspace rights and fair working
conditions.     (015)

If life were a 1940's movie, the hero of this
man-against-the-system drama might be played by Gregory
Peck. But at the center of this legal maelstrom is a
deceptively ordinary looking 56-year-old man, who lives in
Citrus Heights, Calif., a suburb of Sacramento, and now
works as a compliance officer for the state's Franchise Tax
Board.     (016)

His background was scarcely ordinary, however. Born in
Tehran, Mr. Hamidi spent 11 years during the 1960's and
70's as an officer and instructor in Iran's air force,
struggling to be released from military service and to win
permission to emigrate to the United States.     (017)

"Living under the shah's dictatorship, I used to watch John
Wayne movies and dream about freedom," he recently
recalled. "I remember being on the plane, finally flying to
the U.S. with my wife and our 3 1/2-year-old daughter and
telling them, `I will work. I'll be able to vote. I'll be
free. Our children will be free.' "     (018)

That was 1978. The Hamidis settled in Los Angeles, where
their struggle became a financial one. "In the beginning, I
worked three jobs," Mr. Hamidi said. "I'd wake up at 3
o'clock in the morning, because I had a newspaper delivery
route. I was 31 years old and I was delivering newspapers.
Then I'd rush home, shower and get dressed in a suit and
tie, and go to my next job, which was managing a small,
bilingual travel agency." After that job, he would head
home for dinner and a change of clothes, and then on to the
evening shift at a liquor store.     (019)

Along the way, Mr. Hamidi put himself through college,
majoring in engineering; eventually he earned an M.B.A. He
remembers 1986 as a glorious year. "I became a citizen," he
said. "I received my engineering degree. And I got hired by
Intel."     (020)

But in September 1990, the glorious days ended when the car
that he was driving home from a work-related conference was
hit from behind. Mr. Hamidi was left in chronic pain with
shoulder and neck injuries. Although the injuries resisted
treatment, he continued to work for more than a year, often
putting in what he said were 16-hour workdays. "I was
sleep-deprived because I was working so hard to keep up
with my workload and I was in so much pain," he said. "I
was fainting at the office. I became clinically depressed."
In February 1992, he took a prolonged medical leave.     (021)

Mr. Hamidi filed a claim for workers' compensation
benefits, contending that he had work-related physical and
mental injuries. His claim was initially granted, but it
was overturned upon appeal from Intel. Mr. Hamidi said he
had unsuccessfully tried to return to his job. Chuck
Mulloy, an Intel spokesman, would not comment on specifics,
noting only that the company dismissed the engineer for
cause in 1995.     (022)

Living with chronic pain and constant financial anxieties,
Mr. Hamidi said he was hospitalized twice, under a suicide
watch. "I was losing everything I had," he said. Unable to
find another job, with little income except state
disability payments, Mr. Hamidi declared personal
bankruptcy in 1997.     (023)

Despite the magnitude of his personal problems, Mr. Hamidi
found his calling in a growing determination to publicize
his accusations about excessive job demands and unfair
employment practices at Intel.     (024)

In 1995, he started an organization that soon came to be
known as FACE Intel, for former and current employees of
Intel, and the next year he developed a Web site,
www.faceintel .com, to disseminate information, including
accounts that contended there was a connection between job
stress at Intel and employee suicides and heart attacks.
Mr. Mulloy at Intel said such statements "are examples of
the absurdity and the falsehoods that Mr. Hamidi continues
to perpetuate." Mr. Hamidi also filed a wrongful
termination lawsuit against Intel, but later dropped it for
lack of resources.     (025)

TO some people Mr. Hamidi was considered crazy or vengeful.
But his movement attracted attention. He conducted numerous
interviews with reporters. He handed out leaflets to
students at universities where Intel was recruiting. And at
some point, he obtained two diskettes containing an
electronic file of Intel's employee telephone book.
(According to Mr. Hamidi, this came to him through the mail
in an unmarked envelope.)     (026)

The rest, as they say, is history.     (027)

As the California
Supreme Court noted in its 4-to-3 decision on June 30, the
facts of Intel v. Hamidi are "simple and undisputed."     (028)

On six occasions, over a period totaling 21 months, Mr.
Hamidi sent "a single e-mail message to between 8,000 and
35,000 Intel employees, highlighting what Mr. Hamidi
considered to be Intel's abusive and discriminatory
practices," the decision of the majority of the court said.
He suggested that employees seek jobs elsewhere, and he
solicited participation in FACE Intel. During this time,
according Mr. Mulloy, the Intel spokesman, the company
employed 65,000 to 70,000 people.     (029)

To put it mildly, the e-mail campaign attracted Intel's
attention. "From Intel's perspective, Mr. Hamidi intended
to disrupt employees by making inflammatory statements
concerning Intel as an employer," Mr. Mulloy said.     (030)

"In March of 1998, after a few of these e-mails had come,
we received a number of complaints from employees. The kind
of comments we would hear were, `Why are we getting these
at work?' `Can't you stop him?' We sent Mr. Hamidi a letter
demanding that he refrain from sending them. He replied to
us and refused to do so. He then sent more."     (031)

Intel tried to block Mr. Hamidi's messages but was only
partially successful. By switching computers, Mr. Hamidi
managed to evade the company's roadblocks. There is no
evidence, however, that he sent additional e-mail messages
to any recipient who asked him to desist.     (032)

Intel sued on two counts in 1998. One, later dropped,
contended that the messages were a nuisance to Intel and
its employees. The second was a "trespass to chattel" claim
against Mr. Hamidi, that accused him, among other things,
of disrupting Intel through unauthorized use of its
computer system. "We disagree with everything he says about
Intel," Mr. Mulloy said. "We think he's wrong. But we never
did anything to try to prevent him from setting up his Web
site or leafleting at universities.     (033)

"When someone is using our e-mail system, though, our
thinking was that we had certain rights."     (034)

It was now autumn 1998. Mr. Hamidi was unemployed, had been
through bankruptcy and was struggling to support a family
of four on occasional odd jobs and his disability payments.
It wasn't until late 2001 that he found his state job.     (035)

Soon after he was sued by Intel in 1998, however, Mr.
Hamidi attracted a crucial supporter, William M. McSwain, a
former Marine then in his second year at Harvard Law School
and an editor of The Harvard Law Review. Listening to
National Public Radio one day, he heard a mention of the
Intel case that caught his attention.     (036)

"This was an unusual use of the trespass-to-chattel tort,"
he said. "I thought the case might have broad
implications."     (037)

He decided to look into the case, thinking it might produce
an article for the law review. "The more I found out, the
more I wanted to help this guy. He was broke, fighting his
own battle, getting beaten up and nobody was helping him."     (038)

MR. McSWAIN researched the issues and concluded that
Intel had not demonstrated damage to the chattel, which in
this case would be the computer system. "Intel was just
claiming a more general kind of damage, through the loss of
employees' productivity."     (039)

He said that he eventually came to believe that Mr.
Hamidi's case was the most important Internet dispute ever
litigated. "If Intel could use trespass laws, without
demonstrating any damage to its equipment," he said, "then
this would have huge implications for all kinds of
communications taking place on the Internet."     (040)

The article that Mr. McSwain published in the May 1999
issue of The Harvard Law Review validated Mr. Hamidi's
case. "It is ironic," he wrote, "that a technological giant
such as Intel, which has helped to usher in and has greatly
benefited from the cyberspace age, now expects the state to
protect it from a creature of its making." The article
attracted attention.     (041)

But by the time it appeared, Mr. Hamidi had lost the first
round. California's Superior Court granted Intel's request
on the trespass to chattel claim and issued a permanent
injunction against Mr. Hamidi.     (042)

Mr. Hamidi appealed. "They thought I was this bozo, coming
here from some weird country. `He is helpless,' `He will
come to his knees.' " Instead, he went out of his way to
attract public attention for his cause. That included a
horseback ride to deliver a floppy disk to Intel's
headquarters in Santa Clara, Calif., and a ride there in a
horse-drawn carriage to deliver 40,000 printed copies of an
e-mail message to company employees to publicize the fact
that the court had barred him from communicating to Intel
workers on the Internet.     (043)

It helped that he knew he was no longer alone. Through what
seemed to him the hand of God, he had Mr. McSwain, who
during his final year of law school was on an internship
with the Electronic Frontier Foundation, a San
Francisco-based nonprofit public-interest and
civil-liberties group. There, Mr. McSwain wrote the
substance of a brief filed by the foundation on the behalf
of Mr. Hamidi.     (044)

"To us, it seemed very clear that if Intel won this case
we'd all be at risk of losing the fundamental value of the
Internet, which is its openness," said Lee Tien, a senior
lawyer for the foundation. "Imagine what could happen if at
any time any site could say, `We don't want you to visit,
we don't want you to search, we don't want your e-mail.'
The Internet would fragment."     (045)

Nevertheless, the California Court of Appeal in Sacramento
in December 2001 upheld the lower court and supported
Intel.     (046)

"That was the proper decision," argued Richard A. Epstein,
a professor at the University of Chicago Law School and the
author of a brief, filed on behalf of a number of business
groups, in Intel's support in Mr. Hamidi's appeal to the
California Supreme Court. "This wasn't comparable to Mr.
Hamidi standing outside Intel's property and shouting at
employees using a bullhorn. It was as though he took
Intel's bullhorn to do it."     (047)

But the appeals court was split on its decision, 2 to 1,
with a dissent coming from one of the state's most
influential judges, Justice Daniel M. Kolkey.     (048)

By now, Mr. McSwain was a lawyer, working at the Dechert
firm in Philadelphia. With 700 lawyers and a large
corporate law practice, Dechert might have seemed an
unlikely firm to support Mr. Hamidi's case. But the young
lawyer convinced his colleagues that this was a case "about
the soul of the Internet," as he put it. He said he
believed that if the decision in favor of Intel were
allowed to stand, it would ultimately hurt business by
lowering productivity and impeding commerce.     (049)

His colleagues at Dechert agreed. With a strong First
Amendment practice, the firm also supported the freedom of
speech aspects of Mr. Hamidi's case. They agreed to allow
Mr. McSwain and another junior lawyer, F. Gregory Lastowka,
to work on the case pro bono.     (050)

THE pairing proved to be a strong one. Mr. McSwain handled
the legal theories, relations with the media, and of
course, dealings with Mr. Hamidi, whom he calls an ideal
client, rational and calm. Mr. Lastowka, a cyberlaw expert,
coordinated briefs filed on Mr. Hamidi's behalf and wrote
the response to Intel's arguments. The American Civil
Liberties Union filed a separate brief, as did more than
three dozen professors of intellectual property and
computer law. Support also came from the Center for
Internet and Society at Stanford Law School, from the
A.F.L.-C.I.O. and from the Service Employees International
Union.     (051)

"There was a lot of concern among union organizers about
the lower court decisions," said Stacey M. Leyton, a lawyer
with Altshuler, Berzon, Nussbaum, Rubin & Demain in San
Francisco, which worked with the A.F.L.-C.I.O. and the
service employees union. "Our concern was that, if the
lower court decisions were left standing, this could become
an important tool for employers to use against union
activities."     (052)

The decision on June 30 came at the very end of the 90-day
period to issue a ruling after oral arguments. Mr. McSwain
knew that the decision was likely to be posted at 10 a.m.
Pacific time, so back in Philadelphia, he grabbed a
sandwich at Dechert's cafeteria and sat in front of his
computer screen, staring at the Court's Web site and
waiting for the notice. Mr. Hamidi was in his office at the
Franchise Board, training two employees, but keeping an eye
out for an e-mail message from his lawyer or the court.     (053)

When the notice came, "judgment reversed," Mr. McSwain sent
out a two-word e-mail message to his client and colleagues,
"We Won." Mr. Hamidi saw his computer's message light
blinking and asked his co-workers for five minutes to
himself. He called Mary, his wife of 32 years, could not
reach her and left a message on the answering machine.     (054)

"I don't know how being electrocuted feels," he said, "but
there were shocks going all through my body." His phone
started ringing with calls from reporters. He received a
voice-mail message from his wife, telling him that she had
been unable to call back at first because she had been
crying so hard she could not speak. Eventually, he asked
his supervisor for permission to some time off.     (055)

Despite broad support for the decision, there are those who
believe this is a dangerous legal decision, one that will
open the floodgates to spam, erode employers' powers and
give unions free rein to woo members by e-mail. As part of
a longstanding policy, Intel would not allow the law firm
that handled the case, Morrison & Foerster, to comment on
the decision. But in one of its briefs for Intel, the firm
wrote that the basic issue was property rights. "Ownership
of private property carries with it the right to prevent
others from using this private property to harm the owner,"
it said.     (056)

The day-to-day consequences are not yet clear. "I don't
know if the downside from this decision is small or large,
but I do know this: There's no upside," said Professor
Epstein of the University of Chicago, who worked closely
with the firm while writing a brief for Semiconductor
Industry Association and other business groups.     (057)

As for Mr. Hamidi and his relationship with Intel, "The
ball is in his court," said Mr. Malloy, Intel's spokesman.
"If he decides to continue spamming us, we will have to
evaluate our options."     (058)

Mr. McSwain said, "I don't want to speculate about what Ken
will do." He said the original injunction will remain in
place until 30 days after the Supreme Court's ruling "and
the one thing I'm certain is, Ken won't do anything during
that period." If, later, he does send more e-mails, his
lawyer said, " Intel may go after him as hard or harder
than ever."     (059)

The California Supreme Court said in its majority opinion
that depending on what happens next, Intel might have the
option of suing for interference with its business
prospects, defamation or infliction of emotional distress.     (060)

For now, Mr. Hamidi will not disclose his plans. But he
does give some hints.     (061)

"I have done my part for the American people," he said.
"Now I am back to the fight for Intel's employees and other
working men and women."       (062)

http://www.nytimes.com/2003/07/13/technology/13CASE.html?ex=1059105517&ei=1&en=fabcd61424f6eb13    (063)

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