The factual and legal picture of this dispute has not significantly changed since the Court's preliminary injunction ruling. HAMIDI's opposition to INTEL's

INTEL's REPLY IN MOTION FOR SUMMARY JUDGMENT

motion for summary judgment identifies no genuine factual dispute. Indeed, HAMIDI's opposition papers concede many of the factual and legal points in INTEL's motion:

• HAMIDI admits sending seven mass e-mails to INTEL over the last two years. Opposition to Summary Judgment at 2:18-20; HAMIDI's Response to INTEL's Statement of Facts 7.

• HAMIDI admits that INTEL told him to cease sending mass e-mails to INTEL and that he continued his e-mail campaign nonetheless. HAMIDI's Response to INTEL's Statement of Facts 5.

• HAMIDI no longer argues that California labor law protects his mass emails.

• HAMIDI no longer argues that California's constitutional free speech protections provide greater protection to his e-mails than federal law.

ARGUMENT

I. UNDER CALIFORNIA LAW, HAMIDI'S E-MAIL IS INTRUSIONS INTO INTEL'S COMPUTER SYSTEM CONSTITUTE A TRESPASS TO CHATTELS

To prevail in this motion, INTEL must establish, as a matter of undisputed fact, that HAMIDI's mass e-mailings represent trespass to chattels. In view of HAMIDI's opposition papers, this motion turns on whether his e-mails represent "intermeddling" with INTEL's property and whether they caused injury to INTEL.

Under Thrifty-Tel, the tort of trespass to chattels consists of an (1) intentional (2) intermeddling or interference with (3) personal property of another (4) causing injury. HAMIDI admits intentionally sending seven mass e-mails to INTEL over the last two years. Opposition to Summary Judgment at 2: 18-20. HAMIDI specifically admits sending the September 1998 e-mail. HAMIDI Response to INTEL Request for Admission No. 3 (Attached as Ex. 1). That was some five months after HAMIDI admits that he was directed to cease and desist. HAMIDI's Response to INTEL's Statement of Facts 5; Springmann Decl. in Support of Summary Judgment at Ex. 7-8. Whether HAMIDI believed that he was legally entitled to send these e-mails is irrelevant; a mistaken belief of law or fact is no defense to intentional trespass. Cassinos v. Union Oil Co. of California, 14 Cal. App. 4th 1770, 1780 (1993).

As INTEL established in its moving papers, it owns the computer systems that received HAMIDI's e-mails. True Decl. in Support of Summary Judgment at 1-2. HAMIDI does not dispute this element.

A. HAMIDI Intermeddled With INTEL's Property And Caused INTEL Injury.

Disputing both the intermeddling and injury elements of   INTEL's motion, HAMIDI claims that INTEL suffered no harm from his trespasses. The INTEL internal documents that HAMIDI attached to his opposition declaration, however, attest to the injury he caused. HAMIDI cites to a 1996 internal INTEL document for the proposition that INTEL could easily have blocked his messages. HAMIDI Decl. in Support of Opposition Ex. A. In fact, that document reveals that INTEL's Internet e-mail gateway servers require from two to twenty-four hours to block each new address that HAMIDI could use. INTEL chased that tail for almost two years prior to filing this action, blocking each new address that HAMIDI used, only to have him use a different one the next time. True Decl. in Support of Motion for Summary Judgment at 4.1 The diversion of technology personnel to the address-blocking effort is a concrete harm caused by HAMIDI. The trespass to chattels tort has no requirement that a party even attempt to block access by a trespasser, much less continue that effort for almost two years before seeking relief.

Other INTEL documents that HAMIDI submitted with his opposition support INTEL's factual assertions that HAMIDI's messages caused consternation and bewilderment among INTEL's employees, and that INTEL management spent considerable effort dealing with employee questions raised by HAMIDI's mass emails. See, e.g., HAMIDI Decl. in Support of Opposition Ex. A, C-1. HAMIDI has never attempted to deny that his e-mail caused INTEL a loss of employee productivity. True Decl. in Support of Motion for Summary Judgment at 12. HAMIDI also cannot contest the additional burden that his e-mail caused for INTEL Internet Connectivity Engineering personnel. Id. at 15; Sedayao Decl. in Support of Motion for Summary Judgment at 2. In short, HAMIDI cannot contest that his trespasses harmed INTEL.

I Among the return addresses HAMIDI used in his e-mails to INTEL were redeploy@foothill.net (Sept. 2, 1998 e-mail), toldu@mistic.net (Mar. 5, 1998 e-mail), and face@calweb.com (Feb. 17, 1997 e-mail). HAMIDI's address changing demonstrates the futility of INTEL's efforts to use self-help measures to block his e-mail campaign.

B. HAMIDI Mischaracterizes The Caselaw To Add Elements To The Tort Of Trespass To Chattels.

With the elements of trespass to chattels as set forth in Thrifty-Tel difficult for HAMIDI to contest, HAMIDI's defense turns on rewriting the elements of the tort to exclude the conduct in which he engaged. Thus, HAMIDI attempts to limit Thrifty-Tel to the precise facts of that case, and confuses the trespass to chattels and fraud issues in Thrifty-Tel. Moreover, HAMIDI attempts to ascribe a physical damage requirement to trespass to chattels. HAMIDI's efforts to evade INTEL's tort claim by raising the legal bar are unavailing.

Contrary to HAMIDI's argument, the trespass to chattels holding in ThriftyTel did not turn on whether the network was overloaded or whether the computers were actually damaged. Nor did it turn on the entirely separate issue of the defendants' intent to defraud. Rather, Thrifty-Tel stands for the general proposition that electronic signals are "sufficiently tangible to support a trespass cause of action." Id. at 1566-67. As the court explained, no substantial interference with the computers in question is necessary; mere intermeddling with use of personal property amounts to a trespass to chattels. Id.

Although HAMIDI disputes the degree of intermeddling that occurred, HAMIDI cannot deny that he intruded into INTEL's computer network with his email messages; after all, those messages showed up in the e-mail in-box of tens of thousands of INTEL computer users 2. HAMIDI says that he sent the messages to INTEL employees rather than INTEL or INTEL management, but that is entirely beside the point. The computers in question are INTEL's and the employees
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2 HAMIDI also cites an INTEL document to show that there was no "security breach" from his first e-mail. INTEL does not claim, however, that HAMIDI breached INTEL's computer security (as opposed to address blocking) measures, and such a claim is not necessary to its trespass to chattels cause of action.
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INTEL's motion also relied in part on CompuServe, in which the court applied the general proposition in Thrifty-Tel to the specific question of unauthorized e-mail. CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015, 1021 (S.D. Ohio 1997). HAMIDI attempts to distinguish CompuServe as only applying to commercial e-mail and claims that CompuServe requires actual damage. The central holding of CompuServe, however, was that unwanted e-mail can represent a trespass to chattels, citing Thrifty-Tel. Id. at 1021-22. HAMIDI ignores the plain text of the decision: "intermeddling is actionable even though the physical condition of the chattel is not impaired." Id. at 1022 (quoting Restatement Second of Torts § 218 cmt. h).

C. INTEL Did Not Consent To  HAMIDI's E-mails

Although HAMIDI is not explicit on the point, he seems to be arguing that INTEL consented to the receipt of his e-mails. The CompuServe court found that the defendants' e-mails physically invaded the plaintiff's computers after a demand to cease. Id. at 1027. Like HAMIDI, the defendants in CompuServe pointed to some nebulous theory of consent based on CompuServe's business decision to connect to the Internet. The CompuServe court held that CompuServe's connection to the Internet did not represent consent to trespass, and even if it did, the defendants received notice that any conceivable consent was clearly revoked. Id. at 1024-25. Here, HAMIDI can show no consent in the first instance. INTEL never published its employees' e-mail addresses and never implied that its employees were open to receiving e-mail from the public. True Decl. in Support of Summary Judgment at 2. Moreover, INTEL clearly demanded that HAMIDI cease and desist.

CompuServe thus disposes of HAMIDI's contention that the configuration of INTEL's Internet connection is a material fact. It did not matter there that CompuServe connected to the Internet to receive e-mails, and it does not matter here. HAMIDI took the affirmative step of transmitting tens of thousands of emails to INTEL. INTEL, like most companies, non-profit organizations, and governmental agencies today, connects to the Internet for a host of business reasons that have nothing to do with HAMIDI. His argument amounts to a demand that INTEL entirely disconnect from the Internet or remain subject to his e-mail blitzes.

II. INTEL'S COMPUTER SYSTEM IS PRIVATE PROPERTY AND DOES NOT CONSTITUTE A PUBLIC FORUM

HAMIDI also implies, again without arguing the point directly, that INTEL has opened up its computer networks to outsiders and thereby created a public forum in which his speech is protected. HAMIDI relies heavily on the fact that INTEL's computer policy allows its employees reasonable personal use of e-mail.3 HAMIDI's argument is implausible on its face. If adopted, it would mean that employers would have to prohibit all personal use by employees in order to avoid creating a public forum and to permit control over mass e-mails from outside the company. Indeed, HAMIDI's public forum argument would not only bar this Court from assisting INTEL; it would also bar INTEL from self-help measures such as blocking sites INTEL concludes are inappropriate. It would also mean that not only HAMIDI, but any outsider, could send e-mails en masse to INTEL's computers.

INTEL's computer networks, of course, are not a public forum. Indeed, HAMIDI cites no case in support of his argument. America Online, with its far

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3 HAMIDI appears to argue that he is a beneficiary of this policy, and that by allowing its employees reasonable personal use, INTEL has tied its own hands in dealing with him. HAMIDI, of course, is not an INTEL employee; nor is he an intended thirdparty beneficiary of the policy. Moreover, it is a matter of INTEL's business discretion how it writes its e-mail policies, and INTEL is entitled to rely on its employees' common sense in determining what is reasonable personal use in the business context.
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more open character than INTEL's networks, was held not to be a public forum in Cyber Promotions. Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 436, 441-42 (E.D. Pa. 1996) (finding that AOL was not a state actor, that AOL's email servers were not public fora and rejecting an argument that the First Amendment provides a party some right to send unsolicited e-mail to a proprietary computer system); see also CompuServe, 962 F. Supp. at 1026-27 (holding that the FirstAmendment provided no defense for the defendants' mass e-mail trespass); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 47, 49, 55 (1983) (holding that teacher mailbox system of a public school is not a public forum, that government actors can permissibly allow selective access to internal communication systems, and that the use of an instrumentality for communication, even in a government setting, does not convert it into a public forum); Loving v. Boren, 956 F. Supp. 953, 955 (W.D. Okla. 1997) (stating that public and private actors have the right to exclude individuals from accessing their property in the context of computer and Internet services).

Even under the California Constitution, HAMIDI would have to show that INTEL has affirmatively opened up its property for general use by the public. Recent California cases have interpreted this requirement strictly. See Bank of Stockton v. Church of Soldiers of the Cross of Christ of Cal., 44 Cal. App. 4th 1623 (1996) (affirming preliminary injunction prohibiting solicitation of religious donations on bank property where the property was open to the public only for specific banking-related activities); Feminist Women 's Health Center v. Blythe, 32 Cal. App. 4th 1641, 1659-61 (1995) (affirming permanent injunction against trespass on private property to express anti-abortion views); Allred v. Harris, 14 Cal. App. 4th 1386 (1993) (affirming permanent injunction against picketing on a private parking lot and holding California law does not force property owners to allow unwanted expressive activity on private property where the public is not openly invited); v. Shawley.  232 Cal. App. 3d 1489, 1500-02 (1991) (affirming a preliminary injunction preventing picketing on a private parking lot not held open to the general public); Planned Parenthood of San Diego and Riverside Counties v. Wilson, 234 Cal. App. 3d 1662, 1671-73 (1991) (affirming preliminary injunction against trespass in the face of free speech claims).

HAMIDI cannot establish that INTEL has opened up its computer networks to the public, and INTEL certainly has done nothing to suggest that its networks are some sort of free speech zone where anything goes.

III. AN INJUNCTION AGAINST HAMIDI TO PREVENT TRESPASS ON INTEL'S PROPERTY IS NOT STATE ACTION

Apparently seeking another route to turning this trespass case into a constitutional dispute, HAMIDI argues that this case involves state action. An injunction by this Court preventing trespass on INTEL's private property, however, is not state action.

The fundamental problem with HAMIDI's argument is that INTEL is asking the Court to do no more than protect its private property rights by stopping HAMIDI from sending messages to its computers. The Court's assistance with the protection of these property rights is not state action, and it does not turn , HAMIDI's e-mails into constitutionally protected speech. As the U.S. Supreme Court noted, "[T]his Court has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only." Lloyd Corp. v. Tanner, 407 U.S. 551, 568 (1972). The Lloyd Court, in reversing the lower courts in favor of the property owner, stated that rights of free speech are limitations only on state actions but not on private property owners. Id. at 567. The implication of this decision is that a trespass action (perhaps outside the context of racial segregation), even though it invokes judicial authority, is not state action.

In Hudgens v. NLRB, 424 U.S. 507 (1975), the Court held that  laborers had no First Amendment right to enter a shopping center to picket a store. The Hudgens Court concluded that free speech simply played no part in such circumstances. Id. at 521. Again, the implication of this decision is that enforcement of trespass laws does not invoke the state action doctrine.

The CompuServe court explicitly ruled on this point, stating:  In the present action, CompuServe  is a private company. Moreover, the mere judicial enforcement of neutral trespass laws by the private owner of property does not alone render it a state actor.

962 F.Supp. at 1026. See also International Soc'y for Krishna Consciousness, Inc. v. Reber, 454 F. Supp. 1385, 1388-89, 1389 n.1 (C.D. Cal. 1978).

CONCLUSION

All material facts in this case are undisputed and no triable issue of material fact remains. Under California law, HAMIDI's e-mail invasion of INTEL's proprietary computer system represents a trespass to chattels. There is no consent or other right that privileges this trespass. INTEL is entitled to judgment as a matter of law. INTEL requests that this Court grant INTEL summary judgment against HAMIDI.

Dated: April 14, 1999

LINDA E. SHOSTAK

MICHAEL A. JACOBS

KURT E. SPRINGMANN

MORRISON & FOERSTER LLP

By:

Michael A. Jacobs

Attorneys for Plaintiff

INTEL CORPORATION