SENDING SPAM MAY CONSTITUTE TRESPASS

Several cases have applied the ancient doctrine of trespass to those who send unsolicited bulk email, popularly known as spam. (Persons who send spam are known as spammers.) Trespass occurs whenever someone intentionally interferes with another’s possession of their property. Chasing someone’s cattle is a classic example. Sending spam is the newest.

Since 1997, at least five cases have ordered spammers to cease sending spam. In those cases, the spam constituted trespass because the volume of the spam interfered with the recipients’ servers by slowing the servers’ response times. On December 10, 2001, a California appellate court, in a case between Intel Corporation and Kourosh Kenneth Hamidi, expanded the trespass doctrine and applied it to circumstances in which the spam itself did not affect the recipient’s server.

Hamidi is a disgruntled former Intel employee who repeatedly sent bulk email to Intel employees, which Intel considered as spam. After Hamidi defeated Intel’s best efforts to block his spam, Intel filed a lawsuit and asked the judge to stop him.

Hamidi’s spam did not slow down or otherwise interfere with Intel’s servers. The only damage that Intel suffered from the spam was the expense Intel incurred trying to block it. According to the California court, that expense was sufficient grounds under trespass for entry of an injunction barring Hamidi from sending more email.

Intel asked the court for an injunction only--not for monetary damages. Although this probably influenced the court in Intel’s favor, there is no assurance that another court would not go even farther and award damages in a similar case. The lesson here is, spammers beware.