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Freedom to e-mail takes the stand

A long-running dispute between Intel and an ex-employee over the right to send mass e-mail gets another court hearing, in a free-speech tussle that has heavy-hitters lining up on each side.

4 min read
Anti-Intel crusader Ken Hamidi's long-standing battle to highlight alleged unfair labor practices at the chip giant is set to get another day in court this week.

At a hearing Wednesday, Intel is expected to ask the California Supreme Court to uphold an earlier legal ruling that found Hamidi had trespassed on its servers by sending thousands of unwanted e-mails to staff at work. Hamidi, an ex-Intel employee, will ask that the decision be overturned, arguing that he was merely expressing his First Amendment rights.

The case goes beyond one man's colorful attempts to discredit a icon of high technology. Free speech groups as well as business and labor interests are closely watching the suit, which could set broad rules governing how people are allowed to communicate over private e-mail systems.

The current decision "grants employers unbounded discretion over the content of employees' communications on employer computer networks and sanctions use of the courts' injunctive powers to censor employees' electronic speech," attorneys representing the AFL-CIO argue in an amicus brief supporting Hamidi.

The issue of whether and how organized labor can use e-mail to reach current and potential members has become increasingly heated, as unions have begun eyeing the Internet as a vehicle for reaching a large number of people at far less cost and effort than mass postal mailings or lunchroom bulletin board postings can.

Currently, the National Labor Relations Board's position on the matter is that companies should treat e-mail essentially as they treat any other form of communication, and companies that allow casual use of their communications systems--say, during lunch or after hours--should let workers conduct organizing activity during that time.

Still, labor organizers, fearing that their messages could somehow be restricted, have asked for special rights regarding e-mail. For example, during contentious contract negotiations involving court workers in Santa Clara County, Calif., the union agreed to a contract that specifically spelled out e-mail privileges as well as salary and other workplace information.

E-mail showdown
The dispute between Intel and Kourosh Kenneth Hamidi started six years ago when Intel sued Hamidi after he blasted its e-mail system with thousands of e-mails accusing the company of unfair labor practices. The Santa Clara, Calif.-based chipmaker claimed Hamidi was trespassing on its property by sending a barrage of unwanted messages to its servers.

Hamidi, however, has claimed that he was merely expressing his First Amendment rights.

The former Intel worker, who was fired in 1996, has landed the support of free speech activists and law professors, who argue that Hamidi's speech was the equivalent of water cooler gossip and that he has a right to express his opinions about the company via e-mail.

Cindy Cohn, an attorney with the Electronic Frontier Foundation, which submitted a brief on behalf of Hamidi, said the case threatens Internet communications of all types.

"If the court upholds the ruling, I think in some way we have broken the Internet," she said. "It will create an Internet in which your attempt to communicate with people is dependent on their consent."

But Intel argues the case is not about free speech, but trespassing. Intel spokeswoman Tracy Koon said Hamidi has maintained plenty of avenues to get his message out, including Web sites and publicity stunts involving riding to Intel headquarters on horseback to deliver his messages in person on a computer disk.

"He's been very persistent about this," Koon said. "We have not made any attempt in all this time to restrict his attempts to say what's on his mind."

Koon said the e-mails at issue in the case were worse than run-of-the-mill spam because some workers took Hamidi's messages personally. Some messages contained phrases such as "Are you tired of being victimized...redeployed, or targeted for termination?"

"One of the big problems with this particular thing is that it was disruptive and affected productivity," Koon said. "We had people who believed they were being singled out with negative messages."

Mark Theodore, a partner with the law firm Proskauer Rose who wrote an amicus brief on behalf of the U.S. Chamber of Commerce, said the case turns on the rights of an ex-employee to trespass on the property of a company. "Our biggest concern is if the courts were to allow somebody like this--a former employee--to bombard an e-mail server with messages against a company, you might find companies restricting e-mail use."

He said companies have a right to protect their e-mail systems from a flood of messages in the same way they can protect systems such as their phone networks.

"It's a very targeted form of harassment," he said of Hamidi's e-mail string. "It causes all sorts of dissention in the work force."