Siding With Goliath: Preaching What Permission Marketing Practices

The email trespass case of Intel v. Hamidi, now moving to oral argument before the California Supreme Court and disposition early next year, potentially threatens lawsuits for trespass against every company using email to market to customers, even nonspammers. Liberal watchdogs are on the side of the underdog, as usual. They ignore the fact, in this case, Intel is championing permission.

The facts: Ken Hamidi was fired by Intel after a protracted worker’s compensation battle. Over the course of two years, Hamidi sent six separate emails to between 8,000 and 35,000 Intel employees. No Intel hardware or software was damaged.

Intel asked him to stop. Hamidi refused. Intel tried to block his access; he went around the barriers. Intel sought, and the court issued, an injunction preventing Hamidi from emailing Intel employees at Intel email addresses, based on the common law tort of trespass against chattels.

As if following a script, every watchdog group defended David against Goliath. The American Civil Liberties Union and ACLU of Northern California submitted a joint brief of amici curiae that argued the role taken by the state was unconstitutional, violating the First Amendment from various directions.

The AFL-CIO submitted an amicus curiae brief, prepared by Altshuler, Berson, Nussbaum, Rubin & Demain, arguing the court’s support for Intel conflicts with case law precedent that privileges employee rights over property rights when employee speech concerns workplace issues. They also said the decision conflicts with Federal labor law protecting workplace speech.

In its own brief of amicus curiae, the Electronic Frontier Foundation (EFF) critiqued the court’s interpretation of the trespass against chattels doctrine as a distortion that should be reversed, arguing several legal errors and likely negative effects on the Internet. Legal errors are beyond my expertise, but the EFF’s concern the ruling would transform commonly accepted Internet activities is weak.

Specifically (but hypothetically) the EFF is protecting search engines that crawl Web sites indexing content. If the court’s interpretation prevails, the EFF suggests, a Web site could inform an engine not to browse the site or even post a no-trespassing sign, transforming subsequent search engine contact into a trespass.

Many businesses publish sites on the public Web to make their assets available to visitors. That means making those assets known. It is not logical or likely they would bar search engines. Some don’t allow unrestricted access to their entire sites, but they use gate keeping software to bar or grant access, in part or whole, to different visitors according to the owner’s rules. No-trespassing barriers in front of and inside Web sites apply to search engines as to any other visitor, as they should.

The EFF brief also conjures a threat to hyperlinking. Suppose a Web site posts a no-linking sign. Then, a second site publishes a link to the first, despite the no-linking sign. If an unwitting user clicks the unauthorized link, that user would be a trespasser.

That twisted path is theoretically possible but is at best a nonzero probability. This issue is much larger (in my humble opinion). The Internet community needs to organize its hyperlinking capability with a set of best practices, a toolkit of solutions, and an understanding of how, on the Net, who you are is who you’re linked to.

Of course, we need activists to be ever vigilant against the ingrained tendency of businesses and governments to encroach upon our rights and liberties. Intel’s position in this case is an opportunity and obligation to bring some rhyme and reason to hyperlinking and permission.

Hamidi did not ask and never received permission from Intel. When Intel asked that he cease, he refused. When Intel adopted measures to prevent his access, he adopted surreptitious means to get around its barriers. Hamidi’s unsolicited email offered Intel workers an opt-out option, and those requests were honored. Hamidi’s courtesy won’t protect Intel workers from being spammed by the next guy with a grievance and access to an internal email address list.

Permission marketers should size up the stakes here. This court’s interpretation of trespass against chattels puts backbone into permission practices. The same doctrine was successfully used twice before to shut down people spamming ISP subscribers. In CompuServe Inc. v. Cyber Promotions, Inc., it stopped a bulk emailer of promotions; in America Online, Inc. v. LCGM, Inc., it stopped an adult entertainment company from sending email advertising pornographic Web sites.

In Intel v. Hamidi, according to EFF’s Senior Staff Attorney Lee Tien, if the lower court is upheld, “anyone who sends email messages after having been told not to could risk a ’trespass’ lawsuit from recipients.” Tien is wringing his hands. He could be jumping for joy. He’s concerned about “putting exclusionary fences around Web sites, email servers, and any piece of equipment hooked to the Internet.” Someone please remind him, good fences make good neighbors.

Taking up hyperlinking and permissioning as opportunity-cum-obligation does not mean taming the Wild West Web into a walled garden, AOL style. Hyperlinking and permissioning are network attributes that contribute to virtuous circles: collective intelligence, peer-to-peer connectivity, tipping points, and other network effects. This is the vanguard of the practice.

It may feel odd agreeing with a zillion-dollar techno-giant, but it’s not too late to get on the right side of Intel v. Hamidi. Permission marketers should seize an opportunity to preach what they practice: valuing permission rather than the right to spam. We’ll all be the better for it.

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