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Friday, July 11th, 2003

Hamidi revisited

Remember Ken Hamidi, the disgruntled ex-Intel employee who retaliated by spamming up to 35,000 Intel employees with emails critical of corporate policy, triggering lawsuits and ACLU meddling and PR stunts and etc.? I wrote about it in late 2001, when some journalists (incorrectly) characterized the dispute as “david vs. goliath,” when in fact it had more to do with the implied responsibility of delivering email. Read more at Hamidi’s site, intelhamidi.com, but beware the disturbing “free speech” slant.

Common sense, and Intel’s case, suffered a setback last week: The state Supreme Court boosted free speech over property rights in cyberspace, denying Intel’s attempt to stop an angry ex-employee from using the company’s e-mail system to send messages to thousands of workers.

Justice Kathryn Mickle Werdegar is quoted as opining, “[Hamidi] no more invaded Intel’s property than does a protester holding a sign or shouting through a bullhorn outside corporate headquarters, posting a letter through the mail, or telephoning to complain of a corporate practice.” This appears to me to be incorrect. If a protester holds a sign in the driveway, Intel pays nothing, and 99% of employees don’t notice. If a protestor sends a letter, a single employee is engaged for a few minutes, but this is the cost of doing business. The same applies to the handling of a telephone call.

But Hamidi sent tens of thousands of emails. Werdegar and the other justices of the majority failed to grasp the difference. Werdegar’s opinion needed to have said, “[Hamidi] no more invaded Intel’s property than would 35,000 protesters holding signs or shouting through bullhorns outside corporate headquarters.” She didn’t say that, because (in my opinion) such a disturbance would be considered an invasion of property. If 35,000 people showed up to protest, would Intel have invited them into the foyer? I think not. Intel would have invited cops with rubber bullets to defend the company against siege. Barricades would have forced protestors to back off of Intel property. Nobody would have claimed that Intel needs to accept the protest without comment. Extrapolating from Werdegar’s opinion, Intel would not only need to allow 35,000 protestors up on the lawn, but would have to send out for lunch, too. “Hi, this is Sally at Intel. We’re having guests for lunch. Can I get some kung-pao chicken delivered right away? Yes, with steamed rice for 35,000.”

Another troubling aspect of the case was Intel’s failure to show damages. It appears that had Intel been able to prove that Hamidi’s flood of email caused outages or hardware failures, the claim of invasion would have stood a better chance of success. This is troubling because it’s the IT department’s job to withstand floods. Networking experts regularly design systems to withstand 2x or 5x or even 10x spikes in throughput. According to the state Supreme Court, building scalable systems provides a tacit invitation to outsiders to abuse those systems, at least within the systems’ tolerance for abuse.

So, for example, if I build a wall around my property, I can’t sue graffiti artists, because clearly the wall is there to be defaced, right? If I didn’t want graffiti, I should not have built the wall. This seems to be the essence of the judges’ opinion. (Forgive me for not using the word “justice” here.)

Now that Hamidi has a legal right to spam Intel’s entire staff with his diatribes, what’s the next step for Intel? If the company were to filter inbound email to prevent Hamidi’s spam from reaching employees, would the ACLU be back on the case demanding that Intel guarantee delivery of every inbound message?

The ACLU calls this “censorship,” but I just don’t see the argument. AOL discards inbound email based strictly on volume — and AOL doesn’t wait until there is real risk to the system, as Werdegar demands. AOL does not even publish the conditions that trigger such blacklisting. When AOL blacklists a sender, all subsequent inbound messages are silently deleted. Neither the sender nor the recipient is notified. Will the ACLU battle AOL too, with the effect of giving spammers the legal right to force AOL to deliver every message? This is a dangerous road, because nobody wants to go where that road leads.

It’s just not a free speech issue. Intel does not protest Hamidi’s right to have a website where he can express his opinion. That would be a free speech issue.


Tags:
posted to channel: Personal
updated: 2004-02-22 22:49:16

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