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INTEL CORPORATION, Plaintiff and Respondent,
v.
Kourosh Kenneth HAMIDI, Defendant and Appellant.
Supreme Court of California.
*35 Philip H. Weber, Placerville; Dechert, William M. McSwain, Richard L. Berkman, F. Gregory Lastowka; Levy, Ram & Olson, Karl Olson, San Francisco, and Erica L. Craven for Defendant and Appellant.
Mark A. Lemley and Deirdre K. Mulligan for Professors of Intellectual Property and Computer Law as Amicus Curiae on behalf of Defendant and Appellant.
Lee Tien and Deborah Pierce for Electronic Frontier Foundation as Amicus Curiae on behalf of Defendant and Appellant.
Jennifer Stisa Granick, San Francisco, for the Stanford Law School Center for Internet and Society as Amicus Curiae on behalf of Defendant and Appellant.
Ann Brick and Christopher A. Hansen for American Civil Liberties Union Foundation of Northern California, Inc., and American Civil Liberties Union Foundation as Amici Curiae on behalf of Defendant and Appellant.
Robert M. O'Neil and J. Joshua Wheeler for The Thomas Jefferson Center for the Protection of Free Expression as Amicus Curiae on behalf of Defendant and Appellant.
Atshuler, Berzon, Nussbaum, Rubin & Demain, Stephen P. Berzon, Scott A. Kronland, San Francisco, and Stacey M. Leyton for the Service Employees International Union, AFL CIO as Amicus Curiae on behalf of Defendant and Appellant.
Morrison & Foerster, Linda E. Shostak, Michael A. Jacobs, San Francisco, Kurt E. Springmann and Paul A. Friedman, San Francisco, for Plaintiff and Respondent.
Steptoe & Johnson, Stewart A. Baker and W. Chelsea Chen for the U.S. Internet Service Provider Association as Amicus Curiae on behalf of Plaintiff and Respondent.
*36 Richard A. Epstein for California Employment Law Council, California Manufacturers & Technology Association, eBay, Inc., Information Technology Industry Council, National Association of Manufacturers, Semiconductor Industry Association and Silicon Valley Manufacturing Group as Amici Curiae on behalf of Plaintiff and Respondent.
Fred J. Hiestand, Sacramento, for the Civil Justice Association of California as Amicus Curiae on behalf of Plaintiff and Respondent.
Proskauer Rose, Mark Theodore, Arthur F. Silbergeld, Niloofar Nejat Bina and Adam C. Abrahms, Los Angeles, for Labor Policy Association, Inc., United States Chamber of Commerce and California Chamber of Commerce as Amici Curiae on behalf of Plaintiff and Respondent.
WERDEGAR, J.
Intel Corporation (Intel) maintains an electronic mail system, connected to the Internet, through which messages between employees and those outside the company can be sent and received, and permits its employees to make reasonable nonbusiness use of this system. On six occasions over almost two years, Kourosh Kenneth Hamidi, a former Intel employee, sent e-mails criticizing Intel's employment practices to numerous current employees on Intel's electronic mail system. Hamidi breached no computer security barriers in order to communicate with Intel employees. He offered to, and did, remove from his mailing list any recipient who so wished. Hamidi's communications to individual Intel employees caused neither physical damage nor functional disruption to the company's computers, nor did they at any time deprive Intel of the use of its computers. The contents of the messages, however, caused discussion among employees and managers.
On these facts, Intel brought suit, claiming that by communicating with its employees over the company's e-mail system Hamidi committed the tort of trespass to chattels. The trial court granted Intel's motion for summary judgment and enjoined Hamidi from any further mailings. A divided Court of Appeal affirmed.
After reviewing the decisions analyzing unauthorized electronic contact with computer systems as potential trespasses to chattels, we conclude that under California law the tort does not encompass, and should not be extended to encompass, an electronic communication that neither damages the recipient computer system nor impairs its functioning. Such an electronic communication does not constitute an actionable trespass to personal property, i.e., the computer system, because it does not interfere with the possessor's use or possession of, or any other legally protected interest in, the personal property itself. (See Zaslow v. Kroenert (1946) 29 Cal.2d 541, 551, 176 P.2d 1; Ticketmaster Corp. v. Tickets.com, Inc. (C.D.Cal, Aug. 10, 2000, No. 99CV7654) 2000 WL 1887522, p. *4; Rest.2d Torts, § 218.) The consequential economic damage Intel claims to have suffered, i.e., loss of productivity caused by employees reading and reacting to Hamidi's messages and company efforts to block the messages, is not an injury to the company's interest in its computers— which worked as intended and were unharmed by the communications—any more than the personal distress caused by reading an unpleasant letter would be an injury to the recipient's mailbox, or the loss of privacy caused by an intrusive telephone call would be an injury to the recipient's telephone equipment.
Our conclusion does not rest on any special immunity for communications by electronic mail; we do not hold that *37 messages transmitted through the Internet are exempt from the ordinary rules of tort liability. To the contrary, e-mail, like other forms of communication, may in some circumstances cause legally cognizable injury to the recipient or to third parties and may be actionable under various common law or statutory theories. Indeed, on facts somewhat similar to those here, a company or its employees might be able to plead causes of action for interference with prospective economic relations (see Guillory v. Godfrey (1955) 134 Cal. App.2d 628, 630-632, 286 P.2d 474 [defendant berated customers and prospective customers of plaintiffs' cafe with disparaging and racist comments]), interference with contract (see Blender v. Superior Court (1942) 55 Cal.App.2d 24, 25-27, 130 P.2d 179 [defendant made false statements about plaintiff to his employer, resulting in plaintiffs discharge]) or intentional infliction of emotional distress (see Kiseskey v. Carpenters' Trust for So. California (1983) 144 Cal.App.3d 222, 229-230, 192 Cal.Rptr. 492 [agents of defendant union threatened life, health, and family of employer if he did not sign agreement with union].) And, of course, as with any other means of publication, third party subjects of e-mail communications may under appropriate facts make claims for defamation, publication of private facts, or other speechbased torts. (See, e.g., Southridge Capital Management v. Lowry (S.D.N.Y.2002) 188 F.Supp.2d 388, 394-396 [allegedly false statements in e-mail sent to several of plaintiffs clients support actions for defamation and ` interference with contract].) Intel's claim fails not because e-mail transmitted through the Internet enjoys unique immunity, but because the trespass to chattels tort—unlike the causes of action just mentioned—may not, in California, be proved without evidence of an injury to the plaintiffs personal property or legal interest therein.
Nor does our holding affect the legal remedies of Internet service providers (ISP's) against senders of unsolicited commercial bulk e-mail (UCE), also known as "spam." (See Ferguson v. Friendfinders, Inc. (2002) 94 Cal.App.4th 1255, 1267, 115 Cal.Rptr.2d 258.) A series of federal district court decisions, beginning with CompuServe, Inc. v. Cyber Promotions, Inc. (S.D.Ohio 1997) 962 F.Supp. 1015, has approved the use of trespass to chattels as a theory of spammers' liability to ISP's, based upon evidence that the vast quantities of mail sent by spammers both overburdened the ISP's own computers and made the entire computer system harder to use for recipients, the ISP's customers. (See id. at pp. 1022-1023.) In those cases, discussed in greater detail below, the underlying complaint was that the extraordinary quantity of UCE impaired the computer system's functioning. In the present case, the claimed injury is located in the disruption or distraction caused to recipients by the contents of the e-mail messages, an injury entirely separate from, and not directly affecting, the possession or value of personal property.
FACTUAL AND PROCEDURAL BACKGROUND
We review a grant of summary judgment de novo; we must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Galanty v. Paul Revere Life Ins. Co. (2000) 23 Cal.4th 368, 374, 97 Cal.Rptr.2d 67, 1 P.3d 658; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404, 87 Cal.Rptr.2d 453, 981 P.2d 79; Code Civ. Proc, § 437c, subd. (c).) The pertinent undisputed facts are as follows.
Hamidi, a former Intel engineer, together with others, formed an organization named Former and Current Employees of *38 Intel (FACE-Intel) to disseminate information and views critical of Intel's employment and personnel policies and practices. FACE-Intel maintained a Web site (which identified Hamidi as Webmaster and as the organization's spokesperson) containing such material. In addition, over a 21-month period Hamidi, on behalf of FACE-Intel, sent six mass e-mails to employee addresses on Intel's electronic mail system. The messages criticized Intel's employment practices, warned employees of the dangers those practices posed to their careers, suggested employees consider moving to other companies, solicited employees' participation in FACE-Intel, and urged employees to inform themselves further by visiting FACE-Intel's Web site. The messages stated that recipients could, by notifying the sender of their wishes, be removed from FACE-Intel's mailing list; Hamidi did not subsequently send messages to anyone who requested removal.
Each message was sent to thousands of addresses (as many as 35,000 according to FACE-Intel's Web site), though some messages were blocked by Intel before reaching employees. Intel's attempt to block internal transmission of the messages succeeded only in part; Hamidi later admitted he evaded blocking efforts by using different sending computers. When Intel, in March 1998, demanded in writing that Hamidi and FACE-Intel stop sending e-mails to Intel's computer system, Hamidi asserted the organization had a right to communicate with willing Intel employees; he sent a new mass mailing in September 1998.
The summary judgment record contains no evidence Hamidi breached Intel's computer security in order to obtain the recipient addresses for his messages; indeed, internal Intel memoranda show the company's management concluded no security breach had occurred.[1] Hamidi stated he created the recipient address list using an Intel directory on a floppy disk anonymously sent to him. Nor is there any evidence that the receipt or internal distribution of Hamidi's electronic messages damaged Intel's computer system or slowed or impaired its functioning. Intel did present uncontradicted evidence, however, that many employee recipients asked a company official to stop the messages and that staff time was consumed in attempts to block further messages from FACE-Intel. According to the FAC-Intel Web site, moreover, the messages had prompted discussions between "[e]xcited and nervous managers" and the company's human resources department.
Intel sued Hamidi and FACE-Intel, pleading causes of action for trespass to chattels and nuisance, and seeking both actual damages and an injunction against further e-mail messages. Intel later voluntarily dismissed its nuisance claim and waived its demand for damages. The trial court entered default against FACE-Intel upon that organization's failure to answer. The court then granted Intel's motion for summary judgment, permanently enjoining Hamidi, FACE-Intel, and their agents "from sending unsolicited e-mail to addresses on Intel's computer systems." Hamidi appealed; FACE-Intel did not.[2]
*39 The Court of Appeal, with one justice dissenting, affirmed the grant of injunctive relief. The majority took the view that the use of or intermeddling with another's personal property is actionable as a trespass to chattels without proof of any actual injury to the personal property; even if Intel could not show any damages resulting from Hamidi's sending of messages, "it showed he was disrupting its business by using its property and therefore is entitled to injunctive relief based on a theory of trespass to chattels." The dissenting justice warned that the majority's application of the trespass to chattels tort to "unsolicited electronic mail that causes no harm to the private computer system that receives it" would "expand the tort of trespass to chattel in untold ways and to unanticipated circumstances."
We granted Hamidi's petition for review.[3]
Discussion
I. Current California Tort Law
Dubbed by Prosser the "little brother of conversion," the tort of trespass to chattels allows recovery for interferences with possession of personal property "not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered." (Prosser & Keeton, Torts (5th ed.1984) § 14, pp. 85-86.)
Though not amounting to conversion, the defendant's interference must, to be actionable, have caused some injury to the chattel or to the plaintiffs rights in it. Under California law, trespass to chattels "lies where an intentional interference with the possession of personal property has proximately caused injury." (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal. App.4th 1559, 1566, 54 Cal.Rptr.2d 468, italics added.) In cases of interference with possession of personal property not amounting to conversion, "the owner has a cause of action for trespass or case, and may recover only the actual damages suffered by reason of the impairment of the property or the loss of its use." (Zasloiv v. Kroenert, supra, 29 Cal.2d at p. 551, 176 P.2d 1, italics added; accord, Jordan v. Talbot (1961) 55 Cal.2d 597, 610, 12 Cal. Rptr. 488, 361 P.2d 20.) In modern American law generally, "[t]respass remains as an occasional remedy for minor interferences, resulting in some damage, but not sufficiently serious or sufficiently important to amount to the greater tort" of conversion. (Prosser & Keeton, Torts, supra, § 15, p. 90, italics added.)
The Restatement, too, makes clear that some actual injury must have occurred in order for a trespass to chattels to be actionable. Under section 218 of the Restatement Second of Torts, dispossession alone, without further damages, is actionable (see id., par. (a) & com. d, pp. 420-421), but other forms of interference require some additional harm to the personal property or the possessor's interests *40 in it. (Id., pars, (b)-(d).) "The interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel. In order that an actor who interferes with another's chattel may be liable, his conduct must affect some other and more important interest of the possessor. Therefore, one who intentionally intermeddles with another's chattel is subject to liability only if his intermeddling is harmful to the possessor's materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected as stated in Clause (c). Sufficient legal protection of the possessor's interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference." (Id., com. e, pp. 421-422, italics added.)
The Court of Appeal (quoting 7 Speiser et al., American Law of Torts (1990) Trespass, § 23:23, p. 667) referred to "`a number of very early cases [showing that] any unlawful interference, however slight, with the enjoyment by another of his personal property, is a trespass.'" But while a harmless use or touching of personal property may be a technical trespass (see Rest.2d Torts, § 217), an interference (not amounting to dispossession) is not actionable, under modern California and broader American law, without a showing of harm. As already discussed, this is the rule embodied in the Restatement (Rest.2d Torts, § 218) and adopted by California law (Zaslow v. Kroenert, supra, 29 Cal.2d at p. 551, 176 P.2d 1; Thrifty-Tel, Inc. v. Bezenek, supra, 46 Cal.App.4th at p. 1566, 54 Cal.Rptr.2d 468).
In this respect, as Prosser explains, modern day trespass to chattels differs both from the original English writ and from the action for trespass to land: "Another departure from the original rule of the old writ of trespass concerns the necessity of some actual damage to the chattel before the action can be maintained. Where the defendant merely interferes without doing any harm—as where, for example, he merely lays hands upon the plaintiffs horse, or sits in his car—there has been a division of opinion among the writers, and a surprising dearth of authority. By analogy to trespass to land there might be a technical tort in such a case .... Such scanty authority as there is, however, has considered that the dignitary interest in the inviolability of chattels, unlike that as to land, is not sufficiently important to require any greater defense than the privilege of using reasonable force when necessary to protect them. Accordingly it has been held that nominal damages will not be awarded, and that in the absence of any actual damage the action will not lie." (Prosser & Keeton, Torts, supra, § 14, p. 87, italics added, fns. omitted.)
Intel suggests that the requirement of actual harm does not apply here because it sought only injunctive relief, as protection from future injuries. But as Justice Kolkey, dissenting below, observed, "[t]he fact the relief sought is injunctive does not excuse a showing of injury, whether actual or threatened." Indeed, in order to obtain injunctive relief the plaintiff must ordinarily show that the defendant's wrongful acts threaten to cause irreparable injuries, ones that cannot be adequately compensated in damages. (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 782, p. 239.) Even in an action for trespass to real property, in which damage to the property is not an *41 element of the cause of action, "the extraordinary remedy of injunction" cannot be invoked without showing the likelihood of irreparable harm. (Mechanics' Foundry v. Ryall (1888) 75 Cal. 601, 603, 17 P. 703; see Mendelson v. McCabe (1904) 144 Cal. 230, 232-233, 77 P. 915 [injunction against trespass to land proper where continued trespasses threaten creation of prescriptive right and repetitive suits for damages would be inadequate remedy].) A fortiori, to issue an injunction without a showing of likely irreparable injury in an action for trespass to chattels, in which injury to the personal property or the possessor's interest in it is an element of the action, would make little legal sense.
The dispositive issue in this case, therefore, is whether the undisputed facts demonstrate Hamidi's actions caused or threatened to cause damage to Intel's computer system, or injury to its rights in that personal property, such as to entitle Intel to judgment as a matter of law. To review, the undisputed evidence revealed no actual or threatened damage to Intel's computer hardware or software and no interference with its ordinary and intended operation. Intel was not dispossessed of its computers, nor did Hamidi's messages prevent Intel from using its computers for any measurable length of time. Intel presented no evidence its system was slowed or otherwise impaired by the burden of delivering Hamidi's electronic messages. Nor was there any evidence transmission of the messages imposed any marginal cost on the operation of Intel's computers. In sum, no evidence suggested that in sending messages through Intel's Internet connections and internal computer system Hamidi used the system in any manner in which it was not intended to function or impaired the system in any way. Nor does the evidence show the request of any employee to be removed from FACE-Intel's mailing list was not honored. The evidence did show, however, that some employees who found the messages unwelcome asked management to stop them and that Intel technical staff spent time and effort attempting to block the messages. A statement on the FACE-Intel Web site, moreover, could be taken as an admission that the messages had caused "[e]xcited and nervous managers" to discuss the matter with Intel's human resources department.
Relying on a line of decisions, most from federal district courts, applying the tort of trespass to chattels to various types of unwanted electronic contact between computers, Intel contends that, while its computers were not damaged by receiving Hamidi's messages, its interest in the "physical condition, quality or value" (Rest.2d Torts, § 218, com. e, p. 422) of the computers was harmed. We disagree. The cited line of decisions does not persuade us that the mere sending of electronic communications that assertedly cause injury only because of their contents constitutes an actionable trespass to a computer system through which the messages are transmitted. Rather, the decisions finding electronic contact to be a trespass to computer systems have generally involved some actual or threatened interference with the computers' functioning.
In Thrifty-Tel, Inc. v. Bezenek, supra, 46 Cal.App.4th at pages 1566-1567, 54 Cal. Rptr.2d 468 (Thrifty-Tel), the California Court of Appeal held that evidence of automated searching of a telephone carrier's system for authorization codes supported a cause of action for trespass to chattels. The defendant's automated dialing program "overburdened the [plaintiffs] system, denying some subscribers access to *42 phone lines" (Id., at p. 1564, 54 Cal.Rptr .2d 468), showing the requisite injury.
Following Thrifty-Tel, a series of federal district court decisions held that sending UCE through an ISP's equipment may constitute trespass to the ISP's computer system. The lead case, CompuServe, Inc. v. Cyber Promotions, Inc., supra, 962 F.Supp. 1015, 1021-1023 (CompuServe), was followed by Hotmail Corp. v. Van$ Money Pie, Inc. (N.D.Cal., Apr. 16, 1998, No. C 98-20064 JW) 1998 WL 388389, page *7, America Online, Inc. v. IMS (E.D.Va.1998) 24 F.Supp.2d 548, 550-551, and America Online, Inc. v. LCGM, Inc. (E.D.Va.1998) 46 F.Supp.2d 444, 451-452.
In each of these spamming cases, the plaintiff showed, or was prepared to show, some interference with the efficient functioning of its computer system. In CompuServe, the plaintiff ISP's mail equipment monitor stated that mass UCE mailings, especially from nonexistent addresses such as those used by the defendant, placed "a tremendous burden" on the ISP's equipment, using "disk space and draining] the processing power," making those resources unavailable to serve subscribers. (Compu-Serve, supra, 962 F.Supp. at p. 1022.) Similarly, in Hotmail Corp. v. Van$ Money Pie, Inc., supra, 1998 WL 388389 at page *7, the court found the evidence supported a finding that the defendant's mailings "fill[ed] up Hotmail's computer storage space and threatened] to damage Hotmail's ability to service its legitimate customers." America Online, Inc. v. IMS, decided on summary judgment, was deemed factually indistinguishable from CompuServe; the court observed that in both cases the plaintiffs "alleged that processing the bulk e-mail cost them time and money and burdened their equipment." (America Online, Inc. v. IMS, supra, 24 F.Supp.2d at p. 550.) The same court, in America Online, Inc. v. LCGM, Inc., supra, 46 F.Supp.2d at page 452, simply followed CompuServe and its earlier America Online decision, quoting the former's explanation that UCE burdened the computer's processing power and memory.
Building on the spamming cases, in particular CompuServe, three even more recent district court decisions addressed whether unauthorized robotic data collection [4] from a company's publicly accessible Web site is a trespass on the company's computer system. (eBay, Inc. v. Bidder's Edge, Inc., supra, 100 F.Supp.2d at pp. 1069-1072 (eBay); Register.com, Inc. v. Verio, Inc. (S.D.N.Y.2000) 126 F.Supp.2d 238, 248-251; Ticketmaster Corp. v. Tickets.com, Inc., supra, 2000 WL 1887522 at p. *4.) The two district courts that found such automated data collection to constitute a trespass relied, in part, on the deleterious impact this activity could have, especially if replicated by other searchers, on the functioning of a Web site's computer equipment.
In the leading case, eBay, the defendant Bidder's Edge (BE), operating an auction aggregation site, accessed the eBay Web site about 100,000 times per day, accounting for between 1 and 2 percent of the information requests received by eBay *43 and a slightly smaller percentage of the data transferred by eBay. (eBay, supra, 100 F.Supp.2d at pp. 1061, 1063.) The district court rejected eBay's claim that it was entitled to injunctive relief because of the defendant's unauthorized presence alone, or because of the incremental cost the defendant had imposed on operation of the eBay site (id. at pp. 1065-1066), but found sufficient proof of threatened harm in the potential for others to imitate the defendant's activity: "If BE's activity is allowed to continue unchecked, it would encourage other auction aggregators to engage in similar recursive searching of the eBay system such that eBay would suffer irreparable harm from reduced system performance, system unavailability, or data losses." (Id. at p. 1066.) Again, in addressing the likelihood of eBay's success on its trespass to chattels cause of action, the court held the evidence of injury to eBay's computer system sufficient to support a preliminary injunction: "If the court were to hold otherwise, it would likely encourage other auction aggregators to crawl the eBay site, potentially to the point of denying effective access to eBay's customers. If preliminary injunctive relief were denied, and other aggregators began to crawl the eBay site, there appears to be little doubt that the load on eBay's computer system would qualify as a substantial impairment of condition or value." (Id. at pp. 1071-1072.)
Another district court followed eBay on similar facts—a domain name registrar's claim against a Web hosting and development site that robotically searched the registrar's database of newly registered domain names in search of business leads—in Register.com, Inc. v. Verio, Inc., supra, 126 F.Supp.2d at pages 249-251. Although the plaintiff was unable to measure the burden the defendant's searching had placed on its system (id. at pp. 249-250), the district court, quoting the declaration of one of the plaintiffs officers, found sufficient evidence of threatened harm to the system in the possibility the defendant's activities would be copied by others: "`I believe that if Verio's searching of Register.com's WHOIS database were determined to be lawful, then every purveyor of Internet-based services would engage in similar conduct.'" (Id. at p. 250.) Like eBay, the court observed, Register.com had a legitimate fear "that its servers will be flooded by search robots." (Id. at p. 251.)
In the third decision discussing robotic data collection as a trespass, Ticketmaster Corp. v. Tickets.com, Inc., supra, 2000 WL 1887522 (Ticketmaster), the court, distinguishing eBay, found insufficient evidence of harm to the chattel to constitute an actionable trespass: "A basic element of trespass to chattels must be physical harm to the chattel (not present here) or some obstruction of its basic function (in the court's opinion not sufficiently shown here).... The comparative use [by the defendant of the plaintiffs computer system] appears very small and there is no showing that the use interferes to any extent with the regular business of [the plaintiff].... Nor here is the specter of dozens or more parasites joining the fray, the cumulative total of which could affect the operation of [the plaintiffs ] business." (Id. at p. *4, italics added.)
In the decisions so far reviewed, the defendant's use of the plaintiffs computer system was held sufficient to support an action for trespass when it actually did, or threatened to, interfere with the intended functioning of the system, as by significantly reducing its available memory and processing power. In Ticketmaster, supra, 2000 WL 1887522, the one case where no such effect, actual or threatened, had been demonstrated, the court found insufficient evidence of harm to support a trespass *44 action. These decisions do not persuade us to Intel's position here, for Intel has demonstrated neither any appreciable effect on the operation of its computer system from Hamidi's messages, nor any likelihood that Hamidi's actions will be replicated by others if found not to constitute a trespass.
That Intel does not claim the type of functional impact that spammers and robots have been alleged to cause is not surprising in light of the differences between Hamidi's activities and those of a commercial enterprise that uses sheer quantity of messages as its communications strategy. Though Hamidi sent thousands of copies of the same message on six occasions over 21 months, that number is minuscule compared to the amounts of mail sent by commercial operations. The individual advertisers sued in America Online, Inc. v. IMS, supra, 24 F.Supp.2d at page 549, and America Online, Inc. v. LCGM, Inc., supra, 46 F.Supp.2d at page 448, were alleged to have sent more than 60 million messages over 10 months and more than 92 million messages over seven months, respectively. Collectively, UCE has reportedly come to constitute about 45 percent of all e-mail. (Hansell, Internet Is Losing Ground in Battle Against Spam, N.Y. Times (Apr. 22, 2003) p. Al, col. 3.) The functional burden on Intel's computers, or the cost in time to individual recipients, of receiving Hamidi's occasional advocacy messages cannot be compared to the burdens and costs caused ISP's and their customers by the ever-rising deluge of commercial e-mail.
Intel relies on language in the eBay decision suggesting that unauthorized use of another's chattel is actionable even without any showing of injury: "Even if, as [defendant] BE argues, its searches use only a small amount of eBay's computer system capacity, BE has nonetheless deprived eBay of the ability to use that portion of its personal property for its own purposes. The law recognizes no such right to use another's personal property." (eBay, supra, 100 F.Supp.2d at p. 1071.) But as the eBay court went on immediately to find that the defendant's conduct, if widely replicated, would likely impair the functioning of the plaintiffs system (id. at pp. 1071-1072), we do not read the quoted remarks as expressing the court's complete view of the issue. In isolation, moreover, they would not be a correct statement of California or general American law on this point. While one may have no right temporarily to use another's personal property, such use is actionable as a trespass only if it "has proximately caused injury." (Thrifty-Tel, supra, 46 Cal.App.4th at p. 1566, 54 Cal.Rptr.2d 468.) "[I]n the absence of any actual damage the action will not lie." (Prosser & Keeton, Torts, supra, § 14, p. 87.) Short of dispossession, personal injury, or physical damage (not present here), intermeddling is actionable only if "the chattel is impaired as to its condition, quality, or value, or [¶] ... the possessor is deprived of the use of the chattel for a substantial time." (Rest.2d Torts, § 218, pars, (b), (c).) In particular, an actionable deprivation of use "must be for a time so substantial that it is possible to estimate the loss caused thereby. A mere momentary or theoretical deprivation of use is not sufficient unless there is a dispossession...." (Id., com. i, p. 423.) That Hamidi's messages temporarily used some portion of the Intel computers' processors or storage is, therefore, not enough; Intel must, but does not, demonstrate some measurable loss from the use of its computer system.[5]
*45 In addition to impairment of system functionality, CompuServe and its progeny also refer to the ISP's loss of business reputation and customer goodwill, resulting from the inconvenience and cost that spam causes to its members, as harm to the ISP's legally protected interests in its personal property. (See CompuServe, supra, 962 F.Supp. at p. 1023; Hotmail Corp. v. Van$ Money Pie, Inc., supra, 1998 WL 388389 at p. *7; America Online, Inc. v. IMS, supra, 24 F.Supp.2d at p. 550.) Intel argues that its own interest in employee productivity, assertedly disrupted by Hamidi's messages, is a comparable protected interest in its computer system. We disagree.
Whether the economic injuries identified in CompuServe were properly considered injuries to the ISP's possessory interest in its personal property, the type of property interest the tort is primarily intended to protect (see Rest.2d Torts, § 218 & com. e, pp. 421-22; Prosser & Keeton, Torts, supra, § 14, p. 87), has been questioned.[6] "[T]he court broke the chain between the trespass and the harm, allowing indirect harms to CompuServe's business interests—reputation, customer goodwill, and employee time—to count as harms to the chattel (the server)." (Quilter, The Continuing Expansion of Cyberspace Trespass to Chattels, supra, 17 Berkeley Tech. L.J. at pp. 429-430.) "[T]his move cuts trespass to chattels free from its moorings of dispossession or the equivalent, allowing the court free reign [sic] to hunt for `impairment.'" (Burk, The Trouble with Trespass (2000) 4 J. Small & Emerging Bus.L. 27, 35.) But even if the loss of goodwill identified in CompuServe were the type of injury that would give rise to a trespass to chattels claim under California law, Intel's position would not follow, for Intel's claimed injury has even less connection to its personal property than did CompuServe's.
CompuServe's customers were annoyed because the system was inundated with unsolicited commercial messages, making its use for personal communication more difficult and costly. (CompuServe, supra, 962 F.Supp. at p. 1023.) Their complaint, which allegedly led some to cancel their *46 CompuServe service, was about the functioning of CompuServe's electronic mail service. Intel's workers, in contrast, were allegedly distracted from their work not because of the frequency or quantity of Hamidi's messages, but because of assertions and opinions the messages conveyed. Intel's complaint is thus about the contents of the messages rather than the functioning of the company's e-mail system. Even accepting CompuServe's economic injury rationale, therefore, Intel's position represents a further extension of the trespass to chattels tort, fictionally recharacterizing the allegedly injurious effect of a communication's contents on recipients as an impairment to the device which transmitted the message.
This theory of "impairment by content" (Burk, The Trouble with Trespass, supra, 4 J. Small & Emerging Bus.L. at p. 37) threatens to stretch trespass law to cover injuries far afield from the harms to possession the tort evolved to protect. Intel's theory would expand the tort of trespass to chattels to cover virtually any unconsented—to communication that, solely because of its content, is unwelcome to the recipient or intermediate transmitter. As the dissenting justice below explained, "`Damage' of this nature—the distraction of reading or listening to an unsolicited communication—is not within the scope of the injury against which the trespass-to-chattel tort protects, and indeed trivializes it. After all, `[t]he property interest protected by the old action of trespass was that of possession; and this has continued to affect the character of the action.' (Prosser & Keeton on Torts, supra, § 14, p. 87.) Reading an e-mail transmitted to equipment designed to receive it, in and of itself, does not affect the possessory interest in the equipment. [11] Indeed, if a chattel's receipt of an electronic communication constitutes a trespass to that chattel, then not only are unsolicited telephone calls and faxes trespasses to chattel, but unwelcome radio waves and television signals also constitute a trespass to chattel every time the viewer inadvertently sees or hears the unwanted program." We agree. While unwelcome communications, electronic or otherwise, can cause a variety of injuries to economic relations, reputation and emotions, those interests are protected by other branches of tort law; in order to address them, we need not create a fiction of injury to the communication system.
Nor may Intel appropriately assert a property interest in its employees' time. "The Restatement test clearly speaks in the first instance to the impairment of the chattel.... But employees are not chattels (at least not in the legal sense of the term)." (Burk, The Trouble with Trespass, supra, 4 J. Small & Emerging Bus.L. at p. 36.) Whatever interest Intel may have in preventing its employees from receiving disruptive communications, it is not an interest in personal property, and trespass to chattels is therefore not an action that will lie to protect it. Nor, finally, can the fact Intel staff spent time attempting to block Hamidi's messages be bootstrapped into an injury to Intel's possessory interest in its computers. To quote, again, from the dissenting opinion in the Court of Appeal: "[I]t is circular to premise the damage element of a tort solely upon the steps taken to prevent the damage.