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Bloody Techno Illiterates

And for the latest case to set my blood boiling, there's the Supreme Court of California's ruling in Intel v. Hamidi. Don't get me wrong, the court seems to have gotten it right, but the sheer amount of technological ignorance within it suggests that this was more by luck than judgement.

Briefly, Intel sued Hamidi for sending all of their employees emails about how scuzzy an employer Intel can be. He seems to have followed good-spam practice, in that he'd take you off his mailing list if you asked. But Intel sues on a theory of trespass to chattels, basically saying that he's using their servers to distribute his mail, and imposing 'costs' upon them.

Ignore the actual outcome of the case for a moment. A brief glance at the decision shows a copious disregard for any slight idea of how the internet, TCP/IP, mail hosts, servers, or the web works. The majority, thinking it's clever, states:

Epstein's argument derives, in part, from the familiar metaphor of the Internet as a physical space, reflected in much of the language that has been used to describe it: "cyberspace," "the information superhighway," email "addresses," and the like. Of course, the Internet is also frequently called simply the "Net," a term, Hamidi points out, "evoking a fisherman's chattel." A major component of the Internet is the World Wide "Web," a descriptive term suggesting neither personal nor real property, and "cyberspace" itself has come to be known by the oxymoronic phrase "virtual reality," which would suggest that any real property "located" in "cyberspace" must be "virtually real" property. Metaphor is a two-edged sword.

Where to start with the nonsense. Of course, that virtual reality isn't cyberspace, and cyberspace isn't virtual reality, and while there's an overlap between them (VRML, for starters), it would be like saying that the Internet is a mailbox because a lot of mail goes through it. It's not called 'the Net' because it evokes a fishing net, but merely because it's the kind of evolved parlance that springs up in internet culture.

And besides, the majority didn't even have to start picking holes in the metaphor, especially if it were going to pick them badly. It could have just run with the standard metaphors in a mail system. Mail servers generally have a 'postmaster' or 'mailer daemon,' a servant that puts mail in its proper place when it arrives. Now certainly, if you're considering your server 'virtual land,' then if you have a 'virtual servant' standing at something like a 'gateway' who invites onto your land anything that comes to your door, tells it where to go to, and how much memory to take up... well, how silly is it to sue for trespass something you've invited in?

However bad it is, though, the dissent is worse:

Although Haidi claims he sent only six e-mails, he sent them to between 8,000 and 35,000 employees, thus sending from 48,000 to 210,000 messages. Since it is the effect on Intel that is determinative, it is the number of messages received, not sent, that matters. In any event, Hamidi sent between 48,000 and 210,000 messages; the "six" refers only to the number of distinct texts Hamidi sent.

Now, someone correct me if I'm wrong, but this isn't necessarily the case, is it? For instance, say that Hamidi, instead of sending every letter individually, sends it to an internal mailing list of Intel's, something like businessgrouping@intel.com. That's one mail that might go to 100 people, but until Intel receives it, it's one mail. Furthermore, if they're using a system like Microsoft Exchange, it might remain one mail, just one that has quite a few pointers going to it. If the dissent is going to start worrying about costs employed by mail, is it going to choose the number of messages that go out of Hamidi's server, the number received by Intel, the number stored by Intel, or the number received by its employees? The dissent would seem (but only because it shows no sign of distinguishing the difference) to indicate the latter, but then that makes less sense. Surely Hamidi can't be held responsible for what Intel does with one letter once it hits their server? What if Intel programs their mail server to take any letter marked 'Hamidi' and send it to every employee, even if he's only addressed it to one?

In general, it's just painful to read a decision like this, where you just want to say, "No, no, it's not like that!" Especially when the arguments which are least like the reality of a working internet come from Intel's attorneys. I mean, did they not have access to any of Intel's techs?

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