The EFF is not a party in the case but argues that the lower court distorted the US doctrine of trespass when applying it to the internet. The case arises from six system-wide e-mail messages sent by former employee Ken Hamidi over a two-year period. The e-mails were received by employees of Intel worldwide, criticising the company's treatment of its employees.
The Third Appellate District Court of California ruled that sending unwanted e-mails was an illegal trespass. However, the EFF argues that sending the e-mails did not trespass on Intel’s property. It points to the arguments of a dissenting judge in the Third District Court of Appeal, Judge Kolkey:
"Under Intel's theory, even lovers' quarrels could turn into trespass suits by reason of the receipt of unsolicited letters or calls from the jilted lover. Imagine what happens after the angry lover tells her fiancé not to call again and violently hangs up the phone. Fifteen minutes later the phone rings. Her fiancé wishing to make up? No, trespass to chattel."
In the UK in 1999, Virgin.net sued a former customer for trespass after the customer used its systems to send around 250,000 spam e-mails. However, the case settled out of court. To date, the applicability of either Scots or English laws of trespass to the sending of e-mail have never been tested in court.