Metropolitan News-Enterprise


Monday, August 26, 2002


Page 1


Ninth Circuit Holds That Accessing Protected Website Is Not ‘Wiretap’


By KENNETH OFGANG, Staff Writer/Appellate Courts


Unauthorized access and review of the contents of a password protected web site does not violate the Wiretap Act, the Ninth U.S. Circuit Court of Appeals ruled Friday.

Reversing itself, a divided panel held that U.S. District Judge J. Spencer Letts of the Central District of California was correct in throwing out a wiretapping claim by a disgruntled Hawaiian Airlines pilot who accused the company of tort and labor law violations.

The judges reaffirmed their earlier holding that Robert C. Konop has viable claims against the airline under the Stored Communications Act and the Railway Labor Act. But he will not be able to claim the $10,000 minimum damage award under the Wiretap Act; the minimum under the Stored Communications Act is $1,000.

Konop established his website in the 1990s to show his pique at both the airline and his union over proposed wage concessions that the airline said were necessary to keep it flying. Konop controlled access to the site by requiring users to log in with a name and password, and issued passwords to fellow pilots outside the union leadership and other employees.

In December 1995, a vice president of Hawaiian obtained permission from a pilot to use that person’s name and password to access the site, whose terms and conditions of use included non-disclosure of the contents of the site. The official, James Davis, later claimed he was concerned that the site might contain false criticisms of the company.

Konop learned of the entry later in the day from his union chairman, who had been contacted by the president of the airline with complaints about disparaging remarks posted on the site. He identified Davis after examining the system logs for the site.

Konop was subsequently placed on medical suspension by Hawaiian. Representing himself in the trial and appellate courts, he sued under various state and federal law theories.

Letts granted summary judgment on all issues except Konop’s claim that he had been retaliated against for engaging in protected labor activity. After a shot bench trial, the judge ruled in favor of the airline on that claim.

In a January 2001 ruling, the Ninth Circuit reversed. Senior Judge Robert Boochever wrote for the panel, joined by Judgers Richard Paez and Stephen Reinhardt.

The three judges unanimously concluded that while the Wiretap Act—which had been last amended before the advent of the Internet—was rather unclear, liability for the “interception” of stored communications was consistent with congressional intent.

The act prohibits an individual from “willfully intercept[ing]... “any wire or oral communications” or any “electronic communications,” including—subject to certain exceptions—’any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system .”

Boochever concluded that accessing information over the Internet, with the knowledge that access was unauthorized, constitutes an interception of the communication, and that the fact that the interception occurred while the information was stored, rather than at the time it was being transmitted, did not change the result.

He cited a previous Ninth Circuit case, United States v. Smith, 155 F.3d 1051 (9th Cir. 1998), holding that the Wiretap Act covered wire communications in storage, such as voicemail messages, and said there was no reason to treat stored electronic communications differently.

Hawaiian, represented by Marianne Shipp of Gibson, Dunn & Crutcher, asked for rehearing. But the petition was rendered moot when the panel withdrew the opinion, over Reinhardt’s dissent.

Boochever Friday concluded that he had been wrong about the Wiretap Act.

He noted that neither Smith nor an earlier Fifth Circuit case on the issue had applied the Act to stored electronic communications. And he found it significant that Congress, when it enacted the USA PATRIOT Act last fall, eliminated storage from the definition of wire communications.

“By eliminating storage from the definition of wire communication, Congress essentially reinstated the [pre-1986] definition of ‘intercept’ — acquisition contemporaneous with transmission — with respect to wire communications,” the judge wrote.

Since Congress was presumably aware that the courts had interpreted “intercept” more narrowly with respect to electronic communications, he reasoned, it made no sense under post-USA PATRIOT Act law to hold that Congress now intended a broader definition of “intercept” with respect to electronic communications.

The judge went on, however, to reiterate the panel’s previous holding that Hawaiian may have violated the Stored Communications Act. The district judge, he said, was in error in concluding that Hawaiian’s conduct fell under an exception allowing a “user” of a website or other “service” to grant access to a third party with respect to a communication “of or intended for that user.”

Absent evidence that the pilot who gave Davis his password actually entered the site himself, he cannot be deemed a “user” under the plain meaning of the word, Boochever wrote.

Paez joined in the opinion, but Reinhardt dissented from the ruling on the Wiretap Act.

A “coherent” reading of the two statutes and an understanding of the policy behind their enactment, he argued, leads to the conclusion that contemporaneous acquisition is not required to constitute an interception.

The case is Konop v. Hawaiian Airlines, Inc., 99-55106.


Copyright 2002, Metropolitan News Company