Metropolitan News-Enterprise


Tuesday, February 25, 2003


Page 1


U.S. High Court Will Not Review Wiretap Ruling Involving Hawaiian Airlines Pilot From Playa del Rey


By a MetNews Staff Writer


The Supreme Court yesterday left standing a Ninth U.S. Circuit Court of Appeals ruling that unauthorized access and review of the contents of a password-protected web site does not violate the Wiretap Act.

The court, without comment, denied a petition by Hawaiian Airlines pilot Robert C. Konop, a Playa del Rey resident who has represented himself in the trial and appellate courts.

A divided Ninth Circuit panel held last year that U.S. District Judge J. Spencer Letts of the Central District of California, who now holds senior status, was correct in throwing out Konop’s claim.

Konop won a partial victory in the appeals court, reinstating claims 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.

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 short bench trial, the judge ruled in favor of the airline on that claim.

The Ninth Circuit panel, in its original January 2001 ruling, reversed. Senior Judge Robert Boochever wrote for the panel, joined by Judgers Richard Paez and Stephen Reinhardt, concluding 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 .”

The panel, however, later withdrew the opinion, over Reinhardt’s dissent, and Boochever and Paez later decided that their initial conclusion about the Wiretap Act was wrong.

Boochever noted that Congress, when it enacted the USA PATRIOT Act in fall 2001, 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.


Copyright 2003, Metropolitan News Company