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Unpermitted access to Web site falls under federal wiretapping law

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  1. Libel and Privacy

    NMU         NINTH CIRCUIT         Privacy         Jan 11, 2001    

Unpermitted access to Web site falls under federal wiretapping law

  • A federal appeal court held that a person can violate the federal wiretapping acts by accessing information from a password-restricted Web site.

Hawaiian Airlines may be liable for viewing an employee’s password-protected Web site without permission, the U.S. Court of Appeals in Los Angeles (9th Cir.) ruled on Jan. 8. The court ruled that the pilot’s lawsuit, which claimed the airline violated the federal wiretapping and the Stored Communications Act, had a sufficient factual dispute to merit a trial.

Hawaiian Airlines pilot Robert Konop set up a Web site where he posted bulletins criticizing the airline, its officers, the incumbent union, and the Air Line Pilots Association. On the site, he encouraged others to consider alternative union representation.

Konop controlled access to the Web site through passwords for users he approved. Hawaiian Airlines Vice President James Davis logged onto the site under the names of pilots Gene Wong and James Gardner, both of whom permitted his use. Konop learned of Davis’ use from a union representative who notified him that the company president was aware of the site’s content.

Konop sued in federal district court and argued that Hawaiian Airlines violated the wiretapping acts by intercepting an electronic communication and accessed an electronic communications facility in violation of the Stored Communications Act. The district court granted summary judgment in favor of Hawaiian Airlines. The Ninth Circuit was called on to decide an area of first impression: whether using false pretenses to access a Web site constituted a violation of the wiretapping acts.

The court said an “interception” under the wiretapping act does not require a contemporaneous communication, such as a telephone call, but does include obtaining information from stored facilities, such as voice mail servers or secure Web sites. “An electronic communication in storage is no more or less private than an electronic communication in transmission,” the court stated.

The court carefully noted that an interception would not include receiving information from a public Web site or when the site owner consents. Since Davis did not obtain consent from Konop, but rather two users, the court held that a factual question arises whether Davis improperly accessed the Web site.

The panel of judges called the protection afforded in the Stored Communications Act to be a “lesser included offense” of the wiretapping acts. The court reversed the trial court’s summary judgment ruling for the airlines on both counts.

(Konop v. Hawaiian Airlines, Inc.) DB

© 2001 The Reporters Committee for Freedom of the Press

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