Date: 01-08-2001

Case Style: Konop v. Hawaiian Airlines, Inc.

Case Number: 99-55106

Judge: Boochever

Court: United States Court of Appeals for the Ninth Circuit

Plaintiff's Attorney: Robert C. Konop, Pro se, Playa del Rey, California

Defendant's Attorney: Marianne Shipp of Gibson, Dunn & Crutcher, Irvine, California

Description: Robert Konop ("Konop") appeals: (1) the district court's grant of summary judgment against Konop on his claim that Hawaiian Airlines, Inc. ("Hawaiian") violated the Wiretap Act, 18 U.S.C. §§ 2510-2520, and the Stored Communica-tions Act, 18 U.S.C. §§ 2701-2710, by viewing Konop's secure website under false pretenses; (2) the district court's grant of summary judgment against Konop on his claims that Hawaiian violated the Railway Labor Act, 45 U.S.C.§ 152, by gaining unauthorized access to and disclosing the contents of Konop's website; and (3) the district court's judgment, fol-lowing a bench trial, entered against Konop on his claim that Hawaiian suspended him in retaliation for his website activi-ties in violation of the Railway Labor Act.

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Konop, a pilot for Hawaiian, maintained a website where he posted bulletins critical of his employer, its officers, and the incumbent union, Air Line Pilots Association ("ALPA"). Many of those criticisms related to Konop's opposition to labor concessions which Hawaiian sought from ALPA. Because ALPA supported giving management concessions to the existing collective bargaining agreement, Konop encour-aged others via his website to consider alternative union rep-resentation.

Konop controlled access to his website by requiring visitors to log in with a user name and password. Konop provided user names to certain Hawaiian employees, but not to manag-ers or union representatives. To obtain a password and view the site, an eligible employee had to register and consent to an agreement not to disclose the site's contents.

About December 14, 1995, Hawaiian vice president James Davis ("Davis") contacted Hawaiian pilot Gene Wong ("Wong") and asked permission to use Wong's name to access Konop's site. Davis claimed he was concerned about untruthful allegations that he believed Konop was making on the site. Wong had never logged into the site to create an account, and had never agreed to Konop's terms of use and nondisclosure conditions. When Davis accessed the site using Wong's name, he presumably clicked a button indicating that he was Wong and agreed to Konop's terms and conditions.

Later that day, Konop received a call from the union chair-man of ALPA, Reno Morella. Morella told Konop that Hawaiian president Bruce Nobles ("Nobles") had contacted him regarding the contents of Konop's website. Morella related that Nobles was upset by accusations that Nobles was suspected of fraud and by other disparaging statements pub-lished by Konop. From this conversation with Morella, Konop believed Nobles had obtained the contents of his website and had threatened to sue Konop for defamation based on state-ments contained on the website.

After speaking with Morella, Konop took down his website for the remainder of the day. He placed it back online the next morning, however, without having learned how Nobles had obtained the information discussed in the phone call. Konop claims to have learned only later from the examination of sys-tem logs that Davis had accessed the site using Wong's name.

In the meantime, Davis continued to view the site using Wong's name. Later, Davis also logged in with the name of another pilot, James Gardner ("Gardner"), who had similarly consented to Davis' use of his name. Through April 1, 1996, Konop claims that his records indicate over twenty log-ins by Davis (as Wong) and at least fourteen more by Gardner or Davis (as Gardner).

Konop filed suit alleging numerous state law tort claims along with labor and wiretap claims arising out of Davis' viewing and use of his website. Konop also brought claims arising out of a medical suspension that he alleges was imposed in retaliation for his opposition to proposed labor concessions. The district court granted summary judgment to Hawaiian on all but this last claim of retaliatory suspension, and entered judgment against Konop on that claim after a short bench trial.

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Protection against eavesdropping on modern electronic communications was added to the Wiretap Act and enacted in the Stored Communications Act by the Electronic Communi-cations Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 ("ECPA"). Title I of the ECPA amended the Wiretap Act to prohibit unauthorized "interception" of"electronic communications." 18 U.S.C. § 2511. Title II of the ECPA cre-ated the Stored Communications Act, which prohibits unau-thorized "access" to "a facility through which an electronic communication service is provided." Civil damages are substantially greater under the Wire-tap Act than under the Stored Communications Act. Compare 18 U.S.C. § 2520 with 18 U.S.C. § 2707. As such, it is a sig-nificant question whether using false pretenses to view a web-site constitutes unlawful interception in violation of the Wiretap Act, or unlawful access in violation of the Stored Communications Act, or both. It is also one of first impres-sion.Click the case caption above for the full text of the Court's opinion.