Date: 08-23-2002

Case Style: Robert C. Konop v. Hawaiian Airlines, Inc.

Case Number: 99-55106

Judge: Robert Boochever

Court: United States Court of Appeals for the Ninth Circuit

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

Defendant's Attorney: Marianne Shipp of Gibson, Dunn & Crutcher, Irvine, California, for the defendant-appellee.

Description: Robert Konop brought suit against his employer, Hawaiian Airlines, Inc. (“Hawaiian”), alleging that Hawaiian viewed Konop’s secure website without authorization, disclosed the contents of that website, and took other related actions in vio-lation of the federal Wiretap Act, the Stored Communications Act, and the Railway Labor Act. Konop also alleged several state tort claims. The district court granted summary judgment against Konop on all claims, except his retaliation claim under the Railway Labor Act. On the retaliation claim, the district court entered judgment against Konop following a bench trial. Konop appeals the district court’s judgement on all claims, except on those brought under state tort law.

On January 8, 2001, we issued an opinion, reversing the district court’s decision on Konop’s claims under the Wiretap Act and the Stored Communications Act, and on several of his claims under the Railway Labor Act. Konop v. Hawaiian Airlines, Inc., 236 F.3d 1035 (9th Cir. 2001). Hawaiian filed a petition for rehearing, which became moot when we with-drew our previous opinion. Konop v. Hawaiian Airlines, Inc., 262 F.3d 972 (9th Cir. 2001). We now affirm the judgment of the district court with respect to Konop’s Wiretap Act claims and his retaliation claim under the Railway Labor Act. We reverse the district court’s judgment with respect to Konop’s claims under the Stored Communications Act and his remain-ing claims under the Railway Labor Act.

Facts

Konop, a pilot for Hawaiian, created and maintained a web-site where he posted bulletins critical of his employer, its offi-cers, and the incumbent union, Air Line Pilots Association (“ALPA”). Many of those criticisms related to Konop’s oppo-sition to labor concessions which Hawaiian sought from ALPA. Because ALPA supported the concessions, Konop, via his website, encouraged Hawaiian employees to consider alternative union representation.

Konop controlled access to his website by requiring visitors to log in with a user name and password. He created a list of people, mostly pilots and other employees of Hawaiian, who were eligible to access the website. Pilots Gene Wong and James Gardner were included on this list. Konop programmed the website to allow access when a person entered the name of an eligible person, created a password, and clicked the “SUBMIT” button on the screen, indicating acceptance of the terms and conditions of use. These terms and conditions pro-hibited any member of Hawaiian’s management from viewing the website and prohibited users from disclosing the website’s contents to anyone else.

In December 1995, Hawaiian vice president James Davis asked Wong for permission to use Wong’s name to access Konop’s website. Wong agreed. Davis claimed he was con-cerned about untruthful allegations that he believed Konop was making on the website. Wong had not previously logged into the website to create an account. When Davis accessed the website using Wong’s name, he presumably typed in Wong’s name, created a password, and clicked the “SUB-MIT” button indicating acceptance of the terms and condi-tions.

Later that day, Konop received a call from the union chair-man of ALPA, Reno Morella. 1 Morella told Konop that Hawaiian president Bruce Nobles had contacted him regard-ing the contents of Konop’s website. Morella related that Nobles was upset by Konop’s accusations that Nobles was suspected of fraud and by other disparaging statements pub-lished on the website. From this conversation with Morella, Konop believed Nobles had obtained the contents of his web-site and was threatening to sue Konop for defamation based on statements contained on the website.

After speaking with Morella, Konop took his website offline for the remainder of the day. He placed it back online the next morning, however, without knowing 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 website using Wong’s name.

In the meantime, Davis continued to view the website using Wong’s name. Later, Davis also logged in with the name of another pilot, Gardner, who had similarly consented to Davis’ use of his name. Through April 1996, Konop claims that his records indicate that Davis logged in over twenty times as Wong, and that Gardner or Davis logged in at least fourteen more times as Gardner.

Konop filed suit alleging claims under the federal Wiretap Act, the Stored Communications Act, the Railway Labor Act, and state tort law, arising from Davis’ viewing and use of Konop’s secure website. Konop also alleged that Hawaiian placed him on medical suspension in retaliation for his oppo-sition to the proposed labor concessions, in violation of the Railway Labor Act. The district court granted summary judg-ment to Hawaiian on all but the retaliatory suspension claim, and entered judgment against Konop on that claim after a short bench trial.

Konop appeals, arguing that the district court erred in granting summary judgment to Hawaiian on his federal claims under the Wiretap Act, Stored Communications Act, and Rail-way Labor Act. In addition, Konop urges us to reverse the district court’s judgment on the retaliation claim following the bench trial, because he claims the district court improperly quashed subpoenas for witnesses Konop sought to have testify at trial.

* * *

We first turn to the difficult task of determining whether Hawaiian violated either the Wiretap Act, 18 U.S.C. §§ 2510- 2522 (2000) or the Stored Communications Act, 18 U.S.C. §§ 2701-2711 (2000), 2 when Davis accessed Konop’s secure website. In 1986, Congress passed the Electronic Communi-cations Privacy Act (ECPA), Pub. L. No. 99-508, 100 Stat. 1848, which was intended to afford privacy protection to elec-tronic communications. Title I of the ECPA amended the fed-eral Wiretap Act, which previously addressed only wire and oral communications, to “address[ ] the interception of . . . electronic communications.” S. Rep. No. 99-541, at 3 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3557. Title II of the ECPA created the Stored Communications Act (SCA), which was designed to “address[ ] access to stored wire and elec-tronic communications and transactional records.” Id.

As we have previously observed, the intersection of these two statutes “is a complex, often convoluted, area of the law.” United States v. Smith, 155 F.3d 1051, 1055 (9th Cir. 1998). In the present case, the difficulty is compounded by the fact that the ECPA was written prior to the advent of the Internet and the World Wide Web. As a result, the existing statutory framework is ill-suited to address modern forms of communi-cation like Konop’s secure website. Courts have struggled to analyze problems involving modern technology within the confines of this statutory framework, often with unsatisfying results. See. e.g., Robert A. Pikowsky, Legal and Technologi-cal Issues Surrounding Privacy of Attorney Client Communication Via Email, Advocate, Oct. 2000, at 17-19 (discussing the uncertainty over email privacy caused by the ECPA and judicial interpretations thereof); Lieutenant Colonel LeEllen Coacher, Permitting Systems Protection Monitoring: When the Government Can Look and What It Can See, 46 A.F. L. Rev. 155, 171-74 (1999) (same); Tatsuya Akamine, Note, Proposal for a Fair Statutory Interpretation: E-mail Stored in a Service Provider Computer Is Subject to an Interception Under the Federal Wiretap Act, 7 J.L. Pol’y 519, 521-29, 561-68 (1999) (criticizing the judiciary’s interpretation of the ECPA). We observe that until Congress brings the laws in line with modern technology, protection of the Internet and websites such as Konop’s will remain a confusing and uncer-tain area of the law.

A. The Internet and Secure Websites

The Internet is an international network of interconnected computers that allows millions of people to communicate and exchange information. See Reno v. ACLU, 521 U.S. 844, 849- 50 (1997); In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d 497, 501 (S.D.N.Y. 2001). The World Wide Web, the best known category of communication over the Internet, consists of a vast number of electronic documents stored in different computers all over the world. Reno v. ACLU, 421 U.S. at 852. Any person or organization with a computer connected to the Internet can “publish” information on the Web in the form of a “web page” or “website.” See id. at 853 & n.9. A website consists of electronic information stored by a hosting service computer or “server.” The owner of the website may pay a fee for this service. Each website has a unique domain name or web address (e.g., Amazon.com or Lycos.com), which corre-sponds to a specific location within the server where the elec-tronic information comprising the website is stored. A person who wishes to view the website types the domain name into a computer connected to the Internet. This is essentially a request to the server to make an electronic copy of the website (or at least the first page or “home page”) and send it to the user’s computer. After this electronic information reaches the user’s computer, it is downloaded for viewing on the user’s screen. See generally Preston Gralla, How the Internet Works (1999).

While most websites are public, many, such as Konop’s, are restricted. For instance, some websites are password-protected, require a social security number, or require the user to purchase access by entering a credit card number. See Reno, 521 U.S. at 852-53, 856. The legislative history of the ECPA suggests that Congress wanted to protect electronic communications that are configured to be private, such as email and private electronic bulletin boards. See S. Rep. No. 99-541, at 35-36 (“This provision [the SCA] addresses the growing problem of unauthorized persons deliberately gaining access to . . . electronic or wire communications that are not intended to be available to the public.”); H.R. Rep. No. 99- 647 at 41, 62-63 (1986) (describing the Committee’s under-standing that the configuration of the electronic communica-tions system would determine whether or not an electronic communication was readily accessible to the public). The nature of the Internet, however, is such that if a user enters the appropriate information (password, social security number, etc.), it is nearly impossible to verify the true identity of that user. Cf. Reno, 521 U.S. at 855-56 (discussing the difficulty of verifying the age of a website user by requiring a credit card number or password).

We are confronted with such a situation here. Although Konop took certain steps to restrict the access of Davis and other managers to the website, 3 Davis was nevertheless able to access the website by entering the correct information, which was freely provided to Davis by individuals who were eligible to view the website.

B. Wiretap Act

[1] Konop argues that Davis’ conduct constitutes an inter-ception of an electronic communication in violation of the Wiretap Act. The Wiretap Act makes it an offense to “inten-tionally intercept[ ] . . . any wire, oral, or electronic communi-cation.” 18 U.S.C. § 2511(1)(a). We must therefore determine whether Konop’s website is an “electronic communication” and, if so, whether Davis “intercepted” that communication.

[2] An “electronic communication” is defined as “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.” Id. § 2510(12). As discussed above, website owners such as Konop transmit electronic documents to servers, where the documents are stored. If a user wishes to view the website, the user requests that the server transmit a copy of the document to the user’s computer. When the server sends the document to the user’s computer for viewing, a transfer of information from the website owner to the user has occurred. Although the website owner’s document does not go directly or immediately to the user, once a user accesses a website, information is transferred from the website owner to the user via one of the specified mediums. We therefore conclude that Konop’s website fits the definition of “electronic communication.”

[3] The Wiretap Act, however, prohibits only “intercep-tions” of electronic communications. “Intercept” is defined as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any elec-tronic, mechanical, or other device.” Id. § 2510(4). Standing alone, this definition would seem to suggest that an individual “intercepts” an electronic communication merely by “acquir-ing” its contents, regardless of when or under what circum-stances the acquisition occurs. Courts, however, have clarified that Congress intended a narrower definition of “intercept” with regard to electronic communications.

[4] In Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457 (5th Cir. 1994), the Fifth Circuit held that the government’s acquisition of email messages stored on an electronic bulletin board system, but not yet retrieved by the intended recipients, was not an “interception” under the Wiretap Act. The court observed that, prior to the enactment of the ECPA, the word “intercept” had been interpreted to mean the acquisition of a communication contemporaneous with transmission. Id. at 460 (citing United States v. Turk, 526 F.2d 654, 658 (5th Cir. 1976)). The court further observed that Congress, in passing the ECPA, intended to retain the previous definition of “intercept” with respect to wire and oral communications, 4 while amending the Wiretap Act to cover interceptions of electronic communications. See Steve Jack-son Games, 36 F.3d at 462; S. Rep. No. 99-541, at 13; H.R. Rep. No. 99-647, at 34. The court reasoned, however, that the word “intercept” could not describe the exact same conduct with respect to wire and electronic communications, because wire and electronic communications were defined differently in the statute. Specifically, the term “wire communication” was defined to include storage of the communication, while “electronic communication” was not. 5 The court concluded that this textual difference evidenced Congress’ understanding that, although one could “intercept” a wire communication in storage, one could not “intercept” an electronic communica-tion in storage:

Critical to the issue before us is the fact that, unlike the definition of “wire communication,” the defini-tion of “electronic communication” does not include electronic storage of such communications. . . . Congress’ use of the word “transfer” in the definition of “electronic communication,” and its omission in that definition of the phrase “any electronic storage of such communication” . . . reflects that Congress did not intend for “intercept” to apply to “electronic communications” when those communications are in “electronic storage.”

Steve Jackson Games, 36 F.3d at 461-62; Wesley Coll. v. Pitts, 974 F. Supp. 375, 386 (D. Del. 1997) (“[B]y including the electronic storage of wire communications within the defi-nition of such communications but declining to do the same for electronic communications . . . Congress sufficiently evinced its intent to make acquisitions of electronic communi-cations unlawful under the Wiretap Act only if they occur contemporaneously with their transmissions.”), aff’d, 172 F.3d 861 (3d Cir. 1998); United States v. Reyes, 922 F. Supp. 818, 836 (S.D.N.Y. 1996) (“Taken together, the definitions thus imply a requirement that the acquisition of [electronic communications] be simultaneous with the original transmis-sion of the data.”); Bohach v. City of Reno, 932 F. Supp. 1232, 1236-37 (D. Nev. 1996) (requiring acquisition during transmission). The Steve Jackson Court further noted that the ECPA was deliberately structured to afford electronic com-munications in storage less protection than other forms of communication. See Steve Jackson Games, 36 F.3d at 462-64.

[5] The Ninth Circuit endorsed the reasoning of Steve Jack-son Games in United States v. Smith, 155 F.3d at 1051. The question presented in Smith was whether the Wiretap Act cov-ered wire communications in storage, such as voicemail mes-sages, or just wire communications in transmission, such as ongoing telephone conversations. Relying on the same textual distinction as the Fifth Circuit in Steve Jackson Games, we concluded that wire communications in storage could be “in-tercepted” under the Wiretap Act. We found that Congress’ inclusion of storage in the definition of “wire communication” militated in favor of a broad definition of the term “intercept” with respect to wire communications, one that included acqui-sition of a communication subsequent to transmission. We further observed that, with respect to wire communications only, the prior definition of “intercept” — acquisition contem-poraneous with transmission — had been overruled by the ECPA. Smith, 155 F.3d at 1057 n.11. On the other hand, we suggested that the narrower definition of “intercept” was still appropriate with regard to electronic communications:

[I]n cases concerning “electronic communications” — the definition of which specifically includes “transfers” and specifically excludes “storage” — the “narrow” definition of “intercept” fits like a glove; it is natural to except non-contemporaneous retrievals from the scope of the Wiretap Act. In fact, a number of courts adopting the narrow interpreta-tion of “interception” have specifically premised their decisions to do so on the distinction between § 2510’s definitions of wire and electronic commu-nications.

Smith, 155 F.3d at 1057 (citations and alterations omitted).

[6] We agree with the Steve Jackson and Smith courts that the narrow definition of “intercept” applies to electronic com-munications. Notably, Congress has since amended the Wire-tap Act to eliminate storage from the definition of wire communication, see USA PATRIOT Act § 209, 115 Stat. at 283, such that the textual distinction relied upon by the Steve Jackson and Smith courts no longer exists. This change, how-ever, supports the analysis of those cases. By eliminating stor-age from the definition of wire communication, Congress essentially reinstated the pre-ECPA definition of “intercept” — acquisition contemporaneous with transmission — with respect to wire communications. See Smith, 155 F.3d at 1057 n.11. The purpose of the recent amendment was to reduce protection of voice mail messages to the lower level of protec-tion provided other electronically stored communications. See H.R. Rep. 107-236(I), at 158-59 (2001). When Congress passed the USA PATRIOT Act, it was aware of the narrow definition courts had given the term “intercept” with respect to electronic communications, but chose not to change or modify that definition. To the contrary, it modified the statute to make that definition applicable to voice mail messages as well. Congress, therefore, accepted and implicitly approved the judicial definition of “intercept” as acquisition contempo-raneous with transmission.

[7] We therefore hold that for a website such as Konop’s to be “intercepted” in violation of the Wiretap Act, it must be acquired during transmission, not while it is in electronic stor-age. 6 This conclusion is consistent with the ordinary meaning of “intercept,” which is “to stop, seize, or interrupt in progress or course before arrival.” Webster’s Ninth New Collegiate Dictionary 630 (1985). More importantly, it is consistent with the structure of the ECPA, which created the SCA for the express purpose of addressing “access to stored . . . electronic communications and transactional records.” S. Rep. No. 99- 541 at 3 (emphasis added). The level of protection provided stored communications under the SCA is considerably less than that provided communications covered by the Wiretap Act. Section 2703(a) of the SCA details the procedures law enforcement must follow to access the contents of stored elec-tronic communications, but these procedures are considerably less burdensome and less restrictive than those required to obtain a wiretap order under the Wiretap Act. See Steve Jack-son Games, 36 F.3d at 463. Thus, if Konop’s position were correct and acquisition of a stored electronic communication were an interception under the Wiretap Act, the government would have to comply with the more burdensome, more restrictive procedures of the Wiretap Act to do exactly what Congress apparently authorized it to do under the less burden-some procedures of the SCA. Congress could not have intended this result. As the Fifth Circuit recognized in Steve Jackson Games, “it is most unlikely that Congress intended to require law enforcement officers to satisfy the more stringent requirements for an intercept in order to gain access to the contents of stored electronic communications.” Id.; see also Wesley Coll., 974 F. Supp. at 388 (same).

[8] Because we conclude that Davis’ conduct did not con-stitute an “interception” of an electronic communication in violation of the Wiretap Act, we affirm the district court’s grant of summary judgment against Konop on his Wiretap Act claims. 7

C. Stored Communications Act

Konop also argues that, by viewing his secure website, Davis accessed a stored electronic communication without authorization in violation of the SCA. The SCA makes it an offense to “intentionally access[ ] without authorization a facility through which an electronic communication service is provided . . . and thereby obtain[ ] . . . access to a wire or elec-tronic communication while it is in electronic storage in such system.” 18 U.S.C. § 2701(a)(1). The SCA excepts from lia-bility, however, “conduct authorized . . . by a user of that ser-vice with respect to a communication of or intended for that user.” 18 U.S.C. § 2701(c)(2). The district court found that the exception in § 2701(c)(2) applied because Wong and Gardner consented to Davis’ use of Konop’s website. It there-fore granted summary judgment to Hawaiian on the SCA claim.

The parties agree that the relevant “electronic communica-tions service” is Konop’s website, and that the website was in “electronic storage.” In addition, for the purposes of this opin-ion, we accept the parties’ assumption that Davis’ conduct constituted “access without authorization” 8 to “a facility through which an electronic communication service is provid-ed.”

We therefore address only the narrow question of whether the district court properly found Hawaiian exempt from liabil-ity under § 2701(c)(2). Section 2701(c)(2) allows a person to authorize a third party’s access to an electronic communica-tion if the person is 1) a “user” of the “service” and 2) the communication is “of or intended for that user.” See 18 U.S.C. § 2701(c)(2). A “user” is “any person or entity who — (A) uses an electronic communications service; and (B) is duly authorized by the provider of such service to engage in such use.” 18 U.S.C. § 2510(13).

The district court concluded that Wong and Gardner had the authority under § 2701(c)(2) to consent to Davis’ use of the website because Konop put Wong and Gardner on the list of eligible users. This conclusion is consistent with other parts of the Wiretap Act and the SCA which allow intended recipi-ents of wire and electronic communications to authorize third parties to access those communications. 9 In addition, there is some indication in the legislative history that Congress believed “addressees” or “intended recipients” of electronic communications would have the authority under the SCA to allow third parties access to those communications. See H.R. Rep. No. 99-647, at 66-67 (explaining that “an addressee [of an electronic communication] may consent to the disclosure of a communication to any other person” and that “[a] person may be an ‘intended recipient’ of a communication . . . even if he is not individually identified by name or otherwise”).

Nevertheless, the plain language of § 2701(c)(2) indicates that only a “user” of the service can authorize a third party’s access to the communication. The statute defines “user” as one who 1) uses the service and 2) is duly authorized to do so. Because the statutory language is unambiguous, it must control our construction of the statute, notwithstanding the legislative history. See United States v. Daas, 198 F.3d 1167, 1174 (9th Cir. 1999). The statute does not define the word “use,” so we apply the ordinary definition, which is “to put into action or service, avail oneself of, employ.” Webster’s at 1299; see Daas, 198 F.3d at 1174 (“If the statute uses a term which it does not define, the court gives that term its ordinary meaning.”).

Based on the common definition of the word “use,” we cannot find any evidence in the record that Wong ever used Konop’s website. There is some evidence, however, that Gardner may have used the website, but it is unclear when that use occurred. At any rate, the district court did not make any findings on whether Wong and Gardner actually used Konop’s website — it simply assumed that Wong and Gard-ner, by virtue of being eligible to view the website, could authorize Davis’ access. The problem with this approach is that it essentially reads the “user” requirement out of § 2701(c)(2). Taking the facts in the light most favorable to Konop, we must assume that neither Wong nor Gardner was a “user” of the website at the time he authorized Davis to view it. We therefore reverse the district court’s grant of sum-mary judgment to Hawaiian on Konop’s SCA claim.

II. Railway Labor Act Claims

Konop also appeals the district court’s grant of summary judgment to Hawaiian on his claims under the Railway Labor Act, 45 U.S.C. §§ 151-188 (“RLA”). The RLA prohibits “in-terference, influence, or coercion by either party over the des-ignation of representatives by the other.” 45 U.S.C. § 152 (Third). It also declares that “it shall be unlawful for any car-rier to interfere in any way with the organization of its employees, or to use the funds of the carrier in maintaining or assisting or contributing to any labor organization, labor rep-resentative, or other agency of collective bargaining. . . .” Id. at § 152 (Fourth).

Konop asserts three claims under 45 U.S.C. § 152 (Third) and (Fourth) of the RLA. First, Konop alleges that Hawaiian interfered with his organizing efforts by accessing his website under false pretenses. Second, Konop alleges that Hawaiian wrongfully assisted a labor group by disclosing the contents of Konop’s website to a union leader who supported the con-cessionary contract. Third, Konop alleges that Hawaiian engaged in coercion and intimidation by threatening to file a defamation suit against Konop based on statements on the website. The district court dismissed these claims on the alter-native grounds that it lacked jurisdiction over the RLA claims, and that Konop failed to support them with evidence suffi-cient to withstand summary judgment.

A. Subject Matter Jurisdiction

Federal courts lack subject matter jurisdiction over disputes which are “grounded in the [collective bargaining agree-ment],” Haw. Airlines, Inc. v. Norris, 512 U.S. 246, 256 (1994), and “involve controversies over the meaning of an existing collective bargaining agreement in a particular fact situation,” id. at 253 (internal quotation marks omitted). Such disputes, labeled “minor” disputes under the RLA, are subject to mandatory arbitration. Id. Hawaiian argues, and the district court agreed, that Konop’s RLA claims are grounded in the collective bargaining agreement (“CBA”) and are therefore subject to mandatory arbitration. We disagree.

In Fennessy v. Southwest Airlines, 91 F.3d 1359 (9th Cir. 1996), we addressed whether the district court had jurisdiction over the plaintiff’s statutory claim under the RLA. The plain-tiff in Fennessy alleged that the carrier violated 45 U.S.C. § 152 (Fourth) by terminating his employment in retaliation for his efforts to replace the existing union. Id. at 1360-61. We held that “because his claim is based on a statutory provi-sion rather than on the collective bargaining contract, it is not a minor dispute that must be brought to [arbitration]; it is a statutory claim that he may bring directly in district court.” Id. at 1362. The plaintiff’s unsuccessful arbitration of a related contractual claim under the CBA did not alter this conclusion.

Because the statutory claims were not “grounded in the collective-bargaining agreement,” and the statutory rights were “independent of the CBA,” we found the district court had jurisdiction. Id.

Hawaiian argues that, unlike the statutory claim in Fen-nessy, Konop’s statutory claims are grounded in and depen-dent on the CBA. To support this position, Hawaiian focuses on conduct which Konop explicitly alleged in his complaint as violating the CBA. Specifically, in the RLA section of the complaint, Konop alleged that Hawaiian violated the CBA by suspending him from work, reducing his employee benefits, requiring him to submit to physical and psychological testing, and giving certain pilots paid opportunities to campaign in favor of the concessionary contract.

On appeal, however, Konop does not challenge the district court’s dismissal of these CBA-related claims. Rather, he objects to the district court’s dismissal of his independent RLA claims. Konop claims that Hawaiian violated the RLA by (1) accessing his website under false pretenses, (2) disclos-ing the website’s contents to the rival union faction, and (3) threatening to sue Konop for defamation based on statements on the website. Hawaiian never explains how these RLA claims are grounded in the CBA, except to say that Konop merely presents them as a precursor to the alleged CBA viola-tions. Nothing, however, requires such a narrow reading of Konop’s allegations. Konop, like the plaintiff in Fennessy, presents his statutory claims as independent violations of the RLA. These claims in no way depend upon a finding that Hawaiian, at some later time, violated Konop’s contractual rights under the CBA.

Accordingly, we hold that the RLA claims which Konop presses on appeal are not grounded in the CBA, are not sub-ject to mandatory arbitration and, therefore, fall within the court’s jurisdiction.

B. Protected Activity

Hawaiian contends that even if Hawaiian managers accessed Konop’s website under false pretenses, conveyed this information to a rival union leader, and threatened to sue Konop for defamation, such conduct did not violate the RLA because it did not interfere with any protected organizing activity. The organizing activity in which Konop engaged principally involved the publication of articles on a secure website. As discussed above, Konop limited access to pilots and other employees on the eligible list and prohibited users from disclosing the contents of the website to others. He also categorically excluded managers. Konop’s website publica-tion vigorously criticized Hawaiian management and its pro-posal for wage concessions in the existing collective bargaining agreement. Because the incumbent union, ALPA, supported the concessionary contract, Konop sought to encourage consideration of alternative union representation.

There is no dispute that Konop’s website publication would ordinarily constitute protected union organizing activity under the RLA. Hawaiian argues, however, that Konop forfeited any protection he would otherwise enjoy because his articles con-tained malicious, defamatory and insulting material known to be false. In Linn v. United Plant Guard Workers, Local 114, 383 U.S. 53, 61 (1966), the Supreme Court held that a party forfeits his protection under the National Labor Relations Act (NLRA) by “circulating defamatory or insulting material known to be false.” 10 See also Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 282-83 (1974); San Antonio Comm. Hosp. v. S. Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1237 (9th Cir. 1997).

We assume Hawaiian is referring to the alleged defamatory statements contained in the “Facts” section of its brief. There, Hawaiian indicates that Konop published the following false statements: (1) Nobles does his “dirty work . . . like the Nazis during World War II”; (2) “Soviet Negotiating Style Essential to Nobles Plan!”; (3) Nobles is “one incompetent at the top”; (4) Nobles “has little skill and little ability with people. . . . In fact, with as few skills as Nobles possesses, it is difficult to imagine how he got this far”; and (5) “Nobles Suspected in Fraud!” and “Hawaiian Air president, Bruce Nobles, is the prime suspect in an alleged fraud which took place in 1991.”

The first two statements, referencing the Nazis and Soviets, are simply “rhetorical hyperbole” protected by federal labor laws. See Letter Carriers, 418 U.S. at 286. The second two statements, commenting on Nobles’ competence and people skills, are opinions also protected by federal labor laws. See id. at 284; San Antonio Comm. Hosp., 125 F.3d at 1237. Konop did not forfeit his protection under the Railway Labor Act, as Hawaiian suggests, simply by publishing statements that were critical of and insulting to Nobles. “ ‘[F]ederal law gives a union license to use intemperate, abusive, or insulting language without fear of restraint or penalty . . . .’ ” San Anto-nio Comm. Hosp., 125 F.3d at 1235 (quoting Letter Carriers, 418 U.S. at 283) (emphasis added); see also Linn, 383 U.S. at 58 (“[R]epresentation campaigns are frequently character-ized by bitter and extreme charges, countercharges, unfounded rumors, vituperations, personal accusations, mis-representations and distortions.”). 11

With respect to the final challenged statement, indicating that Nobles was suspected of fraud, Hawaiian fails to argue or present any evidence that Konop published the statement with knowledge of its falsity or with reckless disregard for the truth. Federal labor law protects even false and defamatory statements unless such statements are made with actual malice — i.e., knowledge of falsity or with reckless disregard for the truth. See Letter Carriers, 418 U.S. at 281; Linn, 383 U.S. at 61 (protection under labor law existed “even though the state-ments [were] erroneous and defame[d] one of the parties to the dispute”). With no evidence or argument that Konop acted with actual malice, Hawaiian cannot demonstrate as a matter of law that Konop forfeited his protection under the RLA.

NLRB v. Pincus Bros., Inc.-Maxwell, 620 F.2d 367 (3d Cir. 1980) (as amended), upon which Hawaiian principally relies, provides little support for Hawaiian’s position. In Pincus Bros., the Third Circuit, in considering whether the NLRB abused its discretion by declining to defer to an arbitration award, merely concluded it was “at least arguable” that the employee published a defamatory statement known to be false. Id. at 376. For Hawaiian to prevail on summary judg-ment, however, it must do more than show it is “at least argu-able” that Konop knew the challenged statement was false. It must demonstrate this as a matter of law. As Hawaiian pres-ents no evidence or argument that Konop acted with the requi-site malice, Hawaiian falls short of satisfying this burden.

Accordingly, we find that Konop has raised a triable issue of fact with respect to whether the development and mainte-nance of his website constituted protected activity under the RLA.

C. Specific Violations

Konop argues that Hawaiian managers: (1) interfered with Konop’s organizing efforts by viewing the website under false pretenses, (2) wrongfully supported one labor group in favor of another by informing the opposing labor faction of the website’s contents, and (3) engaged in coercion and intimida-tion by threatening to sue Konop for defamation, all in viola-tion of the RLA. Hawaiian argues, and the district court agreed, that Konop failed to present sufficient evidence to withstand summary judgment on these claims. We disagree.

1. Access of Website

Konop argues that Davis interfered with Konop’s organiz-ing efforts by viewing the website under false pretenses. Absent a legitimate justification, employers are generally pro-hibited from engaging in surveillance of union organizing activities. Cal. Acrylic Indus. v. NLRB, 150 F.3d 1095, 1099- 1100 (9th Cir. 1998). The reason for this general proscription is that employer surveillance “tends to create fear among employees of future reprisal” and, thus, “chills an employee’s freedom to exercise” his rights under federal labor law. Id. at 1099.

In NLRB v. Unbelievable, Inc., 71 F.3d 1434 (9th Cir. 1995), we upheld the Board’s finding that the employer “en-gaged in unfair labor practices by eavesdropping on private conversations between employees and [a] Union representa-tive,” which occurred in the employee break room. Id. at 1438-39. We see no principled distinction between the employer’s eavesdropping in Unbelievable and Hawaiian’s access of Konop’s secure website.

Hawaiian suggests that Davis had a legitimate reason to access Konop’s website — to identify and correct any false or misleading statements. Assuming such a concern could justify Davis’ monitoring of private union organizing activities, Hawaiian has presented little evidence to suggest that any statements on Konop’s website were actually defamatory. Moreover, as discussed below, there are triable issues whether Hawaiian used information it obtained from the website to assist one union faction over another, and to coerce and intimidate Konop. Under these circumstances, we conclude that Konop has raised a triable issue that Hawaiian’s access of Konop’s website was not justified.

Hawaiian also argues that Davis’ access did not violate the RLA because it did not appreciably limit Konop’s organizing activities. Hawaiian emphasizes that, after learning about Davis’ access to the website, Konop restricted access for a mere half-day and declined to temper the language in his arti-cles. Hawaiian, however, presents no authority indicating that employees subject to surveillance or eavesdropping must also demonstrate that they consequently limited their organizing activity. It is the tendency to chill protected activities, not the actual chilling of protected activities, that renders eavesdrop-ping and surveillance generally objectionable under federal labor law. See, e.g., Cal. Acrylic, 150 F.3d at 1099-1100. That a hardy individual might continue his organizing activities undeterred, despite an employer’s surveillance, does not ren-der the employer’s conduct any less of a violation. 12

Accordingly, we find that Konop has raised a triable issue of fact that Hawaiian interfered with Konop’s union organiz-ing activity in violation of the RLA by accessing Konop’s website.

2. Disclosure to Opposing Union

Konop argues that Nobles unlawfully assisted Reno Morella, the union leader who supported the concessionary contract, by disclosing the contents of Konop’s website. Gen-erally, the RLA prohibits employers from providing assis-tance to a union or labor faction. See Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1009 (9th Cir. 1990) (per curiam); see also NLRB v. Finishline Indus., 451 F.2d 1280, 1281-82 (9th Cir. 1971) (NLRA prohibits employer from telling work-ers to withdraw from one union and join another); NLRB v. L. Ronney & Sons Furniture Mfg. Co., 206 F.2d 730, 734-35 (9th Cir. 1953) (NLRA prohibits employer from initiating membership drive among his employees for employer-favored union).

Konop argues that Nobles disclosed useful intelligence to a rival union faction in an effort to ensure that Konop’s fac-tion, which opposed the concessionary contract, would not prevail. Hawaiian does not seriously dispute that disclosure of the contents of Konop’s website to Morella would constitute improper assistance. Instead, Hawaiian argues that Konop failed to present sufficient evidence that Nobles made any such disclosure or that Nobles was even familiar with the con-tents of Konop’s website when he spoke to Morella.

Morella, however, states in his declaration that Nobles con-tacted him on December 14, 1995 and informed him “that he had just reviewed information which was posted on an inter-net communications system operated by Hawaiian Airlines Pilot Robert Konop.” In addition, Morella states that Nobles also “disclosed to me that Konop’s internet communications system contained a third written article concerning Konop’s efforts to obtain union representation by a labor organization other than the Air Line Pilots Association.” This evidence creates a genuine issue of fact whether Nobles was familiar with the contents of Konop’s website and whether Nobles dis-closed the contents of the website to Morella.

Moreover, Nobles confirmed in his declaration that he con-tacted Morella because he “felt that Reno Morella, the Chair-man of the ALPA Master Executive Council, should be aware of the newsletter because of its inaccurate attack on the pro-posed labor agreements and the unfair effect it could have on the ratification process.” Nobles thus effectively concedes that he interceded to help ensure that Morella’s faction — which favored ratification of the concessionary contract — would prevail over Konop’s faction, which opposed the agreement.

Accordingly, we find that Konop has raised a triable issue of fact whether Nobles improperly assisted one union faction over another in violation of the RLA.

3. Threat of Defamation Suit

Konop argues that Nobles engaged in unlawful coercion and intimidation by threatening to file a defamation suit against Konop based on statements on Konop’s website. An employer’s filing or threatened filing of a lawsuit against an employee concerning union organizing activities may, under certain circumstances, violate the RLA. See, e.g., Diamond Walnut Growers, Inc. v. NLRB, 53 F.3d 1085, 1089-90 (9th Cir. 1995) (finding employer’s defamation lawsuit against union violated NLRA); GHR Energy Corp., 294 N.L.R.B. 1011, 1014 (1989) (analyzing whether employer’s threat to sue employee for defamation violated NLRA), aff’d, 924 F.2d 1055 (5th Cir. 1991).

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Click the case caption above for the full text of the Court's opinion.

Outcome: For the foregoing reasons, we affirm the district court’s judgment with respect to Konop’s Wiretap Act claims and his retaliation claim under the Railway Labor Act. We reverse the district court’s judgment on Konop’s Stored Communications Act claims and his claims under the Railway Labor Act for interference with organizing activities, wrongful support of a union faction, and coercion and intimidation.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None