• Employer Use of Employee's Website Does not Violate Wiretap Act
  • April 30, 2003
  • Law Firm: Ford & Harrison LLP - Atlanta Office
  • Demonstrating how technology has further complicated the already complex relationship between employers and employees, the Ninth Circuit Court of Appeals has held that an employer's unauthorized viewing of an employee's secure website does not violate the federal Wiretap Act, but may violate other federal laws. In Konop v. Hawaiian Airlines, the Ninth Circuit held that the employer's viewing of the website did not violate the federal Wiretap Act because the viewing was not an "interception" as required by that statute. The court also held, however, that the company's actions may have violated the Stored Communications Act (SCA), and that some of its actions may have violated the Railway Labor Act (RLA).

    Konop, a pilot for Hawaiian Airlines, created and maintained a website where he posted bulletins critical of his employer and of the union to which he belonged (the Air Line Pilots Association ("ALPA")). Much of Konop's criticism was related to his opposition to labor concessions Hawaiian Airlines sought from ALPA. Because ALPA supported the concessions, Konop, via the website, urged Hawaiian Airlines employees to seek other union representation.

    Konop controlled access to his website by requiring visitors to log in with a user name and password, created a list of people who were eligible to access the website, and prohibited management from viewing the website. A Hawaiian Airlines manager obtained permission from two authorized employees to use their names and passwords to view the website and did so several times. Konop ultimately sued the company based on this unauthorized access of the website under the federal Wiretap Act, the SCA, and the RLA.

    The federal Wiretap Act prohibits, among other things, "interceptions" of electronic communications. The Ninth Circuit held that the Act only prohibits the interception of electronic communications that occur contemporaneously with the transmission of the communication. Thus, Hawaiian Airlines did not violate the act by accessing Konop's secure website because this was not an interception of an electronic communication at the time of transmission, but instead was access to stored information.

    Konop also claimed that the unauthorized access of his website violated the SCA. The SCA prohibits the intentional access of a facility through which an electronic communication service is provided, thereby obtaining access to an electronic communication while it is in electronic storage in the system. The SCA exempts conduct authorized by the user of the electronic service with respect to a communication of or intended for that user. The trial court dismissed Konop's claim under this act, holding that the conduct was "authorized by the user" of the electronic service because the Hawaiian Airlines manager had the permission of the employees whose names and passwords he used to access the site. The Ninth Circuit reversed this decision because there was an issue as to whether either employee actually used the website. Even though the employees were on a list of people authorized to use the website, the Ninth Circuit interpreted the term "user" to mean a person who actually used the site, not one who was merely authorized to use it.

    Konop also claimed that Hawaiian Airlines violated the RLA by (1) accessing his website under false pretenses, (2) disclosing the website's contents to the rival union faction, and (3) threatening to sue Konop for defamation based on statements on the website. The Ninth Circuit reversed summary judgment on these claims. The court held that Konop's website was protected union organizing activity under the RLA and that the employer's viewing of the website was unlawful surveillance similar to listening to a private conversation between employees and union organizers. The court found that there was an issue of fact as to whether the employer's access of the website was justified. The court also found that there were triable issues of fact on whether Hawaiian Airlines aided one union faction over another by disclosing the website's contents to one faction and whether a Hawaiian Airlines manager threatened to sue Konop for defamation.