Konop v. Hawaiian Airlines, Inc.

• Decision Date: 23 August 2002
• Docket Number: No. 99-55106.,99-55106.
• Citation: 302 F.3d 868
• Parties: Robert C. KONOP, Plaintiff-Appellant, v. HAWAIIAN AIRLINES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 868

302 F.3d 868

Robert C. KONOP, Plaintiff-Appellant, v. HAWAIIAN AIRLINES, INC., Defendant-Appellee.

No. 99-55106.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 2000.

Filed January 8, 2001.

Opinion Withdrawn August 28, 2001.

Filed August 23, 2002.

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Robert C. Konop, Pro se, Playa del Rey, CA, plaintiff-appellant.

Marianne Shipp, Gibson, Dunn & Crutcher, Irvine, CA, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California; J. Spencer Letts, District Judge, D.C. No. CV-96-04898-SJL (JGx).

Before BOOCHEVER, REINHARDT, and PAEZ, Circuit Judges.

Opinion by Judge BOOCHEVER; Partial Concurrence and Partial Dissent by Judge REINHARDT.

OPINION

BOOCHEVER, Circuit Judge.

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 violation 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 withdrew 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 remaining claims under the Railway Labor Act.

FACTS

Konop, a pilot for Hawaiian, created and 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 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 prohibited 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 concerned 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 "SUBMIT" button indicating acceptance of the terms and conditions.

Later that day, Konop received a call from the union chairman of ALPA, Reno Morella.¹ Morella told Konop that Hawaiian president Bruce Nobles had contacted him regarding 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 published on the website. From this conversation with Morella, Konop believed Nobles had obtained the contents of his website 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 system 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 opposition to the proposed labor concessions, in violation of the Railway Labor Act. The district court granted summary judgment 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 Railway 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.

DISCUSSION

The district court's grant of summary judgment is reviewed de novo. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc). Viewing the evidence in the light most favorable to Konop, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.

I. Electronic Communications Privacy Act Claims

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 Communications Privacy Act (ECPA), Pub.L. No. 99-508, 100 Stat. 1848, which was intended to afford privacy protection to electronic communications. Title I of the ECPA amended the federal 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 electronic 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 communication 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 Technological 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 uncertain 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, 117 S.Ct. 2329, 138 L.Ed.2d 874 (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, 521 U.S. at 852, 117 S.Ct. 2329. 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, 95 S.Ct. 2051. 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...