In a case that seems to be dragging on forever, the Ninth Circuit issued yet another ruling in the case of Konop v. Hawaiian Airlines, Inc.. Konop, a former pilot for Hawaiian Airlines, was unhappy with the labor negotiations going on between his union and the air carrier. He set up his own website to complain about it, and he limited access to a list of fellow pilots and other employees, which he created. Visitors could only enter the website by entering a username and a password.

A Vice President for Hawaiian Airlines convinced two pilots to give him their passwords, and he was able to enter Konop’s website (under the pilots’ usernames) and view the comments the employee was making about the company. Needless to say, the pilot was fired, and he brought this lawsuit against Hawaiian.

Konop brought claims under the Railway Labor Act (I’m no labor lawyer, but I just don’t understand how a railway law applies to airline pilots), but the interesting claims are brought under the Electronic Communications Privacy Act (the Wiretap Act) and the Stored Communications Act. The federal district court granted summary judgment to Hawaiian on basically all of Konop’s claims, and he appealed to the Ninth Circuit. The appeals court held (rightly, I think) that Hawaiian did not violate the Wiretap Act, because the communications read by the airline’s vice president were not being transmitted at the moment of interception; the Wiretap Act applies only to communications that are intercepted at the moment of interception.

More interesting is the Court’s analysis of Konop’s Stored Communications Act claim. The law essentially prohibits intentional access to stored electronic communications without authorization. The Court held that since the pilots had essentially permitted the vice president to use their passwords, the Hawaiian executive was essentially authorized to view the stored communications. However, to provide authorization the two pilots had to be “users” of the website, and the court found that neither of the two pilots had actually visited the website enough to be called “users.” Therefore, the court allowed Konop’s Stored Communications Act claims to stand.

And they go back to court all over again….