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Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Robert Konop v. Hawaiian Airlines, Inc.

No. 99-55106, 236 F.3d 1035 (9th Cir., January 8, 2001), withdrawn, 262 F.3d 972 (9th Cir., August 28, 2001)

Ninth Circuit holds that the unauthorized access and review of the contents of a password protected web site can constitute violations of both the Wiretap Act, 18 USC §§ 2510-2520, and the Stored Communications Act, 18 USC §§ 2701-2710. The court further holds that an employer's accessing without authorization of such a web site created by one of its employees, which site is critical of officers of the employer and urges company employees to consider alternative union representation, can constitute impermissible surveillance of union organizing activities in violation of the Railway Labor Act, 45 USC § 152. The Ninth Circuit accordingly reversed the decision of the District Court below, denied defendant's motion for summary judgment, and reinstated plaintiff's claims.

Plaintiff Robert Konop ("Konop") was a pilot for defendant Hawaiian Airlines Inc. ("Hawaiian"). Upset that his union, the Air Line Pilots Association ("ALPA") was considering certain labor concessions in its collective bargaining contract negotiations with Hawaiian, Konop created a web site containing statements critical of Hawaiian's President, and urging Hawaiian employees to consider alternative union representation.

Konop's site was not open to the general public. To gain access to the site, one had to input an assigned user name, which Konop gave only to selected Hawaiian employees. User names were not given either to Hawaiian's management or to the ALPA. Once the user entered his user name, he was presented with the site's terms and conditions, which he had to agree to honor before he would be given the password necessary to access the site. These terms included an agreement not to disclose the contents of Konop's site. If the user agreed to these terms, he was granted access to the site.

James Davis was a Hawaiian Vice President to whom Konop did not assign a user name, and who accordingly was not granted authorization by Konop to access the site.

To obtain access, Davis contacted a Hawaiian pilot, one Gene Wong, who had been granted a user name but had never accessed the site. This pilot gave Davis his user name, which Davis then used to access the site. Presumably, when Davis accessed the site in this fashion, he pretended to be Mr. Wong, and agreed to abide by the site's terms and conditions.

Plaintiff contends that Davis thereafter disclosed the contents of the site to both Hawaiian's President and the ALPA. A representative of the ALPA thereafter contacted Konop and informed him that Hawaiian's President was upset with the contents of the site.

Davis subsequently accessed the site using the name of another Hawaiian pilot, James Gardner, who also consented to Davis' use of his name.

Contending that defendant's actions violated the Wiretap Act, 18 USC §§ 2510-2520, the Stored Communications Act, 18 USC §§ 2701-2710, and the Railway Labor Act, 45 USC § 152, plaintiff brought suit. The District Court dismissed these claims on defendant's motion for summary judgment. Finding that plaintiff had raised viable claims as to which there were triable issues of fact, the Ninth Circuit reversed, and reinstated plaintiff's claims.

The Ninth Circuit held that one who views the contents of a password-protected web site without permission of the site owner can be found to violate both the Wiretap and Stored Communications Acts.

As amended by the Electronic Communications Privacy Act of 1986, the Wiretap Act prohibits an individual from "willfully intercept[ing]" ... "any wire or oral communications" or any "electronic communications." As explained by the court, "'electronic communications' [is] defined, with certain exceptions, 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 ...'" 18 USC § 2510(12). "Intercept" is defined as "the aural or other acquisition" of a protected communication.

The Ninth Circuit held that the statements found on Konop's web site were "electronic communications" within the meaning of the act. Said the court:

It is perfectly clear that the framers of the Wiretap Act's current definition of "electronic communication" understood that term to include communications in transit and storage alike. ... It makes no more sense that a private message expressed in a digitized voice recording stored in a voice mailbox should be protected from interception, but the same words expressed in an e-mail stored in an electronic post office pending delivery should not. We conclude that it would be equally senseless to hold that Konop's messages to his fellow pilots would have been protected from interception had he recorded them and delivered them through a secure voice bulletin board accessible by telephone, but not when he set them down in electronic text and delivered them through a secure web server accessible by a personal computer. We hold that the Wiretap Act protects electronic communications from interception when stored to the same extent as when in transit.

The court further determined that one could intercept an electronic communication in violation of the Wiretap Act even if the act of intercepting occurred long after the communication in question was made (or posted to a web site). In other words, the act of intercepting the communication did not have to occur contemporaneously with, or at the time the intercepted communication was made.

Given the foregoing, the court determined that it would be a violation of the Wiretap Act to access and review the contents of a password protected web site without the consent of the owner of the site. Said the court "the contents of secure websites are "electronic communications" in intermediate storage that are protected from unauthorized interception under the Wiretap Act." The court also held that the same acts would constitute a violation of the Stored Communications Act, which prohibits unauthorized access of "a facility through which an electronic communication service is provided."

The court noted that one who views a web page "readily accessible to the general public" does not violate the Wiretap Act 18 USC Section 2511(2)(g)(1). In addition, the court noted that it is not a violation of the Wiretap Act to intercept an electronic communication where "one of the parties to the communication has given prior consent to such interception ...".

The Ninth Circuit determined that Wong's grant to Davis of permission to use his name to access the site did not fall within this exception, because Wong had never himself accessed the web site. Other issues of fact existed, however, as to the effect of Gardner's consent, or the failure of Konop to bar Davis from further access to the site after he allegedly learned thereof.

The Ninth Circuit also reinstated plaintiff's claims under the Railway Labor Act ("RLA"). Finding that this was a matter for the courts, and not for mandatory arbitration, the court held that plaintiff had stated viable claims which, if proven, would establish violations of the FLA. "Absent a legitimate justification, employers are generally prohibited from engaging in surveillance of union organizing activities." The court held that by accessing a secure web site, an employer would run afoul of this prohibition. Said the court:

In NLRB v. Unbelievable, Inc., we upheld the Board's finding that the employer 'engaged in unfair labor practices by eavesdropping on private conversations between employees and a Union representative ... We see no principled distinction between the employer's eavesdropping in Unbelievable and Hawaiian's access of Konop's secure web site.

The court further held that if defendant had disclosed the contents of Konop's web site to the ALPA, defendant would have violated the FLA's prohibitions against "employers ... providing assistance to a union or labor faction." The court also held that plaintiff had stated a viable claim under the RLA by alleging that defendant had improperly coerced and threatened him by threatening to sue Konop for defamation as a result of the statements made on his web site. Finding that plaintiff had raised triable issues of fact as to each of these claims, the Ninth Circuit reversed the district court, and denied defendant's motion for summary judgment.

Defendant Hawaiian argued that it could not be held to have violated the RLA as a matter of law because Konop, by publishing his web site, had not engaged in activity protected by the statute. Hawaiian argued that Konop had "forfeited any protection he would otherwise enjoy because his articles contained malicious, defamatory and insulting material known to be false." The court held that most of the statements at issue constituted "rhetorical hyperbole" protected under the RLA. As to the balance, the court held that plaintiff had raised triable issues of fact as to whether the statements in question were in fact defamatory which mandated denial of defendant's motion for summary judgment.

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