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If you are reading this column (most likely at work), you obviously have access to the Internet. While we hope that you visit the law.com site frequently, it is probably not the only site that you visit. Most of us believe that we have the right to view any appropriate Internet content — but a recent decision from the 9th U.S. Circuit Court of Appeals held that any employer’s efforts to read an employee’s Web site critical of management may violate the law. WEB SITE CRITICAL OF EMPLOYER Robert Konop is a pilot for Hawaiian Airlines. Konop created and maintained a Web site where he posted bulletins critical of Hawaiian, its officers and the incumbent labor union. The principal thrust of the Web site was Konop’s criticism of what he perceived to be the union’s overly generous concessions to Hawaiian Airlines and his advocacy of an alternate union. In order to control access to the Web site, Konop created a list of people, mostly pilots and other employees of Hawaiian, who were eligible to access the site. He then required visitors to log in with a user name and a password. Before entering the site, Konop required visitors to read and agree to a statement that the site was “directed only to Hawaiian Air’s pilots and other employees, not including HAL management. By entering, you acknowledge and agree to the terms and conditions of use. …” Hawaiian learned of the Web site and management understandably wanted to view its contents. A vice president asked two pilots whether he could use their names to create a password and access the site. The pilots agreed and Hawaiian management then had access to Konop’s site. Hawaiian accessed the site for the first time in the morning. Later that day, Konop received a call from the Union’s Chairman that Hawaiian’s president, Bruce Nobles, had contacted him regarding the contents of the Web site and was upset with Konop’s accusations that Nobles was suspected of fraud and by other disparaging statements contained therein. This was not the only day on which Hawaiian accessed the site. Konop claimed that Hawaiian, by using the pilots’ names, accessed the site over 30 times during the next few months. EMPLOYEE CLAIMS VIOLATIONS Konop filed suit against Hawaiian under the Federal Wiretap Act, the Stored Communications Act, the Railway Labor Act and Hawaiian state law. The District Court granted summary judgment to Hawaiian on all but a claim of retaliatory suspension in violation of the Railway Labor Act and entered judgment against Konop on that claim after a short bench trial. Konop appealed these decisions to the 9th Circuit. The Federal Wiretap Act prohibits the “interception” of electronic communications. The Wiretap Act has been used in the employment context when employees claim that the employer is eavesdropping on telephone communications or inappropriately accessing voicemail/telephone messages. The claims uniformly fail, either because it is the employer’s telephone system being used (thereby giving the employer unfettered access) or because of the narrow definition of “interception” under the act. Specifically, the word “intercept” has been interpreted by courts to mean the “acquisition of a communication contemporaneous with transmission.” In Konop, the court noted that the Wiretap Act was “deliberately structured to afford electronic communications in storage less protection than other forms of communications.” After a lengthy discussion of how a Web site is constructed and accessed, the 9th Circuit found that there was no violation of the Wiretap Act because the materials on Konop’s Web site were “stored” at the time they were read by Hawaiian. As such, Hawaiian did not “intercept” any electronic communication in violation of the Act. VIOLATION OF THE STORED COMMUNICATIONS ACT But, seemingly by definition, in order to escape liability under the Wiretap Act, Hawaiian was forced to concede that it had intentionally accessed “stored communications.” This would be a violation of the Stored Communications Act unless Hawaiian was authorized to access the site. The only way in which Hawaiian could be authorized to view the site is if it was given access by a “user” of the service. Without any evidence that the two pilots had, themselves, “used” the Web site, the Appellate court was unable to find that a “user” had authorized Hawaiian’s access. As such, the court reversed the lower court’s finding of summary judgment against Konop on the Stored Communications Act claim. RAILWAY LABOR ACT VIOLATION FOUND Finally, the court considered whether Konop’s statements on his Web site were “protected activity” under the Railway Labor Act. Konop alleged that after Hawaiian accessed and read the comments on his Web site, he was placed on medical suspension in retaliation for statements on the site. Specifically, it appeared as though Hawaiian was upset that Konop published statements likening Hawaiian president Nobles to a “Nazi” and writing that Nobles had a “Soviet Negotiating style” and was “incompetent.” Furthermore, the Web site contained a headline: “Nobles Suspected in Fraud!” The court found that all statements but the “fraud” allegation were protected as rhetoric or opinion. Because Hawaiian presented no evidence that Konop published the “fraud” allegation with “knowledge of its falsity or with reckless disregard for the truth,” that statement, too, was protected by the Railway Labor Act. The court, therefore, reversed the district court’s grant of judgment on Konop’s retaliation claim. As fellow law.com columnist Eric Sinrodhas observed, the law lags behind technology. In the employment law context, just as employers desire, and sometimes need, access to employees’ e-mails, there are certainly times when an employer may want (although not necessarily need) access to an employee’s Web site. This case illustrates some of the difficulties that courts have, and will continue to have, in drawing the lines between permissible access and an employee’s right to limit visitors to his or her own Web site. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, www.postschell.com. He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected].

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