Golden Gate University Law Review


In Konop v. Hawaiian Airlines Inc., the United States Court of Appeals for the Ninth Circuit held that the unauthorized access of the content of a secure website is a violation of the Wiretap Act and the Stored Communications Act. This is the first case to determine whether unauthorized accessing of a secure private website is a violation of the Wiretap Act. This decision is contrary to an earlier decision by the Fifth Circuit in United. States v. Turk, which held that the Wiretap Act required contemporaneous transmission and acquisition of the communication. The Ninth Circuit concluded that the scope of protection under the Wiretap Act and the Stored Communications Act depends on the degree of intrusion, not on whether the communication is in transit or storage. Subsequently, content on a secure website is an "electronic communication" within the meaning of the Acts and is therefore protected from unlawful interception. The Ninth Circuit also concluded that defendant's unlawful interception of the content on plaintiff's secure website, followed by its disclosure to an opposing union faction and engagement in coercion and intimidation, raised a triable issue of fact, and remanded Konop's claims under the Railway labor Act.