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  • From: "saundrakaerubel.com" <saundrakae AT saundrakaerubel.com>
  • To: internetworkers AT franklin.oit.unc.edu
  • Subject: Interesting article about websites, the law, security and privacy
  • Date: Tue, 16 Jan 2001 08:39:29 -0500


Take Note:

from ecompany

Hawaiian Airlines Flies Into Web Trouble
By Matt Gallaway at http://www.ecompany.com

George Orwell aficionados, take note: Big Brother lost one last
week when a federal court of appeals in California ruled that an
employer may have improperly intercepted information from an
employee's website. The facts of the case, Konop v. Hawaiian
Airlines, involve a disgruntled Hawaiian Airlines pilot (Robert
Konop) who, back in December 1995, set up a site for his co-workers
to criticize management (at the time, Hawaiian was seeking
concessions from the pilots' labor union). A vice president of the
company attempted to view the site but discovered that it was
password protected. Konop had rigged it so that only he and his
fellow pilots had access. (Furthermore, anyone logging on had to
agree not to disclose the contents of the site.)
Shut out of the site, the VP took inspiration from underage
drinkers everywhere and borrowed a friend's ID -- he contacted
another pilot at the company and asked to use his name to access
the site. The pilot agreed and the VP signed on, accepting the
nondisclosure agreement. What he found on the site confirmed his
suspicions about Konop. He discovered postings that were not only
critical of Hawaiian management but also a wee bit inflammatory.
(One poster compared the president of the company to a Nazi, while
another accused him of fraud.) The VP promptly informed the
president, who in turn contacted the pilot's union representative
and threatened to take legal action against Konop.
Meanwhile, Konop discovered what had happened and turned the tables
on the airline by taking it to court. He alleged that by viewing
his website under false pretenses, his employer had violated the
Wiretap Act and the Stored Communications Act, two federal statutes
that limit the right to eavesdrop on electronic communications. The
tricky part of the pilot's case was that both of these statutes
were enacted before the Web really existed and had been interpreted
by other courts in ways that would prevent application to websites.
For example, one federal court ruled (again, in a pre-Web case)
that the statutes were not violated when police played back a tape
of a private phone conversation (given to them by a third party)
because the interception of the phone call was not contemporaneous
with the transmission.
Applying this argument to a website, where there is lag time
between the uploading of the content and the viewing of the
material, the trial judge ruled that Konop was out of luck. On
appeal, the court went back and looked at the statutes (and their
legislative history) and decided that, in fact, Congress never
intended a contemporaneous requirement to limit the application of
the statute. And fortunately, the court was not technically bound
by the decision in the police case because it occurred in a
different federal circuit. Most recently, the case went back to the
trial judge, where Konop's argument looks pretty good, now that he
can rely on the statutes previously in question.
Unless it is appealed to the U.S. Supreme Court, the case will set
a strong precedent for secure websites being covered under the
Wiretap Act (which could be a potent weapon against hackers). The
lesson for employers is that while they can monitor employee
Web-surfing habits and e-mails, as well as anything else that might
come across workplace computer screens, they need to be careful
about breaking into secure sites maintained outside the office,
even if they suspect that bad things are being said about them.




  • Interesting article about websites, the law, security and privacy, saundrakaerubel.com, 01/16/2001

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