A Legal Setback for Web Trespassers

A court ruling provides important new protection for anyone who wants to keep the content of a Web site private

By Mike France

When a private Web site gets infiltrated by an unwanted guest, does the victim have any legal rights? The answer to that important question has been unclear. But in a ruling filed on Jan. 8, a trio of federal appeals judges in California have held that Internet trespassers may be in violation of the Wiretap Act and the Stored Communications Act.

The case involves Robert Konop, a pilot for Hawaiian Airlines. He hosts "The Hawaiian Airlines Underground," a site where the company's employees can sound off about its policies. To ensure that the critical material posted online doesn't get anyone into trouble, though, Konop requires all visitors to get a password and to click a button indicating that they won't disclose the site's contents.

In 1995, one of the hottest issues being debated on the site was the labor concessions that the airline was then seeking from the Air Line Pilots Assn. (the site had a different name at the time). Concerned about what was being said online, a vice-president at Hawaiian Airlines allegedly called a pilot friend and asked for a big favor: permission to use the pilot's name to log on to Konop's site. The pilot agreed, and the executive logged on.


  Next thing Konop knew, a representative of the pilots' association called him to say that the president of Hawaiian Airlines was furious about the site's contents. After investigating the Web logs, Konop was able to determine that the company had managed to infiltrate his site, and in 1996, he filed a lawsuit against his employer for invading his privacy in violation of the Wiretap Act, the Stored Communications Act, and a variety of labor laws.

The trial judge tossed out Konop's lawsuit. But Ninth Circuit Federal Appeals Court Judges Robert Boochever, Stephen Reinhardt, and Richard Paez disagreed. Finding that the airline's conduct may have violated the Wiretap and Stored Communications Acts, the appellate panel remanded the case back to the trial judge for further factual investigation. A spokesperson says Hawaiian Airlines plans to appeal.

The case, if it is upheld, will provide important new protection to people who want to keep the content of private Web sites away from prying eyes, according to Charles H. Kennedy, a partner at the McLean (Va.) office of Morrison & Foerster. "It really is a big change from previous law," he says. "It gives people with Web sites a lot of protection that they didn't have before."


  While the plaintiff in this case was an employee and the defendant was a corporation, Kennedy thinks Corporate America also has good cause to welcome this ruling. "For corporations generally, this is good. For [companies] that try to protect access to their Web sites, or access to certain to areas of the sites, this case is good news."

Of course, it's bad news for companies that snoop on their employees' private Web sites. But they don't deserve protection in the first place.

France is BusinessWeek's Legal Affairs editor

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