Konop v. Hawaiian Airlines

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT C. KONOP, No. 99-55106
Plaintiff-Appellant,
D.C. No.
v. CV-96-04898-SJL
(JGx)
HAWAIIAN AIRLINES, INC.,
Defendant-Appellee. OPINION

Appeal from the United States District Court
for the Central District of California
J. Spencer Letts, District Judge, Presiding

Argued and Submitted
June 8, 2000--Pasadena, California

Filed January 8, 2001

Before: Robert Boochever, Stephen Reinhardt, and
Richard A. Paez, Circuit Judges.

Opinion by Judge Boochever

_________________________________________________________________


COUNSEL

Robert C. Konop, Pro se, Playa del Rey, California, plaintiff-
appellant.

Marianne Shipp, Gibson, Dunn & Crutcher, Irvine, California,
for the defendant-appellee.

_________________________________________________________________

OPINION

BOOCHEVER, Circuit Judge:

Robert Konop ("Konop") appeals: (1) the district court's
grant of summary judgment against Konop on his claim that
Hawaiian Airlines, Inc. ("Hawaiian") violated the Wiretap
Act, 18 U.S.C. SS 2510-2520, and the Stored Communica-
tions Act, 18 U.S.C. SS 2701-2710, by viewing Konop's
secure website under false pretenses; (2) the district court's
grant of summary judgment against Konop on his claims that
Hawaiian violated the Railway Labor Act, 45 U.S.C.S 152,
by gaining unauthorized access to and disclosing the contents
of Konop's website; and (3) the district court's judgment, fol-
lowing a bench trial, entered against Konop on his claim that
Hawaiian suspended him in retaliation for his website activi-
ties in violation of the Railway Labor Act.

We conclude that, with respect to Konop's claims under the
Wiretap Act and the Stored Communications Act, and his
statutory claims under the Railway Labor Act which were dis-
missed on summary judgment, Konop has raised a triable

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issue of fact. We reverse and remand with respect to those
claims. As to Konop's retaliation claim under the Railway
Labor Act, which proceeded to trial, we affirm the district
court's judgment.

FACTS

Konop, a pilot for Hawaiian, maintained a website where
he posted bulletins critical of his employer, its officers, and
the incumbent union, Air Line Pilots Association ("ALPA").
Many of those criticisms related to Konop's opposition to
labor concessions which Hawaiian sought from ALPA.
Because ALPA supported giving management concessions to
the existing collective bargaining agreement, Konop encour-
aged others via his website to consider alternative union rep-
resentation.

Konop controlled access to his website by requiring visitors
to log in with a user name and password. Konop provided
user names to certain Hawaiian employees, but not to manag-
ers or union representatives. To obtain a password and view
the site, an eligible employee had to register and consent to
an agreement not to disclose the site's contents.

About December 14, 1995, Hawaiian vice president James
Davis ("Davis") contacted Hawaiian pilot Gene Wong
("Wong") and asked permission to use Wong's name to
access Konop's site. Davis claimed he was concerned about
untruthful allegations that he believed Konop was making on

the site. Wong had never logged into the site to create an
account, and had never agreed to Konop's terms of use and
nondisclosure conditions. When Davis accessed the site using
Wong's name, he presumably clicked a button indicating that
he was Wong and agreed to Konop's terms and conditions.

Later that day, Konop received a call from the union chair-
man of ALPA, Reno Morella. Morella told Konop that
Hawaiian president Bruce Nobles ("Nobles") had contacted

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him regarding the contents of Konop's website. Morella
related that Nobles was upset by accusations that Nobles was
suspected of fraud and by other disparaging statements pub-
lished by Konop. From this conversation with Morella, Konop
believed Nobles had obtained the contents of his website and
had threatened to sue Konop for defamation based on state-
ments contained on the website.

After speaking with Morella, Konop took down his website
for the remainder of the day. He placed it back online the next
morning, however, without having learned how Nobles had
obtained the information discussed in the phone call. Konop
claims to have learned only later from the examination of sys-
tem logs that Davis had accessed the site using Wong's name.

In the meantime, Davis continued to view the site using
Wong's name. Later, Davis also logged in with the name of
another pilot, James Gardner ("Gardner"), who had similarly
consented to Davis' use of his name. Through April 1, 1996,
Konop claims that his records indicate over twenty log-ins by
Davis (as Wong) and at least fourteen more by Gardner or
Davis (as Gardner).

Konop filed suit alleging numerous state law tort claims
along with labor and wiretap claims arising out of Davis'
viewing and use of his website. Konop also brought claims
arising out of a medical suspension that he alleges was
imposed in retaliation for his opposition to proposed labor
concessions. The district court granted summary judgment to
Hawaiian on all but this last claim of retaliatory suspension,
and entered judgment against Konop on that claim after a
short bench trial.

On appeal, Konop argues that the district court erred in
granting summary judgment for Hawaiian on his claims that
Davis' unauthorized viewing of the website violated the Wire-
tap Act, 18 U.S.C. SS 2510-2520, and the Stored Communica-
tions Act, 18 U.S.C. SS 2701-2710. Konop also argues that

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Hawaiian was not entitled to summary judgment on his claim
that the acquisition and subsequent use of the site's contents
by Davis and Nobles was unlawful under the Railway Labor
Act, 45 U.S.C. S 152. Finally, Konop challenges the judgment
entered against him on his retaliatory suspension claim, also
brought under the RLA, on the ground that the district court
improperly quashed subpoenas for witnesses that Konop
sought to have testify on his behalf.

ANALYSIS

I. Wiretap Act and Stored Communications Act Claims.

Konop argues that Hawaiian vice president Davis, by
accessing Konop's secure website under false pretenses, inter-
cepted an electronic communication in violation of the Wire-
tap Act, as amended by the Electronic Communications
Privacy Act, and accessed an electronic communications
facility in violation of the Stored Communications Act.

[1] Protection against eavesdropping on modern electronic
communications was added to the Wiretap Act and enacted in
the Stored Communications Act by the Electronic Communi-
cations Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat.
1848 ("ECPA"). Title I of the ECPA amended the Wiretap
Act to prohibit unauthorized "interception" of "electronic
communications." 18 U.S.C. S 2511. Title II of the ECPA cre-
ated the Stored Communications Act, which prohibits unau-
thorized "access" to "a facility through which an electronic
communication service is provided." Id. at S 2701.

[2] Civil damages are substantially greater under the Wire-
tap Act than under the Stored Communications Act. Compare
18 U.S.C. S 2520 with 18 U.S.C. S 2707. As such, it is a sig-
nificant question whether using false pretenses to view a web-
site constitutes unlawful interception in violation of the
Wiretap Act, or unlawful access in violation of the Stored

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Communications Act, or both. It is also one of first impres-
sion.

The Fifth Circuit has characterized the Wiretap Act as "fa-
mous (if not infamous) for its lack of clarity." Steve Jackson
Games, Inc. v. United States Secret Serv., 36 F.3d 457, 462
(5th Cir. 1994). We have noted that the Fifth Circuit "might
have put the matter too mildly. Indeed, the intersection of the
Wiretap Act and the Stored Communications Act is a com-
plex, often convoluted, area of the law." United States v.
Smith, 155 F.3d 1051, 1055 (9th Cir. 1998), cert. denied, 525
U.S. 1071 (1999) (citations omitted).

A. Enactment and Interpretation of Wiretap Act.

Our way through this statutory thicket begins with the
Wiretap Act as it was written and interpreted prior to its
amendment by the ECPA. As originally enacted, the Wiretap
Act sanctioned "any person who . . . willfully intercepts,
endeavors to intercept, or procures any other person to inter-
cept, any wire or oral communication. . . ." 18 U.S.C.A.
S 2511(a) (1970). The Wiretap Act defined "wire communica-
tion" as "any communication made in whole or in part
through the use of facilities for the transmission of communi-
cations by the aid of wire, cable, or other like connection." Id.
at S 2510(1). An "oral communication" meant "any oral com-
munication uttered by a person exhibiting an expectation that
such communication is not subject to interception under cir-
cumstances justifying such expectation." Id. at S 2510(2). "In-
tercept" was defined as "the aural acquisition of the contents
of any wire or oral communication through the use of any
electronic, mechanical, or other device." Id. at S 2510(4).

The term "intercept" received a narrow construction in the
influential case of United States v. Turk, 526 F.2d 654 (5th
Cir. 1976). At issue in Turk was whether police intercepted a
communication when they played back a tape of a telephone
call that had been previously recorded by a third party. The

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Fifth Circuit held no unlawful interception occurred. The
court explained that the logic and policy of the Wiretap Act
"require participation by the one charged with an`intercep-
tion' in the contemporaneous acquisition of the communica-
tion." Id. at 658.1

A requirement that transmission and acquisition be contem-
poraneous would be fatal to Konop's claim that Hawaiian vio-
lated the Wiretap Act by gaining unauthorized access to his
website. There is ordinarily a period of latency between the
initial transmission of information for storage on a web
server, and the acquisition of that information by its recipi-
ents. If interception requires that acquisition and transmission
occur contemporaneously, then unauthorized downloading of
information stored on a web server cannot be interception.

B. Enactment and Interpretation of ECPA.

The law by which such acts of downloading are judged has
changed significantly, however, since Turk read its contempo-
raneity requirement into the Wiretap Act. The variety of acts
constituting interception was expanded by Title I of the ECPA
from "aural acquisition" of protected communications to
"aural or other acquisition" of protected communications. 18
U.S.C. S 2510(4) (1986) (emphasis added). The ECPA also
reclassified and redefined the types of communications pro-
_________________________________________________________________
1 The court reasoned:

The words `acquisition . . . through the use of any . . . device'
suggest that the central concern is with the activity engaged in at
the time of the oral communication which causes such communi-
cation to be overheard by uninvited listeners. If a person secrets
a recorder in a room and thereby records a conversation between
two others, an `acquisition' occurs at the time the recording is
made. . . . [If] a new and different `aural acquisition' occurs each
time a recording of an oral communication is replayed[, it] would
mean that innumerable `interceptions,' and thus violations of the
Act, could follow from a single recording.

Turk, 526 F.2d at 658.

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tected from interception. The definition of "wire communica-
tion" was narrowed from "any communication " made over the
wires to "any aural transfer" made over the wires, id. at
S 2510(1) (emphasis added), but the definition was also
expanded to include "any electronic storage of such commu-
nication." Id. In addition, the ECPA added a catch-all cate-
gory of "electronic communication" 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, photoelec-
tronic or photooptical system. . . ." Id. at S 2510(12).

In United States v. Smith, 155 F.3d 1051 (9th Cir. 1998),
cert. denied, 525 U.S. 1071 (1999), we considered the effect
of these amendments on the meaning of "intercept " under the
Wiretap Act. We also considered the relation of interception
to the new offense of unauthorized access to stored communi-
cations facilities under the Stored Communications Act. At
issue in Smith was whether the Wiretap Act required suppres-
sion of a tape of phone messages retrieved without authoriza-
tion from the defendant's voice mailbox.

The government argued in Smith that the ECPA was not
intended to repudiate Turk's requirement that acquisition must
be contemporaneous with transmission to constitute intercep-
tion under the Wiretap Act. Instead, maintained the govern-
ment, Congress intended ECPA Titles I and II to establish a
distinction between the strong protection of communications
in transmission afforded by the Wiretap Act (which provides
for suppression of unauthorized intercepted wire communica-
tions, see 18 U.S.C. S 2518(10)(a)), and the weaker protection
of communications in storage afforded by the Stored Commu-
nications Act (which does not provide for suppression, see 18
U.S.C. S 2708). See Smith, 155 F.3d at 1056-57.

Rejecting these arguments, we found Turk's narrow defini-
tion of "intercept" difficult to square with the amended Wire-
tap Act's definition of "wire communication." If "the term

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`intercept' necessarily implies contemporaneous acquisition,
then the portion of S 2510(1) that specifically defines `wire
communication' as including stored information is rendered
essentially meaningless because messages in electronic stor-
age cannot, by definition, be acquired contemporaneously."
Id. at 1058.

[3] The terms "intercept" under the Wiretap Act and "ac-
cess" under the Stored Communications Act, we concluded,
are not "temporally different, with the former, but not the lat-
ter, requiring contemporaneity; rather the terms are conceptu-
ally, or qualitatively, different." Id.

The word "intercept" entails actually acquiring the
contents of a communication, whereas the word "ac-
cess" merely involves being in position to acquire
the contents of a communication. In other words,
"access" is, for all intents and purposes, a lesser
included offense (or tort, as the case may be) of "in-
terception."

Id. (alterations omitted). Under this scheme, the Wiretap Act
and the Stored Communications Act do not discriminate
between wire communications based on whether they are in
transit or storage, but instead attach different consequences to
invasions of privacy based on degrees of intrusion.

If Smith's definition of "intercept" applies to electronic
communications, then a person's unauthorized acquisition of
the contents of a secure website would constitute an intercep-
tion in violation of the Wiretap Act. The only circuit court to
have decided the issue, however, has held that "intercept"
does not mean the same thing when applied to electronic com-
munications as when applied to wire communications. The
Fifth Circuit, in Steve Jackson Games v. United States Secret
Service, 36 F.3d 457 (5th Cir. 1994), concluded that, with
respect to electronic communications, Congress intended the
ECPA to carry forward the Turk definition of "intercept" as

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contemporaneous acquisition. The court noted that the ECPA
defines "electronic communication" as a "transfer" of signals,
and that "unlike the definition of `wire communication,' the
definition of `electronic communication' does not include
electronic storage of such communications." Id. at 461.

We endorsed the reasoning of Steve Jackson Games in
Smith, and this would ordinarily end our inquiry. Though
electronic communications were not at issue in Smith, and our
endorsement of Steve Jackson Games in that case was there-
fore not essential to our holding, we do not lightly reconsider
persuasive dicta, even if they do not bind us. But confronting
the issue squarely for the first time in this case, we find our-
selves unpersuaded that Congress intended one definition of
"intercept" to govern "wire communications, " and another to
govern "electronic communications."

C. Acquisition Need Not Be Contemporaneous with
Transmission.

We first note that the Wiretap Act provides but a single
definition of "intercept," and that definition does not
expressly contain or suggest the contemporaneity requirement
read into it by Turk. See 18 U.S.C.S 2510(4). Though silence
is consistent with the presumption that Congress acts with
awareness of prevailing judicial constructions when it reen-
acts or amends a law, see Native Village of Venetie I.R.A.
Council v. State of Alaska, 944 F.2d 548, 554 (9th Cir. 1991),
the Turk contemporaneity rule had not gained wide currency
when Congress passed the ECPA.2 Nor does any reference to
Turk or contemporaneity appear in the statute's legislative his-
tory.3
_________________________________________________________________
2 We have found only one apparent adoption of Turk's reading of
"intercept"-- and that in passing -- by a circuit court prior to the ECPA's
passage on October 21, 1986. See U.S. v. Shields, 675 F.2d 1152, 1156
(11th Cir. 1982).
3 Intent to carry forward the rule in Turk is suggested at first glance by
the pronouncement in the Senate Report on the ECPA that the "definition

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The textual basis for the Fifth Circuit's conclusion in Steve
Jackson Games, that stored electronic communications are not
protected from interception under the Wiretap Act, is that the
statute defines "electronic communication" as a "transfer" of
information without expressly including storage of informa-
tion. In contrast, the corresponding definition of "wire com-
munication" does expressly include storage of information. It
is plausible, however, that the express inclusion of stored
communications in the definition of "wire communication"
was intended not for purposes of contrast, but for clarifica-
tion. The language was a late subcommittee addition to the
draft ECPA to ensure that voice mail and similar stored wire
communications would be protected as wire communications.
See S. Rep. No. 99-541, 99th Cong., 2d Sess. (1986),
reprinted in 1986 U.S.C.C.A.N. 3555, 3566.

This addition was necessary because, as one commentator
has noted, wire communication does not necessarily include
storage of that communication. Tatsuya Akamine, Proposal
for a Fair Statutory Interpretation: E-Mail Stored in a Service
Provider Computer Is Subject to an Interception Under the
Federal Wiretap Act, 7 J.L. & Pol'y 519, 550-51 (1999).
Electronic communication, on the other hand, cannot success-
fully be completed without being stored. Id. at 561
(" `Electronic storage' is a part of the entire communication
process, and thus, the definition of `electronic communica-
tion' impliedly covers `electronic storage,' whether or not that
definition includes the specific reference to `electronic stor-
age.' "). Therefore, it was not necessary for Congress to
explicitly include the concept of storage in its definition of
electronic communication.
_________________________________________________________________
of `intercept' under current law is retained with respect to wire and oral
communications except that the term `or other' is inserted after `aural.' "
S. Rep. No. 99-541, 99th Cong., 2d Sess. (1986), reprinted in 1986
U.S.C.C.A.N. 3555, 3567. But the caveat referring to the insertion of text
in the statute indicates that "current law" was meant to denote the text of
the statute itself, and not necessarily any particular judicial interpretation
of "intercept."

229


We are wary of attributing subtle purpose and indirection
to the language of a statute that appears to have been crafted
with little of either. In other instances, where Congress has
provided lesser protection for electronic communications, it
has done so straightforwardly, and for discernable reasons.
Electronic communication service providers must divulge
communications in certain circumstances as an incident to
their services, for example, and the Wiretap Act expressly
permits them to do so. See 18 U.S.C. S 2511(3)(b); 1986
U.S.C.C.A.N. at 3580. No expectation of privacy attaches to
electronic communications made available through facilities
readily available to the public, and interception of such com-
munications is also expressly permitted under the Wiretap
Act. See 18 U.S.C. S 2511(2)(g)(i). A suggestion by the Jus-
tice Department resulted in a provision emphasizing the
unavailability of suppression, where not constitutionally
required, as a remedy for unlawful interception of electronic
communications. See 18 U.S.C. S 2518(10)(c); 1986
U.S.C.C.A.N. at 3577.

No similarly straightforward provision of the Wiretap Act
affords stored electronic communications a lesser degree of
protection from interception than stored wire communica-
tions. We know of no reason why Congress might have
wished to do so. An electronic communication in storage is no
more or less private than an electronic communication in
transmission. Distinguishing between the two for purposes of
protection from interception is "irrational" and "an insupport-
able result given Congress' emphasis of individual privacy
rights during passage of the ECPA." Thomas Greenberg, E-
Mail and Voice Mail: Employee Privacy and the Federal
Wiretap Statute, 44 Am. U. L. Rev. 219, 248-49 (1994).

A 1996 amendment to the Wiretap Act also suggests Con-
gress understood electronic communications to include stored
communications unless specified otherwise. The amendment
appended a proviso to the Wiretap Act's definition by speci-
fying: " `electronic communication' . . . does not include . . .

230


electronic funds transfer information stored by a financial
institution. . . ." 18 U.S.C. S 2510(12)(D). The exclusion of
certain kinds of stored information from the definition of elec-
tronic communication implies that Congress understood the
term in ordinary circumstances to include stored information.
This understanding is stated expressly in the conference report
to the amendment: "[The amendment] will allow law enforce-
ment to obtain [stored] bank records through the usual grand
jury subpoena, or other court order procedure, without requir-
ing a wiretap order for these purposes." H.R. Conf. Rep. No.
104-518, 104th Cong., 2d Sess. (1996), reprinted in 1996
U.S.C.C.A.N. 944, 956-57 (emphasis added). 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.

[4] We believe that Congress intended the ECPA to elimi-
nate distinctions between protection of private communica-
tions based on arbitrary features of the technology used for
transmission. Reflecting on technological developments of the
1980s with which the old Wiretap Act had failed to keep pace,
the Senate Report on the ECPA lamented:

Today, we have large-scale electronic mail opera-
tions, computer-to-computer data transmissions, cel-
lular and cordless telephones, paging devices, and
video teleconferencing. A phone call may be carried
by wire, by microwave or fiber optics. It can be
transmitted in the form of digitized voice, data or
video. Since the divestiture of AT&T and deregula-
tion, many different companies, not just common
carriers, offer a wide variety of telephone and other
communications services. It does not make sense
that a phone call transmitted via common carrier is
protected by the current federal wiretap statute,
while the same phone call transmitted via a private
telephone network such as those used by many major

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U.S. corporations today, would not be covered by
the statute.

1986 U.S.C.C.A.N. at 3556-57. It makes no more sense that
a private message expressed in a digitized voice recording
stored in a voice mailbox should be protected from intercep-
tion, but the same words expressed in an e-mail stored in an
electronic post office pending delivery should not.

[5] 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 deliv-
ered 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.

D. Exceptions.

Our holding does not mean that an unlawful interception
occurs every time someone views a web page. Among the
Wiretap Act's many exceptions, one provides: "It shall not be
unlawful . . . for any person . . . to intercept or access an elec-
tronic communication made through an electronic communi-
cation system that is configured so that such electronic
communication is readily accessible to the general public." 18
U.S.C. S 2511(2)(g)(i). This exception does not exempt
Davis' conduct, however, because Konop's website was con-
figured to require user names and passwords that were avail-
able only to certain nonmanagement Hawaiian employees.

[6] Another exception provides 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. . . ." Id. at S 2511(2)(d).
Hawaiian claims that Wong was an authorized user of

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Konop's website whose consent entitled Davis to view its
contents. Konop does not dispute that Wong, as a Hawaiian
pilot, was able to set up an account by identifying himself,
creating a password, and agreeing to the website's terms of
use, which restricted disclosure of its contents to any other
person. But Hawaiian concedes that Wong never actually took
these steps before Davis used his name to view Konop's web-
site.

It does not follow from the fact that Wong was eligible to
gain access to the website that he was a "party " to its con-
tents. Neither the statute nor the case law hazards a definition
of "parties to the communication," but Webster's relevantly
defines "party" as "a person or group participating in an
action or affair." Merriam Webster's Collegiate Dictionary
1332 (Deluxe ed. 1998) (emphasis added). Never having
accepted Konop's offer to furnish access to the website in
exchange for a promise of confidentiality, Wong never actu-
ally participated in any communication with Konop.

"[P]arties to the communication" might also be construed
to include not just the actual authorized recipients of a com-
munication, but also its intended recipients. This usage would
be consistent with portions of the Wiretap Act that, for exam-
ple, permit service providers to divulge the contents of com-
munications "with the lawful consent of the originator or any
addressee or intended recipient of such communication." 18
U.S.C. S 2511(3)(b)(ii); see also id. at S 2702(b)(3) (permit-
ting divulgence of stored communications "with the lawful
consent of the originator or an addressee or intended recipient
of such communication, or the subscriber in the case of
remote computing service.").

[7] Yet it would still be a mistake under this broader defini-
tion to characterize Wong as an intended recipient of the con-
tents of Konop's website merely because Konop included
Wong's name on the list of pilots eligible to create passwords
and log in. The additional steps that one with such an account

233


had to take in order to gain access to the site indicate that the
intended recipients of Konop's website contents were not all
Hawaiian pilots for whom such provisional accounts had been
provided, but only those who agreed to Konop's terms of use.
Because Wong was at most a potential recipient at the time
that Davis initially viewed the contents of the website, Wong
was not one of the "parties to the communication " of the web-
site's contents under even a broad construction of the term.

Hawaiian claims alternatively that, even if Wong's consent
to view the website were not effective, Davis later received
consent to view the site from another Hawaiian pilot, Gard-
ner. The circumstances under which Gardner obtained a pass-
word for Davis are not at all clear, and may require factual
development on remand. Gardner did not in any case give
Davis "prior consent," id. atS 2511(2)(d), that could excuse
Davis' earlier acts of interception using Wong's log-in
account.

Hawaiian also argues that Konop himself gave implied con-
sent to viewing by Davis when he failed to disable Wong's
and Gardner's names after learning of Davis' actions. Consent
"may be implied in fact from surrounding circumstances indi-
cating that the [party] knowingly agreed to the surveillance."
U.S. v. Van Poyck, 77 F.3d 285, 292 (9th Cir. 1996) (quota-
tions omitted).

The circumstances relevant to an implication of con-
sent will vary from case to case, but the compendium
will ordinarily include language or acts which tend
to prove (or disprove) that a party knows of, or
assents to, encroachments on the routine expectation
that conversations are private. And the ultimate
determination must proceed in light of the prophy-
lactic purpose of [the Wiretap Act]--a purpose
which suggests that consent should not casually be
inferred.

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Griggs-Ryan v. Smith, 904 F.2d 112, 117 (1st Cir. 1990)
(cited in Van Poyck, 77 F.3d at 292). The existence of implied
consent is a question of fact that can be resolved on summary
judgment only when "the events material to the issue of prior
consent are straightforward, hence effectively uncontrovert-
ed." Id. at 117.

Here, Konop explains that although he suspected that
Hawaiian management accessed his system shortly after the
first incursion occurred, he did not know how and by whom
this had been accomplished until months later. The circum-
stances surrounding Konop's efforts to restrict access to his
website are sufficiently open to interpretation that the ques-
tion of implied consent should have gone to the finder of fact.
In any event, like Gardner's after-the-fact consent, any
implied consent by Konop was not given prior to Davis' ini-
tial visit to the website.

E. Conclusion.

[8] The contents of secure websites are "electronic commu-
nications" in intermediate storage that are protected from
unauthorized interception under the Wiretap Act. Konop has
raised material issues of fact whether Davis had appropriate
consent to view Konop's website. Because Konop has raised
material issues of fact regarding his claims of interception
under the Wiretap Act, he has also raised material issues of
fact regarding his claims that Davis committed the lesser
included offense of unauthorized access in violation of the
Stored Communications Act. The district court erred in grant-
ing summary judgment for Hawaiian on Konop's Wiretap Act
and Stored Communications Act claims.

II. Railway Labor Act Claims.

[9] Konop appeals the district court's grant of summary
judgment to Hawaiian on his claims under the Railway Labor
Act, 45 U.S.C. SS 151-188 ("RLA"). The RLA prohibits "in-

235


terference, influence, or coercion by either party over the des-
ignation of representatives by the other." 45 U.S.C. S 152
(Third). It also declares "it shall be unlawful for any carrier
to interfere in any way with the organization of its employees,
or to use the funds of the carrier in maintaining or assisting
or contributing to any labor organization, labor representative,
or other agency of collective bargaining. . . ." Id. at S 152
(Fourth).

Konop asserts three claims under 45 U.S.C. SS 152 (Third)
and (Fourth) of the RLA. First, Konop alleges that Hawaiian
interfered with his organizing efforts by viewing his website
under false pretenses. Second, Konop alleges that Hawaiian
wrongfully assisted a labor group by disclosing the contents
of Konop's website to a union leader who supported the con-
cessionary contract. Third, Konop alleges that Hawaiian
engaged in coercion and intimidation by threatening to file a
defamation suit against Konop based on statements contained
on Konop's website. The district court dismissed these claims
on the alternative grounds that it lacked jurisdiction over the
RLA claims, and that Konop failed to support them with evi-
dence sufficient to withstand summary judgment.

A. Subject Matter Jurisdiction.

Federal courts lack subject matter jurisdiction over disputes
which are "grounded in the collective bargaining agreement"
and "involve controversies over the meaning of an existing
collective bargaining agreement in a particular fact situation."
Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252-53, 256
(1994) (internal alterations omitted). Such disputes, labeled
"minor" disputes under the RLA, are subject to mandatory
arbitration. Id. at 253. Hawaiian argues, and the district court
agreed, that Konop's RLA claims are grounded in the collec-
tive bargaining agreement ("CBA") and, therefore, subject to
mandatory arbitration. We disagree.

In Fennessy v. Southwest Airlines, 91 F.3d 1359 (9th Cir.
1996), we addressed whether the district court had jurisdiction

236


over the plaintiff's statutory claim under the RLA. The plain-
tiff in Fennessy alleged that the carrier violated 45 U.S.C.
S 152 (Fourth) by terminating his employment in retaliation
for his efforts to replace the existing union. Id. at 1360-61.
We held that "because his claim is based on a statutory provi-
sion rather than on the collective bargaining contract, it is not
a minor dispute that must be brought to [arbitration]; it is a
statutory claim that he may bring directly in district court." Id.
at 1362. The plaintiff's unsuccessful arbitration of a related
contractual claim under the CBA did not alter this conclusion.
Because the statutory claims were not "grounded in the
collective-bargaining agreement," and the statutory rights
were "independent of the CBA," we found the district court
had jurisdiction. Id.

Hawaiian argues that, unlike the statutory claim in Fen-
nessy, Konop's statutory claims are grounded in and depen-
dent on the CBA. To support this position, Hawaiian focuses
on conduct which Konop alleged as violating the CBA. Spe-
cifically, in the RLA section of Konop's complaint, Konop
alleges that Hawaiian violated the CBA by suspending him
from work, reducing his employee benefits, requiring him to
submit to physical and psychological testing, and giving cer-
tain pilots paid opportunities to campaign in favor of the con-
cessionary contract.

On appeal, however, Konop does not argue that the above
RLA claims fall within this court's jurisdiction. Instead, the
RLA claims Konop presses on appeal involve allegations that
Hawaiian violated the RLA by (1) accessing his website
under false pretenses, (2) disclosing the website's contents to
the rival union faction, and (3) threatening to sue Konop for
defamation based on statements on the website. Hawaiian
never explains how these RLA claims are grounded in the
CBA, except to say that Konop merely presents them as a pre-
cursor to the alleged CBA violations. Nothing, however,
requires this cramped reading of Konop's allegations. Konop,
like the plaintiff in Fennessy, presents his statutory claims as

237


independent violations of the RLA. The RLA statutory claims
Konop presses on appeal in no way depend upon a finding
that Hawaiian, at some later time, violated Konop's contrac-
tual rights under the CBA.

[10] Accordingly, we hold that the RLA claims which
Konop presses on appeal are not grounded in the CBA, are
not subject to mandatory arbitration and, therefore, fall within
the court's jurisdiction.

B. Protected Activity.

Hawaiian contends that even if Hawaiian managers
accessed Konop's website under false pretenses, conveyed
this information to a rival union leader, and threatened to sue
Konop for defamation, such conduct would not violate the
RLA because it would not interfere with any protected orga-
nizing activity. The organizing activity in which Konop
engaged principally involved the publication of articles on a
secure website. As discussed above, only employees who
agreed to the confidentiality terms were allowed access; man-
agers and union representatives were categorically excluded.
Konop's website publication vigorously criticized managers
of Hawaiian and their proposal for wage concessions to the
existing collective bargaining agreement. Because the incum-
bent union, Air Line Pilots Association, supported the conces-
sionary contract, Konop sought to encourage consideration of
alternative union representation.

There is no dispute that Konop's website publication would
ordinarily constitute protected union organizing activity under
the RLA. Hawaiian argues, however, that Konop forfeited any
protection he would otherwise enjoy because his articles con-
tained malicious, defamatory and insulting material known to
be false. In Linn v. United Plant Guard Workers of Amer.,
Local 114, 383 U.S. 53, 61 (1966) ("Linn "), the Supreme
Court held that a party forfeits his protection under the
National Labor Relations Act ("NLRA") by "circulating

238


defamatory or insulting material known to be false. " See also
Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers
v. Austin, 418 U.S. 264, 286 (1974) ("Letter Carriers"); San
Antonio Comm. Hosp. v. Southern Cal. Dist. Council of Car-
penters, 125 F.3d 1230, 1237 (9th Cir. 1997). 4

While Hawaiian claims that many of the statements on
Konop's website were defamatory and known to be false, it
fails to identify the challenged statements in the "Discussion"
section of its brief. Presumably, Hawaiian is referring to the
alleged false statements contained in the "Facts " section.
There, Hawaiian indicates that Konop published the following
false statements: (1) Nobles does his "dirty work. . . like the
Nazis during World War II"; (2) "Soviet Negotiating Style
Essential to Nobles Plan!"; (3) Nobles is "one incompetent at
the top"; (4) Nobles "has little skill and little ability with peo-
ple . . . . In fact, with as few skills as Nobles possesses, it is
difficult to imagine how he got this far"; and (5) "Nobles Sus-
pected in Fraud!" and "Hawaiian Air president, Bruce Nobles,
is the prime suspect in an alleged fraud which took place in
1991."

[11] The first two statements, referencing the Nazis and
Soviets, are simply "rhetorical hyperbole" protected by fed-
eral labor laws. See Letter Carriers, 418 U.S. at 286
("rhetorical hyperbole" protected). The second two state-
ments, commenting on Nobles' competence and people skills,
are opinion also protected by federal labor laws. See id. at 284
(opinion protected); San Antonio Comm. Hosp., 125 F.3d at
1237 (same). Konop did not forfeit his protection under the
Railway Labor Act, as Hawaiian suggests, simply by publish-
_________________________________________________________________
4 While employers covered under the RLA are not subject to the provi-
sions of the NLRA, courts look to the NLRA and the cases interpreting
it for guidance in interpreting the RLA. Brotherhood of Railroad Train-
men v. Jacksonville Terminal Co., 394 U.S. 369, 383 (1969). We see no
reason why the rule announced in Linn, 383 U.S. at 61, regarding pro-
tected activities, should not apply in the context of the RLA.

239


ing statements that were critical of and insulting to Nobles.
" `[F]ederal law gives a union license to use intemperate, abu-
sive, or insulting language without fear of restraint or penalty.
. . .' " San Antonio Comm. Hosp., 125 F.3d at 1235 (quoting
Letter Carriers, 418 U.S. at 283) (emphasis added); see also
Linn, 383 U.S. at 58 ("representation campaigns are fre-
quently characterized by bitter and extreme charges, counter-
charges, unfounded rumors, vituperations, personal
accusations, misrepresentations and distortions").5

[12] With respect to the final challenged statement, indicat-
ing that Nobles was suspected of fraud, Hawaiian fails to
argue or present any evidence that Konop published the state-
ment with knowledge of its falsity or with reckless disregard
for the truth. Federal labor law protects even false and defam-
atory statements unless such statements are made with actual
malice -- i.e., knowledge of falsity or with reckless disregard
for the truth. See Letter Carriers, 418 U.S. at 281; Linn, 383
U.S. at 61 (protection under labor law maintained "even
though the statements are erroneous and defame one of the
parties to the dispute"). With no evidence or argument that
Konop acted with actual malice, Hawaiian cannot demon-
strate as a matter of law that Konop forfeited his protection
under the RLA.

NLRB v. Pincus Brothers, Inc., 620 F.2d 367 (3rd Cir.
1980), upon which Hawaiian principally relies, provides little
support for Hawaiian's position. In Pincus Brothers, the Third
_________________________________________________________________
5 We recognize that some organizing activity may be "so flagrant, vio-
lent or extreme" or so "egregious," "opprobrious," "offensive," "obscene"
or "wholly unjustified" that it loses the protection of the RLA. See Reef
Indust., Inc. v. NLRB, 952 F.2d 830, 837 (5th Cir. 1991); Timekeeping
Sys., Inc. and Lawrence Leinweber, 323 N.L.R.B. 244, 248-50 (1997). It
is not clear whether Hawaiian is contending that Konop's conduct falls
within one of these more amorphous standards. Assuming Hawaiian does
so contend, we nevertheless find Hawaiian has failed to demonstrate that,
as a matter of law, Konop's activities were so intolerable as to lose their
protection under the RLA.

240


Circuit merely concluded that, under the particular facts of
that case, it was "at least arguable" that the employee pub-
lished a defamatory statement known to be false. Id. at 376.
For Hawaiian to prevail on summary judgment, however, it
must do more than show it is "at least arguable " that Konop
knew the challenged statement was false. It must demonstrate
this as a matter of law. As Hawaiian presents no evidence or
argument that Konop acted with the requisite malice, Hawai-
ian falls short of demonstrating that Konop's activity was
unprotected as a matter of law.

[13] Accordingly, we find that Konop has raised a material
triable issue of fact with respect to whether the development
and maintenance of his website constituted protected activity
under the Railway Labor Act.

C. Specific Violations.

Konop argues that Hawaiian managers: (1) interfered with
Konop's organizing efforts by viewing the website under false
pretenses, (2) wrongfully supported one labor group in favor
of another by informing the opposing labor faction of the
website's contents, and (3) engaged in coercion and intimida-
tion by threatening to sue Konop for defamation, all in viola-
tion of the Railway Labor Act. Hawaiian argues, and the
district court agreed, that Konop failed to present sufficient
evidence to withstand summary judgment on these claims.
We disagree.

1. Access of Website.

[14] Konop argues that Davis interfered with Konop's
organizing efforts by viewing the website under false pre-
tenses. Absent a legitimate justification, employers are gener-
ally prohibited from engaging in surveillance of union
organizing activities. California Acrylic Indus., Inc. v. NLRB,
150 F.3d 1095, 1100 (9th Cir. 1998). The reason for this gen-
eral proscription is that employer surveillance "tends to create

241


fear among employees of future reprisal" and, thus, "chills an
employee's freedom to exercise" his rights under federal labor
law. Id. at 1099.

[15] In NLRB v. Unbelievable, Inc. , 71 F.3d 1434 (9th Cir.
1995), we upheld the Board's finding that the employer "en-
gaged in unfair labor practices by eavesdropping on private
conversations between employees and [a] Union representa-
tive," which occurred in the employee break room. Id. at
1438-39. We see no principled distinction between the
employer's eavesdropping in Unbelievable and Hawaiian's
access of Konop's secure website. This conclusion is sup-
ported by our determination that Hawaiian's access of
Konop's website raises a triable issue with respect to Konop's
claims under the Wire Tap Act (as amended by the Electronic
Communications Privacy Act) and the Stored Communica-
tions Act.

[16] Hawaiian suggests that it had a legitimate reason to
access Konop's website; namely, to identify and correct any
false or misleading statements contained on the website.
However, concern for the accuracy of Konop's publications,
even if it was the primary motivator of Davis' conduct, cannot
justify a violation of the Wire Tap Act and the Stored Com-
munications Act. As we have found a triable issue with
respect to these claims, we must also find a triable issue with
respect to Konop's RLA claim based on the same conduct.

[17] Hawaiian also argues that Davis' access did not violate
the RLA because it did not appreciably limit Konop's orga-
nizing activities. Hawaiian emphasizes that, after learning
about Davis' access to the website, Konop restricted access
for a mere half-day and declined to temper the language in his
articles. Hawaiian, however, presents no authority indicating
that employees subject to surveillance or eavesdropping must
also demonstrate that they consequently limited their organiz-
ing activity. It is the tendency to chill protected activities, not
the actual chilling of protected activities, that renders eaves-

242


dropping and surveillance generally objectionable under fed-
eral labor law. See, e.g., California Acrylic, 150 F.3d at 1099.
That a hardy individual might continue his organizing activi-
ties undeterred, despite an employer's surveillance, does not
render the employer's conduct any less of a violation.6

Accordingly, we find that Konop has raised a material tri-
able issue of fact whether Hawaiian interfered with Konop's
union organizing activity in violation of the RLA by access-
ing Konop's website.

2. Disclosure to Opposing Union.

[18] Konop argues that Nobles unlawfully assisted Reno
Morella, the union leader who supported the concessionary
contract, by disclosing the contents of Konop's website. Gen-
erally, the RLA prohibits employers from providing assis-
tance to a union or labor faction. See Barthelemy v. Air Lines
Pilots Ass'n, 897 F.2d 999, 1009 (9th Cir. 1990); see also
NLRB v. Finishline Indus., Inc., 451 F.2d 1280, 1281-82 (9th
Cir. 1971) (NLRA prohibits employer from telling workers to
withdraw from one union and join another); NLRB v. L. Ron-
ney & Sons Furniture Mfg. Co., 206 F.2d 730, 734-35 (9th
Cir. 1953) (NLRA prohibits employer from initiating mem-
bership drive among his employees for employer-favored
union).

Konop argues that Nobles disclosed useful intelligence to
a rival union faction in an effort to ensure that Konop's fac-
tion, which opposed the concessionary contract, would not
prevail. Hawaiian does not seriously dispute that disclosure of
the contents of Konop's website to Morella would constitute
improper assistance. Instead, Hawaiian argues that Konop
failed to present sufficient evidence that Nobles made any
_________________________________________________________________
6 Hawaiian also presents this argument to defeat the other two alleged
RLA claims discussed in the following sections. We find it is no more per-
suasive in the context of those claims.

243


such disclosure or that Nobles was even familiar with the con-
tents of Konop's website when he spoke to Morella.

[19] Morella, however, states in his declaration that Nobles
contacted him on December 14, 1995 and informed him "that
he had just reviewed information which was posted on an
internet communications system operated by Hawaiian Air-
lines Pilot Robert Konop." In addition, Morella states that
Nobles also "disclosed to me that Konop's internet communi-
cations system contained a third written article concerning
Konop's efforts to obtain union representation by a labor
organization other than the Air Line Pilots Association." This
evidence creates a genuine issue of fact with respect to
whether Nobles was familiar with the contents of Konop's
website and whether Nobles disclosed the contents of the
website to Morella.

Moreover, Nobles confirmed in his declaration that he con-
tacted Morella because he "felt that Reno Morella, the Chair-
man of the ALPA Master Executive Council, should be aware
of the newsletter because of its inaccurate attack on the pro-
posed labor agreements and the unfair effect it could have on
the ratification process." Nobles thus effectively concedes that
he interceded to help ensure that Morella's faction -- which
favored ratification of the concessionary contract -- would
prevail over Konop's faction, which opposed the agreement.

Accordingly, we find that Konop has raised a material tri-
able issue of fact with respect to whether Nobles improperly
assisted one union faction over another in violation of the
RLA.

3. Threat of Defamation Suit.

Konop argues that Nobles engaged in unlawful coercion
and intimidation by threatening to file a defamation suit
against Konop based on statements on Konop's website. An
employer's filing or threatened filing of a lawsuit against an

244


employee concerning union organizing activities may, under
certain circumstances, violate the RLA. See, e.g., Diamond
Walnut Growers, Inc. v. NLRB, 53 F.3d 1085, 1089-90 (9th
Cir. 1995) (finding employer's defamation lawsuit against
union violated NLRA); GHR Energy Corp., 294 N.L.R.B.
1011, 1014 (1989), enforced, 924 F.2d 1055 (5th Cir. 1991)
(analyzing whether employer's threat to sue employee for def-
amation violated NLRA).

Hawaiian does not argue that Nobles would be justified in
threatening to sue Konop for defamation. Instead, Hawaiian
contends that Konop failed to present sufficient evidence that
Nobles ever made such a threat. Nobles stated in his declara-
tion that he "did mention to Morella that the gross inaccura-
cies and lies in the newsletter made by Konop amounted to
defamation," but that he "never said that[he] intended to file
a lawsuit against Konop."

Morella, however, indicates otherwise. Morella states in his
declaration, "Nobles advised me that Konop should be cau-
tioned, or informed, of the possibility of a defamation lawsuit
by Nobles." Morella also testified, "[I]t was my impression
and conclusion that Nobles intended for me to contact Konop,
or take other action, for the purpose of opposing Konop's
efforts to seek alternative union representation. " Morella then
"informed Konop of Mr. Nobles' statements . . . regarding
caution with respect to a possible lawsuit against Konop for
defamation." Konop confirms the same in his declaration.
This evidence is sufficient to raise a material triable issue of
fact that Nobles threatened to sue Konop for defamation.

[20] Accordingly, we find that Konop has raised a material
triable issue of fact that Nobles engaged in coercion and
intimidation in violation of the RLA by threatening to sue
Konop for defamation.

D. Conclusion.

We hold that this court has jurisdiction over the RLA
claims Konop presses on appeal, that Konop raised a triable

245


issue of fact that he engaged in activity protected under the
RLA, and that Konop raised a triable issue whether Hawaiian
violated the RLA by accessing his website, disclosing the
website's content to a union leader, and threatening to sue
Konop for defamation. Accordingly, we hold the district court
erred in granting summary judgment against Konop on these
RLA claims.

III. Bench Trial on Retaliation Claim.

After trial, the district court entered judgment against
Konop on his retaliatory suspension claim. That claim
involved Konop's allegation that Hawaiian violated the RLA
when it placed him on sick leave in retaliation for protected
labor activities. Konop challenges the district court's judg-
ment against him on this claim on the ground that his subpoe-
nas for corroborating witnesses were improperly quashed. We
review a district court's order quashing subpoenas for an
abuse of discretion. See United States v. Berberian, 767 F.2d
1324, 1324 (9th Cir. 1985). A litigant whose subpoenas have
been improperly quashed must also show prejudice. See
Casino Foods Corp. v. Kraftco Corp., 546 F.2d 301, 302 (9th
Cir. 1976).

[21] Though there is some dispute regarding whether the
district court's remarks in a pretrial hearing constituted an
order to quash subpoenas at all, Konop has not suggested
what relevant evidence the subpoenaed witnesses might have
introduced had they been compelled to testify. Konop there-
fore has not shown that he was prejudiced as a result of any
order by the district court quashing subpoenas.

CONCLUSION

[22] The district court erred in granting summary judgment
to Hawaiian on Konop's Wiretap Act and Stored Communica-
tions Act claims, and Konop's Railway Labor Act statutory
claims. The district court did not abuse its discretion by

246


quashing Konop's subpoenas of witnesses in connection with
the bench trial on Konop's retaliatory suspension claim under
the RLA and, therefore, judgment against Konop on that
claim was proper.

REVERSED IN PART, AFFIRMED IN PART, and
REMANDED.

247

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