IP: ELECTRONIC FRONTIER FOUNDATION DEFENDS PRIVATE COMMUNICATIONS

[David Farber <dave () farber net>]

> FOR IMMEDIATE RELEASE
>
> Contact: Lee Tien, EFF Staff Attorney, tien () eff org, 415-436-9333 x102
>
> ELECTRONIC FRONTIER FOUNDATION DEFENDS PRIVATE COMMUNICATIONS
>
> AIRLINE PILOT CHARGES HAWAIIAN AIRLINES ILLEGALLY ACQUIRED INFORMATION
>
> March 19, 2001 -- The Electronic Frontier Foundation (EFF) joined the 
> creator of a private website in arguing that the Ninth Circuit Court of 
> Appeals correctly decided on January 8, 2001, that unauthorized 
> interception of private web communications violates the Electronic 
> Communications Privacy Act (ECPA).
>
> EFF filed an amicus brief in the case of Konop vs. Hawaiian Airlines, 
> where a Hawaiian Airlines executive impersonated an airline pilot in order 
> to acquire inside information about labor organizing issues at the 
> airline.  Robert Konop was a pilot at Hawaiian Airlines and created the 
> website as a private forum criticizing labor concessions that Hawaiian 
> sought from the pilots' labor union and the union's willingness to concede 
> to the airline's demands.
>
> Hawaiian Airlines vice president James Davis entered Konop's website using 
> a password he obtained by pretending he was a pilot. He also clicked a 
> button certifying he agreed to terms and conditions restricting entry to, 
> and disclosure of the site's contents only to non-management airline 
> employees registered to use the site.  Davis accessed the private website 
> at least 34 times and learned the details of Konop's disagreement with the 
> airline and the controlling pilots' union, violating the privacy of 
> Konop's electronic communications.  Konop was subsequently suspended by 
> the airline.
>
> EFF joined the case after Hawaiian asked the Ninth Circuit to reconsider 
> its January decision, arguing that Davis' unauthorized viewing of Konop's 
> website was not an interception of Konop's private communications under 
> ECPA. EFF replied that Davis' unauthorized acquisition of Konop's private 
> communications was clearly an interception of those communications, in 
> much the same way that listening in on a private telephone conversation is 
> an interception of that communication.
>
> Hawaiian Airlines argues that communications can only be "intercepted" 
> when they are in transit, not when they are stored on a disk.  Absurdly, 
> under Hawaiian's approach, a single communication passing between 
> computers would almost randomly alternate between being a stored 
> communication and being one in transit.
>
> The Justice Department submitted an amicus brief supporting Hawaiian 
> Airlines, arguing that website interceptions such as the one performed by 
> Davis are not interceptions but rather open surveillance activities that 
> can be done without obtaining warrants.  EFF believes that private web 
> communications are entitled to as much privacy as telephone calls, and 
> that law enforcement officers must meet the same high standards, including 
> a court-approved wiretap order, for intercepting both kinds of private 
> communications.
>
> The Electronic Frontier Foundation ( http://www.eff.org ) is the leading 
> civil liberties organization working to protect rights in the digital 
> world.  Founded in 1990, EFF actively encourages and challenges industry 
> and government to support free expression, privacy, and openness in the 
> information society.  EFF is a member-supported organization and maintains 
> one of the most-linked-to websites in the world.  EFF sees its action in 
> this case as part of its larger mission to protect privacy online.
>
> Plaintiff Robert C. Konop of Playa del Rey, California, represents himself 
> in the case.
>
> Defendant Hawaiian Airlines, Inc., is represented by Mark Perry of the law 
> firm Gibson, Dunn & Crutcher, located in San Francisco, CA.
>
> An archive of briefs and other materials related to this case appears on 
> the EFF website at: http://www.eff.org/Legal/Cases/Konop_v_Hawaiian_Airlines/
>
>                                                 -end-



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