Lead Opinion
OPINION
Robert Konop brought suit against his employer, Hawaiian Airlines, Inc. (“Hawaiian”), alleging that Hawaiian viewed Ko-nop’s secure website without authorization, disclosed the contents of that website, and took other related actions in violation of the federal Wiretap Act, the Stored Communications Act, and the Railway Labor Act. Konop also alleged several state tort claims. The district court granted summary judgment against Konop on all claims, except his retaliation claim under the Railway Labor Act. On the retaliation claim, the district court entered judgment against Konop following a bench trial. Ko-nop appeals the district court’s judgement on all claims, except on those brought under state tort law.
On January 8, 2001, we issued an opinion, reversing the district court’s decision on Konop’s claims under the Wiretap Act and the Stored Communications Act, and on several of his claims under the Railway Labor Act. Konop v. Hawaiian Airlines, Inc.,
FACTS
Konop, a pilot for Hawaiian, created and 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 the concessions, Konop, via his website, encouraged Hawaiian employees to consider alternative union representation.
Konop controlled access to his website by requiring visitors to log in with a user name and password. He created a list of people, mostly pilots and other employees of Hawaiian, who were eligible to access the website. Pilots Gene Wong and James Gardner were included on this list. Konop programmed the website to allow access when a person entered the name of an eligible person, created a password, and clicked the “SUBMIT” button on the
In December 1995, Hawaiian vice president James Davis asked Wong for permission to use Wong’s name to access Konop’s website. Wong agreed. Davis claimed he was concerned about untruthful allegations that he believed Konop was making on the website. Wong had not previously logged into the website to create an account. When Davis accessed the website using Wong’s name, he presumably typed in Wong’s name, created a password, and clicked the “SUBMIT” button indicating acceptance of the terms and conditions.
Later that day, Konop received a call from the union chairman of ALP A, Reno Morelia.
After speaking with Morelia, Konop took his website offline for the remainder of the day. He placed it back online the next morning, however, without knowing how Nobles had obtained the information discussed in the phone call. Konop claims to have learned only later from the examination of system logs that Davis had accessed the website using Wong’s name.
In the meantime, Davis continued to view the website using Wong’s name. Later, Davis also logged in with the name of another pilot, Gardner, who had similarly consented to Davis’ use of his name. Through April 1996, Konop claims that his records indicate that Davis logged in over twenty times as Wong, and that Gardner or Davis logged in at least fourteen more times as Gardner.
Konop filed suit alleging claims under the federal Wiretap Act, the Stored Communications Act, the Railway Labor Act, and state tort law, arising from Davis’ viewing and use of Konop’s secure website. Konop also alleged that Hawaiian placed him on medical suspension in retaliation for his opposition to the proposed labor concessions, in violation of the Railway Labor Act. The district court granted summary judgment to Hawaiian on all but the retaliatory suspension claim, and entered judgment against Konop on that claim after a short bench trial.
Konop appeals, arguing that the district court erred in granting summary judgment to Hawaiian on his federal claims under the Wiretap Act, Stored Communications Act, and Railway Labor Act. In addition, Konop urges us to reverse the district court’s judgment on the retaliation claim following the bench trial, because he claims the district court improperly quashed subpoenas for witnesses Konop sought to have testify at trial.
DISCUSSION
The district court’s grant of summary judgment is reviewed de novo. Lopez v. Smith,
1. Electronic Communications Privacy Act Claims
We first turn to the difficult task of determining whether Hawaiian violated-either the Wiretap Act, 18 U.S.C. §§ 2510-2522 (2000) or the Stored Communications Act, 18 U.S.C. §§ 2701-2711 (2000),
As we have previously observed, the intersection of these two statutes “is a complex, often convoluted, area of the law.” United States v. Smith,
A. The Internet and Secure Websites
The Internet is an international network of interconnected computers that allows millions of people to communicate and exchange information. See Reno v. ACLU,
While most websites are public, many, such as Konop’s, are restricted. For instance, some websites are password-protected, require a social security number, or require the user to purchase access by entering a credit card number. See Reno,
We are confronted with such a situation here. Although Konop took certain steps to restrict the access of Davis and other managers to the website,
B. Wiretap Act
Konop argues that Davis’ conduct constitutes” an interception of an electronic communication in violation of the
Wiretap Act. The Wiretap Act makes it an offense to “intentionally intercept! ] ... any .wire, oral, or electronic communication.” 18 U.S.C. § 2511(l)(a). We must therefore determine whether Konop’s website is an “electronic communication” and, if so, whether Davis “intercepted” that communication.
An “electronic communication” is defined 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, photoelectronic or photooptical system.” Id. § 2510(12). As discussed above, website owners such as Konop transmit electronic documents to servers, where the documents are stored. If a user wishes to view the website, the user requests that the server transmit a copy of the document to the user’s computer. When the server sends the document to the user’s computer for viewing, a transfer of information from the website owner to the user has occurred. Although the website owner’s document does not go directly or immediately to the user, once a user accesses a website, information is transferred from the website owner to the user via one of' the specified mediums. We therefore con-elude that Konop’s website fits the definition of “electronic communication.”
The Wiretap Act, however, prohibits only “interceptions” of electronic communications. “Intercept” is defined as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” Id. § 2510(4). Standing alone, this definition would seem to suggest that an individual “intercepts” an electronic communication merely by “acquiring” its contents, regardless of when or under what circumstances the acquisition occurs. Courts, however, have clarified that Congress intended a narrower definition of “intercept” with regard to electronic communications.
In Steve Jackson Games, Inc. v. United States Secret Service,
Critical to the issue before us is the fact that, unlike the definition of “wire communication,” the definition of “electronic communication” does not include electronic storage of such communications. ... Congress’ use of the word “transfer” in the definition of “electronic communication,” and its omission in that definition of the phrase “any electronic storage of such communication” ... reflects that Congress did not intend for “intercept” to apply to “electronic communications” when those communications are in “electronic storage.”
Steve Jackson Games,
The Ninth Circuit endorsed the reasoning of Steve Jackson Games in United States v. Smith,
*878 [I]n cases concerning “electronic communications” — the definition of which specifically includes “transfers” and specifically excludes “storage” — the “narrow” definition of “intercept” fits like a glove; it is natural to except non-contemporaneous retrievals from the scope of the Wiretap Act. In fact, a number of courts adopting the narrow interpretation of “interception” have specifically premised their decisions to do so on the distinction between § 2510’s definitions of wire and electronic communications.
Smith,
We agree with the Steve Jackson and Smith courts that the narrow definition of “intercept” applies to electronic communications. Notably, Congress has since amended the Wiretap Act to eliminate storage from the definition of wire communication, see USA PATRIOT Act § 209,
We therefore hold that for a website such as Konop’s to be “intercepted” in violation of the Wiretap Act, it’must be acquired during transmission, not while it is in electronic storage.
Because we conclude that Davis’ conduct did not constitute an “interception” of an electronic communication in violation of the Wiretap Act, we affirm the district court’s grant of summary judgment against Konop on his Wiretap Act claims.
C. Stored Communications Act
Konop also argues that, by viewing his secure website, Davis accessed a stored electronic communication without authorization in violation of the SCA. The SCA makes it an offense to “intentionally access[ ] without authorization a facility through which an electronic communication service is provided ... and thereby obtain[ ] ... access to a wire or electronic communication while it is in electronic storage in such system.” 18 U.S.C. § 2701(a)(1). The SCA excepts from liability, however, “conduct authorized ... by a user of that service with respect to a communication of or intended for that user.” 18 U.S.C. § 2701(c)(2). The district court found that the exception in § 2701(c)(2) applied because Wong and Gardner consented to Davis’ use of Konop’s website. It therefore granted summary judgment to Hawaiian on the SCA claim.
The parties agree that the relevant “electronic communications service” is Ko-nop’s website,' and that the website was in “electronic storage.” In addition, for the purposes of this opinion, we accept the parties’ assumption that Davis’ conduct constituted “access without authorization”
We therefore address only the narrow question of whether the district court properly found Hawaiian exempt from liability under § 2701(c)(2). Section 2701(c)(2) allows a person to authorize a third party’s access to an electronic communication if the person is 1) a “user” of the “service” and 2) the communication is “of or intended for that user.” See 18 U.S.C. § 2701(c)(2). A “user” is “any person or entity who — (A) uses an electronic communications service; and (B) is duly authorized by the provider of such service to engage in such use.” 18 U.S.C. § 2510(13).
The district court concluded that Wong and Gardner had the authority under § 2701(c)(2) to consent to Davis’ use of the website because Konop put Wong and Gardner on the list of eligible users. This conclusion is consistent with other parts of the Wiretap Act and the SCA which allow intended recipients of wire and electronic communications to authorize third parties to access those communications.
Nevertheless, the plain language of § 2701(c)(2) indicates that only a “user” of the service can authorize a third party’s access to the communication. The statute defines “user” as one who 1) uses the service and 2) is duly authorized to do so. Because the statutory language is unambiguous, it must control our construction of the statute, notwithstanding the legislative history. See United States v. Daas,
Based on the common definition of the word “use,” we cannot find any evidence in the record that Wong ever used Konop’s website. There is some evidence, however, that Gardner may have used the website, but it is unclear when that use occurred. At any rate, the district court did not make any findings on whether Wong and Gardner actually used Konop’s website — it simply assumed that Wong and Gardner, by virtue of being eligible to view the website, could authorize Davis’ access. The problem with this approach is that it essentially reads the “user” requirement out of § 2701(c)(2). Taking the facts in the light most favorable to Konop, we must assume that neither Wong nor Gardner was a “user” of the website at the time he authorized Davis to view it. We therefore reverse the district court’s grant of summary judgment to Hawaiian on Konop’s SCA claim.
Konop also appeals the district court’s grant of summary judgment to Hawaiian on his claims under the Railway Labor Act, 45 U.S.C. §§ 151-188 (“RLA”). The RLA prohibits “interference, influence, or coercion by either party over the designation of representatives by the other.” 45 U.S.C. § 152 (Third). It also declares that “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 § 152 (Fourth).
Konop asserts three claims under 45 U.S.C. § 152 (Third) and (Fourth) of the RLA. First, Konop alleges that. Hawaiian interfered with his organizing efforts by accessing 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 concessionary contract. Third, Konop alleges that Hawaiian engaged in coercion and intimidation by threatening to file a defamation suit against Konop based on statements on the 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 evidence 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],” Haw. Airlines, Inc. v. Norris,
In Fennessy v. Southwest Airlines,
Hawaiian argues that, unlike the statutory claim in Fennessy, Konop’s statutory claims are grounded in and dependent on the CBA. To support this position, Hawaiian focuses on conduct which Konop explicitly alleged in his complaint as violating the CBA. Specifically, in the RLA section of the complaint, Konop alleged 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 certain pilots paid opportunities to campaign in favor of the concessionary contract.
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 did not violate the RLA because it did not interfere with any protected organizing activity. The organizing activity in which Konop engaged principally involved the publication of articles on a secure website. As discussed above, Konop limited access to pilots and other employees on the eligible list and prohibited users from disclosing the contents of the website to others. He also categorically excluded managers. Konop’s website publication vigorously criticized Hawaiian management and its proposal for wage concessions in the existing collective bargaining agreement. Because the incumbent union, ALPA, supported the concessionary 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 contained malicious, defamatory and insulting material known to be false. In Linn v. United Plant Guard Workers, Local 114,
We assume Hawaiian is referring to the alleged defamatory statements contained in the “Facts” section of its brief. 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)
The first two statements, referencing the Nazis and Soviets, are simply “rhetorical hyperbole” protected by federal labor laws. See Letter Carriers,
With respect to the final challenged statement, indicating that Nobles was suspected of fraud, Hawaiian fails to argue or present any evidence that Konop published the statement with knowledge of its falsity or with reckless disregard for the truth. Federal labor law protects even false and defamatory statements unless such statements are made with actual malice — ie., knowledge of falsity or with reckless disregard for the truth. See Letter Carriers,
NLRB v. Pincus Bros., Inc.-Maxwell,
Accordingly, we find that Konop has raised a triable issue of fact with respect to whether the development and maintenance of his website constituted protected activity under the RLA.
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 intimidation by threatening to sue Ko-nop for defamation, all in violation of the RLA. 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
Konop argues that Davis interfered with Konop’s organizing efforts by viewing the website under false pretenses. Absent a legitimate justification, employers are generally prohibited from engaging in surveillance of union organizing activities. Cal. Acrylic Indus, v. NLRB,
In NLRB v. Unbelievable, Inc.,
Hawaiian suggests that Davis had a legitimate reason to access Konop’s website — to identify and correct any false or misleading statements. Assuming such a concern could justify Davis’ monitoring of private union organizing activities, Hawaiian has presented little evidence to suggest that any statements on Konop’s website were actually defamatory. Moreover, as discussed below, there are triable issues whether Hawaiian used information it obtained from the website to assist one union faction over another, and to coerce and intimidate Konop. Under these circumstances, we conclude that Konop has raised a triable issue that Hawaiian’s access of Konop’s website was not justified.
Hawaiian also argues that Davis’ access did not violate the RLA because it did not appreciably limit Konop’s organizing 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 organizing activity. It is the tendency to chill protected activities, not the actual chilling of protected activities, that renders eavesdropping and surveillance generally objectionable under federal labor law. See, e.g., Cal. Acrylic,
Accordingly, we find that Konop has raised a triable issue of fact that Hawaiian interfered with Konop’s union organizing activity in violation of the RLA by accessing Konop’s website.
Konop argues that Nobles unlawfully assisted Reno Morelia, the union leader who supported the concessionary contract, by disclosing the contents of Konop’s website. Generally, the RLA prohibits employers from providing assistance to a union or labor faction. See Barthelemy v. Air Lines Pilots Ass’n,
Konop argues that Nobles disclosed useful intelligence to a rival union faction in an effort to ensure that Konop’s faction, which opposed the concessionary contract, would not prevail. Hawaiian does not seriously dispute that disclosure of the contents of Konop’s website to Morelia would constitute improper assistance. Instead, Hawaiian argues that Konop failed to present sufficient evidence that Nobles made any such disclosure or that Nobles was even familiar with the contents of Konop’s website when he spoke to Morelia.
Morelia, 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 Airlines Pilot Robert Konop.” In addition, Morelia states that Nobles also “disclosed to me that Konop’s internet communications system contained a third written article concerning Konop’s efforts to obtain union representation by a labor organization other than the Air Line Phots Association.” This evidence creates a genuine issue of fact whether Nobles was familiar with the contents of Konop’s website and whether Nobles disclosed the contents of the website to Morelia.
Moreover, Nobles confirmed in his declaration that he contacted Morelia because he “felt that Reno Morelia, the Chairman of the ALPA Master Executive Council, should be aware of the newsletter because of its inaccurate attack on the proposed labor agreements and the unfair effect it could have on the ratification process.” Nobles thus effectively concedes that he interceded to help ensure that Morelia’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 triable issue of fact 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 employee concerning union organizing activities may, under certain circumstances, violate the RLA. See, e.g., Diamond Walnut Growers, Inc. v. NLRB,
• 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
Morelia, however, indicates otherwise. Morelia states in his declaration, “Nobles advised me that Konop should be cautioned, or informed, of the possibility of a defamation lawsuit by Nobles.” Morelia 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.” Morelia 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 triable issue of fact whether Nobles threatened to sue Konop for defamation.
Accordingly, we find that Konop has raised a triable issue of fact whether Nobles engaged in coercion and intimidation in violation of the RLA by threatening to sue Konop for defamation.
D. Bench Trial on Retaliation Claim
Konop’s retaliation claim under the RLA was tried to the district court. The district coui-t entered judgment against him on this claim, which involved his 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 judgment on this claim on the ground that his subpoenas for corroborating witnesses were improperly quashed. We review a district court’s order quashing subpoenas for an abuse of discretion. United States v. Berberian,
There is some dispute whether the district court’s remarks in a pretrial hearing constituted an order to quash subpoenas at all. Assuming, however, that the district court did quash Konop’s subpoenas, Konop has not suggested what relevant evidence the subpoenaed witnesses might have provided had they been compelled to testify. Konop has consequently failed to show that he was prejudiced. Accordingly, the district court’s judgment against Konop on his retaliation claim under the RLA is affirmed.
CONCLUSION
For the foregoing reasons, we affirm the district court’s judgment with respect to Konop’s Wiretap Act claims and his retaliation claim under the Railway Labor Act. We reverse the district court’s judgment on Konop’s Stored Communications Act claims and his claims under the Railway Labor Act for interference with organizing activities, wrongful support of a union faction, and coercion and intimidation.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
Notes
. The parties dispute the date and substance of this phone conversation. Because the district court granted summary judgment, we view the facts in the light most favorable to Konop.
. The Wiretap Act and SCA have since been amended by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and .Obstruct Terrorism Act (USA PATRIOT Act), Pub.L. No. 107-56, 115 Stat. 272 (October 26, 2001).
. Specifically, Konop configured the website to allow access when a person typed in the correct web address, received the home page of his website, entered the name of an eligible person, created a password, and clicked the "SUBMIT” button indicating acceptance of the terms and conditions of use. In addition, Konop displayed the following language on the home page of his website:
This is the gateway for NEWS UPDATES and EDITORIAL COMMENTS directed only toward Hawaiian Air's pilots and other employees, not including HAL management. By entering, you acknowledge and agree to the terms and conditions of use as specified below. You must read this entire page before entry. Others should s imply find something else to do with their time. If you are already a registered user, you may fill in your name along with the other information required below, then enter the system. If you want to visit the system, and you belong to the authorized group, you must supply the proper information before you will be allowed to enter. Make note of the password you enter for your first visit, otherwise future visits may be delayed. Visits by others will be strictly prohibited. Beneath this language, Konop provided
boxes for a person’s name, occupation, email address and password. Below the boxes were two buttons: one said "SUBMIT,” the other said "CLEAR.” The advisement continued:
All name and contact information will be kept strictly confidential. Any effort to defeat, compromise or violate the security of this website will be prosecuted to the fullest extent of the law.
WARNING!
The information contained herein is CONFIDENTIAL, and it is not intended for public dissemination! By requesting entry in the system, you must agree not to furnish any of the information contained herein to any other person or for any other use. Re*876 publication or redistribution of this information to any other person is strictly prohibited. Anyone found to disseminate this information to anyone other than those specifically named and allowed here will be banned from this website and held liable to prosecution for violation of the terms and conditions of use and for violation of this contract.
. Congress revised the definition of “intercept” slightly to clarify that non-voice portions of wire communications are also protected. See H.R.Rep. No. 99-647, at 34.
. Until October 2001, "wire communication” was defined as “any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception ... and such term includes any electronic storage of such communication 18 U.S.C. § 2510(1) (2000) (emphasis added).
. The dissent, amici, and several law review articles argue that the term "intercept” must apply to electronic communications in storage because storage is a necessary incident to the transmission of electronic communications. See, e.g., Akamine, supra, at 561-65; Jarrod J. White, E-Mail@Work.Com: Employer Monitoring of Employee E-Mail, 48 Ala. L.Rev. 1079, 1083 (1997). Email and other electronic communications are stored at various junctures in various computers between the time the sender types the message and the recipient reads it. In addition, the transmission time of email is very short because it travels across the wires at tire speed of light. It is therefore argued that if the term "intercept” does not apply to the en route storage of electronic communications, the Wiretap Act's prohibition against "intercepting” electronic communications would have virtually no effect. While this argument is not without appeal, the language and structure of the ECPA demonstrate that Congress considered and rejected this argument. Congress defined “electronic storage” as "any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof,” 18 U.S.C. § 2510(17)(A), indicating that Congress understood that electronic storage was an inherent part of electronic communication. Nevertheless, as discussed above, Congress chose to afford stored electronic communications less protection than other forms of communication.
. Konop also claims that Hawaiian violated the Wiretap Act when Davis used and disclosed the contents of Konop's website. As there was no interception under the Wiretap Act, this claim also fails.
. The term "without authorization” is not defined in the statute. Cf. EF Cultural Travel BV v. Explorica, Inc.,
. For instance, § 2702(b)(1) permits service providers to divulge the contents of stored communications "to an addressee or intended recipient of such communication or an agent of such addressee or intended recipient." See also id. § 2702(b)(3) (providing a similar exception with respect to remote computing services). Similarly, the "consent” exception to the Wiretap Act allows one party to a wire communication to authorize a third party to intercept the communication. See 18 U.S.C. § 251 l(2)(c) & (d).
. While employers covered under the RLA are not subject to the provisions of the NLRA, courts look to the NLRA and the cases interpreting it for guidance. Bhd. of R.R. Trainmen v. Jacksonville Terminal Co.,
. We recognize that some organizing activity may be "so flagrant, violent or extreme” or so "egregious,” "opprobrious,” "offensive,” "obscene” or "wholly unjustified” that it loses the protection of the RLA. See Reef Indus, v. NLRB,
. Hawaiian also presents this argument to defeat the other two alleged RLA claims discussed in the following sections. We find it is no more persuasive in the context of those claims.
Concurrence Opinion
concurring in part, dissenting in part.
I concur in Part C of Section I of the majority opinion regarding Konop’s claims under the Stored Communications Act, and Section II of the majority opinion regarding Konop’s claims under the Railway Labor Act. I dissent, however, from Part B of Section I, which holds that the term “intercept” in the Wiretap Act, as applied to electronic communications, refers solely to contemporaneous acquisition. I conclude instead that “stored electronic
Because I recognize that any reading of the relevant statutory provisions raises some difficulties and introduces some inconsistencies, the question becomes: which reading is more coherent and more consistent with Congressional intent? The majority reasons, and I agree, that stored electronic communications are covered under the definition of “electronic communications” in the Wiretap Act. However, having made that determination, the majority proceeds to introduce unnecessary confusion and incoherence into the statute by holding that “intercept” encompasses only contemporaneous acquisition of electronic communications, and thus that it is not possible to “intercept” a stored electronic communication. We have already rejected just such a contemporaneity requirement with respect to the acquisition of stored wire communications, and there is no justification for reviving it with respect to stored electronic communications. United States v. Smith,
The contemporaneity requirement for interception first appeared in United States v. Turk,
Here, the majority’s definition of “intercept” renders that prohibition meaningless with respect to stored electronic communications. The majority opinion would result in eliminating stored electronic communications from the purview of the intercept prohibition altogether, because a stored communication cannot be acquired contemporaneously with its transmission — it has already been transmitted.
To read a contemporaneity requirement into the definition of “intercept” renders the prohibition against the electronic communication interception largely superfluous, and violates the precept against interpreting one provision of a statute to negate another. See e.g., Sorenson v. Secretary of the Treasury,
The majority asserts that it is reasonable that the term “intercept” would describe different conduct with respect to wire communications than with respect to electronic communications because different actions are required to intercept different kinds of communications. This reasoning fails because, although wire communications and electronic communications are quite different, stored wire communications are technologically equivalent to stored electronic communications. Thus it would make little sense to treat them differently. See 18 U.S.C. § 2510(1) (defining “wire communication” as including “any electronic storage offwire] communication”). While Congress may not always act sensibly, there is no reason for the majority to presume that it failed to do so in this instance.
The Non-Contemporaneous Acquisition Reading Permits a Coherent Reading of the Wiretap Act and the Stored Communications Act Together, Consistent with Congressional Intent
Congress’s clear intent, when amending the statute in 1986, was to regulate access to and acquisition of stored electronic communications. See S.Rep. No. 99-541 at 3-4 (1986), reprinted in 1986 U.S.C.C.A.N.
On the other hand, section 2703 (the structure of which the panel claims supports a “contemporaneous acquisition” reading of the text) sets out the parameters under which governmental authorities can gain “access” to the “contents” of stored electronic communications. That section provides that governmental authorities may obtain a search warrant to compel electronic communication service providers to disclose the contents of stored electronic communications. By its plain terms, it does not provide a judicial means by which government authorities can independently intercept or acquire the contents of electronic communications. That is covered under 18 U.S.C. § 2516. Having excluded stored electronic communications from the Wiretap Act, the majority is forced to torture the statutory language of the Stored Communications Act in order to craft a reading of the statutes which accomplishes Congress’s intent of establishing procedures by which governmental authorities may directly acquire the contents of stored electronic communications. A reading of the Wiretap Act which includes stored electronic communications under the intercept prohibition provides a plain answer — one that does not require linguistic gymnastics.
Furthermore, contrary to the arguments of Hawaiian Airlines and its amici, the drafting of a separate act specifically governing the contents of stored electronic communications (Stored Communications Act. 18 U.S.C. §§ 2702-03) was necessary, even though, stored communications were included in the Wiretap Act. First, the damage caused by computer hackers (also known as “electronic trespassers”) was a major concern of Congress in enacting the Electronic Communications Privacy Act and the Stored Communications Act. The
Second, it is in the nature of electronic communication to be stored (both temporarily and permanently, as Congress indicated in the definition of electronic storage, 18 U.S.C. § 2510(17)), and it is in the nature of the electronic communications industry that electronic communications service providers (defined in 18 U.S.C. § 2510(15)) have possession and control over large amounts of stored electronic communications. Therefore, electronic communications service providers would be an obvious source for law enforcement authorities who seek to obtain the contents of electronic communications. Recognizing that compelling disclosure by these entities would be one means by which government authorities might seek to obtain the contents of communications, Congress added a section setting out the procedures for compelling such disclosure. Michael S. Leib, E Mail and the Wiretap Laws: Why Congress Should Add Electronic Communication to Title Ill’s Statutory Exclusionary Rule and Expressly Reject a “Good Faith” Exception, 34 Harv. J. on Legis. 393, 414 (1997). There is no analogous storage of wire communication by wire communication service providers (i.e., telephone companies, also included under 18 U.S.C. § 2510(15)) such that guidelines would be needed on how governmental authorities could compel disclosure of stored wire communications from them.
Third, the Stored Communications Act is necessary to police the unauthorized access to electronic and wire communications facilities that is a necessary antecedent to illegal interception of those communications in storage. Were Congress to prohibit only actual acquisition of the contents of communications in storage, law enforcement would be powerless to do anything about persons who gained unauthorized
In sum, a reading of the Wiretap Act that includes stored electronic communications in the statute’s “intercept” prohibition is consistent with the nature of the technology at issue, leaves no unexplained statutory gaps, and renders none of the myriad provisions of either the Wiretap Act or the Stored Communications Act superfluous. Under such a reading, the Wiretap Act would prohibit the interception of electronic communications, both stored and en route, and subject violators to serious penalties. It would permit law enforcement to intercept such communications using a court order as indicated in § 2516. (Whether or not it would preserve the use of other less savory techniques is a matter this court is not called upon to decide.) A court order can be obtained by state prosecutors in connection with any one of a number of enumerated crimes, and by any assistant United States attorney for the investigation of any federal felony. Wire communications are treated similarly with only minor exceptions (for example, authorization to intercept wire communications is only available for a finite, though extensive, list of federal crimes); this reading, consistent with Congressional intent as revealed in the legislative history of the statute, rejects the idea that stored electronic communications are afforded a lesser degree of protection from interception than stored wire communications.
Prior Precedent on the Wiretap Act and the Stored Communications Act Does Not Preclude the Non-Contemporaneous Acquisition Reading
This is a case of first impression in this circuit, and there is no binding authority on the regulation of stored electronic communications. There are no Supreme Court cases interpreting the provisions of the Wiretap Act and the Stored Communications Act as they relate to electronic communications, and the court of appeals decisions, in our circuit and others, either do not deal with stored electronic communications, or are superseded by changes in law and technology, or both. United States v. Turk predates the addition of the electronic provisions and language to the statute, and therefore is of little relevance.
Conclusion
In conclusion, because I believe that reading the Wiretap Act to prohibit interception of “stored electronic communications” provides a more coherent construction of the Act and is more consistent with the text of the statute as well as with the Congressional intent underlying both the Wiretap Act and the Stored Communications Act, I respectfully dissent from Part B of Section I of the majority opinion.
. The statute was again recently amended, this time to repeal the inclusion of stored wire communications in the definition of wire communication. Uniting and Strengthening America By Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001, Pub.L. No. 107-56, § 209, 115 Stat. 272, 283 (enacted October 26, 2001). However we apply here the version that was in effect at the time of the acts in question, Electronic Communications Privacy Act. Pub.L. No. 99-508. 100 Stat. 1848.
. In its interpretation of the term "intercept,” the majority relies in part on legislative history from the USA Patriot Act. As the Supreme Court has cautioned, however, " ‘the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.' " Consumer Product Safety Comm’n v. GTE Sylvania, Inc.,