text:
Robert C. Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002)
Court of Appeals for the Ninth Circuit
Filed: August 23rd, 2002
Precedential Status: Precedential
Citations: 302 F.3d 868
Docket Number: 99-55106

302 F.3d 868

Robert C. KONOP, Plaintiff-Appellant,
v.
HAWAIIAN AIRLINES, INC., Defendant-Appellee.

No. 99-55106.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 2000.

Filed January 8, 2001.

Opinion Withdrawn August 28, 2001.

Filed August 23, 2002.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Robert C. Konop, Pro se, Playa del Rey, CA, plaintiff-appellant.

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

Appeal from the United States District Court for the Central District of California; J. Spencer Letts, District Judge, D.C. No. CV-96-04898-SJL (JGx).

Before BOOCHEVER, REINHARDT, and PAEZ, Circuit Judges.

Opinion by Judge BOOCHEVER; Partial Concurrence and Partial Dissent by Judge REINHARDT.

OPINION

BOOCHEVER, Circuit Judge.

1
Robert Konop brought suit against his employer, Hawaiian Airlines, Inc. ("Hawaiian"), alleging that Hawaiian viewed Konop'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. Konop appeals the district court's judgement on all claims, except on those brought under state tort law.

2
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., 236 F.3d 1035 (9th Cir.2001). Hawaiian filed a petition for rehearing, which became moot when we withdrew our previous opinion. Konop v. Hawaiian Airlines, Inc., 262 F.3d 972 (9th Cir.2001). We now affirm the judgment of the district court with respect to Konop's Wiretap Act claims and his retaliation claim under the Railway Labor Act. We reverse the district court's judgment with respect to Konop's claims under the Stored Communications Act and his remaining claims under the Railway Labor Act.

FACTS

3
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.

4
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 screen, indicating acceptance of the terms and conditions of use. These terms and conditions prohibited any member of Hawaiian's management from viewing the website and prohibited users from disclosing the website's contents to anyone else.

5
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.

6
Later that day, Konop received a call from the union chairman of ALPA, Reno Morella.1 Morella told Konop that Hawaiian president Bruce Nobles had contacted him regarding the contents of Konop's website. Morella related that Nobles was upset by Konop's accusations that Nobles was suspected of fraud and by other disparaging statements published on the website. From this conversation with Morella, Konop believed Nobles had obtained the contents of his website and was threatening to sue Konop for defamation based on statements contained on the website.

7
After speaking with Morella, 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.

8
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.

9
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.

10
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

11
The district court's grant of summary judgment is reviewed de novo. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc). Viewing the evidence in the light most favorable to Konop, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.

12
I. Electronic Communications Privacy Act Claims

13
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),2 when Davis accessed Konop's secure website. In 1986, Congress passed the Electronic Communications Privacy Act (ECPA), Pub.L. No. 99-508, 100 Stat. 1848, which was intended to afford privacy protection to electronic communications. Title I of the ECPA amended the federal Wiretap Act, which previously addressed only wire and oral communications, to "address[] the interception of ... electronic communications." S.Rep. No. 99-541, at 3 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3557. Title II of the ECPA created the Stored Communications Act (SCA), which was designed to "address[] access to stored wire and electronic communications and transactional records." Id.

14
As we have previously observed, the intersection of these two statutes "is a complex, often convoluted, area of the law." United States v. Smith, 155 F.3d 1051, 1055 (9th Cir.1998). In the present case, the difficulty is compounded by the fact that the ECPA was written prior to the advent of the Internet and the World Wide Web. As a result, the existing statutory framework is ill-suited to address modern forms of communication like Konop's secure website. Courts have struggled to analyze problems involving modern technology within the confines of this statutory framework, often with unsatisfying results. See. e.g., Robert A. Pikowsky, Legal and Technological Issues Surrounding Privacy of Attorney Client Communication Via Email, Advocate, Oct. 2000, at 17-19 (discussing the uncertainty over email privacy caused by the ECPA and judicial interpretations thereof); Lieutenant Colonel LeEllen Coacher, Permitting Systems Protection Monitoring: When the Government Can Look and What It Can See, 46 A.F. L.Rev. 155, 171-74 (1999) (same); Tatsuya Akamine, Note, 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, 521-29, 561-68 (1999) (criticizing the judiciary's interpretation of the ECPA). We observe that until Congress brings the laws in line with modern technology, protection of the Internet and websites such as Konop's will remain a confusing and uncertain area of the law.

A. The Internet and Secure Websites

15
The Internet is an international network of interconnected computers that allows millions of people to communicate and exchange information. See Reno v. ACLU, 521 U.S. 844, 849-50, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997); In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d 497, 501 (S.D.N.Y.2001). The World Wide Web, the best known category of communication over the Internet, consists of a vast number of electronic documents stored in different computers all over the world. Reno v. ACLU, 521 U.S. at 852, 117 S. Ct. 2329. Any person or organization with a computer connected to the Internet can "publish" information on the Web in the form of a "web page" or "website." See id. at 853 & n. 9, 95 S. Ct. 2051. A website consists of electronic information stored by a hosting service computer or "server." The owner of the website may pay a fee for this service. Each website has a unique domain name or web address (e.g., Amazon.com or Lycos.com), which corresponds to a specific location within the server where the electronic information comprising the website is stored. A person who wishes to view the website types the domain name into a computer connected to the Internet. This is essentially a request to the server to make an electronic copy of the website (or at least the first page or "home page") and send it to the user's computer. After this electronic information reaches the user's computer, it is downloaded for viewing on the user's screen. See generally Preston Gralla, How the Internet Works (1999).

16
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, 521 U.S. at 852-53, 856, 117 S. Ct. 2329. The legislative history of the ECPA suggests that Congress wanted to protect electronic communications that are configured to be private, such as email and private electronic bulletin boards. See S.Rep. No. 99-541, at 35-36, 1986 U.S.C.C.A.N. at 3599 ("This provision [the SCA] addresses the growing problem of unauthorized persons deliberately gaining access to ... electronic or wire communications that are not intended to be available to the public."); H.R.Rep. No. 99-647 at 41, 62-63 (1986) (describing the Committee's understanding that the configuration of the electronic communications system would determine whether or not an electronic communication was readily accessible to the public). The nature of the Internet, however, is such that if a user enters the appropriate information (password, social security number, etc.), it is nearly impossible to verify the true identity of that user. Cf. Reno, 521 U.S. at 855-56, 117 S. Ct. 2329 (discussing the difficulty of verifying the age of a website user by requiring a credit card number or password).

17
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,3 Davis was nevertheless able to access the website by entering the correct information, which was freely provided to Davis by individuals who were eligible to view the website.

B. Wiretap Act

18
Konop argues that Davis' conduct constitutes an interception of an electronic communication in violation of the

19
Wiretap Act. The Wiretap Act makes it an offense to "intentionally intercept[] ... any wire, oral, or electronic communication." 18 U.S.C. § 2511(1)(a). We must therefore determine whether Konop's website is an "electronic communication" and, if so, whether Davis "intercepted" that communication.

20
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 conclude that Konop's website fits the definition of "electronic communication."

21
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.

22
In Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457 (5th Cir.1994), the Fifth Circuit held that the government's acquisition of email messages stored on an electronic bulletin board system, but not yet retrieved by the intended recipients, was not an "interception" under the Wiretap Act. The court observed that, prior to the enactment of the ECPA, the word "intercept" had been interpreted to mean the acquisition of a communication contemporaneous with transmission. Id. at 460 (citing United States v. Turk, 526 F.2d 654, 658 (5th Cir.1976)). The court further observed that Congress, in passing the ECPA, intended to retain the previous definition of "intercept" with respect to wire and oral communications,4 while amending the Wiretap Act to cover interceptions of electronic communications. See Steve Jackson Games, 36 F.3d at 462; S.Rep. No. 99-541, at 13; H.R.Rep. No. 99-647, at 34. The court reasoned, however, that the word "intercept" could not describe the exact same conduct with respect to wire and electronic communications, because wire and electronic communications were defined differently in the statute. Specifically, the term "wire communication" was defined to include storage of the communication, while "electronic communication" was not.5 The court concluded that this textual difference evidenced Congress' understanding that, although one could "intercept" a wire communication in storage, one could not "intercept" an electronic communication in storage:

23
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."

24
Steve Jackson Games, 36 F.3d at 461-62; Wesley Coll. v. Pitts, 974 F. Supp. 375, 386 (D.Del.1997) ("[B]y including the electronic storage of wire communications within the definition of such communications but declining to do the same for electronic communications ... Congress sufficiently evinced its intent to make acquisitions of electronic communications unlawful under the Wiretap Act only if they occur contemporaneously with their transmissions."), aff'd, 172 F.3d 861 (3d Cir.1998); United States v. Reyes, 922 F. Supp. 818, 836 (S.D.N.Y.1996) ("Taken together, the definitions thus imply a requirement that the acquisition of [electronic communications] be simultaneous with the original transmission of the data."); Bohach v. City of Reno, 932 F. Supp. 1232, 1236-37 (D.Nev. 1996) (requiring acquisition during transmission). The Steve Jackson Court further noted that the ECPA was deliberately structured to afford electronic communications in storage less protection than other forms of communication. See Steve Jackson Games, 36 F.3d at 462-64.

25
The Ninth Circuit endorsed the reasoning of Steve Jackson Games in United States v. Smith, 155 F.3d at 1051. The question presented in Smith was whether the Wiretap Act covered wire communications in storage, such as voice mail messages, or just wire communications in transmission, such as ongoing telephone conversations. Relying on the same textual distinction as the Fifth Circuit in Steve Jackson Games, we concluded that wire communications in storage could be "intercepted" under the Wiretap Act. We found that Congress' inclusion of storage in the definition of "wire communication" militated in favor of a broad definition of the term "intercept" with respect to wire communications, one that included acquisition of a communication subsequent to transmission. We further observed that, with respect to wire communications only, the prior definition of "intercept" — acquisition contemporaneous with transmission — had been overruled by the ECPA. Smith, 155 F.3d at 1057 n. 11. On the other hand, we suggested that the narrower definition of "intercept" was still appropriate with regard to electronic communications: [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.

26
Smith, 155 F.3d at 1057 (citations and alterations omitted).

27
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, 115 Stat. at 283, such that the textual distinction relied upon by the Steve Jackson and Smith courts no longer exists. This change, however, supports the analysis of those cases. By eliminating storage from the definition of wire communication, Congress essentially reinstated the pre-ECPA definition of "intercept" — acquisition contemporaneous with transmission — with respect to wire communications. See Smith, 155 F.3d at 1057 n. 11. The purpose of the recent amendment was to reduce protection of voice mail messages to the lower level of protection provided other electronically stored communications. See H.R. Rep. 107-236(I), at 158-59 (2001). When Congress passed the USA PATRIOT Act, it was aware of the narrow definition courts had given the term "intercept" with respect to electronic communications, but chose not to change or modify that definition. To the contrary, it modified the statute to make that definition applicable to voice mail messages as well. Congress, therefore, accepted and implicitly approved the judicial definition of "intercept" as acquisition contemporaneous with transmission.

28
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.6 This conclusion is consistent with the ordinary meaning of "intercept," which is "to stop, seize, or interrupt in progress or course before arrival." Webster's Ninth New Collegiate Dictionary 630 (1985). More importantly, it is consistent with the structure of the ECPA, which created the SCA for the express purpose of addressing "access to stored ... electronic communications and transactional records." S.Rep. No. 99-541 at 3 (emphasis added). The level of protection provided stored communications under the SCA is considerably less than that provided communications covered by the Wiretap Act. Section 2703(a) of the SCA details the procedures law enforcement must follow to access the contents of stored electronic communications, but these procedures are considerably less burdensome and less restrictive than those required to obtain a wiretap order under the Wiretap Act. See Steve Jackson Games, 36 F.3d at 463. Thus, if Konop's position were correct and acquisition of a stored electronic communication were an interception under the Wiretap Act, the government would have to comply with the more burdensome, more restrictive procedures of the Wiretap Act to do exactly what Congress apparently authorized it to do under the less burdensome procedures of the SCA. Congress could not have intended this result. As the Fifth Circuit recognized in Steve Jackson Games, "it is most unlikely that Congress intended to require law enforcement officers to satisfy the more stringent requirements for an intercept in order to gain access to the contents of stored electronic communications." Id.; see also Wesley Coll., 974 F.Supp. at 388 (same).

29
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.7

C. Stored Communications Act

30
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.

31
The parties agree that the relevant "electronic communications service" is Konop'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"8 to "a facility through which an electronic communication service is provided."

32
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).

33
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.9 In addition, there is some indication in the legislative history that Congress believed "addressees" or "intended recipients" of electronic communications would have the authority under the SCA to allow third parties access to those communications. See H.R.Rep. No. 99-647, at 66-67 (explaining that "an addressee [of an electronic communication] may consent to the disclosure of a communication to any other person" and that "[a] person may be an `intended recipient' of a communication ... even if he is not individually identified by name or otherwise").

34
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, 198 F.3d 1167, 1174 (9th Cir.1999). The statute does not define the word "use," so we apply the ordinary definition, which is "to put into action or service, avail oneself of, employ." Webster's at 1299; see Daas, 198 F.3d at 1174 ("If the statute uses a term which it does not define, the court gives that term its ordinary meaning.").

35
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.

II. Railway Labor Act Claims

36
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).

37
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

38
Federal courts lack subject matter jurisdiction over disputes which are "grounded in the [collective bargaining agreement]," Haw. Airlines, Inc. v. Norris, 512 U.S. 246, 256, 114 S. Ct. 2239, 129 L. Ed. 2d 203 (1994), and "involve controversies over the meaning of an existing collective bargaining agreement in a particular fact situation," id. at 253, 114 S. Ct. 2239 (internal quotation marks omitted). Such disputes, labeled "minor" disputes under the RLA, are subject to mandatory arbitration. Id. Hawaiian argues, and the district court agreed, that Konop's RLA claims are grounded in the collective bargaining agreement ("CBA") and are therefore subject to mandatory arbitration. We disagree.

39
In Fennessy v. Southwest Airlines, 91 F.3d 1359 (9th Cir.1996), we addressed whether the district court had jurisdiction over the plaintiff's statutory claim under the RLA. The plaintiff in Fennessy alleged that the carrier violated 45 U.S.C. § 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 provision 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.

40
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.

41
On appeal, however, Konop does not challenge the district court's dismissal of these CBA-related claims. Rather, he objects to the district court's dismissal of his independent RLA claims. Konop claims 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 precursor to the alleged CBA violations. Nothing, however, requires such a narrow reading of Konop's allegations. Konop, like the plaintiff in Fennessy, presents his statutory claims as independent violations of the RLA. These claims in no way depend upon a finding that Hawaiian, at some later time, violated Konop's contractual rights under the CBA.

42
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

43
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.

44
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, 383 U.S. 53, 61, 86 S. Ct. 657, 15 L. Ed. 2d 582 (1966), the Supreme Court held that a party forfeits his protection under the National Labor Relations Act (NLRA) by "circulating defamatory or insulting material known to be false."10 See also Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 282-83, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974); San Antonio Comm. Hosp. v. S. Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1237 (9th Cir.1997).

45
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) Nobles "has little skill and little ability with people.... In fact, with as few skills as Nobles possesses, it is difficult to imagine how he got this far"; and (5) "Nobles Suspected in Fraud!" and "Hawaiian Air president, Bruce Nobles, is the prime suspect in an alleged fraud which took place in 1991."

46
The first two statements, referencing the Nazis and Soviets, are simply "rhetorical hyperbole" protected by federal labor laws. See Letter Carriers, 418 U.S. at 286, 94 S. Ct. 2770. The second two statements, commenting on Nobles' competence and people skills, are opinions also protected by federal labor laws. See id. at 284, 94 S. Ct. 2770; San Antonio Comm. Hosp., 125 F.3d at 1237. Konop did not forfeit his protection under the Railway Labor Act, as Hawaiian suggests, simply by publishing statements that were critical of and insulting to Nobles. "`[F]ederal law gives a union license to use intemperate, abusive, 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, 94 S. Ct. 2770) (emphasis added); see also Linn, 383 U.S. at 58, 86 S. Ct. 657 ("[R]epresentation campaigns are frequently characterized by bitter and extreme charges, countercharges, unfounded rumors, vituperations, personal accusations, misrepresentations and distortions.").11

47
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 — i.e., knowledge of falsity or with reckless disregard for the truth. See Letter Carriers, 418 U.S. at 281, 94 S. Ct. 2770; Linn, 383 U.S. at 61, 86 S. Ct. 657 (protection under labor law existed "even though the statements [were] erroneous and defame[d] one of the parties to the dispute"). With no evidence or argument that Konop acted with actual malice, Hawaiian cannot demonstrate as a matter of law that Konop forfeited his protection under the RLA.

48
NLRB v. Pincus Bros., Inc.-Maxwell, 620 F.2d 367 (3d Cir.1980) (as amended), upon which Hawaiian principally relies, provides little support for Hawaiian's position. In Pincus Bros., the Third Circuit, in considering whether the NLRB abused its discretion by declining to defer to an arbitration award, merely concluded it was "at least arguable" that the employee published 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, Hawaiian falls short of satisfying this burden.

49
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.

C. Specific Violations

50
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 Konop 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

51
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, 150 F.3d 1095, 1099-1100 (9th Cir.1998). The reason for this general proscription is that employer surveillance "tends to create fear among employees of future reprisal" and, thus, "chills an employee's freedom to exercise" his rights under federal labor law. Id. at 1099.

52
In NLRB v. Unbelievable, Inc., 71 F.3d 1434 (9th Cir.1995), we upheld the Board's finding that the employer "engaged in unfair labor practices by eavesdropping on private conversations between employees and [a] Union representative," 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.

53
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.

54
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, 150 F.3d at 1099-1100. That a hardy individual might continue his organizing activities undeterred, despite an employer's surveillance, does not render the employer's conduct any less of a violation.12

55
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.

2. Disclosure to Opposing Union

56
Konop argues that Nobles unlawfully assisted Reno Morella, 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, 897 F.2d 999, 1009 (9th Cir.1990) (per curiam); see also NLRB v. Finishline Indus., 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. Ronney & Sons Furniture Mfg. Co., 206 F.2d 730, 734-35 (9th Cir.1953) (NLRA prohibits employer from initiating membership drive among his employees for employer-favored union).

57
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 Morella 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 Morella.

58
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 Airlines Pilot Robert Konop." In addition, Morella 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 Pilots 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 Morella.

59
Moreover, Nobles confirmed in his declaration that he contacted Morella because he "felt that Reno Morella, 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 Morella's faction — which favored ratification of the concessionary contract — would prevail over Konop's faction, which opposed the agreement.

60
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

61
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, 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) (analyzing whether employer's threat to sue employee for defamation violated NLRA), aff'd, 924 F.2d 1055 (5th Cir.1991).

62
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 declaration that he "did mention to Morella that the gross inaccuracies 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."

63
Morella, however, indicates otherwise. Morella states in his declaration, "Nobles advised me that Konop should be cautioned, 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 triable issue of fact whether Nobles threatened to sue Konop for defamation.

64
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

65
Konop's retaliation claim under the RLA was tried to the district court. The district court 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, 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).

66
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

67
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.

68
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

Notes:

1
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

2
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)

3
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 simply 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. Republication 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.

4
Congress revised the definition of "intercept" slightly to clarify that non-voice portions of wire communications are also protectedSee H.R.Rep. No. 99-647, at 34.

5
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 ... andsuch term includes any electronic storage of such communication...." 18 U.S.C. § 2510(1) (2000) (emphasis added).

6
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 communicationsSee, 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 the 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.

7
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

8
The term "without authorization" is not defined in the statuteCf. EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 581-82 & n. 10 (1st Cir.2001) (explaining, with respect to alleged unauthorized use of a website, Congress' failure to define "without authorization" in the Computer Fraud and Abuse Act, and discussing some possible, practicable definitions of the term). There is some indication in the legislative history that Congress intended the configuration of the electronic communication system to "establish an objective standard [for] determining whether a system receives privacy protection." H.R.Rep. No. 99-647, at 41. Since the issue is not properly before us, however, we express no opinion on how the term "without authorization" should be defined with respect to a non-public website such as Konop's.

9
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. § 2511(2)(c) & (d).

10
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 guidanceBhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 383, 89 S. Ct. 1109, 22 L. Ed. 2d 344 (1969). We see no reason why the rule announced in Linn, 383 U.S. at 61, 86 S. Ct. 657, regarding protected activities, should not apply in the context of the RLA.

11
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 RLASee Reef Indus. v. NLRB, 952 F.2d 830, 837 & n. 19 (5th Cir.1991) (per curiam); Timekeeping Sys., Inc. & 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.

12
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

69
REINHARDT, Circuit Judge, concurring in part, dissenting in part.

70
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 communications" are subject to the statute's intercept prohibition as well.

71
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, 155 F.3d 1051, 1057 n. 11, 1058 (9th Cir.1998).

72
The contemporaneity requirement for interception first appeared in United States v. Turk, 526 F.2d 654 (5th Cir.1976), in which the Fifth Circuit held that the definition of "intercept" in the statute "require[s] participation by the one charged with an `interception' in the contemporaneous acquisition of the communication through the use of [a] device." 526 F.2d at 658 (emphasis added). In Turk, however, the Fifth Circuit was interpreting a version of the Wiretap Act that predates the one at issue in Smith and in this case. That version did not cover interception of stored wire communications or of electronic communications at all. The statute was subsequently amended to include electronic communications, stored electronic communications, and stored wire communications in 1986.1 Electronic Communications Privacy Act. Pub.L. No. 99-508. 100 Stat. 1848. Thereafter, in Smith, 155 F.3d 1051, 1057 n. 11, 1058 (9th Cir.1998), this court held, in a case involving the acquisition of stored voicemail messages, that Turk's contemporaneity requirement had been "statutorily overruled," at least with respect to wire communications, by the changes in the statute which brought stored wire communications within its purview. The Smith court reasoned that "intercept" must necessarily include non-contemporaneous acquisition of stored wire communications because Congress had deliberately inserted stored wire communications into the intercept provision despite the fact that contemporaneous acquisition of stored wire communications is, by definition, impossible. 155 F.3d at 1058. To read "intercept" to include only contemporaneous acquisition would, of course, have rendered the intercept prohibition with respect to stored wire communications meaningless. Id.

73
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. The majority's reading of the statute simply doesn't work: while explicitly holding that stored electronic communications are within the term "electronic communications" and that the intercept prohibition of the Wiretap Act applies to electronic communications, it also explicitly holds that interception of electronic communications is limited to contemporaneous acquisition, thereby simultaneously including and excluding stored electronic communications from the intercept prohibition.

74
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, 475 U.S. 851, 106 S. Ct. 1600, 89 L. Ed. 2d 855 (1986) (applying the whole act rule to the Omnibus Budget Reconciliation Act of 1981). Intercept of electronic communications is defined as any "acquisition of the contents of any ... electronic ... communication through the use of any ... device." 18 U.S.C. § 2510(4). The nature of electronic communication is that it spends infinitesmal amounts of time "en route," unlike a phone call. Therefore, in order to "intercept" an electronic communication, one ordinarily obtains one of the copies made en route or at the destination. These copies constitute "stored electronic communications," as acknowledged by the majority. 18 U.S.C. § 2510(17)(A)("`electronic storage' means ... any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof"). If intercept is defined as solely contemporaneous acquisition, then in contravention of Congressional intent, at most all acquisitions of the contents of electronic communications would escape the intercept prohibition entirely. Jarrod J. White, Commentary, E-Mail@Work.Com: Employer Monitoring of Employee E-Mail, 48 Ala. L.Rev. 1079, 1083 (1997) ("Following the Fifth Circuit's rationale, [and excluding stored electronic communications from the intercept prohibition] there is only a narrow window during which an E-mail interception may occur — the seconds or milliseconds before which a newly composed message is saved to any temporary location following a send command. Therefore, ... [assuming that stored communications are excluded from the intercept prohibition], interception of E-mail within the prohibition of the ECPA is virtually impossible.").

75
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 of[wire] 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.

76
The Non-Contemporaneous Acquisition Reading Permits a Coherent Reading of the Wiretap Act and the Stored Communications Act Together, Consistent with Congressional Intent

77
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. 3555, 3557-8 (discussing Congressional intent to cover email and computerized recordkeeping systems). The majority's interpretation of the Wiretap Act depends in part on a tortured reading of the Stored Communications Act under which "access to" a communication is equated with "acquisition of" a communication, contrary to clear statutory language. Sections 2701 and 2703 of the Stored Communications Act regulate "access" to facilities where communications are stored and "access" to the communications themselves. The majority, relying on Steve Jackson Games, Inc. v. United States Secret Serv., 36 F.3d 457, 463 (5th Cir.1994) somehow reads these provisions as being analogous to the "intercept" provisions of the Wiretap Act. 236 F.3d at 1044. However, "access" is more properly understood as being qualitatively different from "intercept," not temporally different, and as constituting a lesser included offense of "intercept." The "access" prohibitions in § 2701, in contrast to those regarding "interception" in § 2511, do not mention at all "acquisition" of the "contents" of any communication, but only "access," authorized and unauthorized, to them. "Access" is not defined in the statute, and therefore courts must apply the ordinary or technical meaning that the word has in the context of electronic communications. "Access" is defined in the Oxford English Dictionary as "[t]he habit or power of getting near or into contact with; entrance, admittance, admission (to the presence or use of) [noun]" and "[t]o gain access to (data, etc., held in a computer or computer-based system, or the system itself) [transitive verb]." As discussed above, "intercept" is defined in the statute as the actual acquisition of the contents of a communication. Given the plain language of the statute, the difference between the prohibition in 18 U.S.C. § 2511 ("intercept") and 18 U.S.C. § 2701 ("access") becomes more than semantic; it indicates that Congress intended that only 18 U.S.C. § 2511 prohibit the actual acquisition of the contents of a communication.

78
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.

79
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 separate provisions prohibiting unauthorized access were found necessary, in addition to the pre-existing prohibitions on interception, because computer hackers often do a great deal of damage to stored communications facilities and stored communications without ever acquiring the contents of those communications. See United States v. Smith, 155 F.3d 1051, 1058-59 (9th Cir.1998) (explaining that the Stored Communications Act permits penalties against hackers who put themselves in the position to acquire a communication, but the Wiretap Act penalizes those who go further and acquire the communication); In re DoubleClick, Inc. Privacy Litigation, 154 F. Supp. 2d 497 at 507 (S.D.N.Y. 2001) (finding that Title II of ECPA was aimed at computer hackers); Sherman & Co. v. Salton Maxim Housewares, Inc., 94 F. Supp. 2d 817, 820 (E.D.Mich.2000) (explaining that the general purpose of the ECPA was to create a cause of action against computer hackers.); State Wide Photocopy, Corp. v. Tokai Financial Services, Inc., 909 F. Supp. 137, 145 (S.D.N.Y.1995) ("[T]he ECPA was primarily designed to provide a cause of action against computer hackers...."). Hackers often use their unauthorized access to disrupt or prevent authorized access of others to stored communications facilities. See 18 U.S.C. § 2701 (prohibiting obtaining, altering or preventing access to wire or electronic communications without authorization). Moreover, the activities of hackers, and the mere potential that they could acquire the contents of electronic or wire communications in storage, create an atmosphere of anxiety in which computer users do not feel confident about the confidentiality of their communications, and productivity is hampered. These were all major concerns of Congress in enacting the Stored Communications Act, concerns which necessitated the drafting of a separate act even though stored electronic communications were already included under the definition of electronic communications.

80
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 III'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.

81
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 access in preparation for interception (i.e., the acquisition of the contents of communications) until such persons had actually accomplished their unlawful mission. Further, because acquisition of the contents of an electronic communication in storage, or a wire communication in electronic storage does not disturb the "original" copy of such communication, actual acquisition of these communications is likely to be much more difficult to detect and prove than unauthorized access to a facility. Therefore it is helpful to law enforcement to have in its arsenal a separate provision governing access.

82
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.2

83
Prior Precedent on the Wiretap Act and the Stored Communications Act Does Not Preclude the Non-Contemporaneous Acquisition Reading

84
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.  526 F.2d 654 (5th Cir.1976). More important, its contemporaneity requirement was expressly repudiated in United States v. Smith. 155 F.3d 1051, 1057 n. 11, 1058 (9th Cir.1998) ("[T]o the extent that Turk stands for a definition of "intercept" that necessarily entails contemporaneity, it has ... been statutorily overruled."). Steve Jackson Games is the only circuit court case that involves stored electronic communications. As discussed above, the Fifth Circuit's reasoning is flawed, as it fails to consider the difference between "access" 18 U.S.C. § 2701 and "intercept" 18 U.S.C. § 2511 and erroneously conflates the terms, reading them both to refer to the acquisition of the contents of a communication. 36 F.3d at 463. Moreover, Steve Jackson Games is rendered somewhat obsolete by the growth of the Internet, a phenomenon that the judges deciding that case could not have meaningfully incorporated into their reading of the statute. In particular, it would have been impossible to anticipate the expectations of privacy that people would develop regarding the Internet, expectations that are crucial to interpreting the statutory scheme consistent with Congressional intent to protect privacy interests. The other cases cited by the majority are district court cases, not binding on this court; they also have little persuasive value because they rely on the flawed reasoning of Steve Jackson Games and on the contemporaneity requirement that this court has rejected. See Wesley College v. Pitts, 974 F. Supp. 375, 386 (D.Del.1997), aff'd, 172 F.3d 861 (3d Cir.1998) (affirmed by the Third Circuit in an unpublished disposition, which therefore has no precedential value); United States v. Reyes, 922 F. Supp. 818, 836 (S.D.N.Y.1996); Bohach v. City of Reno, 932 F. Supp. 1232, 1236-37 (D.Nev. 1996). Although this court in United States v. Smith correctly recognized the access/intercept distinction, our opinion contained unfortunate dicta regarding electronic communications. 155 F.3d 1051 at 1057. Because the case involved wire, not electronic, communications, those statements are not binding upon us.

Conclusion

85
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.

Notes:

1
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

2
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, "`theviews 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., 447 U.S. 102, 117, 100 S. Ct. 2051, 64 L. Ed. 2d 766 (1980)(quoting United States v. Price, 361 U.S. 304, 313,  80 S. Ct. 326, 4 L. Ed. 2d 334 (1960)). Such subsequent legislative history will "rarely override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment." Id. at 118 n. 13, 100 S. Ct. 2051 (emphasis added).

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text: Labor

text: Act

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text: Konop

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text: and

text: maintained

text: a

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text: posted

text: bulletins

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text: employer

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text: officers

text: and

text: the

text: incumbent

text: union

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text: ALPA

text: Many

text: of

text: those

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text: to

text: Konop

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text: opposition

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text: labor

text: concessions

text: which

text: Hawaiian

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text: ALPA

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text: concessions

text: Konop

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text: his

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text: Hawaiian

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text: alternative

text: union

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text: Konop

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text: password

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text: terms

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text: terms

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text: Konop

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text: acceptance

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text: the

text: terms

text: and

text: conditions

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text: that

text: day

text: Konop

text: received

text: a

text: call

text: from

text: the

text: union

text: chairman

text: of

text: ALPA

text: Reno

text: Morella

text: Morella

text: told

text: Konop

text: that

text: Hawaiian

text: president

text: Bruce

text: Nobles

text: had

text: contacted

text: him

text: regarding

text: the

text: contents

text: of

text: Konop

text: s

text: website

text: Morella

text: related

text: that

text: Nobles

text: was

text: upset

text: by

text: Konop

text: s

text: accusations

text: that

text: Nobles

text: was

text: suspected

text: of

text: fraud

text: and

text: by

text: other

text: disparaging

text: statements

text: published

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text: the

text: website

text: From

text: this

text: conversation

text: with

text: Morella

text: Konop

text: believed

text: Nobles

text: had

text: obtained

text: the

text: contents

text: of

text: his

text: website

text: and

text: was

text: threatening

text: to

text: sue

text: Konop

text: for

text: defamation

text: based

text: on

text: statements

text: contained

text: on

text: the

text: website

text: After

text: speaking

text: with

text: Morella

text: Konop

text: took

text: his

text: website

text: offline

text: for

text: the

text: remainder

text: of

text: the

text: day

text: He

text: placed

text: it

text: back

text: online

text: the

text: next

text: morning

text: however

text: without

text: knowing

text: how

text: Nobles

text: had

text: obtained

text: the

text: information

text: discussed

text: in

text: the

text: phone

text: call

text: Konop

text: claims

text: to

text: have

text: learned

text: only

text: later

text: from

text: the

text: examination

text: of

text: system

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text: that

text: Davis

text: had

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text: website

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text: the

text: meantime

text: Davis

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text: to

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text: who

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text: his

text: records

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text: Davis

text: logged

text: in

text: over

text: twenty

text: times

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text: Wong

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text: that

text: Gardner

text: or

text: Davis

text: logged

text: in

text: at

text: least

text: fourteen

text: more

text: times

text: as

text: Gardner

text: Konop

text: filed

text: suit

text: alleging

text: claims

text: under

text: the

text: federal

text: Wiretap

text: Act

text: the

text: Stored

text: Communications

text: Act

text: the

text: Railway

text: Labor

text: Act

text: and

text: state

text: tort

text: law

text: arising

text: from

text: Davis

text: viewing

text: and

text: use

text: of

text: Konop

text: s

text: secure

text: website

text: Konop

text: also

text: alleged

text: that

text: Hawaiian

text: placed

text: him

text: on

text: medical

text: suspension

text: in

text: retaliation

text: for

text: his

text: opposition

text: to

text: the

text: proposed

text: labor

text: concessions

text: in

text: violation

text: of

text: the

text: Railway

text: Labor

text: Act

text: The

text: district

text: court

text: granted

text: summary

text: judgment

text: to

text: Hawaiian

text: on

text: all

text: but

text: the

text: retaliatory

text: suspension

text: claim

text: and

text: entered

text: judgment

text: against

text: Konop

text: on

text: that

text: claim

text: after

text: a

text: short

text: bench

text: trial

text: Konop

text: appeals

text: arguing

text: that

text: the

text: district

text: court

text: erred

text: in

text: granting

text: summary

text: judgment

text: to

text: Hawaiian

text: on

text: his

text: federal

text: claims

text: under

text: the

text: Wiretap

text: Act

text: Stored

text: Communications

text: Act

text: and

text: Railway

text: Labor

text: Act

text: In

text: addition

text: Konop

text: urges

text: us

text: to

text: reverse

text: the

text: district

text: court

text: s

text: judgment

text: on

text: the

text: retaliation

text: claim

text: following

text: the

text: bench

text: trial

text: because

text: he

text: claims

text: the

text: district

text: court

text: improperly

text: quashed

text: subpoenas

text: for

text: witnesses

text: Konop

text: sought

text: to

text: have

text: testify

text: at

text: trial

text: DISCUSSION

text: The

text: district

text: court

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text: grant

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text: summary

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text: reviewed

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text: th

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text: banc

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text: the

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text: in

text: the

text: light

text: most

text: favorable

text: to

text: Konop

text: we

text: must

text: determine

text: whether

text: there

text: are

text: any

text: genuine

text: issues

text: of

text: material

text: fact

text: and

text: whether

text: the

text: district

text: court

text: correctly

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text: the

text: relevant

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text: the

text: Stored

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text: Davis

text: accessed

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text: Congress

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text: the

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text: was

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text: to

text: afford

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text: ECPA

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text: the

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text: the

text: present

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text: difficulty

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text: compounded

text: by

text: the

text: fact

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text: the

text: ECPA

text: was

text: written

text: prior

text: to

text: the

text: advent

text: of

text: the

text: Internet

text: and

text: the

text: World

text: Wide

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text: As

text: a

text: result

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text: to

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text: Attorney

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text: Via

text: Email

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text: at

text: discussing

text: the

text: uncertainty

text: over

text: email

text: privacy

text: caused

text: by

text: the

text: ECPA

text: and

text: judicial

text: interpretations

text: thereof

text: Lieutenant

text: Colonel

text: LeEllen

text: Coacher

text: Permitting

text: Systems

text: Protection

text: Monitoring

text: When

text: the

text: Government

text: Can

text: Look

text: and

text: What

text: It

text: Can

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text: A

text: F

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text: Rev

text: same

text: Tatsuya

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text: Note

text: Proposal

text: for

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text: Fair

text: Statutory

text: Interpretation

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text: mail

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text: a

text: Service

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text: Subject

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text: an

text: Interception

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text: y

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text: the

text: judiciary

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text: interpretation

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text: the

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text: until

text: Congress

text: brings

text: the

text: laws

text: in

text: line

text: with

text: modern

text: technology

text: protection

text: of

text: the

text: Internet

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text: his

text: complaint

text: as

text: violating

text: the

text: CBA

text: Specifically

text: in

text: the

text: RLA

text: section

text: of

text: the

text: complaint

text: Konop

text: alleged

text: that

text: Hawaiian

text: violated

text: the

text: CBA

text: by

text: suspending

text: him

text: from

text: work

text: reducing

text: his

text: employee

text: benefits

text: requiring

text: him

text: to

text: submit

text: to

text: physical

text: and

text: psychological

text: testing

text: and

text: giving

text: certain

text: pilots

text: paid

text: opportunities

text: to

text: campaign

text: in

text: favor

text: of

text: the

text: concessionary

text: contract

text: On

text: appeal

text: however

text: Konop

text: does

text: not

text: challenge

text: the

text: district

text: court

text: s

text: dismissal

text: of

text: these

text: CBA

text: related

text: claims

text: Rather

text: he

text: objects

text: to

text: the

text: district

text: court

text: s

text: dismissal

text: of

text: his

text: independent

text: RLA

text: claims

text: Konop

text: claims

text: that

text: Hawaiian

text: violated

text: the

text: RLA

text: by

text: accessing

text: his

text: website

text: under

text: false

text: pretenses

text: disclosing

text: the

text: website

text: s

text: contents

text: to

text: the

text: rival

text: union

text: faction

text: and

text: threatening

text: to

text: sue

text: Konop

text: for

text: defamation

text: based

text: on

text: statements

text: on

text: the

text: website

text: Hawaiian

text: never

text: explains

text: how

text: these

text: RLA

text: claims

text: are

text: grounded

text: in

text: the

text: CBA

text: except

text: to

text: say

text: that

text: Konop

text: merely

text: presents

text: them

text: as

text: a

text: precursor

text: to

text: the

text: alleged

text: CBA

text: violations

text: Nothing

text: however

text: requires

text: such

text: a

text: narrow

text: reading

text: of

text: Konop

text: s

text: allegations

text: Konop

text: like

text: the

text: plaintiff

text: in

text: Fennessy

text: presents

text: his

text: statutory

text: claims

text: as

text: independent

text: violations

text: of

text: the

text: RLA

text: These

text: claims

text: in

text: no

text: way

text: depend

text: upon

text: a

text: finding

text: that

text: Hawaiian

text: at

text: some

text: later

text: time

text: violated

text: Konop

text: s

text: contractual

text: rights

text: under

text: the

text: CBA

text: Accordingly

text: we

text: hold

text: that

text: the

text: RLA

text: claims

text: which

text: Konop

text: presses

text: on

text: appeal

text: are

text: not

text: grounded

text: in

text: the

text: CBA

text: are

text: not

text: subject

text: to

text: mandatory

text: arbitration

text: and

text: therefore

text: fall

text: within

text: the

text: court

text: s

text: jurisdiction

text: B

text: Protected

text: Activity

text: Hawaiian

text: contends

text: that

text: even

text: if

text: Hawaiian

text: managers

text: accessed

text: Konop

text: s

text: website

text: under

text: false

text: pretenses

text: conveyed

text: this

text: information

text: to

text: a

text: rival

text: union

text: leader

text: and

text: threatened

text: to

text: sue

text: Konop

text: for

text: defamation

text: such

text: conduct

text: did

text: not

text: violate

text: the

text: RLA

text: because

text: it

text: did

text: not

text: interfere

text: with

text: any

text: protected

text: organizing

text: activity

text: The

text: organizing

text: activity

text: in

text: which

text: Konop

text: engaged

text: principally

text: involved

text: the

text: publication

text: of

text: articles

text: on

text: a

text: secure

text: website

text: As

text: discussed

text: above

text: Konop

text: limited

text: access

text: to

text: pilots

text: and

text: other

text: employees

text: on

text: the

text: eligible

text: list

text: and

text: prohibited

text: users

text: from

text: disclosing

text: the

text: contents

text: of

text: the

text: website

text: to

text: others

text: He

text: also

text: categorically

text: excluded

text: managers

text: Konop

text: s

text: website

text: publication

text: vigorously

text: criticized

text: Hawaiian

text: management

text: and

text: its

text: proposal

text: for

text: wage

text: concessions

text: in

text: the

text: existing

text: collective

text: bargaining

text: agreement

text: Because

text: the

text: incumbent

text: union

text: ALPA

text: supported

text: the

text: concessionary

text: contract

text: Konop

text: sought

text: to

text: encourage

text: consideration

text: of

text: alternative

text: union

text: representation

text: There

text: is

text: no

text: dispute

text: that

text: Konop

text: s

text: website

text: publication

text: would

text: ordinarily

text: constitute

text: protected

text: union

text: organizing

text: activity

text: under

text: the

text: RLA

text: Hawaiian

text: argues

text: however

text: that

text: Konop

text: forfeited

text: any

text: protection

text: he

text: would

text: otherwise

text: enjoy

text: because

text: his

text: articles

text: contained

text: malicious

text: defamatory

text: and

text: insulting

text: material

text: known

text: to

text: be

text: false

text: In

text: Linn

text: v

text: United

text: Plant

text: Guard

text: Workers

text: Local

text: U

text: S

text: S

text: Ct

text: L

text: Ed

text: d

text: the

text: Supreme

text: Court

text: held

text: that

text: a

text: party

text: forfeits

text: his

text: protection

text: under

text: the

text: National

text: Labor

text: Relations

text: Act

text: NLRA

text: by

text: circulating

text: defamatory

text: or

text: insulting

text: material

text: known

text: to

text: be

text: false

text: See

text: also

text: Old

text: Dominion

text: Branch

text: No

text: Nat

text: l

text: Ass

text: n

text: of

text: Letter

text: Carriers

text: v

text: Austin

text: U

text: S

text: S

text: Ct

text: L

text: Ed

text: d

text: San

text: Antonio

text: Comm

text: Hosp

text: v

text: S

text: Cal

text: Dist

text: Council

text: of

text: Carpenters

text: F

text: d

text: th

text: Cir

text: We

text: assume

text: Hawaiian

text: is

text: referring

text: to

text: the

text: alleged

text: defamatory

text: statements

text: contained

text: in

text: the

text: Facts

text: section

text: of

text: its

text: brief

text: There

text: Hawaiian

text: indicates

text: that

text: Konop

text: published

text: the

text: following

text: false

text: statements

text: Nobles

text: does

text: his

text: dirty

text: work

text: like

text: the

text: Nazis

text: during

text: World

text: War

text: II

text: Soviet

text: Negotiating

text: Style

text: Essential

text: to

text: Nobles

text: Plan

text: Nobles

text: is

text: one

text: incompetent

text: at

text: the

text: top

text: Nobles

text: has

text: little

text: skill

text: and

text: little

text: ability

text: with

text: people

text: In

text: fact

text: with

text: as

text: few

text: skills

text: as

text: Nobles

text: possesses

text: it

text: is

text: difficult

text: to

text: imagine

text: how

text: he

text: got

text: this

text: far

text: and

text: Nobles

text: Suspected

text: in

text: Fraud

text: and

text: Hawaiian

text: Air

text: president

text: Bruce

text: Nobles

text: is

text: the

text: prime

text: suspect

text: in

text: an

text: alleged

text: fraud

text: which

text: took

text: place

text: in

text: The

text: first

text: two

text: statements

text: referencing

text: the

text: Nazis

text: and

text: Soviets

text: are

text: simply

text: rhetorical

text: hyperbole

text: protected

text: by

text: federal

text: labor

text: laws

text: See

text: Letter

text: Carriers

text: U

text: S

text: at

text: S

text: Ct

text: The

text: second

text: two

text: statements

text: commenting

text: on

text: Nobles

text: competence

text: and

text: people

text: skills

text: are

text: opinions

text: also

text: protected

text: by

text: federal

text: labor

text: laws

text: See

text: id

text: at

text: S

text: Ct

text: San

text: Antonio

text: Comm

text: Hosp

text: F

text: d

text: at

text: Konop

text: did

text: not

text: forfeit

text: his

text: protection

text: under

text: the

text: Railway

text: Labor

text: Act

text: as

text: Hawaiian

text: suggests

text: simply

text: by

text: publishing

text: statements

text: that

text: were

text: critical

text: of

text: and

text: insulting

text: to

text: Nobles

text: F

text: ederal

text: law

text: gives

text: a

text: union

text: license

text: to

text: use

text: intemperate

text: abusive

text: or

text: insulting

text: language

text: without

text: fear

text: of

text: restraint

text: or

text: penalty

text: San

text: Antonio

text: Comm

text: Hosp

text: F

text: d

text: at

text: quoting

text: Letter

text: Carriers

text: U

text: S

text: at

text: S

text: Ct

text: emphasis

text: added

text: see

text: also

text: Linn

text: U

text: S

text: at

text: S

text: Ct

text: R

text: epresentation

text: campaigns

text: are

text: frequently

text: characterized

text: by

text: bitter

text: and

text: extreme

text: charges

text: countercharges

text: unfounded

text: rumors

text: vituperations

text: personal

text: accusations

text: misrepresentations

text: and

text: distortions

text: With

text: respect

text: to

text: the

text: final

text: challenged

text: statement

text: indicating

text: that

text: Nobles

text: was

text: suspected

text: of

text: fraud

text: Hawaiian

text: fails

text: to

text: argue

text: or

text: present

text: any

text: evidence

text: that

text: Konop

text: published

text: the

text: statement

text: with

text: knowledge

text: of

text: its

text: falsity

text: or

text: with

text: reckless

text: disregard

text: for

text: the

text: truth

text: Federal

text: labor

text: law

text: protects

text: even

text: false

text: and

text: defamatory

text: statements

text: unless

text: such

text: statements

text: are

text: made

text: with

text: actual

text: malice

text: i

text: e

text: knowledge

text: of

text: falsity

text: or

text: with

text: reckless

text: disregard

text: for

text: the

text: truth

text: See

text: Letter

text: Carriers

text: U

text: S

text: at

text: S

text: Ct

text: Linn

text: U

text: S

text: at

text: S

text: Ct

text: protection

text: under

text: labor

text: law

text: existed

text: even

text: though

text: the

text: statements

text: were

text: erroneous

text: and

text: defame

text: d

text: one

text: of

text: the

text: parties

text: to

text: the

text: dispute

text: With

text: no

text: evidence

text: or

text: argument

text: that

text: Konop

text: acted

text: with

text: actual

text: malice

text: Hawaiian

text: cannot

text: demonstrate

text: as

text: a

text: matter

text: of

text: law

text: that

text: Konop

text: forfeited

text: his

text: protection

text: under

text: the

text: RLA

text: NLRB

text: v

text: Pincus

text: Bros

text: Inc

text: Maxwell

text: F

text: d

text: d

text: Cir

text: as

text: amended

text: upon

text: which

text: Hawaiian

text: principally

text: relies

text: provides

text: little

text: support

text: for

text: Hawaiian

text: s

text: position

text: In

text: Pincus

text: Bros

text: the

text: Third

text: Circuit

text: in

text: considering

text: whether

text: the

text: NLRB

text: abused

text: its

text: discretion

text: by

text: declining

text: to

text: defer

text: to

text: an

text: arbitration

text: award

text: merely

text: concluded

text: it

text: was

text: at

text: least

text: arguable

text: that

text: the

text: employee

text: published

text: a

text: defamatory

text: statement

text: known

text: to

text: be

text: false

text: Id

text: at

text: For

text: Hawaiian

text: to

text: prevail

text: on

text: summary

text: judgment

text: however

text: it

text: must

text: do

text: more

text: than

text: show

text: it

text: is

text: at

text: least

text: arguable

text: that

text: Konop

text: knew

text: the

text: challenged

text: statement

text: was

text: false

text: It

text: must

text: demonstrate

text: this

text: as

text: a

text: matter

text: of

text: law

text: As

text: Hawaiian

text: presents

text: no

text: evidence

text: or

text: argument

text: that

text: Konop

text: acted

text: with

text: the

text: requisite

text: malice

text: Hawaiian

text: falls

text: short

text: of

text: satisfying

text: this

text: burden

text: Accordingly

text: we

text: find

text: that

text: Konop

text: has

text: raised

text: a

text: triable

text: issue

text: of

text: fact

text: with

text: respect

text: to

text: whether

text: the

text: development

text: and

text: maintenance

text: of

text: his

text: website

text: constituted

text: protected

text: activity

text: under

text: the

text: RLA

text: C

text: Specific

text: Violations

text: Konop

text: argues

text: that

text: Hawaiian

text: managers

text: interfered

text: with

text: Konop

text: s

text: organizing

text: efforts

text: by

text: viewing

text: the

text: website

text: under

text: false

text: pretenses

text: wrongfully

text: supported

text: one

text: labor

text: group

text: in

text: favor

text: of

text: another

text: by

text: informing

text: the

text: opposing

text: labor

text: faction

text: of

text: the

text: website

text: s

text: contents

text: and

text: engaged

text: in

text: coercion

text: and

text: intimidation

text: by

text: threatening

text: to

text: sue

text: Konop

text: for

text: defamation

text: all

text: in

text: violation

text: of

text: the

text: RLA

text: Hawaiian

text: argues

text: and

text: the

text: district

text: court

text: agreed

text: that

text: Konop

text: failed

text: to

text: present

text: sufficient

text: evidence

text: to

text: withstand

text: summary

text: judgment

text: on

text: these

text: claims

text: We

text: disagree

text: Access

text: of

text: Website

text: Konop

text: argues

text: that

text: Davis

text: interfered

text: with

text: Konop

text: s

text: organizing

text: efforts

text: by

text: viewing

text: the

text: website

text: under

text: false

text: pretenses

text: Absent

text: a

text: legitimate

text: justification

text: employers

text: are

text: generally

text: prohibited

text: from

text: engaging

text: in

text: surveillance

text: of

text: union

text: organizing

text: activities

text: Cal

text: Acrylic

text: Indus

text: v

text: NLRB

text: F

text: d

text: th

text: Cir

text: The

text: reason

text: for

text: this

text: general

text: proscription

text: is

text: that

text: employer

text: surveillance

text: tends

text: to

text: create

text: fear

text: among

text: employees

text: of

text: future

text: reprisal

text: and

text: thus

text: chills

text: an

text: employee

text: s

text: freedom

text: to

text: exercise

text: his

text: rights

text: under

text: federal

text: labor

text: law

text: Id

text: at

text: In

text: NLRB

text: v

text: Unbelievable

text: Inc

text: F

text: d

text: th

text: Cir

text: we

text: upheld

text: the

text: Board

text: s

text: finding

text: that

text: the

text: employer

text: engaged

text: in

text: unfair

text: labor

text: practices

text: by

text: eavesdropping

text: on

text: private

text: conversations

text: between

text: employees

text: and

text: a

text: Union

text: representative

text: which

text: occurred

text: in

text: the

text: employee

text: break

text: room

text: Id

text: at

text: We

text: see

text: no

text: principled

text: distinction

text: between

text: the

text: employer

text: s

text: eavesdropping

text: in

text: Unbelievable

text: and

text: Hawaiian

text: s

text: access

text: of

text: Konop

text: s

text: secure

text: website

text: Hawaiian

text: suggests

text: that

text: Davis

text: had

text: a

text: legitimate

text: reason

text: to

text: access

text: Konop

text: s

text: website

text: to

text: identify

text: and

text: correct

text: any

text: false

text: or

text: misleading

text: statements

text: Assuming

text: such

text: a

text: concern

text: could

text: justify

text: Davis

text: monitoring

text: of

text: private

text: union

text: organizing

text: activities

text: Hawaiian

text: has

text: presented

text: little

text: evidence

text: to

text: suggest

text: that

text: any

text: statements

text: on

text: Konop

text: s

text: website

text: were

text: actually

text: defamatory

text: Moreover

text: as

text: discussed

text: below

text: there

text: are

text: triable

text: issues

text: whether

text: Hawaiian

text: used

text: information

text: it

text: obtained

text: from

text: the

text: website

text: to

text: assist

text: one

text: union

text: faction

text: over

text: another

text: and

text: to

text: coerce

text: and

text: intimidate

text: Konop

text: Under

text: these

text: circumstances

text: we

text: conclude

text: that

text: Konop

text: has

text: raised

text: a

text: triable

text: issue

text: that

text: Hawaiian

text: s

text: access

text: of

text: Konop

text: s

text: website

text: was

text: not

text: justified

text: Hawaiian

text: also

text: argues

text: that

text: Davis

text: access

text: did

text: not

text: violate

text: the

text: RLA

text: because

text: it

text: did

text: not

text: appreciably

text: limit

text: Konop

text: s

text: organizing

text: activities

text: Hawaiian

text: emphasizes

text: that

text: after

text: learning

text: about

text: Davis

text: access

text: to

text: the

text: website

text: Konop

text: restricted

text: access

text: for

text: a

text: mere

text: half

text: day

text: and

text: declined

text: to

text: temper

text: the

text: language

text: in

text: his

text: articles

text: Hawaiian

text: however

text: presents

text: no

text: authority

text: indicating

text: that

text: employees

text: subject

text: to

text: surveillance

text: or

text: eavesdropping

text: must

text: also

text: demonstrate

text: that

text: they

text: consequently

text: limited

text: their

text: organizing

text: activity

text: It

text: is

text: the

text: tendency

text: to

text: chill

text: protected

text: activities

text: not

text: the

text: actual

text: chilling

text: of

text: protected

text: activities

text: that

text: renders

text: eavesdropping

text: and

text: surveillance

text: generally

text: objectionable

text: under

text: federal

text: labor

text: law

text: See

text: e

text: g

text: Cal

text: Acrylic

text: F

text: d

text: at

text: That

text: a

text: hardy

text: individual

text: might

text: continue

text: his

text: organizing

text: activities

text: undeterred

text: despite

text: an

text: employer

text: s

text: surveillance

text: does

text: not

text: render

text: the

text: employer

text: s

text: conduct

text: any

text: less

text: of

text: a

text: violation

text: Accordingly

text: we

text: find

text: that

text: Konop

text: has

text: raised

text: a

text: triable

text: issue

text: of

text: fact

text: that

text: Hawaiian

text: interfered

text: with

text: Konop

text: s

text: union

text: organizing

text: activity

text: in

text: violation

text: of

text: the

text: RLA

text: by

text: accessing

text: Konop

text: s

text: website

text: Disclosure

text: to

text: Opposing

text: Union

text: Konop

text: argues

text: that

text: Nobles

text: unlawfully

text: assisted

text: Reno

text: Morella

text: the

text: union

text: leader

text: who

text: supported

text: the

text: concessionary

text: contract

text: by

text: disclosing

text: the

text: contents

text: of

text: Konop

text: s

text: website

text: Generally

text: the

text: RLA

text: prohibits

text: employers

text: from

text: providing

text: assistance

text: to

text: a

text: union

text: or

text: labor

text: faction

text: See

text: Barthelemy

text: v

text: Air

text: Lines

text: Pilots

text: Ass

text: n

text: F

text: d

text: th

text: Cir

text: per

text: curiam

text: see

text: also

text: NLRB

text: v

text: Finishline

text: Indus

text: F

text: d

text: th

text: Cir

text: NLRA

text: prohibits

text: employer

text: from

text: telling

text: workers

text: to

text: withdraw

text: from

text: one

text: union

text: and

text: join

text: another

text: NLRB

text: v

text: L

text: Ronney

text: Sons

text: Furniture

text: Mfg

text: Co

text: F

text: d

text: th

text: Cir

text: NLRA

text: prohibits

text: employer

text: from

text: initiating

text: membership

text: drive

text: among

text: his

text: employees

text: for

text: employer

text: favored

text: union

text: Konop

text: argues

text: that

text: Nobles

text: disclosed

text: useful

text: intelligence

text: to

text: a

text: rival

text: union

text: faction

text: in

text: an

text: effort

text: to

text: ensure

text: that

text: Konop

text: s

text: faction

text: which

text: opposed

text: the

text: concessionary

text: contract

text: would

text: not

text: prevail

text: Hawaiian

text: does

text: not

text: seriously

text: dispute

text: that

text: disclosure

text: of

text: the

text: contents

text: of

text: Konop

text: s

text: website

text: to

text: Morella

text: would

text: constitute

text: improper

text: assistance

text: Instead

text: Hawaiian

text: argues

text: that

text: Konop

text: failed

text: to

text: present

text: sufficient

text: evidence

text: that

text: Nobles

text: made

text: any

text: such

text: disclosure

text: or

text: that

text: Nobles

text: was

text: even

text: familiar

text: with

text: the

text: contents

text: of

text: Konop

text: s

text: website

text: when

text: he

text: spoke

text: to

text: Morella

text: Morella

text: however

text: states

text: in

text: his

text: declaration

text: that

text: Nobles

text: contacted

text: him

text: on

text: December

text: and

text: informed

text: him

text: that

text: he

text: had

text: just

text: reviewed

text: information

text: which

text: was

text: posted

text: on

text: an

text: internet

text: communications

text: system

text: operated

text: by

text: Hawaiian

text: Airlines

text: Pilot

text: Robert

text: Konop

text: In

text: addition

text: Morella

text: states

text: that

text: Nobles

text: also

text: disclosed

text: to

text: me

text: that

text: Konop

text: s

text: internet

text: communications

text: system

text: contained

text: a

text: third

text: written

text: article

text: concerning

text: Konop

text: s

text: efforts

text: to

text: obtain

text: union

text: representation

text: by

text: a

text: labor

text: organization

text: other

text: than

text: the

text: Air

text: Line

text: Pilots

text: Association

text: This

text: evidence

text: creates

text: a

text: genuine

text: issue

text: of

text: fact

text: whether

text: Nobles

text: was

text: familiar

text: with

text: the

text: contents

text: of

text: Konop

text: s

text: website

text: and

text: whether

text: Nobles

text: disclosed

text: the

text: contents

text: of

text: the

text: website

text: to

text: Morella

text: Moreover

text: Nobles

text: confirmed

text: in

text: his

text: declaration

text: that

text: he

text: contacted

text: Morella

text: because

text: he

text: felt

text: that

text: Reno

text: Morella

text: the

text: Chairman

text: of

text: the

text: ALPA

text: Master

text: Executive

text: Council

text: should

text: be

text: aware

text: of

text: the

text: newsletter

text: because

text: of

text: its

text: inaccurate

text: attack

text: on

text: the

text: proposed

text: labor

text: agreements

text: and

text: the

text: unfair

text: effect

text: it

text: could

text: have

text: on

text: the

text: ratification

text: process

text: Nobles

text: thus

text: effectively

text: concedes

text: that

text: he

text: interceded

text: to

text: help

text: ensure

text: that

text: Morella

text: s

text: faction

text: which

text: favored

text: ratification

text: of

text: the

text: concessionary

text: contract

text: would

text: prevail

text: over

text: Konop

text: s

text: faction

text: which

text: opposed

text: the

text: agreement

text: Accordingly

text: we

text: find

text: that

text: Konop

text: has

text: raised

text: a

text: triable

text: issue

text: of

text: fact

text: whether

text: Nobles

text: improperly

text: assisted

text: one

text: union

text: faction

text: over

text: another

text: in

text: violation

text: of

text: the

text: RLA

text: Threat

text: of

text: Defamation

text: Suit

text: Konop

text: argues

text: that

text: Nobles

text: engaged

text: in

text: unlawful

text: coercion

text: and

text: intimidation

text: by

text: threatening

text: to

text: file

text: a

text: defamation

text: suit

text: against

text: Konop

text: based

text: on

text: statements

text: on

text: Konop

text: s

text: website

text: An

text: employer

text: s

text: filing

text: or

text: threatened

text: filing

text: of

text: a

text: lawsuit

text: against

text: an

text: employee

text: concerning

text: union

text: organizing

text: activities

text: may

text: under

text: certain

text: circumstances

text: violate

text: the

text: RLA

text: See

text: e

text: g

text: Diamond

text: Walnut

text: Growers

text: Inc

text: v

text: NLRB

text: F

text: d

text: th

text: Cir

text: finding

text: employer

text: s

text: defamation

text: lawsuit

text: against

text: union

text: violated

text: NLRA

text: GHR

text: Energy

text: Corp

text: N

text: L

text: R

text: B

text: analyzing

text: whether

text: employer

text: s

text: threat

text: to

text: sue

text: employee

text: for

text: defamation

text: violated

text: NLRA

text: aff

text: d

text: F

text: d

text: th

text: Cir

text: Hawaiian

text: does

text: not

text: argue

text: that

text: Nobles

text: would

text: be

text: justified

text: in

text: threatening

text: to

text: sue

text: Konop

text: for

text: defamation

text: Instead

text: Hawaiian

text: contends

text: that

text: Konop

text: failed

text: to

text: present

text: sufficient

text: evidence

text: that

text: Nobles

text: ever

text: made

text: such

text: a

text: threat

text: Nobles

text: stated

text: in

text: his

text: declaration

text: that

text: he

text: did

text: mention

text: to

text: Morella

text: that

text: the

text: gross

text: inaccuracies

text: and

text: lies

text: in

text: the

text: newsletter

text: made

text: by

text: Konop

text: amounted

text: to

text: defamation

text: but

text: that

text: he

text: never

text: said

text: that

text: he

text: intended

text: to

text: file

text: a

text: lawsuit

text: against

text: Konop

text: Morella

text: however

text: indicates

text: otherwise

text: Morella

text: states

text: in

text: his

text: declaration

text: Nobles

text: advised

text: me

text: that

text: Konop

text: should

text: be

text: cautioned

text: or

text: informed

text: of

text: the

text: possibility

text: of

text: a

text: defamation

text: lawsuit

text: by

text: Nobles

text: Morella

text: also

text: testified

text: I

text: t

text: was

text: my

text: impression

text: and

text: conclusion

text: that

text: Nobles

text: intended

text: for

text: me

text: to

text: contact

text: Konop

text: or

text: take

text: other

text: action

text: for

text: the

text: purpose

text: of

text: opposing

text: Konop

text: s

text: efforts

text: to

text: seek

text: alternative

text: union

text: representation

text: Morella

text: then

text: informed

text: Konop

text: of

text: Mr

text: Nobles

text: statements

text: regarding

text: caution

text: with

text: respect

text: to

text: a

text: possible

text: lawsuit

text: against

text: Konop

text: for

text: defamation

text: Konop

text: confirms

text: the

text: same

text: in

text: his

text: declaration

text: This

text: evidence

text: is

text: sufficient

text: to

text: raise

text: a

text: triable

text: issue

text: of

text: fact

text: whether

text: Nobles

text: threatened

text: to

text: sue

text: Konop

text: for

text: defamation

text: Accordingly

text: we

text: find

text: that

text: Konop

text: has

text: raised

text: a

text: triable

text: issue

text: of

text: fact

text: whether

text: Nobles

text: engaged

text: in

text: coercion

text: and

text: intimidation

text: in

text: violation

text: of

text: the

text: RLA

text: by

text: threatening

text: to

text: sue

text: Konop

text: for

text: defamation

text: D

text: Bench

text: Trial

text: on

text: Retaliation

text: Claim

text: Konop

text: s

text: retaliation

text: claim

text: under

text: the

text: RLA

text: was

text: tried

text: to

text: the

text: district

text: court

text: The

text: district

text: court

text: entered

text: judgment

text: against

text: him

text: on

text: this

text: claim

text: which

text: involved

text: his

text: allegation

text: that

text: Hawaiian

text: violated

text: the

text: RLA

text: when

text: it

text: placed

text: him

text: on

text: sick

text: leave

text: in

text: retaliation

text: for

text: protected

text: labor

text: activities

text: Konop

text: challenges

text: the

text: district

text: court

text: s

text: judgment

text: on

text: this

text: claim

text: on

text: the

text: ground

text: that

text: his

text: subpoenas

text: for

text: corroborating

text: witnesses

text: were

text: improperly

text: quashed

text: We

text: review

text: a

text: district

text: court

text: s

text: order

text: quashing

text: subpoenas

text: for

text: an

text: abuse

text: of

text: discretion

text: United

text: States

text: v

text: Berberian

text: F

text: d

text: th

text: Cir

text: A

text: litigant

text: whose

text: subpoenas

text: have

text: been

text: improperly

text: quashed

text: must

text: also

text: show

text: prejudice

text: See

text: Casino

text: Foods

text: Corp

text: v

text: Kraftco

text: Corp

text: F

text: d

text: th

text: Cir

text: There

text: is

text: some

text: dispute

text: whether

text: the

text: district

text: court

text: s

text: remarks

text: in

text: a

text: pretrial

text: hearing

text: constituted

text: an

text: order

text: to

text: quash

text: subpoenas

text: at

text: all

text: Assuming

text: however

text: that

text: the

text: district

text: court

text: did

text: quash

text: Konop

text: s

text: subpoenas

text: Konop

text: has

text: not

text: suggested

text: what

text: relevant

text: evidence

text: the

text: subpoenaed

text: witnesses

text: might

text: have

text: provided

text: had

text: they

text: been

text: compelled

text: to

text: testify

text: Konop

text: has

text: consequently

text: failed

text: to

text: show

text: that

text: he

text: was

text: prejudiced

text: Accordingly

text: the

text: district

text: court

text: s

text: judgment

text: against

text: Konop

text: on

text: his

text: retaliation

text: claim

text: under

text: the

text: RLA

text: is

text: affirmed

text: CONCLUSION

text: For

text: the

text: foregoing

text: reasons

text: we

text: affirm

text: the

text: district

text: court

text: s

text: judgment

text: with

text: respect

text: to

text: Konop

text: s

text: Wiretap

text: Act

text: claims

text: and

text: his

text: retaliation

text: claim

text: under

text: the

text: Railway

text: Labor

text: Act

text: We

text: reverse

text: the

text: district

text: court

text: s

text: judgment

text: on

text: Konop

text: s

text: Stored

text: Communications

text: Act

text: claims

text: and

text: his

text: claims

text: under

text: the

text: Railway

text: Labor

text: Act

text: for

text: interference

text: with

text: organizing

text: activities

text: wrongful

text: support

text: of

text: a

text: union

text: faction

text: and

text: coercion

text: and

text: intimidation

text: AFFIRMED

text: IN

text: PART

text: REVERSED

text: IN

text: PART

text: and

text: REMANDED

text: Notes

text: The

text: parties

text: dispute

text: the

text: date

text: and

text: substance

text: of

text: this

text: phone

text: conversation

text: Because

text: the

text: district

text: court

text: granted

text: summary

text: judgment

text: we

text: view

text: the

text: facts

text: in

text: the

text: light

text: most

text: favorable

text: to

text: Konop

text: The

text: Wiretap

text: Act

text: and

text: SCA

text: have

text: since

text: been

text: amended

text: by

text: the

text: Uniting

text: and

text: Strengthening

text: America

text: by

text: Providing

text: Appropriate

text: Tools

text: Required

text: to

text: Intercept

text: and

text: Obstruct

text: Terrorism

text: Act

text: USA

text: PATRIOT

text: Act

text: Pub

text: L

text: No

text: Stat

text: October

text: Specifically

text: Konop

text: configured

text: the

text: website

text: to

text: allow

text: access

text: when

text: a

text: person

text: typed

text: in

text: the

text: correct

text: web

text: address

text: received

text: the

text: home

text: page

text: of

text: his

text: website

text: entered

text: the

text: name

text: of

text: an

text: eligible

text: person

text: created

text: a

text: password

text: and

text: clicked

text: the

text: SUBMIT

text: button

text: indicating

text: acceptance

text: of

text: the

text: terms

text: and

text: conditions

text: of

text: use

text: In

text: addition

text: Konop

text: displayed

text: the

text: following

text: language

text: on

text: the

text: home

text: page

text: of

text: his

text: website

text: This

text: is

text: the

text: gateway

text: for

text: NEWS

text: UPDATES

text: and

text: EDITORIAL

text: COMMENTS

text: directed

text: only

text: toward

text: Hawaiian

text: Air

text: s

text: pilots

text: and

text: other

text: employees

text: not

text: including

text: HAL

text: management

text: By

text: entering

text: you

text: acknowledge

text: and

text: agree

text: to

text: the

text: terms

text: and

text: conditions

text: of

text: use

text: as

text: specified

text: below

text: You

text: must

text: read

text: this

text: entire

text: page

text: before

text: entry

text: Others

text: should

text: simply

text: find

text: something

text: else

text: to

text: do

text: with

text: their

text: time

text: If

text: you

text: are

text: already

text: a

text: registered

text: user

text: you

text: may

text: fill

text: in

text: your

text: name

text: along

text: with

text: the

text: other

text: information

text: required

text: below

text: then

text: enter

text: the

text: system

text: If

text: you

text: want

text: to

text: visit

text: the

text: system

text: and

text: you

text: belong

text: to

text: the

text: authorized

text: group

text: you

text: must

text: supply

text: the

text: proper

text: information

text: before

text: you

text: will

text: be

text: allowed

text: to

text: enter

text: Make

text: note

text: of

text: the

text: password

text: you

text: enter

text: for

text: your

text: first

text: visit

text: otherwise

text: future

text: visits

text: may

text: be

text: delayed

text: Visits

text: by

text: others

text: will

text: be

text: strictly

text: prohibited

text: Beneath

text: this

text: language

text: Konop

text: provided

text: boxes

text: for

text: a

text: person

text: s

text: name

text: occupation

text: email

text: address

text: and

text: password

text: Below

text: the

text: boxes

text: were

text: two

text: buttons

text: one

text: said

text: SUBMIT

text: the

text: other

text: said

text: CLEAR

text: The

text: advisement

text: continued

text: All

text: name

text: and

text: contact

text: information

text: will

text: be

text: kept

text: strictly

text: confidential

text: Any

text: effort

text: to

text: defeat

text: compromise

text: or

text: violate

text: the

text: security

text: of

text: this

text: website

text: will

text: be

text: prosecuted

text: to

text: the

text: fullest

text: extent

text: of

text: the

text: law

text: WARNING

text: The

text: information

text: contained

text: herein

text: is

text: CONFIDENTIAL

text: and

text: it

text: is

text: not

text: intended

text: for

text: public

text: dissemination

text: By

text: requesting

text: entry

text: in

text: the

text: system

text: you

text: must

text: agree

text: not

text: to

text: furnish

text: any

text: of

text: the

text: information

text: contained

text: herein

text: to

text: any

text: other

text: person

text: or

text: for

text: any

text: other

text: use

text: Republication

text: or

text: redistribution

text: of

text: this

text: information

text: to

text: any

text: other

text: person

text: is

text: strictly

text: prohibited

text: Anyone

text: found

text: to

text: disseminate

text: this

text: information

text: to

text: anyone

text: other

text: than

text: those

text: specifically

text: named

text: and

text: allowed

text: here

text: will

text: be

text: banned

text: from

text: this

text: website

text: and

text: held

text: liable

text: to

text: prosecution

text: for

text: violation

text: of

text: the

text: terms

text: and

text: conditions

text: of

text: use

text: and

text: for

text: violation

text: of

text: this

text: contract

text: Congress

text: revised

text: the

text: definition

text: of

text: intercept

text: slightly

text: to

text: clarify

text: that

text: non

text: voice

text: portions

text: of

text: wire

text: communications

text: are

text: also

text: protectedSee

text: H

text: R

text: Rep

text: No

text: at

text: Until

text: October

text: wire

text: communication

text: was

text: defined

text: as

text: any

text: aural

text: transfer

text: made

text: in

text: whole

text: or

text: in

text: part

text: through

text: the

text: use

text: of

text: facilities

text: for

text: the

text: transmission

text: of

text: communications

text: by

text: the

text: aid

text: of

text: wire

text: cable

text: or

text: other

text: like

text: connection

text: between

text: the

text: point

text: of

text: origin

text: and

text: the

text: point

text: of

text: reception

text: andsuch

text: term

text: includes

text: any

text: electronic

text: storage

text: of

text: such

text: communication

text: U

text: S

text: C

text: emphasis

text: added

text: The

text: dissent

text: amici

text: and

text: several

text: law

text: review

text: articles

text: argue

text: that

text: the

text: term

text: intercept

text: must

text: apply

text: to

text: electronic

text: communications

text: in

text: storage

text: because

text: storage

text: is

text: a

text: necessary

text: incident

text: to

text: the

text: transmission

text: of

text: electronic

text: communicationsSee

text: e

text: g

text: Akamine

text: supra

text: at

text: Jarrod

text: J

text: White

text: E

text: Mail

text: Work

text: Com

text: Employer

text: Monitoring

text: of

text: Employee

text: E

text: Mail

text: Ala

text: L

text: Rev

text: Email

text: and

text: other

text: electronic

text: communications

text: are

text: stored

text: at

text: various

text: junctures

text: in

text: various

text: computers

text: between

text: the

text: time

text: the

text: sender

text: types

text: the

text: message

text: and

text: the

text: recipient

text: reads

text: it

text: In

text: addition

text: the

text: transmission

text: time

text: of

text: email

text: is

text: very

text: short

text: because

text: it

text: travels

text: across

text: the

text: wires

text: at

text: the

text: speed

text: of

text: light

text: It

text: is

text: therefore

text: argued

text: that

text: if

text: the

text: term

text: intercept

text: does

text: not

text: apply

text: to

text: the

text: en

text: route

text: storage

text: of

text: electronic

text: communications

text: the

text: Wiretap

text: Act

text: s

text: prohibition

text: against

text: intercepting

text: electronic

text: communications

text: would

text: have

text: virtually

text: no

text: effect

text: While

text: this

text: argument

text: is

text: not

text: without

text: appeal

text: the

text: language

text: and

text: structure

text: of

text: the

text: ECPA

text: demonstrate

text: that

text: Congress

text: considered

text: and

text: rejected

text: this

text: argument

text: Congress

text: defined

text: electronic

text: storage

text: as

text: any

text: temporary

text: intermediate

text: storage

text: of

text: a

text: wire

text: or

text: electronic

text: communication

text: incidental

text: to

text: the

text: electronic

text: transmission

text: thereof

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