Computer Crime Research Center

Appeals Court Overturns Own Web Site Ruling
(By Bob Egelko)

A lawyer for online privacy-rights group the Electronic Frontier Foundation said a certain amount of inconvenience for police is often the price of protecting privacy.

Heeding prosecutors' pleas, the federal appeals court in San Francisco has overturned its own ruling that would have made it much harder to peek at private Web sites.

The unusual reversal by the Ninth U.S. Circuit Court of Appeals came after federal and state prosecutors warned that the ruling would hamper investigations of child molesters who recruit victims online.

In its earlier ruling, the court said an airline's furtive entry into a pilot's personal Web site, where criticism of the company was collected, was a possible violation of the federal wiretap law. The 1986 version of that law prohibits any unauthorized interception of an electronic communication.

Possible Civil Damages

The appellate court's January 2001 decision wouldn't have affected employers' established authority to monitor their workers' use of an in-house e-mail system. However, for privately maintained Web sites with access limited to password-holders, the ruling could have exposed intruders to substantial civil damages and hindered criminal investigations by law enforcement, which needs court orders for wiretaps.

Alarmed, the U.S. Justice Department and the California District Attorneys Association, neither previously involved in the case, filed briefs urging the court to reconsider. The three-judge panel withdrew its ruling last August and, without another hearing, issued a new ruling on Friday reaching the opposite conclusion: Unauthorized access to a Web site is not wiretapping.

"For a Web site ... to be 'intercepted' in violation of the Wiretap Act, it must be acquired during transmission, not while it is in electronic storage," Judge Robert Boochever said in the 2-1 ruling.

Price Is Inconvenience

He said his reading of the wiretap law is supported by language in the USA Patriot Act that expanded government surveillance authority after Sept. 11. A District Attorneys Association lawyer said the court's earlier ruling would have made it harder to investigate online child molestation cases.

"Typically, undercover officers go onto someone's Web site without their permission to see if they're violating the law," said Patrick Moran, a deputy district attorney in Los Angeles. "We felt law enforcement would be severely hampered."

But a lawyer for an online privacy-rights group in San Francisco, the Electronic Frontier Foundation, said a certain amount of inconvenience for police is often the price of protecting privacy .

"Giving more protection for communications privacy does make their job harder, like requiring them to get a search warrant to break into people's houses," said attorney Lee Tien.

Dispute Continues

Even under the old ruling, Tien said, law enforcement officers could have applied to courts for wiretap warrants to see newly stored messages, or for search warrants that would have required Internet service providers to turn over specified contents of a Web site. He said the ruling allows police to bypass a judge.

The ruling doesn't end the legal dispute between Hawaiian Airlines and pilot Robert Konop, whose right to sue under federal labor law was upheld by the court. Konop, who still flies DC-10s for the airline, said Tuesday he'll probably also seek further court review of the wiretap issue.

Konop posted criticisms of the airline and its pilots' union, which he accused of making too many concessions, at a Web site that he controlled by user name and password. He did not allow access by company management, but a vice president gained access in late 1995 and early 1996 by asking two pilots for their passwords, the court said.

Major Rights Violations

Konop was not fired, but accused Hawaiian of placing him on medical suspension in retaliation for his criticism, and of undercutting his organizing efforts by sharing information on the Web site with the union chairman.

A federal judge dismissed the entire suit, but the appeals court reinstated most of the claims. The airline's eavesdropping on Konop's Web site and disclosure of information to opponents may have violated Konop's right to engage in union organizing, the court said, and it may have violated the law on stored electronic information by using the name and password of one of the pilots.


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