What Online Activity Does the Wiretap Act Protect? The Ninth Circuit Holds that Unauthorized Access of a Secure Website Does Not Violate the Federal Wiretap Act Konop v. Hawaiian Airlines, Inc.

Authors

• Thomas P. Ludwig, Southern Methodist University, Dedman School of Law

Abstract

Throughout the last half-century, there has been constant tension in the communication arena between individual privacy interests and the interests of law enforcement in proactively combating crime and terrorism. The difficulty in maintaining a balance between these interests has been compounded by the explosive development in electronic communication technology over the last several decades. In an attempt to bring the state of privacy protection law up to date with modem technology, Congress enacted the Electronic Communications Privacy Act of 1986 ("ECPA"). While the ECPA was enacted "to update and clarify Federal privacy protections and standards," both the usage and the sophistication of electronic communication have soared dramatically since that time, thus rendering the ECPA currently outmoded. Courts have described the intersection of the Wiretap Act and the Stored Communications Act as a "complex, often convoluted, area of the law." More specifically, "[c]ourts and scholars have struggled to determine the precise boundaries of and also the intended relationship between these two acts."s The judiciary has traditionally narrowly construed the term "interception," as used in the Wiretap Act, to require acquisition that is contemporaneous with the transfer of the communication. This narrow construction has meant that the increased protection of the Wiretap Act has only applied to communications acquired en route in the transfer, while communications located in any type of electronic storage are only afforded the lesser protection of the Stored Communications Act. Such an interpretation opens the door for unconscionable privacy invasion by judicially unsupervised law enforcement agencies without providing serious deterrence to cyber-criminals. Recently, in Konop v. Hawaiian Airlines, Inc., the Ninth Circuit followed this traditional approach and, in doing so, exhibited the extent to which electronic communication privacy law must be clarified and modernized to afford any meaningful privacy protection for online communication in today's technologically advanced world.

Recommended Citation

Thomas P. Ludwig, What Online Activity Does the Wiretap Act Protect? The Ninth Circuit Holds that Unauthorized Access of a Secure Website Does Not Violate the Federal Wiretap Act Konop v. Hawaiian Airlines, Inc., 7 Computer L. Rev. & Tech. J. 301 (2003)