Konop v. Hawaiian Airlines, Inc.
- Court
- Court of Appeals for the Ninth Circuit (Federal circuit court)
- Decided
- 2002
- Citation
- 302 F.3d 868 (9th Cir. 2002)
- Standard applied
- Wiretap Act § 2511 — “intercept” requires contemporaneity
What the court held
A secure website is an “electronic communication” under the Wiretap Act, but acquiring its contents after transmission is not an “intercept.” For electronic communications, interception requires acquisition contemporaneous with transmission, so an employer who logged into a restricted employee website using another employee's credentials did not violate the Wiretap Act.
Why
The court followed the Fifth Circuit's reasoning in Steve Jackson Games, which rested on a textual asymmetry: the statutory definition of “wire communication” expressly includes electronic storage of the communication while the definition of “electronic communication” does not. That difference indicated Congress did not intend “intercept” to reach electronic communications held in storage. The court noted that the statute had fallen behind the technology and said so plainly.
Our reading — not the court’s words
Why this matters in practice
Konop is the case that fixed the in-transit / at-rest divide which still determines which statute governs a given collection, and therefore which authority an investigator needs. It is the reason a real-time capture and a server-side copy of the same message are analysed under different laws with different penalties and different suppression consequences. When assessing how evidence was obtained, the first question is which side of that line the acquisition fell on, and the answer often turns on a technical detail about where the copy was taken.
This paragraph is Legal Cyber Academy’s editorial assessment of the decision’s practical importance. The court said none of it. For what the court actually said, read the opinion.
Additional detail
Tags: Wiretap Act · contemporaneous interception · ECPA
Cited 176times in CourtListener’s corpus at the time this entry was compiled. Treat it as a rough measure of influence, not of correctness.
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Summarised from the opinion as retrieved from CourtListener. Reference material, not legal advice. Back to the repository.