Tim Dierks wrote:
In order to avoid overreaction to a nth-hand story, I've attempted to locate some primary sources.
Konop v. Hawaiian Airlines:> http://laws.lp.findlaw.com/getcase/9th/case/9955106p&exact=1 [US v Councilman:]http://pacer.mad.uscourts.gov/dc/opinions/ponsor/pdf/councilman2.pdf
Well done. Thanks.
I'd be interested in any opinions on how this affects the government's need to get specific wiretap warrants; I don't know if the law which makes illicit civilian wiretapping illegal is the same code which governs the government's ability (or lack thereof) to intercept communications.
0) IANAL. But as to the question of "same code", the answer is clearly "no".
I2ANAL, but I don't think that's clear at all, unless your are talking about specific paragraphs within the Wiretap Act and the Stored Communications Act.
1) As to government-authorized intercepts, see
http://www.eff.org/Privacy/Surveillance/Terrorism_militias/20011031_eff_usa_patriot_analysis.html
which gives a plain-language discussion of at least eight different standards under which some sort of authorization could be obtained.
Also note that neither Konop nor Councilman involved government intercepts, so you can't learn anything about authorized intercepts by studying them. Also note that post-9/11 laws have superseded everything you might previously have known on the subject.
The Konop decision specifically talks about government intercepts. See section B7, for example. They even discuss the post 9/11 situation in B6.
2) As to intercepts by civilians, it's wrong, and it may be punishable under many different theories and standards, including invasion of privacy, copyright infringement, computer trespass, computer vandalism, simple theft of things of value, and who-knows-what else.
Add the Railway Labor Act in this case.
4) Crypto-related sidelight: I wonder what would have happened if Konop had encrypted his sensitive data. (eBook format or the like. :-) Then could he have used the draconian provisions of the DMCA against his opponent (Hawaiian Airlines)?????
There are some who would argue that the simple password protection scheme Knopp used would be a "technological protection" covered under DMCA. However, the penalty for access to protected material, as opposed to trafficking in technology, is a $2000 fine, which may not seem draconian to an airline.
Arnold Reinhold
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