Aloha Airlines
seeks name of
phantom e-mailer

The court will decide if
harming a business warrants
violating a subscriber's privacy

In a case that has right-to-privacy implications, Aloha Airlines has filed a motion in Bankruptcy Court seeking to uncover the identity of one or more people it accuses of misrepresenting themselves as Aloha management through e-mails and disrupting the airline's reorganization.

In response to the motion, the court has ordered a Road Runner subsidiary of Time Warner Cable, travel portal Hawaii.com and e-mail provider Load.com to turn over all customer-related identifying information, including names, street and e-mail addresses and telephone numbers, of the subscriber at the Internet address 204.210.109.232.

The airline, which filed for Chapter 11 bankruptcy on Dec. 30, said in the motion that on or about Dec. 24 at approximately 6:27 p.m., e-mail communications were sent to individuals and entities that have a business relationship with Aloha. The messages falsely represented being sent on behalf of the airline or its management, the motion said. The airline said it had no knowledge of the communications at the time.

Aloha said the e-mails "significantly disrupted" the company's negotiations and relations with various labor groups and interfered with the administration of its business. Aloha said it is necessary to find out the source of the e-mails so that it may take "all actions necessary to correct the situation."

Aloha also asked for the names of the e-mail recipients, and that the Internet providers not destroy any information. No details were available about what the e-mails said.

David Banmiller, the airline's president and chief executive officer, was out of the office and unavailable for comment, Aloha spokesman Stu Glauberman said yesterday. Several calls to the Gelber, Gelber Ingersoll & Klevansky law firm that filed the motion were not returned.

The request by Aloha to learn the identities of the e-mail author or authors puts the court and the Internet providers in a difficult situation because of right-to-privacy issues. In a privacy case last year involving the Recording Industry Association of America, a federal judge granted a request from the recording industry to require Internet provider Cablevision to divulge the identities of anonymous file swappers accused of copyright infringement.

Cades Schutte patent attorney Martin Hsia, who specializes in computer and Internet law and other areas of intellectual property, said an Internet subscriber who feels his rights are being intruded upon has the right to hire an attorney to block the order or to get a protective order that limits the information provided or who sees it. However, he said if a person sent a spoofed e-mail -- pretending he was somebody he wasn't -- then that person would have a difficult time in court trying to protect his ability to deceive.

"It will be in front of the judge to decide whose rights prevail, Aloha's rights to find out who sent out a spoofed e-mail that allegedly damaged Aloha, or the person who sent a spoofed e-mail's right to privacy," said Hsia, who is not involved in the Aloha Airlines case.

Keith Cocozza, senior director of corporate communications for Stamford, Conn.-based Time Warner Cable, said the company is reviewing the order.

"Our policy is to protect the privacy of our high-speed data customers while also complying with the legal requirements that govern the IP industry," he said.

Cocozza said Time Warner Cable's policy upon receiving a subpoena is to contact the subscriber first to give that person the opportunity to communicate with the party issuing the subpoena. If Time Warner Cable gets no response from the subscriber, then it delivers the information to comply with the subpoena. If the subscriber objects, then Time Warner Cable said it's up to the subscriber to file a motion in court.

Honolulu Advertiser President Mike Fisch, a board member of Hawaii.com, referred questions to the company's corporate office in Arizona. Gannett Co., parent of the Advertiser, and Stephens Media are 50-50 partners of Hawaii.com.

Nick Jones, an Oahu native who is CEO of Las Vegas-based Load.com, said the company's policy is to turn over legitimate information to the authorities if there is proof that the subscriber has violated an end-user agreement.

Jeff Portnoy, a Cades Schutte attorney who handles media issues, said the question is whether someone has a reasonable expectation that communications are going to be private, and whether they can reasonably believe they're outside the scope of a legally issued subpoena. Portnoy is not involved with the Aloha case.