Joffe v. Google, Inc., No. 11-17483 (9th Cir. 2013)
Annotate this CasePlaintiffs filed suit against Google under the Wiretap Act, 18 U.S.C. 2511, after the antennas and software installed in Google's Street View cars collected basic identifying information transmitted by Wi-Fi networks, as well as gathered and stored "payload data" that was sent and received over unencrypted Wi-Fi connections. On appeal, Google challenged the district court's denial of its motion to dismiss based on the Wiretap Act's exemption for electronic communication that was readily accessible to the general public. The court held that the phrase "radio communication" in section 2510(16) excluded payload data transmitted over a Wi-Fi network. Consequently, the definition of "readily accessible to the general public [] with respect to a radio communication" in section 2510(16) did not apply to the exemption for an "electronic communication" that was "readily accessible to the general public" under section 18 U.S.C. 2511(2)(g)(i). The court also held that payload data transmitted over an unencrypted Wi-Fi network was not "readily accessible to the general public" under the ordinary meaning of the phrase as it was used in section 2511(2)(g)(i). Accordingly, the court affirmed the district court's judgment.
Court Description: Wiretap Act. The panel affirmed the district court’s order denying a motion to dismiss claims that Google, Inc., violated the Wiretap Act when, in the course of capturing its Street View photographs, it collected data from unencrypted Wi-Fi networks. The panel held that Google’s data collection did not fall within a Wiretap exemption set forth in 18 U.S.C. § 2511(2)(g)(i) because data transmitted over a Wi-Fi network is not an “electronic communication” that is “readily accessible to the general public.” Under 18 U.S.C. § 2510(16)(A), a “radio communication” is by definition “readily accessible to the general public” so long as it is not scrambled or encrypted. The panel held that the Wi-Fi network data collected by Google was not a radio communication, and thus was not by definition readily accessible to the general public. The panel also held that data transmitted over a Wi-Fi network is not readily accessible to the general public under the ordinary meaning of the phrase as it is used in § 2511(2)(g)(i). Accordingly, the district court did not err in denying the motion to dismiss on the basis of the Wiretap Act exemption for electronic communication that is readily accessible to the general public.
The court issued a subsequent related opinion or order on December 27, 2013.
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