Antitrust Law Daily Wrap Up, PRIVACY—9th Cir.: Google Street View’s capture of “payload data” from unencrypted Wi-Fi networks not exempt from Wiretap Act, (Sep 13, 2013)

By Tobias J. Gillett, J.D., LL.M.

A district court correctly declined to dismiss claims that Google violated the federal Wiretap Act by intercepting “payload data” from unencrypted Wi-Fi networks, the U.S. Court of Appeals in San Francisco has ruled (Joffe v. Google, Inc., September 10, 2013, Bybee, J.). The appellate court agreed with the district court that the exemption in the Wiretap Act for “electronic communications” that were “readily accessible to the general public” did not apply to the transmission of “payload data” over Wi-Fi networks.

Google’s Street View feature, part of its Google Maps service, provides users with street-level photographs captured by cameras mounted on Google’s vehicles. Between 2007 and 2010, Google equipped its vehicles with equipment that captured data transmitted by Wi-Fi networks in nearby homes and businesses. Google used basic identifying information from the networks to provide enhanced location-based services. However, Google’s equipment also captured “payload data” from unencrypted networks, such as personal emails, user names, passwords, videos, and documents.

After Google acknowledged the capture of the payload data in May 2010, several putative class action lawsuits were filed against Google. In the present case, the plaintiffs (collectively, “Joffe”) sought to represent a class of persons whose communications were intercepted by Google Street View vehicles, and asserted claims under the federal Wiretap Act, California’s Unfair Competition Law, and various state wiretap statutes. The district court denied Google’s motion to dismiss, concluding that the unencrypted Wi-Fi communications did not fall within the Wiretap Act’s exemption for “electronic communications” that are “readily accessible to the general public.” The district court certified its decision for interlocutory appeal.

The appellate court explained that Section 2511(2)(g)(i) of the Wiretap Act exempts the interception of “an electronic communication made through an electronic communication system,” including communication by radio, if the system is configured so that it is “readily accessible to the general public.” Section 2511(2)(g)(ii) of the Act exempts the interception of “radio communication” by “any station for the use of the general public”; by certain governmental communication systems “readily accessible to the general public”; by a station operating on an authorized frequency for “amateur, citizens band, or general mobile radio services”; or by a marine or aeronautical communications system.

Google conceded that it did not qualify for an exemption under Section 2511(2)(g)(ii), but Joffe contended that if the Wi-Fi communication was not exempt under Section 2511(2)(g)(ii) it could not be exempt as a radio communication under Section 2511(2)(g)(i)’s broader exemption for electronic communication.

The court rejected this argument. Section 2510(16) “define[d] ‘readily accessible to the general public’ solely with respect to a ‘radio communication,’ and not with respect to other types of ‘electronic communication,’” and the court viewed the statute as directing it to apply that definition to Section 2511(2)(g)(i)’s exemption. Section 2510(12) defined “electronic communication” as including “radio,” and the phrase “As used in this chapter” that prefaced Section 2510 directed the court to apply the definitions in that section to the entire chapter, including both Section 2511(2)(g)(i) and Section 2511(2)(g)(ii), in the court’s view. The court admitted that its decision likely rendered Section 2511(2)(g)(ii) superfluous, since its exemption would be unnecessary if Section 2511(2)(g)(i) already exempted all radio communications that were “readily accessible to the general public,” but the court observed that Congress sometimes drafted duplicative provisions as a means of clarifying the coverage of a statute.

However, the court agreed with the district court that Google’s conduct did not fall within Section 2511(2)(g)(i)’s exemption, holding “that the phrase ‘radio communication’ in 18 U.S.C. §2510(16) exclude[d] payload data transmitted over a Wi-Fi network,” and that “payload data transmitted over an unencrypted Wi-Fi network is not ‘readily accessible to the general public’” for purposes of Section 2511(2)(g)(i).

The court explained that if data transmitted over a Wi-Fi network constituted “radio communication,” then any unencrypted Wi-Fi communication would be considered “readily accessible to the general public,” and therefore exempt under Section 2511(2)(g)(i). However, the court concluded that the ordinary meaning of “radio communication” did not include data transmitted over a Wi-Fi network.

The court observed that the radio frequency spectrum included television broadcasts, cellular telephones, garage door openers, wildlife tracking collars, and other transmissions that would not ordinarily be considered a form of “radio communication.” The court noted that Congress had not typically treated the term “radio” as encompassing television broadcasts, and that the Wiretap Act itself did not “assume that the phrase ‘radio communication’ encompasses technologies like satellite television that are outside the scope of the phrase as it is ordinarily defined.” The court found that “Google’s proposed definition is in tension with how Congress—and virtually everyone else—uses the phrase,” and noted that Congress had not provided a definition of “radio communication” that would have altered its ordinary meaning.

Moreover, the court observed that “[a] radio communication is commonly understood to be (1) predominantly auditory, and (2) broadcast.” Since the Wi-Fi data was not predominantly auditory, it did not fall within the definition of “radio communication” for purposes of Section 2510(16), according to the court.

Furthermore, “defining ‘radio communication’ as a predominantly auditory broadcast yields a coherent and consistent Wiretap Act,” in the court’s view. The court noted that Congress had used both the term “radio communication” and the term “communication by radio” throughout the Wiretap Act. Ascribing to each phrase its own meaning, the court concluded that the term “communication by radio” generally referred “to any communication transmitted by radio wave,” while the term “radio communication” tended “to refer more narrowly to broadcast radio technologies rather than to the radio waves by which the communication is made.”

Moreover, the court found “it would be odd for Congress to take pains to identify particular kinds of radio communications that should be exempt in § 2511(2)(g)(ii) only to exempt broad swaths of dissimilar communications, such as data transmitted over a Wi-Fi network, under the auspices of § 2511(2)(g)(i).” The court found it was “more sensible” to read Section 2511(2)(g)(i)’s general exemption in light of Section 2511(2)(g)(ii)’s specific exemptions.

The court also found defining “radio communication” as a predominantly auditory broadcast would avoid the “absurd result” that the Wiretap Act’s protections for a sender of a Wi-Fi communication would turn on whether the recipient of a communication as well as the sender had encrypted its network. Furthermore, Congress’s decision to provide less protection for “radio communication” than some other kinds of “electronic communication” made sense if “radio communication” was given its ordinary meaning, because “[t]raditional radio services can be easily and mistakenly intercepted by hobbyists,” while hobbyists did not “mistakenly use packet sniffers to intercept payload data transmitted on Wi-Fi networks.”

The court rejected Google’s argument that, because Section 2510(16)(D) and its legislative history suggested that “radio communications” included cellular telephone and paging systems, Congress must have intended to also include Wi-Fi networks and other similar technologies. The court observed that when Congress added Section 2510(16)(D) to the Wiretap Act in 1986 cellular telephones were more “similar to CB broadcasts,” and could be inadvertently picked up by radio hobbyists. Therefore, assuming that the phrase “radio communication” covered cell phone transmissions as they existed in 1986 would not require the court to conclude that it also covered transmissions that were not predominantly auditory broadcasts.

The court also found Google’s argument that Congress intended to employ the definition of “radio communications” that it used in the Communications Act to be unconvincing. Although the Communications Act did expressly define both “communication by radio” and “radio communication” as including “the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds,” the court observed that “when Congress wanted to borrow a definition from the Communications Act to apply to the Wiretap Act, it expressly said so.” Here, Congress had not incorporated the Communications Act’s definition of “radio communication,” and had used the terms “communication by radio” and “radio communication” differently.

The court also rejected Google’s attempt to rely on a series of amendments to Section 2510(16) that it claimed demonstrated “that Congress impliedly gave the phrase ‘radio communication’ a meaning other than the ordinary one.” The court found the legislative history to be “far more equivocal than Google acknowledge[d],”and declined to “speculate as to Congress’s unexpressed intent.”

Finally, the court declined to follow Google’s argument that the court must accept its definition of “radio communication” pursuant to the rule of lenity. The court noted that the rule could apply, even though the present case was a civil suit, because the Wiretap Act also carried criminal penalties. The court observed that the rule of lenity “only applie[d] if, after considering text structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute,” and here “the ambiguity can be fairly resolved.”

However, the court observed that, even if “payload data transmitted over an unencrypted wireless network is not ‘readily accessible to the general public’ by definition solely because it is an unencrypted ‘radio communication,’” it was still possible for an undefined “electronic communication” to be considered “readily accessible to the general public” under Section 2511(2)(g)(i) based on “the ordinary meaning of that phrase.”

Nonetheless, the court concluded that payload data transmitted over an unencrypted Wi-Fi network is not “readily accessible to the general public,” and thus Google could not take advantage of Section 2511(2)(g)(i)’s exemption. The court noted that Wi-Fi transmissions, unlike traditional radio broadcasts, were “geographically limited,” with their peak output generally limited to 1 watt, and their range usually limited to less than 330 feet. Moreover, Wi-Fi transmissions and their contents could only be accessed with the aid of “sophisticated hardware and software,” and the payload data required “expertise to intercept and decode” that the general public lacked.

The case is No. 11-17483.

Attorneys: Michael H. Rubin (Wilson Sonsini Goodrich & Rosati PC) for Google, Inc. Elizabeth J. Cabraser (Lieffm Cabraser, Heimann & Bernstein, LLP) for Benjamin Joffe.

Companies: Google, Inc.

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