Antitrust Law Daily Wrap Up, PRIVACY NEWS: Google asks Supreme Court to review Street View WI-FI info gathering case, (Apr 3, 2014)

By Lynn Stanton,TR Daily

The U.S. Court of Appeals in San Francisco erred in finding that the Wiretap Act’s exemption for acquiring “radio communications” that are not scrambled or encrypted did not apply to unencrypted Wi-Fi transmissions gathered by Google, Inc., because they were “nonauditory,” Google, Inc. has told the Supreme Court. Google filed its petition for certiorari with the Court on March 27 (Google, Inc. v. Joffe, Dkt. 13-1181).

In an effort to enhance its “location aware” products, Google had gathered the Wi-Fi packets at the same time that it was collecting images for its Street View product.

The Ninth Circuit last year upheld a trial court’s decision to deny Google’s request to dismiss a lawsuit against it alleging federal Wiretap Act violations, but the appeals court “created its own unprecedented and untenably narrow definition of ‘radio communication,’” Google said in its petition for Supreme Court review of the Ninth Circuit’s decision in Benjamin Joffe, et al., v. Google, Inc.

The Ninth Circuit “rejected the conclusion that ‘radio communication’ under the Wiretap Act, as in other related statutes, refers simply to any information transmitted using radio waves,” determining instead that “the ‘ordinary meaning’ of the term ‘radio communication’ is ‘a predominantly auditory broadcast,’” Google said.

“In so holding, the court gave the phrases ‘radio communication’ and ‘communication by radio’—both of which are used in the Wiretap Act—fundamentally different constructions. The court concluded that Congress intended to use the latter phrase ‘more expansively’ to include ‘all communications using radio waves or a radio device.’ … In reaching this conclusion, the court declined to apply the established definition in the Communications Act, which expressly defines ‘radio communication’ and ‘communication by radio’ to mean the same thing: ‘the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds,” Google said.

Google also warned that the Ninth Circuit’s decision “is not merely wrong. It is technologically unsound and creates serious practical problems in applying the Wiretap Act. Certiorari is warranted to restore coherence to this significant federal statute.” Google pointed out that many “voice” calls today are transmitted as data packets.

The Ninth Circuit’s interpretation would exclude television broadcast signals from the exemption, while possibly making it legal to intercept cellphone voice, Google said, adding that neither result was what Congress intended.

“Review is also warranted because the Ninth Circuit’s decision potentially renders unlawful—and subjects to possible criminal liability—security procedures that are standard in the information technology (IT) industry. IT professionals routinely use the same kind of technology as Google’s Street View cars did to collect packet data in order to secure company networks. And unlike Google, which never used the payload data it collected, security professionals also parse and analyze the data collected from wired and wireless networks, including networks operated by other persons or entities, to identify vulnerabilities in and potential attacks on the networks they protect,” Google said.

Attorneys: Seth P. Waxman (Wilmer Cutler Pickering Hale and Dorr LLP) for Google, Inc.

Companies: Google, Inc.

News: Privacy