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Media Alerts - Joffe v. Google, Inc. - Ninth Circuit
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November 6, 2013
  Joffe v. Google, Inc. - Ninth Circuit
Headline: Ninth Circuit Affirms Dismissal of Motion to Dismiss Claims that Google Inc. Violated the Wiretap Act

Areas of Law: Criminal Law; Privacy

Issues Presented: Whether payload data transmitted on an unencrypted Wi-Fi network is a "radio communication" which is exempt as an "electronic communication" that is "readily accessible to the general public" under the federal Wiretap Act 18 U.S.C. § 2511(2)(g)(i).

Brief Summary: In this class action, plaintiff Joffe filed a consolidated complaint asserting claims against Google Inc. alleging that Google Inc. violated the federal Wiretap Act 18 U.S.C. §2511 by collecting "payload data" transmitted by unencrypted Wi-Fi Networks through Google's equipment in their Street View vehicles.

The Ninth Circuit affirmed the judgment of the District Court, denying a motion to dismiss claims that Google violated the Wiretap Act when it collected data from unencrypted Wi-Fi Networks while capturing its Street View photographs. The Ninth Circuit 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 the data collected was not a "radio communication" and such data was not an "electronic communication" that was "readily accessible to the general public."

Extended Summary: Plaintiff Joffe represents a class comprised of persons whose electronic communications were intercepted by Google Inc.'s Street View vehicles since May 25, 2007. Google Inc. launched a Street View feature in 2007 to provide users with panoramic, street-level photographs by capturing photographs through a camera mounted on Google vehicles. Google Inc. also equipped its vehicles with Wi-Fi antennas that collected data transmitted by Wi-Fi networks in nearby homes and businesses. The information collected included the network's name, router number, signal strength and whether the network was encrypted. This information was to be used to enhance Google Inc.'s "location based" services, such as those that allow mobile phone users to locate nearby restaurants or receive directions.

However, the antennas also collected "payload data" sent and received over unencrypted Wi-Fi networks at the moment the Street View vehicles drove by homes or businesses. Payload data includes personal emails, usernames, passwords, videos and documents. Plaintiffs sued Google Inc. under the federal Wiretap Act, 18 U.S.C. §2511, California Business and Professional Code §17200 and various state wiretap statutes. Google Inc. moved to dismiss, contending that the data collected fell under a statutory exemption that makes it lawful to intercept "electronic communications" that are "readily accessible to the general public" under 18 U.S.C. §2511(2)(g)(i).

The District Court denied Google Inc.'s motion to dismiss, holding that data transmitted over an unencrypted Wi-Fi network was not an "electronic communication" that was "readily accessible to the general public" and therefore Google Inc.'s conduct was not exempt under 18 U.S.C. §2511(2)(g)(i).

First, the Ninth Circuit noted that under the Wiretap Act § 18 U.S.C. §2511(2)(g)(i), any radio communication that is not scrambled or encrypted is considered "accessible to the general public" and is exempt from liability under the Wiretap Act. Here, however, the Ninth Circuit held that data transmitted over an unencrypted Wi-Fi network was not a "radio communication" as the ordinary meaning of a "radio communication" is a "predominantly auditory broadcast."

Furthermore, the Ninth Circuit held that the transmitted payload data was not "readily accessible to the general public" because Wi-Fi transmissions are geographically limited and fail to travel beyond where the access point is located. Wi-Fi networks are difficult to access without authentication and most of the general public lacks expertise to intercept and decode payload data transmitted over an unencrypted Wi-Fi network. As such, the judgment of the District Court was affirmed.

Panel: Judges Tashima, Bybee, and Stafford

Date of Issued Opinion: 9/10/13

Docket Number: 11-17483

Decided: Affirmed

Case Alert Author: Kimberly Whang

Counsel: Michael H. Rubin (argued), David H. Kramer, Brian M. Willen, and Caroline E. Wilson, Wilson Sonsini Goodrich & Rosati Professional Corporation for Defendant-Appellant. Elizabeth J. Cabraser (argued) and Jahan C. Sagafi, Lieff, Cabraser, Heimann & Bernstein, LLP; Kathryn E. Barnett, Lieff, Cabraser, Heimann &Bernstein, LLP; Jeffrey L. Kodroff, John A. Macoretta, and Mary Ann Giorno, Spector Roseman Kodroff & Willis, P.C.; Daniel A. Small and David A. Young, Cohen Milstein Sellers &Toll, PLLC for Plaintiffs-Appellees. Marc Rotenberg, Alan Butler, and David Jacobs, Electronic Privacy Information Center, for Amicus Curiae Electronic Privacy Information Center.

Author of Opinion: Judge Bybee

Case Alert Circuit Supervisor: Ryan T. Williams

    Posted By: Ryan Williams @ 11/06/2013 06:13 PM     9th Circuit  

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