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Court Stays Litigation in Google Street View Case; Certifies for Interlocutory Appeal Its Prior Order Ruling That Interception of Open WiFi Data Violates the Wiretap Act

Wednesday, July 20, 2011

In re Google Inc. Street View Electronic Communications Litig., No. 10-CV-02184 (N.D. Cal. June 29, 2011) In a June 29, 2011 decision addressing an issue of first impression, the U.S. District Court for the Northern District of California considered "whether the [federal] Wiretap Act imposes liability upon a defendant who allegedly intentionally intercepts data packets from a wireless home network." In re Google at 7-8. The court concluded that the Act imposes such liability, and granted in part Google, Inc.'s motion to dismiss the claims brought in a class action associated with Google's Street View service. However, in a July 18, 2011 Order, the court found that in light of the novelty of the issues, different judges could reasonably differ as to the definition of "radio communications." The court thus certified the order for immediate interlocutory appeal to determine if its interpretation was correct.

Google's Street View Service

Google launched its Street View service in May 2007. The service allows Google Maps users to see panoramic views of various positions along a street. This is accomplished by Google's use of photos taken by a fleet of specially adapted vehicles referred to as "Google Street View Vehicles" or smaller vehicles called "Google Trikes." In re Google at 2. In addition to taking photos, the vehicles were also equipped with Wi-Fi antennas and custom software to capture and store wireless signals and data in the area. The data included, but was not limited to, payload data such as usernames, passwords, and personal emails. The class of litigants is comprised of individuals in different states who utilized Wi-Fi networks in their homes that allegedly were not readily accessible to the general public. The plaintiffs used their Wi-Fi networks to send and receive payload data, and allege that Google intentionally intercepted those activities without authorization. As such, the class brought claims for violation of the Federal Wiretap Act and various state wiretap acts, and alleged that Google's actions were unlawful and unfair in violation of Cal. Bus. & Prof. Code § 17200. Google eventually admitted that it had intercepted and collected the payload data, but moved to dismiss the claims, arguing that the plaintiffs' Wi-Fi networks were readily accessible to the general public, exempting Google from liability under the Federal Wiretap Act, 18 U.S.C. § 2511(2)(g)(i). Google further contended that the state wiretap acts were preempted by the federal act, and that the plaintiffs failed to adequately allege their Section 17200 claim. In response, the plaintiffs argued that the definition of "readily accessible" relied on by Google only applied to "radio communications" and not "electronic communications," and that the liability exemption only applies to the unlawful interception of and access to the communications, not additional uses of the captured data.

Violation of the Federal Wiretap Act

Google argued that the Wi-Fi networks were "readily accessible to the general public," as defined in 18 U.S.C. § 2510(16) of the Wiretap Act, and therefore that its activities fell within the Act's exemptions. However, the plaintiffs countered that the definition of "readily accessible to the general public" only applies to radio communications, and thus is not an exemption for intentional interception of electronic communications. In the alternative, the plaintiffs argued that their networks were not readily accessible to the general public. As this was a matter of first impression, the court evaluated the plain text meaning of the term "radio communications," as well as the statutory text, dictionary references, the impact of compounding the two terms, and the legislative history. Ultimately, the court concluded that the definition may apply to certain electronic communications, but not Wi-Fi networks. The court found that Wi-Fi networks are not designed to be readily accessible to the general public. "Rather, as alleged, Wi-Fi technology shares a common design with cellular phone technology, in that they both use radio waves to transmit communications, however they are both designed to send communications privately, as in solely to select recipients, and both types of technology are architected in order to make intentional monitoring by third parties difficult." In re Google at 19. The court explained that Google's reliance on the case of United States v. Ahrndt, No. 08-CR-00468, 2010 BL 146126 (D. Or. Jan. 28, 2010), for the proposition that all unencrypted wireless networks are readily accessible to the general public was misguided, as it required too broad of an interpretation of the doctrine. In Ahrndt, the defendant's conduct of setting his files to a "share" setting, in conjunction with the use of an unsecured wireless router, evidenced that the defendant did not have a reasonable expectation of privacy in his online activities and computer files. However, in the instant case, the plaintiffs configured their networks to prevent access by the general public. The court explained that the fact that a network is unencrypted, without more, does not render the network readily accessible to the public, and therefore does not allow the defendant to avoid liability. As such, the court denied Google's motion to dismiss the plaintiffs' federal Wiretap Act claims.

July 18, 2011 Order Certifying Order for Immediate Interlocutory Appeal

Google immediately moved to stay the case pending appeal on the ground that the June 29 Order's interpretation of "radio communication" in the Wiretap Act "presents a novel question of controlling law, the immediate appeal of which would materially advance the termination of the case." On July 18, 2011, the court issued an Order Granting Defendants' Motion for Certification; Certifying Order for Immediate Appeal; Staying Case ("Order") in response to Google's appeal. The court observed that under 28 U.S.C. § 1292(b), a district judge may certify an order for immediate interlocutory appeal if the judge believes that: "(1) the order involves 'a controlling question of law'; (2) there 'is substantial ground for difference of opinion' as to the resolution of that question; and (3) 'an immediate appeal from the order may materially advance the ultimate termination of the litigation[].'" Order at 1-2. The court noted that "in light of the novelty of the issues presented . . . , the June 29 order involves a controlling question of law as to which there is a credible basis for a difference of opinion." Order at 2. The case will next go to the U.S. Court of Appeals for the Ninth Circuit to determine if the district court's interpretation was correct before the litigation can proceed. Disclaimer This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy. ©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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