Google to Get Interlocutory Review of ‘Radio Communications’ Ruling in Street View Case

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Whether unencrypted WiFi data is a “radio communication” under the Wiretap Act is a novel question of controlling law, and therefore Google is entitled to an immediate review of the court’s determination that Google’s collection of WiFi data was not protected under the act, the U.S. District Court for the Northern District of California ruled July 18 (In re Google Inc. Street View Electronic Communications Litigation, N.D. Cal., No. 10-02184, 7/18/11).

Judge James Ware certified the issue to the Ninth Circuit Court of Appeals after he determined that resolution of whether WiFi data was a “radio communication” would “materially advance the litigation.”

Ware had ruled June 29 that WiFi data was not a “radio communication” and therefore the Wiretap Act’s exemption of liability for the interception of “readily accessible” radio communications did not extend to Google’s alleged collection of “payload data” from unencrypted wireless networks. Google Inc. filed a motion July 8 asking the court to certify the issue 28 U.S.C. § 1292(b).

Scope of Radio Carve-Out.

At 18 U.S.C. §2511(1)(a) the Wiretap Act makes it unlawful for a person to “intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.” However, the Act then carves out exceptions for the interception of “radio communications” that are “readily accessible to the general public,” 18 U.S.C. §2511(2)(g)(i).

In this consolidated class action complaint, the plaintiffs alleged that Google violated the Wiretap Act when, as part of its Street View protect, the company equipped its vehicles with WiFi sniffing devices that were able to collect “payload data” from unencrypted wireless networks. The information collected allegedly included e-mail passwords, credit card information, and other private information.

Google argued that WiFi networks met the Wiretap Act’s definition of a “radio communication.” Google then argued that because the networks were unencrypted, the information was “readily accessible,” and thus the interception thereof did not run afoul of the Wiretap Act.

In its June 29 order the court recognized that the case was one of first impression, and that the “radio communication” determination represented “a novel issue of statutory interpretation.” The court then determined that Congress intended that “radio communications” be narrowly construed so as not to provide broad immunity for the collection of any data that is transmitted over radio waves. Accordingly, the court refused to dismiss the claims against Google.

Interlocutory Review Standard.

Under 28 U.S.C. §1292(b), a court may certify an order for immediate review if the court is:

of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation ….

In its motion for interlocutory review, Google argued that “A ruling in Google's favor from the Ninth Circuit concerning the definition of ‘radio communication’ would go a long way to resolving (and defining the scope of) this matter even if it does not end the case entirely.” The court agreed.

The court ruled that the order concerned a controlling question of law on which there was “a credible basis for a difference of opinion.” Furthermore, the court recognized that the litigation would be materially advanced by interlocutory review. Accordingly, the court granted Google’s motion and stayed the case pending the resolution of the issue on appeal.

The plaintiffs were represented by Kathryn Elaine Barnett, Kenneth S. Byrd, and Elizabeth Joan Cabraser, Lieff, Cabraser, Heimann and Bernstein LLP, Nashville, Tenn. Google Inc. was represented by Bobbie Jean Wilson, Perkins Coie LLP, San Francisco; and Caroline Elizabeth Wilson, Wilson Sonsini Goodrich & Rosati, Palo Alto, Calif.

By Tamlin H. Bason

The full text of the decision is at http://pub.bna.com/eclr/10cv2184_071911.pdf .