Case Against Google Street View for Wiretap May Proceed

by Balough Law Offices, LLC
Contact

In a win for privacy rights and a setback for Google, the Ninth Circuit agreed that unencrypted Wi-Fi is protected from outside snooping under the federal Wiretap Act.

When Google sent vehicles out to take pictures for its Street View search feature, the vehicles not only captured the street images but also captured data from unencrypted Wi-Fi networks in nearby homes and businesses. This information included network names, SSID, MAC addresses, and payload data, such as personal emails, passwords, videos, and documents. Google later apologized for the data collection.

Several individuals sued Google and are seeking class certification. Google sought to dismiss the Wiretap Act claim arguing that Wi-Fi for a computer network is not subject to the Wiretap Act because the Wi-Fi transmission falls under an exception allowing access to radio or electronic communications that are readily accessible to the general public. The trial court denied Google’s motion to dismiss but agreed to certify the question to the appellate court.

The appellate court disagreed with Google’s argument that the Wi-Fi data it captured was except from the Act as an electronic communication readily accessible to the general public. The court found that “payload transmitted over an unencrypted Wi-Fi network is not ‘readily accessible to the general public’ under the ordinary meaning of the phrase.”

The court reasoned that Wi-Fi transmissions are not readily available because “they are geographically limited and fail to travel far beyond the walls of the home or office where the access point is located. Google was able to intercept the plaintiffs’ communications because its Street View vehicles passed by on the street outside of each plaintiff’s house. In addition, the data is accessible only “with some difficulty. Unlike traditional radio broadcasts, a Wi-Fi access point cannot associate or communicate with a wireless device until it has been authenticated.” To capture the information requires expertise to intercept and decode the payload data transmitted, a skill “the general public lacks.”

Google additionally argued that the Wi-Fi transmissions met the definition of being a “radio communication” open to the general public because the term “radio communication” encompasses all radio wave technologies, including Wi-Fi. Again the appellate court disagreed, finding “Google’s proposed definition is in tension with how congress—and virtually everyone else—uses the phrase. In common parlance, watching a television show does not entail ‘radio communication.’ Nor does sending an email or viewing a bank statement while connected to a Wi-Fi network.”

If Google’s definition that unencrypted Wi-Fi is readily accessible to the general public, then the law would condone intrusive and unwarranted invasions of privacy.

“Consider an email attachment containing sensitive personal information sent from a secure Wi-Fi network to a doctor, lawyer, accountant, priest, or spouse. A company like Google that intercepts the contents from the encrypted home network has, quite understandably, violated the Wiretap Act. But the sender of the email is in no position to ensure that the recipient—be it a doctor, lawyer, accountant, priest, or spouse—has taken care to encrypt her own Wi-Fi network. Google, or anyone else, could park outside of the recipient’s home or office with a packet sniffer while she downloaded the attachment and intercept its contents because the sender’s ‘radio communication’ is ‘readily accessible to the general public’ solely by virtue of the fact that the recipient’s Wi-Fi network is not encrypted. Surely, Congress did not intend to condone such an intrusive and unwarranted invasion of privacy when it enacted the Wiretap Act ‘to protect against the unauthorized interception of electronic communications,’” the appellate court wrote.

Joffe v. Google, Inc., Ninth Cir. No. 11-17483, issued September 10, 2013.

LOADING PDF: If there are any problems, click here to download the file.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Balough Law Offices, LLC | Attorney Advertising

Written by:

Balough Law Offices, LLC
Contact
more
less

Balough Law Offices, LLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.