Joffe v. Google, Inc.

• Decision Date: 27 December 2013
• Docket Number: No. 11–17483.,11–17483.
• Citation: 746 F.3d 920
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Benjamin JOFFE; Lilla Marigza; Rick Benitti; Bertha Davis; Jason Taylor; Eric Myhre; John E. Redstone; Matthew Berlage; Patrick Keyes; Karl H. Schulz; James Fairbanks; Aaron Linsky; Dean M. Bastilla; Vicki Van Valin; Jeffrey Colman; Russell Carter; Stephanie Carter; Jennifer Locsin, Plaintiffs–Appellees, v. GOOGLE, INC., Defendant–Appellant.

746 F.3d 920

Benjamin JOFFE; Lilla Marigza; Rick Benitti; Bertha Davis; Jason Taylor; Eric Myhre; John E. Redstone; Matthew Berlage; Patrick Keyes; Karl H. Schulz; James Fairbanks; Aaron Linsky; Dean M. Bastilla; Vicki Van Valin; Jeffrey Colman; Russell Carter; Stephanie Carter; Jennifer Locsin, Plaintiffs–Appellees,

v.GOOGLE, INC., Defendant–Appellant.

No. 11–17483.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted June 10, 2013.

Filed Sept. 10, 2013.

Amended Dec. 27, 2013.

Michael H. Rubin (argued), David H. Kramer, Brian M. Willen, and Caroline E. Wilson, Wilson Sonsini Goodrich & Rosati Professional Corporation, Palo Alto, CA, for Defendant–Appellant.

Elizabeth J. Cabraser (argued) and Jahan C. Sagafi, Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA; Kathryn E. Barnett, Lieff, Cabraser, Heimann & Bernstein, LLP, Nashville, TN; Jeffrey L. Kodroff, John A. Macoretta, and Mary Ann Giorno, Spector Roseman Kodroff & Willis, P.C., Philadelphia, PA; Daniel A. Small and David A. Young, Cohen Milstein Sellers & Toll, PLLC, Washington, D.C., for Plaintiffs–Appellees.

Marc Rotenberg, Alan Butler, and David Jacobs, Electronic Privacy Information Center, Washington, D.C., for Amicus Curiae Electronic Privacy Information Center.

Ashok Ramani and Michael S. Kwun, Keker & Van Nest LLP, San Francisco, CA, for Amicus Curiae Information Technology & Innovation Foundation.

Appeal from the United States District Court for the Northern District of California, James Ware, District Judge, Presiding. D.C. No. 5:10–md–02184–JW.

Before: A. WALLACE TASHIMA and JAY S. BYBEE, Circuit Judges, and WILLIAM H. STAFFORD, Senior District Judge.^*

ORDER

Appellant's motion for leave to file a reply brief in support of its petition for rehearing and rehearing en banc, filed on November 6, 2013, is GRANTED.

Appellant's petition for rehearing, filed on September 24, 2013, is GRANTED IN PART. The court's opinion, filed on September 10, 2013, and appearing at 729 F.3d 1262 (9th Cir.2013), is hereby AMENDED. An amended opinion is filed concurrently with this order.

Judge Bybee votes to deny Appellant's petition for rehearing en banc, filed on September 24, 2013, and Judge Tashima and Judge Stafford so recommend. The full court has been advised of Appellant's petition for rehearing en banc, and no request to vote on whether to rehear the case en banc has been made. Appellant's petition for rehearing en banc is DENIED.

No subsequent petitions for rehearing or rehearing en banc shall be filed by either party.

OPINION

BYBEE, Circuit Judge:

In the course of capturing its Street View photographs, Google collected data from unencrypted Wi–Fi networks. Google publicly apologized, but plaintiffs brought suit under federal and state law, including the Wiretap Act, 18 U.S.C. § 2511. Google argues that its data collection did not violate the Act because data transmitted over a Wi–Fi network is an “electronic communication” that is “readily accessible to the general public” and exempt under the Act. 18 U.S.C. § 2511(2)(g)(i). The district court rejected Google's argument. In re Google Inc. St. View Elec. Commc'n Litig., 794 F.Supp.2d 1067, 1073–84 (N.D.Cal.2011). We affirm.

I. BACKGROUND

A. Facts and History

Google launched its Street View feature in the United States in 2007 to complement its Google Maps service by providing users with panoramic, street-level photographs. Street View photographs are captured by cameras mounted on vehicles owned by Google that drive on public roads and photograph their surroundings. Between 2007 and 2010, Google also equipped its Street View cars with Wi–Fi antennas and software that collected data transmitted by WiFi networks in nearby homes and businesses. The equipment attached to Google's Street View cars recorded basic information about these Wi–Fi networks, including the network's name (SSID), the unique number assigned to the router transmitting the wireless signal (MAC address), the signal strength, and whether the network was encrypted. Gathering this basic data about the Wi–Fi networks used in homes and businesses enables companies such as Google to provide enhanced “location-based” services, such as those that allow mobile phone users to find nearby restaurants and attractions or receive driving directions.

But the antennas and software installed in Google's Street View cars collected more than just the basic identifying information transmitted by Wi–Fi networks. They also gathered and stored “payload data” that was sent and received over unencrypted Wi–Fi connections at the moment that a Street View car was driving by.¹ Payload data includes everything transmitted by a device connected to a Wi–Fi network, such as personal emails, usernames, passwords, videos, and documents.

Google acknowledged in May 2010 that its Street View vehicles had been collecting fragments of payload data from unencrypted Wi–Fi networks. The company publicly apologized, grounded its vehicles, and rendered inaccessible the personal data that had been acquired. In total, Google's Street View cars collected about 600 gigabytes of data transmitted over Wi–Fi networks in more than 30 countries.

Several putative class-action lawsuits were filed shortly after Google's announcement, and, in August 2010, the cases were transferred by the Judicial Panel on Multidistrict Litigation to the Northern District of California. In November, 2010, Plaintiffs–Appellees (collectively “Joffe”) filed a consolidated complaint, asserting claims against Google under the federal Wiretap Act, 18 U.S.C. § 2511; California Business and Professional Code § 17200; and various state wiretap statutes. Joffe seeks to represent a class comprised of all persons whose electronic communications were intercepted by Google Street View vehicles since May 25, 2007.

Google moved to dismiss Joffe's consolidated complaint. The district court declined to grant Google's motion to dismiss Joffe's federal Wiretap Act claims.²In re Google Inc. St. View Elec. Commc'n Litig., 794 F.Supp.2d at 1084. On Google's request,the court certified its ruling for interlocutory appeal under 28 U.S.C. § 1292(b) because the district court resolved a novel question of statutory interpretation. We granted Google's petition, and we have jurisdiction under 28 U.S.C. § 1292(b).

B. District Court's Decision

Google maintained before the district court that it should have dismissed Joffe's Wiretap Act claims because data transmitted over unencrypted Wi–Fi networks falls under the statutory exemption that makes it lawful to intercept “electronic communications” that are “readily accessible to the general public.” 18 U.S.C. § 2511(2)(g)(i). The question was whether payload data transmitted on an unencrypted WiFi network is “readily accessible to the general public,” such that the § 2511(2)(g)(i) exemption applies to Google's conduct.

To answer this question, the district court first looked to the definitions supplied by the Act. In re Google Inc. St. View Elec. Commc'n Litig., 794 F.Supp.2d at 1075–76. The statute provides in relevant part that “ ‘readily accessible to the general public’ means, with respect to a radio communication, that such communication is not ... (A) scrambled or encrypted.” 18 U.S.C. § 2510(16). An unencrypted radio communication is, therefore, “readily accessible to the general public.” In short, intercepting an unencrypted radio communication does not give rise to liability under the Wiretap Act because of the combination of the § 2511(2)(g)(i) exemption and the § 2510(16) definition.

The district court then considered whether data transmitted over a Wi–Fi network is a “radio communication” because the phrase is not defined by the Act. In re Google Inc. St. View Elec. Commc'n Litig., 794 F.Supp.2d at 1076–81. The court reasoned that “radio communication” encompasses only “traditional radio services,” and not other technologies that also transmit data using radio waves, such as cellular phones and Wi–Fi networks.³Id. at 1079–83. Since Wi–Fi networks are not a “radio communication,” the definition of “readily accessible to the general public” provided by § 2510(16) does not apply because the definition is expressly limited to electronic communications that are radio communications.

Finally, the court addressed whether data transmitted over unencrypted Wi–Fi networks is nevertheless an “electronic communication” that is “readily accessible to the general public” under § 2511(2)(g)(i). Id. at 1082–84. Although the court determined that Wi–Fi networks do not involve a “radio communication” under § 2510(16) and are therefore not “readily accessible to the general public” by virtue of the definition of the phrase, it still had to resolve whether they are “readily accessible to the general public” as the phrase is ordinarily understood because the statute does not define the phrase as it applies to an “electronic communication” that is not a “radio communication.” The court reasoned that “without more, merely pleading that a network is unencrypted does not render that network readily accessible to the general public and serve to remove the intentional interception of electronic communications from that network from liability under the [Electronic Communications Privacy Act].” Id. at 1084. The court accordingly declined to grant Google's motion to dismiss Joffe's Wiretap Act claims. Id.

II. OVERVIEW OF THE WIRETAP ACT

The Wiretap Act imposes liability on a person who “intentionally intercepts ... any wire, oral, or electronic communication,” 18 U.S.C. § 2511(1)(a), subject to a number of exemptions. See18 U.S.C. § 2511(2)(a)-(h). There are two exemptions that are relevant to our purposes. First, the Wiretap Act exempts intercepting “an electronic communication made through an electronic communication system” if the system is configured so that it is “readily accessible to the general public.” 18 U.S.C. § 2511(2)(g)(i). “Electronic communication” includes...