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Joffe v. Google, Inc.

United States Court of Appeals, Ninth Circuit

September 10, 2013

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.

Argued and Submitted June 10, 2013-San Francisco, California.

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

COUNSEL

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

Elizabeth J. Cabraser (argued) and Jahan C. Sagafi, Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, California; Kathryn E. Barnett, Lieff, Cabraser, Heimann & Bernstein, LLP, Nashville, Tennessee; Jeffrey L. Kodroff, John A. Macoretta, and Mary Ann Giorno, Spector Roseman Kodroff & Willis, P.C., Philadelphia, Pennsylvania; 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.

Before: A. Wallace Tashima and Jay S. Bybee, Circuit Judges, and William H. Stafford, Senior District Judge.[*]

SUMMARY[**]

Wiretap Act

The panel affirmed the district court's order denying a motion to dismiss claims that Google, Inc., violated the Wiretap Act when, in the course of capturing its Street View photographs, it collected data from unencrypted Wi-Fi networks.

The panel 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 data transmitted over a Wi-Fi network is not an "electronic communication" that is "readily accessible to the general public." Under 18 U.S.C. § 2510(16)(A), a "radio communication" is by definition "readily accessible to the general public" so long as it is not scrambled or encrypted. The panel held that the Wi-Fi network data collected by Google was not a radio communication, and thus was not by definition readily accessible to the general public. The panel also held that data transmitted over a Wi-Fi network is not readily accessible to the general public under the ordinary meaning of the phrase as it is used in § 2511(2)(g)(i). Accordingly, the district court did not err in denying the motion to dismiss on the basis of the Wiretap Act exemption for electronic communication that is readily accessible to the general public.

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 Wi-Fi 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.[2] In 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. ยง 2511(2)(g)(i). The question was whether payload data transmitted on an unencrypted Wi-Fi network is ...


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