Time, and the Ninth Circuit, wait for no man. You may recall that I was halfway through my four-part series on the arguments in Joffe v. Google, the “Wi-Spy” case in which Google’s Street View cars intercepted and stored data captured from residential wireless networks. Google argued that that activity did not violate the Wiretap Act, because the Wiretap Act does not apply at all to Wi-Fi. There’s an exception in the Wiretap Act for “electronic communications readily accessible to the general public,” and the Act defines “readily accessible” for “radio communications” to mean that the communications must be encrypted or otherwise protected. Wi-Fi is broadcast over radio, and the plaintiffs did not set up encryption. Here’s Part I and Part II if you want to read more.
Earlier today, the Ninth Circuit issued its decision: the district court’s denial of Google’s motion to dismiss is affirmed; the exception does not apply. The Ninth Circuit essentially signed on to the district court’s “radio means radio” approach:
The radio frequency portion of the electromagnetic spectrum covers not only Wi-Fi transmissions, but also television broadcasts, Bluetooth devices, cordless and cellular phones, garage door openers, avalanche beacons, and wildlife tracking collars. . . . Google’s proposed definition [that “radio communication” means any communication by radio wave] 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.
Instead, here is how the Ninth Circuit defines “radio communication”: “A radio communication is commonly understood to be (1) predominantly auditory, and (2) broadcast.” But as I mentioned towards the end of Part II, this common-sense-meaning-of-radio interpretation doesn’t fit with the exceptions to “readily accessible” that Congress carved out. More than half of them obviously included data — encryption, proprietary modulation, subcarriers, and private fixed-operational microwave. One of the others, the common carrier exception, has nothing to do with broadcasting, and the exception for satellite transmissions had nothing to do with audio, at least not in 1986. None of these things would have needed an exception from the definition of readily accessible radio communications if they weren’t radio communications in the first place.
I’ll have more on this when I resume my series. For now, for Google, it’s back to the district court, unless they want to try for en banc review.
[Cross-posted at the Marquette University Law Faculty Blog.]