I noted back in October that Google had hired “noted Supreme Court advocate Seth Waxman” as it was preparing its petition for rehearing in the Street View case, “indicating perhaps how far they intend to take this.” (For background, see my earlier posts Part I, Part II, after the panel decision, and on the petition for rehearing.) My suspicions were accurate — after losing again at the rehearing stage in late December, Google has now filed a petition for certiorari, asking the Supreme Court to reverse the Ninth Circuit.
Google’s petition primarily makes the same substantive arguments it made in its petition for rehearing. The Ninth Circuit in the decision below adopted what I’ve called the “radio means radio” approach — “radio communications” in the Wiretap Act means only communications that you can receive with, you know, an ordinary AM/FM radio. I’ve argued that that is mistaken, and Google unsurprisingly agrees with me. Google provides three reasons why the Ninth Circuit’s interpretation cannot be sustained. First, the Communications Act, and before it the Radio Act of 1927, has long used “radio communication” to refer to both data and speech transmitted by radio waves, for the reasons I detailed in my post on the role of the Titanic in the origins of the Wiretap Act — the first non-interception rules were intended to protect wireless telegraphy, not voice communications. That’s not conclusive evidence that “radio communication” in the Wiretap Act is similarly broad, but as Google notes, the Wiretap Act and the Communications Act of 1934 have an intertwined history.
Second, expanding on its rehearing argument with points I made here, Google argues that the Ninth Circuit’s reading is inconsistent with the text of the Wiretap Act. If “radio communications” only meant auditory broadcasts to AM/FM radios, more than half of the statutory exceptions to the phrase “radio communications readily accessible to the general public” would make no sense. Worse, it creates questions about the legality of watching television and the illegality of intercepting cell phone conversations. (I don’t think I buy this latter argument, but I’ll explain that at some future date.)
Third, as it did in the Ninth Circuit, Google argues that holding unencrypted Wi-Fi to be protected by the Wiretap Act “potentially renders unlawful — and subjects to possible criminal liability — security procedures that are standard in the information technology (IT) industry.” Again, I don’t think that’s accurate, for reasons I will explain later. I believe the situations in which someone intentionally intercepts Wi-Fi payload data without permission as part of legitimate security testing are going to be vanishingly small, if not nonexistent.
If I’m right that the last argument and the slippery slope of the second argument are not real concerns, then the most significant problem with the Ninth Circuit’s opinion is that it got the statute wrong. Is that enough for the Supreme Court to accept review? The Court is not supposed to be in the business of mere error correction. Here’s what Google says: “Various courts in recent years have confronted the application of the Wiretap Act to unencrypted Wi-Fi transmissions, and none has adopted the Ninth Circuit’s erroneous interpretation,” citing In re Innovatio IP Ventures, LLC Patent Litig., 886 F. Supp. 2d 888, 894 (N.D. Ill. 2012), a patent case, and the unpublished and now reversed United States v. Ahrndt, 2010 WL 373994 (D. Or. Jan. 28, 2010). There’s no circuit split and no evidence of a floodgate of litigation. Google also points to the significant statutory damages it might suffer based on the Ninth Circuit’s decision, but again, it’s not clear that Google’s liability alone is enough to move the Court to take the case. I would assign Google’s petition a low probability of success, but I’m on record saying the same thing about the Aereo case, so what do I know.
[Cross-posted at the Marquette University Law Faculty Blog.]