Benjamin Joffe v. Google Inc.
729 F.3d 1262
9th Cir.2013Background
- Google captured data from unencrypted Wi‑Fi networks while driving Street View cars; basic network data like SSID/MAC/range was collected, plus payload data from unencrypted connections.
- Payload data included emails, usernames, passwords, images, and documents; Google disclosed this in May 2010 and apologized, stopping further collection.
- Plaintiffs asserted federal Wiretap Act claims and state law claims alleging interception of electronic communications since May 25, 2007; class action sought to represent all affected users.
- District court rejected Google’s § 2511(2)(g)(i) exemptions argument, prompting interlocutory appeal; the Ninth Circuit granted jurisdiction under 28 U.S.C. § 1292(b).
- Legal question centered on whether payload data over unencrypted Wi‑Fi falls within the Wiretap Act’s exemptions for communications readily accessible to the general public.
- The court ultimately held that Wi‑Fi payload data is not a “radio communication” and not readily accessible to the general public, so § 2511(2)(g)(i) does not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wi‑Fi payload data qualifies as a radio communication | Joffe contends payload data is a radio communication under 2510(16). | Google contends payload data is a radio communication not scrambled or encrypted and thus exempt under 2511(2)(g)(i). | Payload data is not a radio communication under 2510(16). |
| Whether Wi‑Fi payload data is an electronic communication readily accessible to the general public under 2511(2)(g)(i) | Even if not radio, payload data could still be readily accessible under ordinary meaning. | If not a radio communication, the § 2510(16) definition does not govern, but payload data may still be readily accessible. | Payload data is not readily accessible to the general public under the ordinary meaning. |
| How to interpret the term 'readily accessible to the general public' in § 2510(16) as applied to electronic communications | Definition in 2510(16) applies to all electronic communications; Wi‑Fi should be covered by the broader exemption. | 2510(16) defines the term only with respect to radio communications, not general electronic communications. | 2510(16) applies only to radio communications; Wi‑Fi payloads fall outside, so exemption not triggered. |
| Whether the ordinary meaning of 'radio communication' should be extended to include non‑auditory, Wi‑Fi payload data | A broad interpretation would align with technology; data over Wi‑Fi could be radio communication. | Radio communication should be predominantly auditory and traditional radio; Wi‑Fi data are not. | Radio communication is narrowly defined as predominantly auditory broadcasts; Wi‑Fi payload data are not radio communications. |
Key Cases Cited
- Park 'N Fly, Inc. v. Dollar Rent A Car, Inc., 469 U.S. 189 (U.S. (1985)) (plain meaning and statutory interpretation principles)
- Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (U.S. (1982)) (absurd results avoided; statutory interpretation guidance)
- Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (U.S. (2012)) (ordinary meaning and context in statutory interpretation)
- United States v. Iverson, 162 F.3d 1015 (9th Cir. 1998) (interpretation of undefined terms by ordinary meaning)
- Gustafson v. Alloyd Co., 513 U.S. 564 (U.S. (1995)) (noscitur a sociis and contextual reading of statute terms)
- In re Pharmatrak, Inc. Privacy Litig., 329 F.3d 9 (1st Cir. 2003) (privacy and interpretation of electronic communications)