Joffe v. Google, Inc.
746 F.3d 920
9th Cir.2013Background
- Google Street View cars (2007–2010) collected Wi‑Fi network identifiers and also "payload data" (e.g., emails, usernames, passwords) from unencrypted home/business Wi‑Fi networks; Google later acknowledged and disabled the collection.
- Plaintiffs (consolidated as Joffe) filed putative class actions asserting claims under the federal Wiretap Act (18 U.S.C. § 2511) and state statutes; district court dismissed some state claims but allowed the Wiretap Act claims to proceed.
- Google sought dismissal arguing the Wiretap Act exempts interception of “electronic communications” that are “readily accessible to the general public” (18 U.S.C. § 2511(2)(g)(i)) because unencrypted Wi‑Fi transmissions are “radio communication” and thus “not ... scrambled or encrypted” under 18 U.S.C. § 2510(16).
- The district court denied dismissal, holding that Wi‑Fi payload data is not necessarily “readily accessible to the general public” under the statutory definition and that Wi‑Fi may not be a “radio communication” for that purpose.
- On interlocutory appeal, the Ninth Circuit reviewed statutory interpretation de novo and affirmed the district court: payload data over Wi‑Fi is not a “radio communication” under § 2510(16), so the § 2510(16) definition of "readily accessible" does not automatically exempt Google.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether payload data transmitted over unencrypted Wi‑Fi is a "radio communication" under 18 U.S.C. § 2510(16) | Wi‑Fi payload data is not a "radio communication"; such data is private and not the kind of broadcast radio the statute contemplates | Wi‑Fi data is transmitted by radio waves and thus falls within "radio communication" (broad, technical definition) | Held: No — "radio communication" means a predominantly auditory broadcast; Wi‑Fi payload data is non‑auditory and not a "radio communication." |
| Whether the § 2510(16) definition of "readily accessible to the general public" (i.e., not scrambled/encrypted) applies to electronic communications transmitted over Wi‑Fi under § 2511(2)(g)(i) | If Wi‑Fi is not a "radio communication," § 2510(16)'s definition does not apply; unencrypted status alone doesn't eliminate Wiretap Act liability | If Wi‑Fi is a "radio communication," § 2510(16) makes unencrypted Wi‑Fi "readily accessible" and exempts interception under § 2511(2)(g)(i) | Held: Because Wi‑Fi payload data is not a "radio communication," § 2510(16)'s narrowly drawn definition does not exempt interception; unencrypted Wi‑Fi does not automatically fall outside Wiretap Act protection. |
| Whether statutory structure and history require adopting Google's broad technical definition of "radio communication" | The Wiretap Act's references and amendments support treating radio as any transmission via radio waves | Google: ordinary/technical meaning should include all RF transmissions (cellular, Wi‑Fi), and legislative history/amendments support that reading | Held: Court favors ordinary/common meaning (predominantly auditory broadcast), finds congressional history equivocal, and refuses to adopt Google's expansive technical definition. |
| Whether the rule of lenity requires adopting Google's broader interpretation | Plaintiffs: ordinary‑meaning resolution removes ambiguity; no grievous ambiguity remains | Google: criminal penalties under the Wiretap Act require interpreting ambiguity in favor of defendant | Held: Rule of lenity not invoked because text, structure, history, and purpose resolve the issue without grievous ambiguity. |
Key Cases Cited
- Hamilton v. Fanning, 560 U.S. 505 (2010) (undefined statutory terms given ordinary meaning)
- United States v. Daas, 198 F.3d 1167 (9th Cir. 1999) (give undefined statutory terms their ordinary meaning)
- Gustafson v. Alloyd Co., 513 U.S. 561 (1995) (use noscitur a sociis—meaning from surrounding words)
- Konop v. Hawaiian Airlines, 302 F.3d 868 (9th Cir. 2002) (Wiretap Act protects communications configured to be private)
- In re U.S. for an Order Authorizing Roving Interception of Oral Commc'ns, 349 F.3d 1132 (9th Cir. 2003) (discussing classification of cellular communications under Wiretap Act)