Judge Ware: Google Not Entitled to “Readily Accessible to the General Public” Defense in Street View Class Action

[Post by Venkat Balasubrmani, with comments from Eric]

In re Google Inc. Street View Electronic Communications Litigation, 2011 WL 2571632 (N.D. Cal. June 29, 2011) (Order) (Google’s Motion to Dismiss) (Google’s Reply) (Google’s Supplemental Brief) (EPIC’s Amicus Brief)

The multitudinous consolidated lawsuits over Google’s access of plaintiffs’ Wi-Fi networks, as part of its Street View data collection, survived an important juncture this week. Judge Ware rejected Google’s defense that it cannot be held liable under the Electronic Communications Privacy Act because the Wi-Fi transmissions were “radio communications” which were “readily accessible to the general public.”

Background: Google deployed its Street View vehicles to capture 360 degree views of the streets. Google’s vehicles were equipped with 3G/GSM/Wi-Fi antennas and “custom-designed software for the capture and storage of wireless signals and data.” Google also deployed smaller vehicles known as “Google Trikes,” which were outfitted with cameras and Wi-Fi equipment, to “capture photo and Wi-Fi data from areas inaccessible to cars.” Although Google issued a press release letting the public know that it intended to use these vehicles to capture photo data, it did not inform the public of its intent to capture Wi-Fi data.

Multiple class action lawsuits were filed across the country, and these were all consolidated and transferred to Judge Ware in the Northern District of California. Plaintiffs brought claims under the ECPA, state wiretap statutes, and Cal. B&P 17200.

Discussion: Google argued that state wiretap law claims were preempted, and there was no “money or other property” taken by Google that the Court could force Google to disgorge under the unfair competition statute. With respect to the ECPA claim, Google argued that since the Wi-Fi networks were configured in a manner that was “readily accessible to the general public,” the ECPA claim failed.

ECPA Claim: The ECPA provides for a private right of action but also contains a section which provides exemptions to this. One of the exemptions is a general one for an interception of an “electronic communication” that is readily accessible to the general public (2511(2)(g)(i)):

It shall not be unlawful . . . to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible the general public.

A separate subsection (2511(2)(g)(ii)) also provided an exemption that was applicable to the interception of “radio communications,” but this subsection contained a laundry list of the types of “radio communications” which were exempt (none of which were readily applicable in this case). Separately, the statute contains a definition for when something is “readily accessible to the general public,” and this definition says that “readily accessible to the general public’ means, with respect to a radio communication” that such communication is not (among other exceptions) “scrambled or encrypted.”

When I see these three sections of the statute, I see a drafting error, or at least some seriously clunky drafting. The most obvious interpretation to me is that a “radio communication” enumerated in 2511(g)(ii) is exempt. A “radio communication” that is spelled out in 2510(16) is also exempt, because it is “readily accessible to the general public.” (Anything that fits 2510(16) would fall within 2511(2)(g)(i).) Judge Ware didn’t see it this way. He sees the definitions of 2510(16) as describing exceptions that only apply to “traditional radio broadcast mediums.” According to Judge Ware, these definitions “do not address any broader radio-based communications technology of the time,” and nor do they address modern technologies–such as Wi-Fi–that were obviously not contemplated by the drafters of the statute. As support for this interpretation, Judge Ware points to the legislative history, which indicates a reluctance to include cell-phone transmissions within the scope of the exception. (This part of the discussion really confused me.) At the end of the day, even though plaintiffs failed to plead that their Wi-Fi networks were scrambled and encrypted (and arguably made admissions to the contrary), Judge Ware concludes that:

the wireless networks were not readily accessible to the general public as defined by the particular communications system at issue, wireless internet networks, which are not “radio communications,” as the term was intended by Congress in drafting Section 2510(16).

Google also argued that United States v. Ahrndt [pdf] supported its interpretation of the statute. Ahrndt was a criminal case where a defendant moved to suppress evidence that defendant’s neighbor encountered while accessing the defendant’s wireless network. When the neighbor accessed the network (which was open), she could view the files in defendant’s iTunes account, which included child porn. The court denied defendant’s request (citing 2511(g)(i)) to suppress the evidence because defendant had configured his system so “the electronic communications [at issue were] readily accessible to the general public.” Judge Ware distinguished Ahrndt because, in the Street View case, the users had only set their Wi-Fi settings so that the networks themselves (and not the content) were accessible to the general public.

State wiretap claims: Google argued that ECPA preempted plaintiffs’ claims under state wiretap statute. Judge Ware found that although there was no express preemption in the statute, ECPA demonstrated a Congressional intent to comprehensively regulate the field. Therefore, the state law claims were preempted. The order does not cite to Velentine v. NebuAd [pdf], also recently decided in the Northern District, where Judge Henderson came to a contrary conclusion.

Section 17200 claims: Plaintiff’s section 17200 claims suffered a familiar flaw: they were unable to allege that they lost “money or other property” as a result of Google’s actions. The court rejects the argument that “data packets” are property for section 17200 purposes, finding that recognizing a property interest in data would undermine the intent of Proposition 64 (which created stricter standing requirements for Section 17200 claims).

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I’m not sure where to begin with this one. This is yet another case where the statute was written with certain technology in mind, and the court struggles with which box the present day technology belongs in. Is a transmission via open Wi-Fi a “radio transmission”? An “electronic communication”? Both? It’s unclear from the order where the court comes out on this issue. There is no dispute that Wi-Fi was not around when the statute was drafted or more recently amended, and the contortions required to figure out what statutory box it fits in are downright painful.

A factual question which did not receive much attention in the order was how difficult it is for the average person to access someone else’s content through an open Wi-Fi. Is this the same as picking up a transmission on a ham radio? Is this like picking up police scanner transmissions? Google argued that accessing data through an open Wi-Fi can be easily accomplished using inexpensive (or free) and widely available software, but there wasn’t much discussion of this in the court’s opinion. The fact that Google reportedly filed for a patent over some aspect of this did not help its argument.

I can see unintended consequences that would flow from either approach. Finding that data transmitted over an open Wi-Fi is not protected under the ECPA would undermine privacy in a big category of communications. On the other hand, by creating a special category of “radio communications” that don’t get the benefit of the general exemption, this broadens the scope of a statute which has criminal consequences. Judge Ware decided Power.com, and applied the rule of lenity in that case in construing the statute narrowly. Given that a violation of this statute can result in criminal liability as well, I’m surprised this doctrine did not come into play in interpreting the statute narrowly.

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Eric’s comments:

1) I continue to insist that the ECPA is one of the worst-drafted statutes of all time. As Venkat’s confusion indicates, no one really knows what the statute means, which suggests it’s hard to advance an implausible interpretation of the statute.

2) This case is a fairly typical “technological convergence” case where we try to interpret technological terms in a statute in light of unanticipated technological evolution. Congress couldn’t conceive of private WiFi back in 1986, so the statute doesn’t fit the technology very well. Personally, in light of modern sensibilities, I think “radio” most naturally means the entire wireless spectrum. Judge Ware saw it differently and found reasons to separate out pieces of the spectrum for differential statutory application. I could see other judges reading the term more broadly on appeal.

3) Google’s loss on the motion to dismiss is surely disappointing to Google, but I don’t think the plaintiffs should start cashing their checks yet. There are plenty more interstices of the ECPA for both parties to explore on summary judgment and perhaps at trial.

4) As Congress revisits the ECPA as part of the Digital Due Process initiative (which I support), I desperately hope Congress also reconsiders the ECPA’s private cause of action. The class action plaintiffs have gone crazy with the statute, and due to its drafting deficiencies, the plaintiffs claims are rarely clearly wrong on the surface. The result has been a huge tax on innovation with no commensurate social benefits; only the private benefits of a few privacy class action lawyers getting fat and happy while feasting on Silicon Valley companies.

5) The ECPA’s preemption of state wiretap laws, if followed by other courts, could be a Very Big Deal. However, Judge Ware didn’t cite any caselaw in support of his conclusion, and frankly I’m skeptical that ruling will survive further challenge.

Other coverage:

Judge to Google: sniffing even open WiFi networks may be wiretapping (Ars Technica)

Judge: Google Can Be Sued for Wiretapping in Street View Debacle (Wired/Threat Level)

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