Google seeks US Supreme Court (SCOTUS) review of a US Ninth Circuit Court of Appeals decision, which affirmed a lower court denial of Google’s motion to dismiss a class action lawsuit brought after the 2010 Street View private “payload data” capture revelations. Plaintiffs argue that Google violated the federal “Wiretap Act” when it intercepted their private email and other communications during Street View data collection.
The Wiretap Act makes it illegal to “intentionally intercept . . . any wire, oral, or electronic communication” and to “use or disclose information that is obtained through such an illegal wiretap.” Google takes the position that unencrypted communications over WiFi networks should fall within a “radio communications” exception to the Wiretap Act.
Interception of radio communications that are “readily accessible” to the public are not illegal (obviously). The phrase “radio communications” has been interpreted to include some types of electronic communications.
Google encouraged the Ninth Circuit to interpret the notion of “readily accessible” communications broadly. The court declined, saying that Google’s expansive interpretation of the concept would have made any non-encrypted private electronic communications unprotected by the Wiretap Act.
Google wants SCOTUS to overturn the Ninth Circuit ruling. The Court has the discretion not to hear the case. If it declines the Ninth Circuit’s ruling would stand and it would be up to the lower federal court to settle or try the case.
In its SCOTUS brief (embedded below) Google argues that the Ninth Circuit interpreted the term “radio communications” too narrowly to mean “auditory” communications thus limiting the scope of the Wiretap Act liability exception. Google asserts that the Ninth Circuit ruling creates legal uncertainty:
The [Ninth Circuit] ruling creates substantial uncertainty regarding the scope of civil and criminal liability under the Wiretap Act—uncertainty that is particularly troubling given the ubiquity of modern information technologies, such as Wi-Fi, that involve the transmission of digital information by radio, and the potential for sizeable statutory damage awards under the Act.
There’s truth in what Google is saying and SCOTUS may be inclined to take the case to clarify the meaning of the term “radio communications” under the Wiretap Act, in view of all the current technologies that use “radio” signals.
Google also argues that standard network and computer security measures require a ruling in favor of its position that would allow interception of unencrypted electronic communications:
Review is also warranted because the Ninth Circuit’s decision potentially renders unlawful—and subjects to possible criminal liability—security procedures that are standard in the information technology (IT) industry. IT professionals routinely use the same kind of technology as Google’s Street View cars did to collect packet data in order to secure company networks.
Google goes on to say, “Given the ubiquity of Wi-Fi and the availability of packet-analysis technology, issues regarding the application of the Wiretap Act to Wi-Fi transmissions will continue to arise and with increasing frequency.” The company also admits that its potential exposure is significant should it not be exempted from liability in this case:
[T]he Wiretap Act provides for statutory damages, in appropriate cases, in the amount of the greater of $100 per day for each day of violation or $10,000. 18 U.S.C. § 2520(c)(B). Defendants therefore face significant potential damages for conduct that would be innocent absent the Ninth Circuit’s erroneous interpretation.
Google raises legitimate points about legal uncertainty and potential exposure. For this reason SCOTUS is probably going to take the case. However the notion that any “unencrypted electronic communication” over a WiFi or other network (think mobile phone calls) is fair game for anyone to intercept with impunity goes too far.