The United States Court of Appeals for the Ninth Circuit granted a new hearing this past Friday in Joffe v. Google, Inc., while affirming the decision in September that denied a motion to dismiss by Google.
Google had requested the class action be dismissed on the basis that their actions in collecting information for Google Street View was not illegal due to an exemption in the Wiretap Act, on the basis that they transmitted the data over a WiFi network. The Street View vans had used the service set identifier names and media access control address from routers to help improve the location-specific services, and also inadvertently captured other information as well. In total, Google collected approximately 600 GB of data in this way in more than 30 countries.
The class action claims that Google illegally captured payload data, emails, images, documents, usernames and passwords. Under the Wiretap Act, it is illegal to intentionally intercept electronic communications. The Act provides exemptions for electronic communication which is readily accessible to the general public, including radios, and also has an exemption for certain radio communications by government agenencies used by the general public. The decision this week clarified that the WiFi data under dispute in this litigation do not fall under the radio communication exemptions under 18 U.S.C. § 2511(2)(g)(i).
In the amended opinion released this week, the court rejected an even more narrow interpretation of the Act than proposed by the plaintiff. They acknowledged that a plain reading of the statute did create some internal tensions and stated,
…Congress “sometimes drafts provisions that appear duplicative of others—simply in Macbeth’s words, ‘to make assurance double sure.’ That is, Congress means to clarify what might be doubtful—that the mentioned item is covered.” This interpretation is especially plausible given that Congress was concerned that radio hobbyists not face liability for intercepting readily accessible broadcasts, such as those covered by § 2511(2)(g)(ii)(II), which can be picked up by a police scanner.
Where the court took issue with Google’s position was whether data over WiFi constituted a radio communication under the Act. The term remains undefined in the statute, and Google proposed that radio communications should include any information transmitted over the radio frequency portion of the electromagnetic spectrum.
The court looked at the the ordinary meaning of the term radio communications, and indicated that the electromagnetic spectrum includes not only WiFi transmissions, but television broadcasts, Bluetooth, cell phones, and many other devices. The meaning of the statute at the time it was passed by Congress, an application of the contemporanea expositio maxim of statutory interpretation, would not support this type of application. Interpreting radio communications to include all of these technologies would also violate the Golden Rule of statutory interpretation, providing absurd results. They concluded,
One would not ordinarily consider, say, television a form of “radio communication.” Not surprisingly, Congress has not
typically assumed that the term “radio” encompasses the term “television.”
The Wiretap Act itself does not assume that the phrase “radio communication” encompasses technologies like satellite television that are outside the scope of the phrase as it is ordinarily defined.
The court pointed out that radio communications are typically auditory in nature, and tend to be broadcasted, features which are entirely distinct from payload data over WiFi networks. They rejected Google’s submissions that amendments to the Act by Congress between 1994-1996 should be interpreted as an intent to include wireless communications in the exception, as well as their proposal that the Rule of Lenity be applied given the Act’s potential criminal sanctions.
Finally, the court applied the statutory maxim, verba generalia restringuntur ad habilitatem rei vel personae, to restrict the meaning of radio communications by looking at the Wiretap Act as a whole. They stated,
Throughout the Wiretap Act, Congress used the phrase “radio communication”—which is at issue here—and the
similar phrase “communication by radio.” Even within the very provision that we are construing—18 U.S.C. § 2510(16)—Congress used both phrases. We must ascribe to each phrase its own meaning…
When read in context, the phrase “radio communication” tends to refer more narrowly to broadcast radio technologies
rather than to the radio waves by which the communication is made. “Radio communication” is typically surrounded by words that evoke traditional radio technologies whenever it is used in the Act.
The term radio communications in 18 U.S.C. § 2511(2)(g)(ii) was not particularly challenged by Google, since they were instead relying on the § 2511(2)(g)(i) exemption. But the court still looked at the broader meaning throughout the statute. The court emphasized the last point in the above quote by invoking the noscitur a sociis doctrine, where a word is known by the company it keeps.
Although the court granted the rehearing on the issue, they denied Google’s request for the hearing to be held en banc. A Google spokesperson told CNET,
We’re pleased that the Court granted our request for a rehearing and revised its opinion. But we are disappointed that the order was not completely reversed and are considering our next steps.
A Federal Communications Commission (FCC) investigation which spanned over a year and a half released a report last year which concluded that the Street View collection of information was not a mistake or the actions of isolated employees. Rather, it was a program that supervisors in the company were well aware of, despite representations made by the company to the contrary. Although the FCC concluded that Google had not violated any laws, they did fine the company $25,000 for obstructing the investigation.
The current class action may have implications on future FCC investigations. In highlighting the absurdity of Google’s interpretation in this case, the court provided the following hypothetical scenario to help illustrate the privacy interests at stake:
Consider an email attachment containing sensitive personal information sent from a secure Wi-Fi network to a doctor, lawyer, accountant, priest, or spouse. A company like Google that intercepts the contents of that email from the encrypted home network has, quite understandably, violated the Wiretap Act. But the sender of the email is in no position to ensure that the recipient—be it a doctor, lawyer, accountant, priest, or spouse—has taken care to encrypt her own Wi-Fi network. Google, or anyone else, could park outside of the recipient’s home or office with a packet sniffer while she downloaded the attachment and intercept its contents because the sender’s “radio communication” is “readily accessible to the general public” solely by virtue of the fact that the recipient’s Wi-Fi network is not encrypted. Surely Congress did not intend to condone such an intrusive and unwarranted invasion of privacy when it enacted the Wiretap Act “to protect against the unauthorized interception of electronic communications.”