…and One Seriously Undefined Term

Order Granting in Part and Denying in Part Defendant’s Motion to Dismiss with Leave to Amend, In re Google, Inc., Street View Electronic Communications Litigation, Case No. 10-MD-02184 JW (June 29, 2011).

Google had moved to dismiss for failure to plead a claim for which relief may be granted.  After a lot of legal hair-pulling (the judge’s own), Google’s motion is denied as to the Wiretap Claim (which is the subject of this post).*

It was granted as to the state-law claims, some on grounds of preemption (which is not without controversy), and one for a straight up failure to state a claim.  Google is currently trying to lodge an interlocutory appeal.  There is no automatic right for such appeals, though–it’s up to the Court of Appeals, preferably with the lower-court judge’s blessing.  Last I heard, it had received the judge’s blessing, and the Court of Appeals is now considering whether to take the appeal.

I have fought my way through this decision, and, despite all the criticism I’ve read about it, I think the judge did a good job with an impossible task.  The question is whether Wi-Fi signals a “radio communication” for purposes of the Wiretap Act, where radio communication is an undefined term that doesn’t fit neatly in the overall scheme.  Radio communications could plausibly be defined as any communication carried over a radio signal, in which case Google is off the hook.  It could just as plausibly be far more limited than that, in which case the plaintiffs live to see another day.

Most of you know the basic facts, but I’ll summarize them quickly.  It’s important to keep in mind that we are only at the pleadings stage, which means the court takes pretty much everything the plaintiffs say in their complaint as true.  It might turn out that they can’t actually prove everything they allege in their complaint and lose for that reason, but that’s premature.  Google is basically arguing that what it’s accused of doing (as opposed to what it actually did) isn’t illegal.

The plaintiffs used home wireless networking systems (AirPort, Linksys, etc.).  Thus, a communication originating from a plaintiff computer starts its life as a radio signal, which is then converted by the wireless router to a wire signal, and thence to the internet.  In reverse, a communication received by the computer starts enters the plaintiff’s home from the internet as a wire signal, and it converted by the wireless router to a radio signal, which is received by the computer.  These communications were not encrypted (but obviously were encoded).  More important, the wireless router was not password protected, which means that anyone within range can use the wireless router to access the internet (and the plaintiff’s computer!).  Routers work by radiating radio waves in all directions in a pretty undiscriminating fashion.  The range of wireless routers is a lot wider than most people realize.  Even in a neighborhood of detached single-family homes, most routers’ radio signals can easily reach the street, possibly to the houses across the street, and one or two neighbors’ homes on either side.

When Google was taking pictures for its Street View product, its equipment was also detecting the presence of Wi-Fi signals, i.e., signals broadcast by wireless routers.  Although Google’s purpose was simply to locate “hot spots” for its location services, for some reason, the equipment also downloaded and stored “payload data,” i.e., bits of actual data transfers to and from the plaintiff’s computers.*

*  I have a hard time believing Google intended to do anything nefarious with the payload data, but I’m still unclear on why anyone would want it.  It can’t be very interesting–just a random sampling of what was moving through the Wi-Fi system at the time Google’s equipment was in the vicinity.  Google says it was a mistake.  Alas for Google, the civil wrong here is the mere intentional interception of the information, not the storage or use of the information.  Thus, to me, this is a highly technical case and not, as some would have it, a great moral battle.  This is why I objected to the Tennessean’s use of “Wi-Spy” in its headline for its story on this case.

Here are the relevant provisions of the Wiretap Act, simplified somewhat, so you can see the logical conundrum the court has to wrestle with:

1.  It’s generally illegal to intentionally intercept (a) wire, (b) oral or (c) electronic communications.  Radio communications are not mentioned in this particular context.

2.  It’s OK to intercept an “electronic communication” through an electronic communication system “that is configured so that [it] is readily accessible to the general public.”

3.  It’s also OK to intercept a “radio communication” under certain circumstances, including certain government and “private land mobile” communication systems “readily accessible to the general public,” but not including a system “configured so that [it] is readily accessible to the general public.”

4.  Radio communication isn’t defined.

5.  An electronic communication is pretty much any transfer of data using nearly any type of transmission method (or combination thereof), including radio waves.

6.  There is a specific definition of readily accessible to the general public, but it is limited to “radio communications.”  Simplified somewhat, the term means a radio communication that isn’t encrypted, modulated by a secret method, carried on subcarrier, by common carrier, or on certain frequencies set aside by the FCC.

You can see what the judge had to work with!  As an aid for understanding the judge’s reasoning, I tried to clarify and harden the issues by simplifying each party’s position (especially the plaintiffs’ position, which had a lot more room for nuance than Google’s).

Simplified, Google’s position is that the term radio communication refers to a method of transmission.  Therefore, when a plaintiff sent or received a transfer of data (such as an email, webpage, download of a product, etc.), the transfer was both an electronic communication and a radio communication during the time it was carried by radio signals.  Thus, the phrase readily accessible to the public applies to electronic communications during that time.  Under that definition, what Google did was OK because the plaintiffs’ radio signals weren’t encrypted or met any of the other exceptions of that definition.

There are two major objections to this position.  First, Wi-Fi technology didn’t exist in 1986 when Congress enacted the current version of the Wiretap Act.  Congress, instead, seems to have had radio hobbyists in mind when it carved out the radio-communication exceptions to liability.  Second, taken to its logical conclusion, there really wouldn’t be any reason you couldn’t intercept cell-phone signals–a technology that did exist in 1986–which are carried over radio waves and aren’t that hard to decode.

At its most extreme (and simplified), the plaintiff’s strongest position is that the term radio communications refers to a class of communications that have very special meanings in the Wiretap Act, like electronic communication, wire communication and oral communication.  Under the scheme set up by the Wiretap Act, a communication can only be one type of communication at a time.  Thus, when a plaintiff sends or receives data over his or her wireless network, it remains an electronic communication, even though it’s being carried by radio waves.  The definition of readily accessible to the general public that Google relies on is limited to radio communications.  There must be a different definition for that term when applied to electronic communications, or else Congress would have included electronic communications in that definition.  The definition should be common sensical and should apply only to the equivalent of a radio tuner picking up a radio station.  To be sure, you can detect the existence of a wireless network, but to actually download and store the radio signals requires additional equipment and software that the general public doesn’t normally have.

The problem with this position is that, if taken to its logical conclusion, it would exclude “radio communications” (i.e., communications carried on radio waves that aren’t electronic communications) from the entire protection scheme, which seems contrary to Congressional intent.  This, in turn, would render the radio-communication exception superfluous because it always be OK to intercept radio communications.  The purpose of the radio-communication exception was to address the concerns of radio hobbyists, who were worried that they might be liable if they accidentally stumbled on cell phone signals.  Basically, Congress was saying, “No matter how this is all interpreted, it will always OK to do what radio hobbyists do, so long as they stick to communication systems that have been traditionally accessible to the general public, and those systems aren’t made secret somehow.”  In short, the radio-communications exception isn’t an integral part of the overall scheme, but a later add-on meant to address a specific set of concerns.

Thus, the court agrees with Google that radio communications refers to a method of communication, rather than a type of communication.  Thus, radio communications aren’t part of the core protection scheme, but is an uncomfortable overlay which will sometimes provide exceptions to liability.  The court is concerned about how cell phones fit into the scheme and is certain that they do not fall in any exception, even though their communications are carried by radio waves.  At the same time, the court is mindful that the radio-communications exception is to address the concerns of traditional radio equipment (police scanners, HAM radios, etc.).  So the court narrows the scope radio communications in a way that ultimately favors the plaintiffs.  To the court, the term doesn’t refer to just a communication over any radio signal, but only to those transmitted by “traditional radio services,” such as radio stations, police radio, ship-to-ship communications, etc.

Looking ahead, if Google can’t overturn this ruling, I’d say the next avenue of attack is the question of whether such an open Wi-Fi network is “readily accessible to the general public.”  At the pleading stage, the court had to accept the plaintiff’s contention that the data was encoded–true enough–and that not everyone would have the proper decoding software.  But the fact is that all data moving across the Internet is “encoded” in same way, and encoding and decoding is something computers do naturally.

If Google fails at this, and the court’s various rulings survive appeal, we’ll know that it’s illegal to snoop on even unencrypted and “open” Wi-Fi networks.  That’s no substitute for protecting the information you send over Wi-Fi networks, but it’s nice to know.

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.