Federal Statutes - Wiretap Act - Ninth Circuit Holds That Intercepting Unencrypted Wi-Fi Broadcasts Violates the Wiretap Act

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FEDERAL STATUTES--WIRETAP ACT--NINTH CIRCUIT HOLDS THAT INTERCEPTING UNENCRYPTED WI-FI BROADCASTS VIOLATES THE WIRETAP ACT.--Joffe v. Google, Inc., 729 F.3d 1262 (9th Cir. 2013), amended by No. 11-17483, 2013 WL 6905957 (9th Cir. Dec. 27, 2013)

The Electronic Communications Privacy Act of 1986 (1) (ECPA) attempted to modernize Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (2) (Wiretap Act) for the digital age by creating new protections for electronic communications such as "voice, data, and video communications, including cellular phones, and email [and] other computer transmissions." (3) However, the rapid expansion of the Internet has given courts the difficult task of applying old law to ever-changing technologies. (4) Recently, in Joffe v. Google, Inc., (5) the Ninth Circuit wrestled with the application of the Wiretap Act to local wireless (Wi-Fi) networks and found that Google could face liability for accessing data from an unencrypted Wi-Fi network. (6) In an opinion filed in September 2013, the panel refused to fit unencrypted data on a Wi-Fi network into the Wiretap Act's safe harbor for electronic communications "readily accessible to the general public." (7) The Ninth Circuit evaluated whether the data was "readily accessible" by examining the geographic range of the network and the skill necessary to intercept it. (8) In December 2013, the Ninth Circuit amended its Joffe opinion by omitting the section that addressed whether the data was readily accessible to the general public, leaving the issue for the district court to resolve. (9) Rather than using the factors chosen by the Ninth Circuit in its initial opinion, courts should instead consider employing an "express prohibition" test based on the objective configuration of the network to evaluate whether a network is readily accessible to the general public. (10) While the express prohibition test may run counter to public expectations of privacy, it is supported by both the statutory text and the legislative history of the ECPA.

In 2007, Google initiated efforts to add street-level images to its Google Maps service. (11) To create these images, Google drove motor vehicles equipped with cameras down public streets. (12) Many of these vehicles were equipped with Wi-Fi antennas and software that collected basic identifying information about the Wi-Fi networks the vehicles encountered along the way--including wireless network names (SSIDs) and unique hardware numbers (MAC addresses)--to enhance location-based services for mobile devices. (13) In addition, in a practice known as "packet sniff[ing]," (14) Google's Street View cars stored "payload data"--actual data fragments transmitted as part of a "data packet" sent from one device to another--which sometimes contain "personal emails, usernames, passwords, videos, and documents." (15) After several class action lawsuits were filed challenging Google's data-collection practices, the Judicial Panel on Multidistrict Litigation transferred the cases to the Northern District of California. (16) Plaintiffs--individuals whose homes could be seen in Google Maps' Street View and who claimed that Google accessed payload data from their unencrypted Wi-Fi networks--filed a consolidated complaint alleging violations of the Wiretap Act and other statutes. (17) Google filed a motion to dismiss. (18)

The Wiretap Act makes it unlawful to intentionally intercept "any wire, oral, or electronic communication." (19) However, it supplies a number of exemptions, two of which were alternately implicated in Joffe. First, it provides an exemption for intercepting a radio communication that is "readily accessible to the general public," (20) which in turn is defined as communication that is not, among other things, "scrambled or encrypted." (21) The statute does not define "radio communication." (22) Second, the statute provides an exemption for intercepting an electronic communication that is "configured so [as to be] . …


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