Joffe v. Google, Inc.

Payload data transferred over unencrypted Wi-Fi networks is neither radio communication nor electronic communication that is readily accessible by the general public for the purposes of the Wiretap Act, 18 U.S.C. § 2511.

Benjamin Joffe, along with several other plaintiffs, brought this action against Google, Inc. for violation of state and federal statutes, including the Wiretap Act, 18 U.S.C. § 2511, when Google obtained information from Plaintiffs' Wi-Fi networks as their Street View cars drove by Plaintiffs' homes. Google filed, and the district court denied, a motion to dismiss, arguing unencrypted Wi-Fi networks are exempt from the Wiretap Act. Google argued that the information transmitted over the networks was a "radio communication" as defined in 18 U.S.C. § 2510(16) and was "readily accessible by the general public," or, in the alternative, that the unencrypted Wi-Fi networks constituted "electronic communication" that is "readily accessible by the general public." Either argument would result in Google's accessing of information being exempted from the Wiretap Act. The Ninth Circuit rejected both arguments and, in doing so, affirmed the district court's denial of Google's motion to dismiss. First, the panel held that the payload data transferred on these Wi-Fi networks did not fall under the ordinary meaning of "radio communication." As for Google's second argument, the panel held that the payload data was not readily accessible to the general public for two reasons, (1) access is geographically limited and Google was only able to access the Wi-Fi networks by driving their Street View cars in close proximity to Plaintiffs' homes, (2) even on unencrypted Wi-Fi networks, the payload data is encoded and special equipment and training is necessary to intercept and decode the data. For these reasons, the data collected by Google was not readily accessible to the general public and is not exempt from the Wiretap Act. AFFIRMED.