Joffe v. Google, Inc.

A radio communication as defined under 18 U.S.C. § 2511, the Wiretap Act, does not include data transmitted over a Wi-Fi network.

The Wiretap Act creates liability for a person who intentionally intercepts any electronic communication not subject to an exemption. At issue on appeal was data from unencrypted Wi-Fi networks collected by Google when they were taking Street View photos. This data included “payload data,” everything transmitted by a device connected to a Wi-Fi network. Plaintiffs’ brought suit under the Wiretap Act (18 U.S.C. § 2511). Google argued that the data fell under an exemption to the Act because it was an “electronic communication” and “readily accessible to the general public.” The district court rejected this argument. The panel assessed if data transmitted over a Wi-Fi network is a “radio communication” classifiable as an “electronic communication” under § 2511(2)(g)(i) and therefore exempt from the Wiretap Act. The Ninth Circuit held that the phrase “radio communication” must be given its ordinary meaning. The two main indicators of a radio communication are that it is predominantly auditory and it is a broadcast, this does not include the “payload data” retained by Google nor does it include Wi-Fi communications in general. As the term “radio communication” is used with words that connote more traditional radio technologies, this interpretation is consistent with the rest of the Wiretap Act’s use of “radio communication,” while Google’s broad definition is not. Under Google’s interpretation, whether or not a “radio communication” was protected under the Act would depend on if the receiver of the data had secured their Wi-Fi network. This runs counter to one of Congress’ motives of enacting the Act, which was protection of encrypted communications. And finally, because the ambiguity of “radio communication,” could be resolved by plain meaning, statutory context and Congressional intent, the panel refused to apply the rule of lenity and accept Google’s definition of “radio communication” to include Wi-Fi transmitted data. AFFIRMED.