Appellate judge’s in the Google Wi-Spy privacy class action weren’t giving up much indication of how they’re leaning in Monday’s argument, where the central question is whether the 1986 Wiretap Act would allow interception of unencrypted Wi-Fi signals.
One thing did seem clear from the 9th U.S. Circuit Court of Appeals panel, Judge Jay Bybee, the conservative Republican appointee, is likely to write the decision because he was the sole questioner. Judge Wallace Tashima and visiting Judge William Stafford, of Florida, had no comments.
Google was sued in a civil class action after it was discovered the popular Street View, best known for images of streets throughout the world, had also surreptitiously collected personal data from Wi-Fi networks as its camera-equipped cars passed by.
Google maintains that unencrypted Wi-Fi signals are exempt from the 1986 Wiretap Act as “radio communications.” The company has asked the appeal court to dismiss the case.
Plaintiffs’ lawyer Elizabeth Cabraser warned the panel it should make no mistake that Google’s interpretation “would chill innovation. Nobody would have private Wi-Fi communications.”
Google lawyer Michael Rubin said, “under any plausible interpretation of the Wiretap Act,” radio communication would include unencrypted Wi-Fi signals.
Bybee drilled in on the specific wording of one subparagraph of the law about how far to stretch the meaning of radio communication “readily accessible to the public.”
He asked Cabraser if Wi-Fi would be protected if “radio” was taken out of the phrase.
Google might be exempt in that case, she acknowledged. “But If you remove ‘radio’ [the Act] is utterly at odds with what the authors intended,” she said.
Rubin countered that Wi-Fi can be protected “by being encrypted.” Right now, anyone can intercept unencrypted Wi-Fi without violating the law, he said.
Google had asked now-retired U.S. District Judge James Ware to dismiss the case based on the exemption for “radio communication” in the Wiretap Act.
But that argument didn’t win with Ware.
He said that although the Wiretap Act was approved before Wi-Fi communications over the Internet began, the law was meant to exempt traditional radio broadcasts, not Wi-Fi.
“Although these home networks were not password protected, the communications transmitted over them were private and not broadcast for public consumption,” Cabraser argued in court papers.
European and Canadian authorities investigated Google’s sniffer program and found that Google had not just captured limited computer ID addresses but had gathered data including passwords, financial information, private emails and other confidential information from networks as they drove by.
The U.S. Federal Communications Commission finally got into the act, but even after its own 2012 investigation it fined Google just $25,000. Later the company agreed to pay $7 million to resolve lawsuits by 38 state attorneys general.
That wasn’t enough for individuals who filed a class action lawsuit on behalf of people whose data was snooped.
The case comes up on appeal just as the Obama Administration is embroiled in a number of privacy scandals, from subpoenas of Associated Press reporters’ phone records in a leak investigation to disclosure that it gathered millions of records of telephone calling activities of average Americans.
Bybee is a former Justice Department lawyer who approved what became known as the “torture memos” written by John Yoo, approving use of “enhanced interrogation” methods of enemy combatants during the Bush Administration.
By contrast, Tashima is a former Clinton appointee, who was held in a Japanese internment camp during World War II.
Stafford was appointed by President Gerald Ford and has been on the Northern District of Florida bench since 1975. He served as a member of secret Foreign Intelligence Surveillance Court in Washington, D.C. from 1996-2003.
Case: Joffee v. Google Inc. , No. 11-17483
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