By Michael Shammas – Edited by Mary Schnoor
Petition for Certiorari, Google Inc. v. Joffe, 2013 WL 6905957 (9th Cir. 2013), petition for cert. filed (No. 13-)
Petition for Certiorari hosted by Santa Clara Law Digital Commons
Disagreeing with the Ninth Circuit’s decision that Google, Inc. (“Google”) possibly violated the Wiretap Act, 18 U.S.C. § 2510 et seq., when its Street View cars collected unencrypted Wi-Fi traffic, Google has filed a petition for a writ of certiorari petitioning the Supreme Court to label its activities legal. Google believes unencrypted Wi-Fi networks should be classified as “radio communications” accessible to the public, akin to AM/FM radio, and that as such its actions were exempt under federal wiretapping law. Petition for Writ of Certiorari, Google, at 2. The case is important not only because of the liability Google could face if its petition is denied, but also because of its implications for future interpretations of the Wiretap Act.
Google’s Street View program entails a fleet of cars outfitted with rooftop cameras that snap photographs as the cars drive down streets. Id. at 4. The program’s main objective is to map out American roadways, but from 2007 to 2010, due to one engineer’s company-sanctioned personal project, the fleet was equipped with Wi-Fi hardware that trolled for the MAC addresses and names of nearby routers. The vehicles captured Internet traffic data from thousands of unencrypted routers, transforming every Street View Vehicle into, according to Wired, a “rolling spy machine.” When the scandal became public, Google ceased the sniffing program and destroyed the data, which it claims it never used.
Although the FCC and the Justice Department have cleared Google of any and all wrongdoing, the present class action suit will proceed unless the Supreme Court grants the petition and reverses the Ninth Circuit’s decision. Disputing the Ninth Circuit’s determination, Google argues that the sniffing was legal because trolling for unencrypted Wi-Fi data is not wiretapping, since such data arguably falls under the express exemption in the Wiretap Act allowing for interception of unencrypted “radio communications.” Id. at 2. Although the Wiretap Act criminalizes unauthorized interception of electronic communications, an exception exists for “electronic communication . . . readily accessible to the general public . . . .” 18 U.S.C. § 2511(2)(g)(i).
The issue Google wants the Supreme Court to resolve is “[w]hether the Ninth Circuit erred in holding that ‘radio communications’ under the Wiretap Act are restricted to ‘predominantly auditory broadcasts’ and do not include Wi-Fi communications [which contain video and textual data in addition to auditory data] even though Wi-Fi communications are transmitted using radio waves.” Petition for Writ of Certiorari, Google, at (i).
Interestingly, one aspect of Google’s argument is that the Ninth Circuit’s decision makes the Internet less — not more — private. The company believes that the court’s decision could aid criminals who wish to snoop on public information. According to Google, “IT professionals routinely use the same kind of technology as Google’s Street View cars did to collect packet data in order to secure company networks. And unlike Google, which never used the payload data it collected, security professionals also parse and analyze the data collected from wired and wireless networks . . . to identify vulnerabilities in and potential attacks on the networks they protect.” Id. at 22.
The case is significant not only due to the specific legal issues, but also because of its implications for future interpretations of the Wiretap Act in a world where individuals transmit vast amounts of information over wireless signals. Edward Snowden’s revelations concerning NSA spying clued Americans in to possible ways in which the Fourth Amendment has grown antiquated; this case suggests the Wiretap Act, too, may be in need of a facelift.
A reply from the plaintiffs is due April 30.
Michael Shammas is a 1L at Harvard Law School.