SAN FRANCISCO — A plaintiffs attorney on Monday urged the U.S. Court of Appeals for the Ninth Circuit to hold Google Inc. accountable for uploading data from private Wi-Fi networks as part of its Street View program, saying that even the U.S. government has stopped short of such surveillance techniques.
If the court accepts Google’s argument that Wi-Fi signals are "radio communications" exempt from the federal Wiretap Act, "that loophole is big enough for massive government intrusion," Lieff Cabraser Heimann & Bernstein’s Elizabeth Cabraser argued.
It wasn’t clear if the court was moved by Cabraser’s dire warnings. Judge Jay Bybee had only limited questions for each side, while the two other members of the panel remained virtually silent during the half-hour argument in Joffe v. Google.
"Obviously, it’s a very complicated statute," Bybee said.
Wilson Sonsini Goodrich & Rosati partner Michael Rubin argued that "radio communications" mean any signal traveling on radio waves, even if mostly within a person’s home on a wireless computer network. To limit the exemption to "traditional" broadcast signals, as U.S. District Judge James Ware had, would stifle innovation by forcing tech companies to guess at definitions "under pain of criminal liability."
Google set out six years ago to map street-level views of cities and neighborhoods around the world. Along with cameras, the company’s Street View vehicles also carried Wi-Fi sniffing technology that captured data from commercial and residential wireless networks, unless they were encrypted. Google says the goal was to map wireless access points, thereby helping mobile device users better pinpoint their locations. The company has blamed a rogue engineer for developing a program that also captured content as it streamed across those wireless networks.
Google has publicly apologized for the intrusion, but said the company never has used nor intends to use the 600 gigabytes of uploaded data. In any event, the company argues, Wi-Fi signals are exempt from the federal Wiretap Act as amended by the 1986 Electronic Communications Privacy Act. The law makes it illegal to intercept electronic communications, unless they’re "readily accessible to the general public" or are a type of "radio communication."
The Federal Communications Commission essentially agreed last year, though it fined the company $25,000 for obstructing its investigation. Had Ware seen it the same way, it would have ended the private class action Lieff Cabraser and other plaintiffs firms are trying to bring. But Ware ruled that the concept of Wi-Fi networks was little known in 1986 and Congress was simply trying to make clear that short-wave, CB and other traditional hobbyists could monitor publicly available communications. He then certified the issue for interlocutory appeal.
For a seemingly sexy issue that’s been dubbed the "Wi-Spy" affair by some tech publications, oral arguments were surprisingly dry, marked by long stretches of silence as Bybee pored over statutory language being cited by each attorney.
"The plain language of the statute actually does the work," Wilson Sonsini’s Rubin emphasized, but Bybee sounded skeptical.
"That’s a pretty cumbersome plain-text argument," he finally told Rubin. "Let’s just say that if you’d done that in your drafting class in law school, you wouldn’t have gotten a good grade."
"I’ll stipulate to that," Rubin said, adding that grafting the Electronic Communications Act on top of the Wiretap Act had added some complexity.
But Rubin insisted that Congress had deliberately set out examples of exempt radio — like citizens band or police scanners — while also including a generic exception for as-yet-undeveloped technologies.
Bybee described that as "a cumbersome route" to Rubin’s destination.
When she took the lectern, Cabraser derided Rubin’s argument as "statutory deconstruction."
With a Cheshire cat grin, Bybee suggested that if just a few words were deleted from the statute, Google would win. It wasn’t clear if that was a good thing for Cabraser or not. But she argued that if the law were read to allow Wi-Fi sniffing in and around homes, it would raise Fourth Amendment concerns and invite even more government intrusion than has been the subject of news headlines for the past week.
"It would risk the constitutionality of the statute," she said, noting that the Supreme Court has backed privacy recently in cases involving GPS tracking and thermal imaging. "They’re holding the Fourth Amendment against emerging technologies," she said, "and they’re doing that loud and clear."