SAN FRANCISCO — The Ninth Circuit has rejected Google’s hard-fought bid for rehearing of a privacy decision involving its Street View mapping project.
But the appellate court retracted language declaring that unencrypted Wi-Fi transmissions are not “readily accessible to the general public”—a holding that Google and its lawyers had argued was premature.
“The factual question the panel resolved was not decided by the district court; it was not argued by the parties; and it was beyond the proper scope of the appeal,” Wilmer Cutler Pickering Hale and Dorr partner Seth Waxman had argued in Google’s petition for rehearing.
Friday’s order in Joffe v. Google leaves intact the appellate court’s main holding, that Wi-Fi transmissions are not “radio communications” exempt from the privacy protections of the Wiretap Act and the Electronic Communications Privacy Act.
The practical effect is that a potentially massive class of home computer users can move forward against Google in multidistrict litigation in San Francisco federal court before U.S. District Judge Charles Breyer. Plaintiffs are led by Lieff Cabraser Heimann & Bernstein, Cohen Milstein Sellers & Toll and Spector Roseman Kodroff & Wills.
Google set out six years ago to map street-level views of cities and neighborhoods around the world. 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 only to map wireless access points, and blames a rogue engineer for developing a program that also captured payload content—including user names, passwords, email addresses and other sensitive data—as it streamed across those wireless networks. The engineer invoked the Fifth Amendment before the Federal Communications Commission.
Google sought to dismiss the suit on the ground that Wi-Fi transmissions are “radio communications” that are “readily accessible to the general public.” U.S. District Judge James Ware disagreed and a Ninth Circuit panel led by Judge Jay Bybee affirmed. Bybee wrote that Congress would not have considered “radio” to include Wi-Fi broadcasts. And because Wi-Fi signals travel only a few hundred feet and require sophisticated software to decode, they are not “readily accessible to the general public,” he concluded.
That second holding especially incensed Google. The company argued that the Ninth Circuit had essentially granted summary judgment to plaintiffs without the development of any factual record. Google enlisted Waxman to join its legal team at Wilson Sonsini Goodrich & Rosati and took the unusual step of filing not only a petition for rehearing but also a reply brief in support of its own petition.
The Ninth Circuit wound up excising about three pages of its 35-page ruling.
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