[Scan-DC] GOOGLE INC: Must Be Held Accountable for Street View Program

[Alan Henney]

Class Action Reporter



August 2, 2013



GOOGLE INC: Must Be Held Accountable for Street View Program



SECTION: Vol. 15 ISSN: 1525-2272



LENGTH: 1135 words




Scott Graham, writing for The Recorder, reports that a plaintiffs
 
attorney on June 10 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 Ms. 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," Judge 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 Judge 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 Judge 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 Judge Bybee sounded skeptical.
 
 
 
"That's a pretty cumbersome plain-text argument," he finally told
 
Mr. 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," Mr. Rubin said, adding that grafting the
 
Electronic Communications Act on top of the Wiretap Act had added
 
some complexity.
 
 
 
But Mr. 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.
 
 
 
Judge Bybee described that as "a cumbersome route" to Mr. Rubin's
 
destination.
 
 
 
When she took the lectern, Ms. Cabraser derided Mr. Rubin's
 
argument as "statutory deconstruction."
 
 
 
With a Cheshire cat grin, Judge 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 Ms. 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."
 
 
 
                           *     *     *
 
 
 
In an earlier report, The Recorder's Mr. Graham said Ms. Cabraser
 
wrote in her appellate brief: "Although these home networks were
 
not password protected, the communications transmitted over them
 
were private and not broadcast for public consumption. . . . Such
 
communications are protected from prying eyes by the Wiretap Act,
 
as amended by the Electronic Communications Privacy Act."
 
 
 
The case pits the renowned class action attorney against a pre-
 
eminent technology company and Silicon Valley's most famous law
 
firm in what some have dubbed the "Wi-Spy" affair.  But the case
 
seems to be flying largely under the radar, with only one advocacy
 
group bothering to weigh in.
 
 
 
"It's surprising there's not more amicus energy behind it," says
 
Alan Butler of the Electronic Privacy and Information Center,
 
which filed an amicus curiae brief in Joffe v. Google, 11-17483.
 
He suggests the claims asserted in the case may cut against "the
 
Silicon Valley culture of experimentation and tinkering."
 
 
 
Google's lawyers at Wilson Sonsini Goodrich & Rosati say the
 
uploading was unintentional and, in any event, not illegal because
 
unencrypted Wi-Fi signals are "radio communications" that anybody
 
can access, rendering them exempt from the Wiretap Act.
 
 
 
"While the Wiretap Act may not expressly define 'radio
 
communication,'" Wilson partner Michael Rubin -- mrubin at wsgr.com
 
-- writes on Google's behalf, "the statute's text, background and
 
structure all establish that the term refers to any communication
 
transmitted using radio waves.  That unquestionably includes the
 
unencrypted Wi-Fi transmissions at issue in this case."
 
 
 
U.S. District Judge James Ware ruled that the relevant provisions
 
of the Wiretap Act, drafted in 1986 before the advent of wireless
 
Internet technology, were intended to exempt only "traditional"
 
radio broadcasts.
 
 
 
Ninth Circuit Judges Jay Bybee, A. Wallace Tashima and U.S.
 
District Judge William Stafford, visiting from Florida, have been
 
assigned to hear the case.
 
 
 
The putative class action heading to the Ninth Circuit is being
 
spearheaded by Spector Roseman Kodroff & Willis; Cohen Milstein
 
Sellers & Toll; and Lieff Cabraser.