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

[Larry Sampas]

You can listen to the oral arguments before the US Court of Appeals for the
9th Circuit here:
http://www.ca9.uscourts.gov/media/view.php?pk_id=0000010961
in Joffe vs. Google. It's 35 minutes long, and a good listen.

Listening to lawyers talk about spectrum allocation varies between funny
and painful. Google's point is that if ECPA bans interception of the old
800Mhz cell phone bands only, then how can interception on other
frequencies, that are open and available, be illegal?

Larry

On Sat, Aug 3, 2013 at 12:55 AM, Alan Henney <alan at henney.com> wrote:

> Class Action Reporter
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>
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> August 2, 2013
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> GOOGLE INC: Must Be Held Accountable for Street View Program
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>
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> SECTION: Vol. 15 ISSN: 1525-2272
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> LENGTH: 1135 words
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>
>
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> Scott Graham, writing for The Recorder, reports that a plaintiffs
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> attorney on June 10 urged the U.S. Court of Appeals for the Ninth
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> Circuit to hold Google Inc. accountable for uploading data from
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> private Wi-Fi networks as part of its Street View program, saying
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> that even the U.S. government has stopped short of such
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> surveillance techniques.
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>
>
> If the court accepts Google's argument that Wi-Fi signals are
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> "radio communications" exempt from the federal Wiretap Act, "that
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> loophole is big enough for massive government intrusion," Lieff
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> Cabraser Heimann & Bernstein's Elizabeth Cabraser argued.
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>
>
> It wasn't clear if the court was moved by Ms. Cabraser's dire
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> warnings.  Judge Jay Bybee had only limited questions for each
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> side, while the two other members of the panel remained virtually
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> silent during the half-hour argument in Joffe v. Google.
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>
>
> "Obviously, it's a very complicated statute," Judge Bybee said.
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>
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> Wilson Sonsini Goodrich & Rosati partner Michael Rubin argued that
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> "radio communications" mean any signal traveling on radio waves,
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> even if mostly within a person's home on a wireless computer
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> network.  To limit the exemption to "traditional" broadcast
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> signals, as U.S. District Judge James Ware had, would stifle
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> innovation by forcing tech companies to guess at definitions
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> "under pain of criminal liability."
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>
>
> Google set out six years ago to map street-level views of cities
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> and neighborhoods around the world.  Along with cameras, the
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> company's Street View vehicles also carried Wi-Fi sniffing
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> technology that captured data from commercial and residential
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> wireless networks, unless they were encrypted.  Google says the
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> goal was to map wireless access points, thereby helping mobile
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> device users better pinpoint their locations.  The company has
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> blamed a rogue engineer for developing a program that also
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> captured content as it streamed across those wireless networks.
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>
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> Google has publicly apologized for the intrusion, but said the
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> company never has used nor intends to use the 600 gigabytes of
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> uploaded data.  In any event, the company argues, Wi-Fi signals
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> are exempt from the federal Wiretap Act as amended by the 1986
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> Electronic Communications Privacy Act.  The law makes it illegal
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> to intercept electronic communications, unless they're "readily
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> accessible to the general public" or are a type of "radio
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> communication."
>
>
>
> The Federal Communications Commission essentially agreed last
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> year, though it fined the company $25,000 for obstructing its
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> investigation.  Had Ware seen it the same way, it would have ended
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> the private class action Lieff Cabraser and other plaintiffs firms
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> are trying to bring.  But Judge Ware ruled that the concept of Wi-
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> Fi networks was little known in 1986 and Congress was simply
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> trying to make clear that short-wave, CB and other traditional
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> hobbyists could monitor publicly available communications. He then
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> certified the issue for interlocutory appeal.
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>
>
> For a seemingly sexy issue that's been dubbed the "Wi-Spy" affair
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> by some tech publications, oral arguments were surprisingly dry,
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> marked by long stretches of silence as Judge Bybee pored over
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> statutory language being cited by each attorney.
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>
>
> "The plain language of the statute actually does the work," Wilson
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> Sonsini's Rubin emphasized, but Judge Bybee sounded skeptical.
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>
>
> "That's a pretty cumbersome plain-text argument," he finally told
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> Mr. Rubin.  "Let's just say that if you'd done that in your
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> drafting class in law school, you wouldn't have gotten a good
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> grade."
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>
>
> "I'll stipulate to that," Mr. Rubin said, adding that grafting the
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> Electronic Communications Act on top of the Wiretap Act had added
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> some complexity.
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>
>
> But Mr. Rubin insisted that Congress had deliberately set out
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> examples of exempt radio -- like citizens band or police scanners
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> -- while also including a generic exception for as-yet-undeveloped
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> technologies.
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>
>
> Judge Bybee described that as "a cumbersome route" to Mr. Rubin's
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> destination.
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>
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> When she took the lectern, Ms. Cabraser derided Mr. Rubin's
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> argument as "statutory deconstruction."
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>
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> With a Cheshire cat grin, Judge Bybee suggested that if just a few
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> words were deleted from the statute, Google would win.  It wasn't
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> clear if that was a good thing for Ms. Cabraser or not.  But she
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> argued that if the law were read to allow Wi-Fi sniffing in and
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> around homes, it would raise Fourth Amendment concerns and invite
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> even more government intrusion than has been the subject of news
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> headlines for the past week.
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>
>
> "It would risk the constitutionality of the statute," she said,
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> noting that the Supreme Court has backed privacy recently in cases
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> involving GPS tracking and thermal imaging.  "They're holding the
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> Fourth Amendment against emerging technologies," she said, "and
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> they're doing that loud and clear."
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>
>
>                            *     *     *
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>
>
> In an earlier report, The Recorder's Mr. Graham said Ms. Cabraser
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> wrote in her appellate brief: "Although these home networks were
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> not password protected, the communications transmitted over them
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> were private and not broadcast for public consumption. . . . Such
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> communications are protected from prying eyes by the Wiretap Act,
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> as amended by the Electronic Communications Privacy Act."
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>
>
> 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
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> seems to be flying largely under the radar, with only one advocacy
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> group bothering to weigh in.
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>
>
> "It's surprising there's not more amicus energy behind it," says
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> Alan Butler of the Electronic Privacy and Information Center,
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> which filed an amicus curiae brief in Joffe v. Google, 11-17483.
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> He suggests the claims asserted in the case may cut against "the
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> Silicon Valley culture of experimentation and tinkering."
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>
>
> Google's lawyers at Wilson Sonsini Goodrich & Rosati say the
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> uploading was unintentional and, in any event, not illegal because
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> unencrypted Wi-Fi signals are "radio communications" that anybody
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> 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
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> -- writes on Google's behalf, "the statute's text, background and
>
> structure all establish that the term refers to any communication
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> transmitted using radio waves.  That unquestionably includes the
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> unencrypted Wi-Fi transmissions at issue in this case."
>
>
>
> U.S. District Judge James Ware ruled that the relevant provisions
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> of the Wiretap Act, drafted in 1986 before the advent of wireless
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> Internet technology, were intended to exempt only "traditional"
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> radio broadcasts.
>
>
>
> Ninth Circuit Judges Jay Bybee, A. Wallace Tashima and U.S.
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> District Judge William Stafford, visiting from Florida, have been
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> 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.
>
>
>
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