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

[Alan Henney]

Interesting. Good points.

Thanks for the link.

Alan
  ----- Original Message ----- 
  From: Larry Sampas 
  To: Alan Henney 
  Cc: Scan DC 
  Sent: Monday, August 05, 2013 11:34 AM
  Subject: Re: [Scan-DC] GOOGLE INC: Must Be Held Accountable for Street View Program


  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



    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.



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