[Scan-DC] Googe Wi-Fi case again

[Alan Henney]

Some interesting comments if you have the patience to sift through 10,000+ words.

Do these legal beavers know their technology or what?

"The panel held that the Wi-Fi network data collected by Google was not a radio communication..."  

Huh?


US Official News

September 16, 2013 Monday

United States Courts Opinions: United States Court of Appeals for the Ninth Circuit: 11-17483 - Benjamin Joffe, et al v. Google Inc

LENGTH: 10456 words

DATELINE: Washington 

United States Court of Appeals for the Ninth Circuit has issued the following order: 

FOR PUBLICATION 
UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 
BENJAMIN JOFFE; LILLA MARIGZA; 
RICK BENITTI; BERTHA DAVIS; 
JASON TAYLOR; ERIC MYHRE; JOHN 
E. REDSTONE; MATTHEW BERLAGE; 
PATRICK KEYES; KARL H. SCHULZ; 
JAMES FAIRBANKS; AARON LINSKY; 
DEAN M. BASTILLA; VICKI VAN 
VALIN; JEFFREY COLMAN; RUSSELL 
CARTER; STEPHANIE CARTER; 
JENNIFER LOCSIN, 
Plaintiffs-Appellees, 
v. 


GOOGLE, INC., 
Defendant-Appellant. 
No. 11-17483 
D.C. No. 
5:10-md-02184- 
JW 
OPINION 
Appeal from the United States District Court 
for the Northern District of California 
James Ware, District Judge, Presiding 
Argued and Submitted 
June 10, 2013--San Francisco, California 
Filed September 10, 2013 
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JOFFE 2 V. GOOGLE, INC. 
Before: A. Wallace Tashima and Jay S. Bybee, Circuit 
Judges, and William H. Stafford, Senior District Judge.* 
Opinion by Judge Bybee 
SUMMARY** 
Wiretap Act 
The panel affirmed the district court's order denying a 
motion to dismiss claims that Google, Inc., violated the 
Wiretap Act when, in the course of capturing its Street View 
photographs, it collected data from unencrypted Wi-Fi 
networks. 
The panel held that Google's data collection did not fall 
within a Wiretap exemption set forth in 18 U.S.C. 
§ 2511(2)(g)(i) because data transmitted over a Wi-Fi 
network is not an "electronic communication" that is "readily 
accessible to the general public." Under 18 U.S.C. 
§ 2510(16)(A), a "radio communication" is by definition 
"readily accessible to the general public" so long as it is not 
scrambled or encrypted. The panel held that the Wi-Fi 
network data collected by Google was not a radio 
communication, and thus was not by definition readily 
* The Honorable William H. Stafford, Jr., Senior District Judge for the 
U.S. District Court for the Northern District of Florida, sitting by 
designation. 
** This summary constitutes no part of the opinion of the court. It has 
been prepared by court staff for the convenience of the reader. 
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JOFFE V. GOOGLE, INC. 3 
accessible to the general public. The panel also held that data 
transmitted over a Wi-Fi network is not readily accessible to 
the general public under the ordinary meaning of the phrase 
as it is used in § 2511(2)(g)(i). Accordingly, the district court 
did not err in denying the motion to dismiss on the basis of 
the Wiretap Act exemption for electronic communication that 
is readily accessible to the general public. 
COUNSEL 
Michael H. Rubin (argued), David H. Kramer, Brian M. 
Willen, and Caroline E. Wilson, Wilson Sonsini Goodrich & 
Rosati Professional Corporation, Palo Alto, California, for 
Defendant-Appellant. 
Elizabeth J. Cabraser (argued) and Jahan C. Sagafi, Lieff, 
Cabraser, Heimann & Bernstein, LLP, San Francisco, 
California; Kathryn E. Barnett, Lieff, Cabraser, Heimann & 
Bernstein, LLP, Nashville, Tennessee; Jeffrey L. Kodroff, 
John A. Macoretta, and Mary Ann Giorno, Spector Roseman 
Kodroff & Willis, P.C., Philadelphia, Pennsylvania; Daniel 
A. Small and David A. Young, Cohen Milstein Sellers & 
Toll, PLLC, Washington, D.C., for Plaintiffs-Appellees. 
Marc Rotenberg, Alan Butler, and David Jacobs, Electronic 
Privacy Information Center, Washington, D.C., for Amicus 
Curiae Electronic Privacy Information Center. 
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JOFFE 4 V. GOOGLE, INC. 
OPINION 
BYBEE, Circuit Judge: 
In the course of capturing its Street View photographs, 
Google collected data from unencrypted Wi-Fi networks. 
Google publicly apologized, but plaintiffs brought suit under 
federal and state law, including the Wiretap Act, 18 U.S.C. 
§ 2511. Google argues that its data collection did not violate 
the Act because data transmitted over a Wi-Fi network is an 
"electronic communication" that is "readily accessible to the 
general public" and exempt under the Act. 18 U.S.C. 
§ 2511(2)(g)(i). The district court rejected Google's 
argument. In re Google Inc. St. View Elec. Commc'n Litig., 
794 F. Supp. 2d 1067, 1073-84 (N.D. Cal. 2011). We affirm. 
I. BACKGROUND 
A. Facts and History 
Google launched its Street View feature in the United 
States in 2007 to complement its Google Maps service by 
providing users with panoramic, street-level photographs. 
Street View photographs are captured by cameras mounted on 
vehicles owned by Google that drive on public roads and 
photograph their surroundings. Between 2007 and 2010, 
Google also equipped its Street View cars with Wi-Fi 
antennas and software that collected data transmitted by Wi- 
Fi networks in nearby homes and businesses. The equipment 
attached to Google's Street View cars recorded basic 
information about these Wi-Fi networks, including the 
network's name (SSID), the unique number assigned to the 
router transmitting the wireless signal (MAC address), the 
signal strength, and whether the network was encrypted. 
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JOFFE V. GOOGLE, INC. 5 
Gathering this basic data about the Wi-Fi networks used in 
homes and businesses enables companies such as Google to 
provide enhanced "location-based" services, such as those 
that allow mobile phone users to find nearby restaurants and 
attractions or receive driving directions. 
But the antennas and software installed in Google's Street 
View cars collected more than just the basic identifying 
information transmitted by Wi-Fi networks. They also 
gathered and stored "payload data" that was sent and received 
over unencrypted Wi-Fi connections at the moment that a 
Street View car was driving by.1 Payload data includes 
everything transmitted by a device connected to a Wi-Fi 
network, such as personal emails, usernames, passwords, 
videos, and documents. 
Google acknowledged in May 2010 that its Street View 
vehicles had been collecting fragments of payload data from 
unencrypted Wi-Fi networks. The company publicly 
apologized, grounded its vehicles, and rendered inaccessible 
the personal data that had been acquired. In total, Google's 
Street View cars collected about 600 gigabytes of data 
transmitted over Wi-Fi networks in more than 30 countries. 
Several putative class-action lawsuits were filed shortly 
after Google's announcement, and, in August 2010, the cases 
were transferred by the Judicial Panel on Multidistrict 
Litigation to the Northern District of California. In 
November, 2010, Plaintiffs-Appellees (collectively "Joffe") 
filed a consolidated complaint, asserting claims against 
1 Google may have also used its software to capture encrypted data, but 
the plaintiffs have conceded that their wireless networks were 
unencrypted. 
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JOFFE 6 V. GOOGLE, INC. 
Google under the federal Wiretap Act, 18 U.S.C. § 2511; 
California Business and Professional Code § 17200; and 
various state wiretap statutes. Joffe seeks to represent a class 
comprised of all persons whose electronic communications 
were intercepted by Google Street View vehicles since May 
25, 2007. 
Google moved to dismiss Joffe's consolidated complaint. 
The district court declined to grant Google's motion to 
dismiss Joffe's federal Wiretap Act claims.2 In re Google 
Inc. St. View Elec. Commc'n Litig., 794 F. Supp. 2d at 1084. 
On Google's request, the court certified its ruling for 
interlocutory appeal under 28 U.S.C. § 1292(b) because the 
district court resolved a novel question of statutory 
interpretation. We granted Google's petition, and we have 
jurisdiction under 28 U.S.C. § 1292(b). 
B. District Court's Decision 
Google maintained before the district court that it should 
have dismissed Joffe's Wiretap Act claims because data 
transmitted over unencrypted Wi-Fi networks falls under the 
statutory exemption that makes it lawful to intercept 
"electronic communications" that are "readily accessible to 
the general public." 18 U.S.C. § 2511(2)(g)(i). The question 
was whether payload data transmitted on an unencrypted Wi- 
Fi network is "readily accessible to the general public," such 
that the § 2511(2)(g)(i) exemption applies to Google's 
conduct. 
2 The district court granted Google's motion to dismiss Joffe's claims 
under California law and other state wiretap statutes. In re Google Inc. St. 
View Elec. Commc'n Litig., 794 F. Supp. 2d at 1085-86. These claims are 
not at issue here. 
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JOFFE V. GOOGLE, INC. 7 
To answer this question, the district court first looked to 
the definitions supplied by the Act. In re Google Inc. St. 
View Elec. Commc'n Litig., 794 F. Supp. 2d at 1075-76. The 
statute provides in relevant part that "'readily accessible to 
the general public' means, with respect to a radio 
communication, that such communication is not . . . (A) 
scrambled or encrypted." 18 U.S.C. § 2510(16). An 
unencrypted radio communication is, therefore, "readily 
accessible to the general public." In short, intercepting an 
unencrypted radio communication does not give rise to 
liability under the Wiretap Act because of the combination of 
the § 2511(2)(g)(i) exemption and the § 2510(16) definition. 
The district court then considered whether data 
transmitted over a Wi-Fi network is a "radio communication" 
because the phrase is not defined by the Act. In re Google 
Inc. St. View Elec. Commc'n Litig., 794 F. Supp. 2d at 
1076-81. The court reasoned that "radio communication" 
encompasses only "traditional radio services," and not other 
technologies that also transmit data using radio waves, such 
as cellular phones and Wi-Fi networks.3 Id. at 1079-83. 
Since Wi-Fi networks are not a "radio communication," the 
definition of "readily accessible to the general public" 
provided by § 2510(16) does not apply because the definition 
is expressly limited to electronic communications that are 
radio communications. 
Finally, the court addressed whether data transmitted over 
unencrypted Wi-Fi networks is nevertheless an "electronic 
communication" that is "readily accessible to the general 
3 It is less clear whether the district court's definition also excludes 
television broadcasts. Joffe argued at oral argument that television 
broadcasts are "traditional radio services." 
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JOFFE 8 V. GOOGLE, INC. 
public" under § 2511(2)(g)(i). Id. at 1082-84. Although the 
court determined that Wi-Fi networks do not involve a "radio 
communication" under § 2510(16) and are therefore not 
"readily accessible to the general public" by virtue of the 
definition of the phrase, it still had to resolve whether they 
are "readily accessible to the general public" as the phrase is 
ordinarily understood because the statute does not define the 
phrase as it applies to an "electronic communication" that is 
not a "radio communication." The court determined that data 
transmitted over an unencrypted Wi-Fi network is not 
"readily accessible to the general public." Id. at 1082-83. As 
a result, the § 2511(2)(g)(i) exemption does not apply to 
Google's conduct. The court accordingly declined to grant 
Google's motion to dismiss Joffe's Wiretap Act claims. Id. 
at 1084. 
II. OVERVIEW OF THE WIRETAP ACT 
The Wiretap Act imposes liability on a person who 
"intentionally intercepts . . . any wire, oral, or electronic 
communication," 18 U.S.C. § 2511(1)(a), subject to a number 
of exemptions. See 18 U.S.C. § 2511(2)(a)-(h). There are 
two exemptions that are relevant to our purposes. First, the 
Wiretap Act exempts intercepting "an electronic 
communication made through an electronic communication 
system" if the system is configured so that it is "readily 
accessible to the general public." 18 U.S.C. § 2511(2)(g)(i). 
"Electronic communication" includes communication by 
radio, 18 U.S.C. § 2510(12), and "'readily accessible to the 
general public' means, with respect to a radio 
communication" that the communication is "not . . . 
scrambled or encrypted," 18 U.S.C. § 2510(16)(A). Second, 
the Act exempts intercepting "radio communication" by "any 
station for the use of the general public;" by certain 
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JOFFE V. GOOGLE, INC. 9 
governmental communication systems "readily accessible to 
the general public," including police, fire, and civil defense 
agencies; by a station operating on an authorized frequency 
for "amateur, citizens band, or general mobile radio 
services;" or by a marine or aeronautical communications 
system. 18 U.S.C. § 2511(2)(g)(ii)(I)-(IV). 
Google only argues, as it did before the district court, that 
it is exempt from liability under the Act because data 
transmitted over a Wi-Fi network is an "electronic 
communication . . . readily accessible to the general public" 
under § 2511(2)(g)(i). It concedes that it does not qualify for 
any of the exemptions for specific types of "radio 
communication" under § 2511(2)(g)(ii). Joffe, however, 
argues that if data transmitted over a Wi-Fi network is not 
exempt as a "radio communication" under § 2511(2)(g)(ii), 
it cannot be exempt as a radio communication under the 
broader exemption for "electronic communication" in 
§ 2511(2)(g)(i). This argument has some force, and we wish 
to address it before we consider Google's claims. 
Joffe contends that the definition of "readily accessible 
to the general public" in § 2510(16) does not apply to 
the § 2511(2)(g)(i) exemption. Instead, Joffe argues, 
the § 2510(16) definition applies exclusively to 
§ 2511(2)(g)(ii)(II), which exempts specifically enumerated 
types of "radio communication" when they are "readily 
accessible to the general public." We ultimately reject Joffe's 
alternative reading of the statute, although--as we will 
explain--we find § 2511(2)(g)(ii) useful as a lexigraphical 
aid to understanding the phrase "radio communication." 
As noted, § 2510(16) defines "readily accessible to the 
general public" solely with respect to a "radio 
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JOFFE 10 V. GOOGLE, INC. 
communication," and not with respect to other types of 
"electronic communication." Although § 2511(2)(g)(i) does 
not use the words "radio communication," the statute 
nevertheless directs us to apply the § 2510(16) definition to 
the § 2511(2)(g)(i) exemption. First, "radio communication" 
is a subset of "electronic communication." See 18 U.S.C. 
§ 2510(12) (providing that, subject to certain exceptions, 
"'electronic communication' means any transfer of signs, 
signals, writing, images, sounds, data, or intelligence of any 
nature transmitted in whole or in part by a wire, radio, 
electromagnetic, photoelectronic or photooptical system") 
(emphasis added). Second, the statute directs us to apply 
§ 2510(16) to the entire chapter. The definitions in 18 U.S.C. 
§ 2510 are prefaced with the phrase, "As used in this 
chapter." We cannot disregard this command by holding that 
the definition of "'readily accessible to the general public' [ ] 
with respect to a radio communication" applies to 
§ 2511(2)(g)(ii), but not § 2511(2)(g)(i). 
Admittedly, following the plain language of the statute 
creates some tension with § 2511(2)(g)(ii)(II), which provides 
an exemption for intercepting "any radio communication 
which is transmitted . . . by any governmental, law 
enforcement, civil defense, private land mobile, or public 
communications system, including police and fire, readily 
accessible to the general public." Under our reading of the 
statute--which is the same reading adopted by the district 
court, Google, and Joffe in his lead argument-- 
§ 2511(2)(g)(i) exempts all electronic communications 
(including radio communications) that are "readily accessible 
to the general public" as the phrase is defined in § 2510(16). 
This reading likely renders § 2511(2)(g)(ii)(II) superfluous. 
As discussed, that section exempts specific kinds of radio 
communications that are "readily accessible to the general 
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JOFFE V. GOOGLE, INC. 11 
public," such as those transmitted by a law enforcement 
communications system. But this exemption is unnecessary 
when § 2511(2)(g)(i) already exempts all radio 
communications that are "readily accessible to the general 
public." 
Although our reading may render § 2511(2)(g)(ii)(II) 
superfluous or at least redundant, we understand that 
Congress "sometimes drafts provisions that appear 
duplicative of others--simply in Macbeth's words, 'to make 
assurance double sure.' That is, Congress means to clarify 
what might be doubtful--that the mentioned item is covered." 
Shook v. D.C. Fin. Responsibility & Mgmt. Assistance Auth., 
132 F.3d 775, 782 (D.C. Cir. 1998). This interpretation is 
especially plausible given that Congress was concerned that 
radio hobbyists not face liability for intercepting readily 
accessible broadcasts, such as those covered by 
§ 2511(2)(g)(ii)(II), which can be picked up by a police 
scanner. See 132 Cong. Rec. S7987-04 (1986) ("In order to 
address radio hobbyists' concerns, we modified the original 
language of S. 1667 to clarify that intercepting traditional 
radio services is not unlawful."). 
In short, we agree with Google that the definition of 
"readily accessible to the general public" in § 2510(16) 
applies to the § 2511(2)(g)(i) exemption when the 
communication in question is a "radio communication." 
With that understanding, we now turn to whether data 
transmitted over a Wi-Fi network is a "radio communication" 
exempt from the Wiretap Act as an "electronic 
communication" under § 2511(2)(g)(i). 
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JOFFE 12 V. GOOGLE, INC. 
III. ANALYSIS 
In support of its position that it is exempt under 
§ 2511(2)(g)(i), Google offers two arguments. First, it 
contends that data transmitted over a Wi-Fi network is an 
electronic "radio communication" and that the Act exempts 
such communications by defining them as "readily accessible 
to the general public," 18 U.S.C. § 2511(2)(g)(i), so long as 
"such communication is not . . . scrambled or encrypted," 
18 U.S.C. § 2510(16)(A). Second, Google contends that even 
if data transmitted over an unencrypted Wi-Fi network is not 
a "radio communication," it is still an "electronic 
communication . . . readily accessible to the general public." 
18 U.S.C. § 2511(2)(g)(i). 
We reject both claims.4 We hold that the phrase "radio 
communication" in 18 U.S.C. § 2510(16) excludes payload 
data transmitted over a Wi-Fi network. As a consequence, 
the definition of "readily accessible to the general public [ ] 
with respect to a radio communication" set forth in 
§ 2510(16) does not apply to the exemption for an "electronic 
communication" that is "readily accessible to the general 
public" under 18 U.S.C. § 2511(2)(g)(i). We further hold that 
4 This case raises a question of statutory interpretation, which we review 
de novo. Phoenix Mem'l Hosp. v. Sebelius, 622 F.3d 1219, 1224 (9th Cir. 
2010). We begin by "determin[ing] whether the language at issue has a 
plain and unambiguous meaning with regard to the particular dispute in 
the case." Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002). We 
must assume that "the ordinary meaning of that language accurately 
expresses the legislative purpose [of Congress]." Park 'N Fly, Inc. v. 
Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985). 
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JOFFE V. GOOGLE, INC. 13 
payload data transmitted over an unencrypted Wi-Fi network 
is not "readily accessible to the general public" under the 
ordinary meaning of the phrase as it is used in 
§ 2511(2)(g)(i). 
A. Data Transmitted over a Wi-Fi Network Is Not a"Radio 
Communication" under the Wiretap Act. 
We turn first to the question of whether data transmitted 
over a Wi-Fi network is a "radio communication" as that term 
is used in 18 U.S.C. § 2510(16). If data transmitted over a 
Wi-Fi network is a radio communication, then any radio 
communication that is not scrambled or encrypted is 
considered "readily accessible to the general public," and is 
exempt from liability under the Wiretap Act. 18 U.S.C. 
§ 2511(2)(g)(i). 
1. The ordinary meaning of "radio communication" does 
not include data transmitted over a Wi-Fi network 
The Wiretap Act does not define the phrase "radio 
communication" so we must give the term its ordinary 
meaning. See Hamilton v. Lanning, 130 S. Ct. 2464, 2471 
(2010) ("When terms used in a statute are undefined, we give 
them their ordinary meaning."); United States v. Daas, 
198 F.3d 1167, 1174 (9th Cir. 1999) ("If the statute uses a 
term which it does not define, the court gives that term its 
ordinary meaning."). 
According to Google, radio communication "refers to any 
information transmitted using radio waves, i.e., the radio 
frequency portion of the electromagnetic spectrum." 
Appellant's Br. at 28. The radio frequency portion of the 
spectrum is "the part of the spectrum where electromagnetic 
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JOFFE 14 V. GOOGLE, INC. 
waves have frequencies in the range of about 3 kilohertz to 
300 gigahertz." Id. at 27. 
Google's technical definition does not conform with the 
common understanding held contemporaneous with the 
enacting Congress. See United States v. Iverson, 162 F.3d 
1015, 1022 (9th Cir. 1998) ("When a statute does not define 
a term, we generally interpret that term by employing the 
ordinary, contemporary, and common meaning of the words 
that Congress used") (emphasis added). The radio frequency 
portion of the electromagnetic spectrum covers not only Wi- 
Fi transmissions, but also television broadcasts, Bluetooth 
devices, cordless and cellular phones, garage door openers, 
avalanche beacons, and wildlife tracking collars. See Fed. 
Commc'n Comm'n, Encyclopedia - FM Broadcast Station 
Classes and Service Countours, available at 
http://www.ntia.doc.gov/files/ntia/publications/2003- 
allochrt.pdf (last visited Aug. 13, 2013). One would not 
ordinarily consider, say, television a form of "radio 
communication." Not surprisingly, Congress has not 
typically assumed that the term "radio" encompasses the term 
"television." See, e.g., 18 U.S.C. § 1343 (imposing liability 
for "[f]raud by wire, radio, or television") (emphasis added); 
18 U.S.C. § 2101 (imposing liability for inciting a riot by 
means of "mail, telegraph, radio, or television") (emphasis 
added); 7 U.S.C. § 2156 (defining an "instrumentality of 
interstate commerce" as "any written, wire, radio, television 
or other form of communication); see also FCC v. Nat'l 
Citizens Comm. for Broad., 436 U.S. 775, 815 (1978) (noting 
that "radio and television stations are given different weight," 
under the regulations at issue, and describing regulations 
governing "a radio or television broadcast station") (emphasis 
added). 
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JOFFE V. GOOGLE, INC. 15 
The Wiretap Act itself does not assume that the phrase 
"radio communication" encompasses technologies like 
satellite television that are outside the scope of the phrase as 
it is ordinarily defined. For example, the statute's damages 
provision sets out specified penalties when the "violation of 
this chapter is the private viewing of a private satellite video 
communication that is not scrambled or encrypted or if the 
communication is a radio communication that is transmitted 
on [frequencies specified by regulation]." 18 U.S.C. 
§ 2520(c)(1) (emphasis added). Congress described 
separately the act of "viewing [ ] a private satellite video 
communication" even though such communication is 
transmitted on a radio frequency and would fall within 
Google's proposed definition of "radio communication." 
Taken together, these disparate provisions offer evidence that 
Congress does not use "radio" or "radio communication" to 
reference all of the myriad forms of communication that use 
the radio spectrum. Rather, it uses "radio" to refer to 
traditional radio technologies, and then separately describes 
other modes of communication that are not ordinarily thought 
of as radio, but that nevertheless use the radio spectrum. 
Google's proposed definition is in tension with how 
Congress--and virtually everyone else--uses the phrase. In 
common parlance, watching a television show does not entail 
"radio communication." Nor does sending an email or 
viewing a bank statement while connected to a Wi-Fi 
network. There is no indication that the Wiretap Act carries 
a buried implication that the phrase ought to be given a 
broader definition than the one that is commonly understood. 
See Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 1707 
(2012) (favoring a definition that matches "how we use the 
word in everyday parlance" and observing that "Congress 
remains free, as always, to give the word a broader or 
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JOFFE 16 V. GOOGLE, INC. 
different meaning. But before we will assume it has done so, 
there must be some indication Congress intended such a 
result"). 
Importantly, Congress provided definitions for many 
other similar terms in the Wiretap Act, but refrained from 
providing a technical definition of "radio communication" 
that would have altered the notion that it should carry its 
common, ordinary meaning. See, e.g., 18 U.S.C. § 2510(1) 
(defining "wire communication"); 18 U.S.C. § 2510(12) 
(defining "electronic communication"); 18 U.S.C. § 2510(15) 
(defining "electronic communication service"); 18 U.S.C. 
§ 2510(17) (defining "electronic storage"). As Google writes 
in its brief, "[t]he fact that the Wiretap Act provides 
specialized definitions for certain compound terms--but not 
for 'radio communication'--is powerful evidence that the 
undefined term was not similarly intended [to] be defined in 
a specialized or narrow way" but rather "according to its 
ordinary meaning." Appellant's Br. at 29. We agree and, 
accordingly, we reject Google's proposed definition of "radio 
communication" in favor of one that better reflects the 
phrase's ordinary meaning. 
2. A "radio communication" is a predominantly auditory 
broadcast, which excludes payload data transmitted 
over Wi-Fi networks 
There are two telltale indicia of a "radio communication." 
A radio communication is commonly understood to be (1) 
predominantly auditory, and (2) broadcast. Therefore, 
television--whether connected via an indoor antenna or a 
satellite dish--is not radio, by virtue of its visual component. 
A land line phone does not broadcast, and, for that reason, is 
not radio. On the other hand, AM/FM, Citizens Band (CB), 
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JOFFE V. GOOGLE, INC. 17 
'walkie-talkie,' and shortwave transmissions are 
predominantly auditory, are broadcast, and are, not 
coincidentally, typically referred to as "radio" in everyday 
parlance. Thus, we conclude that "radio communication" 
should carry its ordinary meaning: a predominantly auditory 
broadcast.5 
The payload data transmitted over unencrypted Wi-Fi 
networks that was captured by Google included emails, 
usernames, passwords, images, and documents that cannot be 
classified as predominantly auditory. They therefore fall 
outside of the definition of a "radio communication" as the 
phrase is used in 18 U.S.C. § 2510(16). 
5 We need not reach the question of what exactly constitutes a 
"broadcast" because the Wi-Fi transmissions in question were not 
predominantly auditory. Whether cell phone calls--which are projected 
wirelessly over great distances--are broadcast would similarly be a close 
question. 
We also need not fully consider the extent to which non-auditory 
transmissions may be included in a broadcast before that broadcast is no 
longer a radio broadcast. Modern FM radio stations, for example, 
commonly transmit small amounts of data denoting the artist and title of 
the song. But because such data is ancillary to the audio transmission, 
they likely do not remove the transmissions from the domain of a "radio 
communication" under the Act. 
And, finally, we do not address how to classify a traditional radio 
broadcast delivered to a web-enabled device connected to a Wi-Fi 
network, such as a radio station streamed over the internet. Here, 
Google's collection efforts were not limited to auditory transmissions. 
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JOFFE 18 V. GOOGLE, INC. 
3. Defining "radio communication" to include only 
predominantly auditory broadcasts is consistent with 
the rest of the Wiretap Act 
Crucially, defining "radio communication" as a 
predominantly auditory broadcast yields a coherent and 
consistent Wiretap Act. Google's overly broad definition 
does not. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 
291 (1988) ("In ascertaining the plain meaning of the statute, 
the court must look to the particular statutory language at 
issue, as well as the language and design of the statute as a 
whole.") 
Throughout the Wiretap Act, Congress used the phrase 
"radio communication"--which is at issue here--and the 
similar phrase "communication by radio." Even within the 
very provision that we are construing--18 U.S.C. 
§ 2510(16)--Congress used both phrases. We must ascribe 
to each phrase its own meaning. See SEC v. McCarthy, 
322 F.3d 650, 656 (9th Cir. 2003) ("It is a well-established 
canon of statutory interpretation that the use of different 
words or terms within a statute demonstrates that Congress 
intended to convey a different meaning for those words."). 
The phrase "communication by radio" is used more 
expansively: it conjures an image of all communications 
using radio waves or a radio device. See, e.g., 18 U.S.C. 
§ 2510(16)(E) (describing radio communication that "is a 
two-way voice communication by radio transmitted on a 
frequency "not exclusively allocated to broadcast auxiliary 
services."). 
When read in context, the phrase "radio communication" 
tends to refer more narrowly to broadcast radio technologies 
rather than to the radio waves by which the communication 
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JOFFE V. GOOGLE, INC. 19 
is made. "Radio communication" is typically surrounded by 
words that evoke traditional radio technologies whenever it 
is used in the Act. See Gustafson v. Alloyd Co., 513 U.S. 561, 
575 (1995) (""[A] word is known by the company it keeps 
(the doctrine of noscitur a sociis). This rule we rely upon to 
avoid ascribing to one word a meaning so broad that it is 
inconsistent with its accompanying words, thus giving 
'unintended breadth to the Acts of Congress.'"). For 
example, 18 U.S.C. § 2511(2)(g)(ii), inter alia, exempts from 
liability the interception of "any radio communication which 
is transmitted . . . by a station operating on an authorized 
frequency within the bands allocated to the amateur, citizens 
band, or general mobile radio services." These are traditional 
audio broadcasts that fit squarely within the ordinary meaning 
of "radio communication." The phrase "radio 
communication" is used five times in the Wiretap Act. See 
18 U.S.C. § 2510(16), 18 U.S.C. § 2511(2)(g)(ii), 18 U.S.C. 
§ 2511(2)(g)(v), 18 U.S.C. § 2511(5)(a)(i)(B), 18 U.S.C 
§ 2520(c)(1). Defining the term as a predominantly auditory 
broadcast would not distort the meaning of any of these 
provisions or otherwise lead to incoherence or inconsistency. 
On the other hand, the Wiretap Act uses "communication 
by radio" to refer more broadly to any communication 
transmitted by radio wave. See 18 U.S.C. § 2510(12) 
(defining "electronic communication" to include any 
communication "transmitted in whole or in part by . . . 
radio"); 18 U.S.C. § 2511(1)(b)(ii) (prohibiting the use of a 
"device to intercept any oral communication" if the "device 
transmits communications by radio"); 18 U.S.C. § 2511(2)(b) 
(authorizing FCC employees, in carrying out their official 
duties, "to intercept . . . [an] oral communication transmitted 
by radio"). Congress's decision to use both of these phrases 
implies that it intended to distinguish "radio communication" 
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JOFFE 20 V. GOOGLE, INC. 
from "communications by radio." See McCarthy, 322 F.3d 
at 656. Ideally, Congress would have supplied definitions to 
make the distinction between these terms more apparent. 
Nevertheless, by relying on their ordinary meaning and 
evaluating how they are used in context, we conclude that the 
former refers more narrowly to a predominantly auditory 
broadcast while only the latter encompasses other 
communications made using radio waves. 
The way the phrase "radio communication" is used in 
18 U.S.C. § 2511(2)(g)(ii) is particularly relevant in defining 
the term because that provision specifically exempts from 
liability the interception of certain kinds of radio 
communication. The provision is not directly at issue here 
because--as Google acknowledges--Google's conduct is not 
encompassed by any of the § 2511(2)(g)(ii) exemptions, 
hence its reliance on § 2511(2)(g)(i). But it is instructive to 
understand the types of communication exempted by 
§ 2511(2)(g)(ii) since the phrase "radio communication" is 
"known by the company it keeps," Gustafson, 513 U.S. at 
575. The exemptions include, inter alia, radio 
communications transmitted "by any station for the use of the 
general public," 18 U.S.C. § 2511(2)(g)(ii)(I), "by a station 
operating on an authorized frequency within the bands 
allocated to the amateur, citizens band, or general mobile 
radio services," 18 U.S.C. § 2511(2)(g)(ii)(III), and "by any 
marine or aeronautical communications system," 18 U.S.C. 
§ 2511(2)(g)(ii)(IV). Other than the fact that they all use the 
radio spectrum, these radio communications have little in 
common with a home Wi-Fi network. Of course 
§ 2511(2)(g)(i) exempts radio communications that are 
"readily accessible to the general public" even if they are not 
specifically set out in § 2511(2)(g)(ii). But it would be odd 
for Congress to take pains to identify particular kinds of radio 
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JOFFE V. GOOGLE, INC. 21 
communications that should be exempt in § 2511(2)(g)(ii) 
only to exempt broad swaths of dissimilar communications, 
such as data transmitted over a Wi-Fi network, under the 
auspices of § 2511(2)(g)(i). It is more sensible to read the 
general exemption in § 2511(2)(g)(i)--insofar as it applies to 
"radio communication" rather than other kinds of "electronic 
communication"--in light of the specific exemptions in 
§ 2511(2)(g)(ii). 
Relatedly, giving "radio communication" its ordinary 
meaning as a predominantly auditory broadcast also avoids 
producing absurd results that are inconsistent with the 
statutory scheme. See Griffin v. Oceanic Contractors, Inc., 
458 U.S. 564, 575 (1982) ("[I]nterpretations of a statute 
which would produce absurd results are to be avoided if 
alternative interpretations consistent with the legislative 
purpose are available."); Ariz. State Bd. for Charter Schools 
v. U.S. Dep't of Educ., 464 F.3d 1003, 1008 (9th Cir. 2006) 
("[W]ell-accepted rules of statutory construction caution us 
that 'statutory interpretations which would produce absurd 
results are to be avoided.' When a natural reading of the 
statutes leads to a rational, common-sense result, an alteration 
of meaning is not only unnecessary, but also extrajudicial."). 
Under the expansive definition of "radio communication" 
proposed by Google, the protections afforded by the Wiretap 
Act to many online communications would turn on whether 
the recipient of those communications decided to secure her 
wireless network. A "radio communication" is "readily 
accessible to the general public" and, therefore, exempt from 
Wiretap Act liability if it is not scrambled or encrypted. 
18 U.S.C. § 2510(16). Consider an email attachment 
containing sensitive personal information sent from a secure 
Wi-Fi network to a doctor, lawyer, accountant, priest, or 
spouse. A company like Google that intercepts the contents 
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JOFFE 22 V. GOOGLE, INC. 
of that email from the encrypted home network has, quite 
understandably, violated the Wiretap Act. But the sender of 
the email is in no position to ensure that the recipient--be it 
a doctor, lawyer, accountant, priest, or spouse--has taken 
care to encrypt her own Wi-Fi network. Google, or anyone 
else, could park outside of the recipient's home or office with 
a packet sniffer while she downloaded the attachment and 
intercept its contents because the sender's "radio 
communication" is "readily accessible to the general public" 
solely by virtue of the fact that the recipient's Wi-Fi network 
is not encrypted. Surely Congress did not intend to condone 
such an intrusive and unwarranted invasion of privacy when 
it enacted the Wiretap Act "to protect against the 
unauthorized interception of electronic communications." 
S. Rep. No. 99-541 (1986), at 1; see also Konop v. Hawaiian 
Airlines, Inc., 302 F.3d 868, 875 (9th Cir. 2002) ("The 
legislative history of the [Wiretap Act] suggests that 
Congress wanted to protect electronic communications that 
are configured to be private, such as email."); In re 
Pharmatrak, Inc. Privacy Litig., 329 F.3d 9, 18 (1st Cir. 
2003) ("The paramount objective of the Wiretap Act is to 
protect effectively the privacy of communications."). 
The definition of "readily accessible to the general 
public" in § 2510(16) is limited to "radio communication," 
and does not encompass all "electronic communication." 
Congress's decision to carve out "radio communication" for 
less protection than some other types of "electronic 
communication" makes sense if "radio communication" is 
given its ordinary meaning. Traditional radio services can be 
easily and mistakenly intercepted by hobbyists. See 132 
Cong. Rec. S7987-04 (1986) ("In order to address radio 
hobbyists' concerns, we modified the original language of 
S. 1667 to clarify that intercepting traditional radio services 
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JOFFE V. GOOGLE, INC. 23 
is not unlawful."). But "radio hobbyists" do not mistakenly 
use packet sniffers to intercept payload data transmitted on 
Wi-Fi networks. Lending "radio communication" a broad 
definition that encompasses data transmitted on Wi-Fi 
networks would obliterate Congress's compromise and create 
absurd applications of the exemption for intercepting 
unencrypted radio communications. For example, 
§ 2511(2)(g)(ii)(II) exempts from liability, inter alia, the act 
of intercepting "any radio communication which is 
transmitted . . . by any governmental, law enforcement . . . or 
public safety communications system, including police and 
fire, readily accessible to the general public." This provision 
reinforces the work performed by § 2511(2)(g)(i), which 
already exempts a "radio communication" that is "readily 
accessible to the general public." Congress's decision to 
ensure that these communications were exempt makes sense 
if "radio communication" encompasses only predominantly 
auditory broadcasts since these transmissions can be picked 
up by widely available police scanners. But if "radio 
communication" includes data transmitted over Wi-Fi 
networks, then § 2511(2)(g)(ii)(II) also underscores that 
liability should not attach to intercepting data from an 
unencrypted Wi-Fi network operated by, say, a police 
department or government agency. It seems doubtful that 
Congress wanted to emphasize that Google or anyone else 
could park outside of a police station that carelessly failed to 
secure its Wi-Fi network and intercept confidential data with 
impunity. 
Next, Google strenuously argues that the rest of the 
Wiretap Act supports its position that "radio communication" 
in 18 U.S.C. § 2510(16) means "any information transmitted 
using radio waves." Google leans heavily on § 2510(16)(D) 
and the accompanying legislative history, which together 
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JOFFE 24 V. GOOGLE, INC. 
suggest that cellular telephone and paging systems are a form 
of "radio communication." If cell phone and paging systems 
are a type of "radio communication," Google argues, it must 
be the case that Congress intended that the phrase include Wi- 
Fi networks and the rest of the radio spectrum because these 
technologies differ from paradigmatic radio communications 
like AM/FM, CB, and shortwave transmissions. But cell 
phone communications were not dissimilar from CB, 
shortwave, or other two-way forms of traditional radio 
broadcasts when § 2510(16)(D) was added to the Wiretap Act 
in 1986 as part of the Electronic Communications Privacy 
Act, Pub. L. No. 99-508, 100 Stat. 1848. When Congress 
enacted § 2510(16)(D), cell phones were still called "cellular 
radiotelephones." See H.R. Rep. No. 99-647, at 20 (1986). 
As with other audio broadcasts, cellular conversations were 
often inadvertently picked up by radio hobbyists "scanning 
radio frequencies in order to receive public communications." 
S. Rep. No. 99-541, at 3560 (1986); see also H.R. Rep. No. 
99-647, at 20 ("Cellular telephone calls can be intercepted by 
either sophisticated scanners designed for that purpose, or by 
regular radio scanners modified to intercept cellular calls"). 
The fact that technology has evolved and cellular 
communications are no longer as similar to CB broadcasts as 
they once were does not require us to read "radio 
communication" to include all communications made using 
radio waves. Rather, the historical context surrounding 
Congress's protection of cellular conversations as a form of 
a "radio communication" is consistent with the commonsense 
definition of the term because, at the time of the enactment of 
the definition in 1986, cellular conversations could have 
reasonably been construed as analogous to a form of two-way 
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JOFFE V. GOOGLE, INC. 25 
radio.6 Assuming, arguendo, that the phrase "radio 
communication" covers cell phone transmissions as they 
existed in 1986 does not inevitably lead to the conclusion that 
it also encompasses transmissions that are plainly not 
predominantly auditory broadcasts, such as payload data 
transmitted over a Wi-Fi network. 
Google also looks beyond the Wiretap Act in an effort to 
fit its expansive definition of "radio communication" into the 
statutory scheme. It points out that the Communications Act 
expressly defines the phrases "radio communication" and 
"communication by radio" broadly to include "the 
transmission by radio of writing, signs, signals, pictures, and 
sounds of all kinds." 47 U.S.C. § 153(40). But when 
Congress wanted to borrow a definition from the 
Communications Act to apply to the Wiretap Act, it expressly 
said so. See 18 U.S.C. § 2510(1) (giving the phrase 
"communication common carrier" the meaning that it has "in 
section 3 of the Communications Act"). Here, Congress 
refrained from incorporating the definition of "radio 
6 With modern advances in cellular technology, it is less clear how cell 
phones would fit within the statutory scheme today. We need not resolve 
this question here. Whether cell phone transmissions are an example of 
a "radio communication" is relevant to defining the phrase, but it is not a 
precursor to observing that a "radio communication" is ordinarily a 
predominantly auditory broadcast or to holding that payload data 
transmitted over a Wi-Fi network is not a "radio communication." We 
previously held that cell phone communications are "wire 
communications" for purposes of the Wiretap Act, but we did not address 
whether they are an example of a "radio communication." See In re U.S. 
for an Order Authorizing Roving Interception of Oral Commc'ns, 349 F.3d 
1132, 1138 n.12 (9th Cir. 2003) ("Despite the apparent wireless nature of 
cellular phones, communications using cellular phones are considered 
wire communications under the statute, because cellular telephones use 
wire and cable connections when connecting calls."). 
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JOFFE 26 V. GOOGLE, INC. 
communication" used in the Communications Act. And, as 
previously discussed, the Wiretap Act uses the phrases "radio 
communication" and "communication by radio" differently, 
indicating that Congress did not intend to import the 
Communications Act's definition, which treats them as 
synonyms. See 47 U.S.C. § 153(40). Furthermore, the 
Communication Act's definition of "radio communication" 
encompasses technologies like television by including "the 
transmission by radio of . . . pictures . . . of all kinds," 
47 U.S.C. § 153(40), while the Wiretap Act sometimes 
distinguishes them. See, e.g., 18 U.S.C. § 2520(c)(1) 
(providing specified penalties when the "violation of this 
chapter is the private viewing of a private satellite video 
communication that is not scrambled or encrypted or if the 
communication is a radio communication that is transmitted 
on [frequencies specified by regulation]"). Separate 
references to television-related communications would be 
redundant when paired with the phrase "radio 
communication" if we were to assume that the 
Communication Act's definition applied to the Wiretap Act. 
Importantly, the presumption that a definition set out in one 
part of the code is intended to govern another is hardly 
unyielding in the face of such contradictory evidence. See, 
e.g., General Dynamics Land Sys., Inc. v. Cline, 540 U.S. 
581, 595 (2004) (holding that the word "age" carries a 
different meaning in different sections of the ADEA); 
Robinson v. Shell Oil, 519 U.S. 337, 343 (1997) (holding that 
the term "employees" carries a different meaning in different 
sections of Title VII). 
Google also leans heavily on a series of amendments to 
18 U.S.C. § 2510(16) to argue that Congress impliedly gave 
the phrase "radio communication" a meaning other than the 
ordinary one that we adopt here. In 1990, Senator Patrick 
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JOFFE V. GOOGLE, INC. 27 
Leahy commissioned a task force to study the effect of new 
technologies, including the precursors to wireless networking, 
on the statutory scheme created in 1986 by the Electronic 
Communications Privacy Act. See S. Hrg. 103-1022, at 179 
(1994). In its report, the task force indicated it was concerned 
that communications by "'wireless modems' which can 
transmit data between computers . . . will not be protected 
unless the user goes to the expense of full data encryption." 
Id. at 183. The section of the report on "Wireless Data 
Communications" concluded that "[t]he task force 
recommends appropriate amendments to legally protect 
digital communications of this type from unauthorized 
interception." Id. In short, the task force was of the opinion 
that the version of 18 U.S.C. § 2510(16) enacted in 1986 did 
not adequately protect unencrypted "wireless data 
communications." The task force must have implicitly 
decided that "wireless data communications" were a "radio 
communication" because otherwise it would not have been 
concerned with § 2510(16), which only applies to "radio 
communication." See id. 
In 1994, Congress amended § 2510(16) to add a new 
category of communication--which it called an "electronic 
communication"--that it deemed to be a "radio 
communication" that was not "readily accessible to the 
general public." In relevant part, the statute provided that 
"'readily accessible to the general public' means, with respect 
to a radio communication, that such communication is not . . . 
(F) an electronic communication." 18 U.S.C. § 2510(16) 
(1994). Google claims that Congress added § 2510(16)(F) in 
1994 in order to protect from interception new technologies 
that transmitted data using radio frequencies, including the 
contemporary versions of wireless networks. There is some 
support for this proposition in the congressional record. See 
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JOFFE 28 V. GOOGLE, INC. 
H.R. Rep. No. 103-827, at 18 (1994) (explaining that the bill 
"[e]xtends privacy protections of the Electronic 
Communications Privacy Act to cordless phones and certain 
data communications transmitted by radio"). 
The significance of all of this is that Congress repealed 
18 U.S.C. § 2510(16)(F) in 1996. Google attempts to draw a 
series of inferences from the 1994 and 1996 amendments: 
The 1994 Congress thought that data transmissions across the 
wireless networks of the day were a type of "radio 
communication." Otherwise, Congress would not have 
needed to amend § 2510(16) in order to shield them from 
interception given that the provision only applies to "radio 
communication." By deleting § 2510(16)(F), the 1996 
Congress removed the sole protection for unencrypted data 
transmissions over wireless networks by returning § 2510(16) 
to its pre-amendment form. From Google's perspective, the 
upshot of this historical narrative is that payload data 
transmitted over an unencrypted Wi-Fi network is a "radio 
communication" that is "readily accessible to the general 
public" before the 1994 amendment and, crucially, after the 
1996 repeal. 
This evidence of congressional action and inaction is far 
more equivocal than Google acknowledges. First, the task 
force's report does not control what the phrase "radio 
communication" meant to Congress when it enacted 
§ 2510(16) in 1986. The task force's report suggests that it 
thought that the "wireless data communication" technology 
that existed in 1991 entailed "radio communication" as the 
phrase is used in § 2510(16). But the task force's opinion on 
questions of statutory interpretation has no independent 
authority; it is not charged with divining congressional intent. 
The task force's recommendation informs us that in 1991 a 
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JOFFE V. GOOGLE, INC. 29 
group of fifteen individuals thought that early versions of 
wireless networks involved "radio communication" under the 
statute. Their opinion is not indicative of what Congress 
intended when it included the phrase in the Wiretap Act. It 
may be considered evidence of the phrase's ordinary 
meaning. But it does not outweigh the more substantial 
evidence, discussed at length above, indicating that the 
ordinary meaning of "radio communication" excludes data 
transmitted over a Wi-Fi network. 
Second, Congress's decision to add § 2510(16)(F) in 1994 
does not prove that it thought data transmitted over a Wi-Fi 
network constituted a "radio communication." The 1994 
Congress was certainly concerned about ensuring that 
"certain data communications transmitted by radio" were 
protected from interception. But that does not necessarily 
mean that it was of the view that such communications were 
a "radio communication" under § 2510(16). Congress might 
have been forestalling the possibility that evolving 
technologies would be construed as radio communications, 
contrary to the ordinary meaning of the phrase. 
Third, and perhaps most importantly, there is no reliable 
indication of what the 1996 Congress intended to accomplish 
by repealing § 2510(16)(F). Google mines the 1991 task 
force report and the 1994 congressional record, but it cannot 
close the loop on its argument because the 1996 Congress did 
not leave behind the snippets of enactment history that are 
essential to Google's narrative. Consider two possible 
rationales for the 1996 repeal of § 2510(16)(F): first, 
Congress might have deleted the provision because it found 
it redundant. That is, Congress might have thought that data 
transmitted over a radio frequency was not a "radio 
communication," which would render the additional 
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JOFFE 30 V. GOOGLE, INC. 
protection for such communications offered by § 2510(16)(F) 
unnecessary. 
Alternatively, Congress might have (correctly) 
determined that § 2510(16)(F) made the statute incoherent. 
Recall that the short-lived provision provided that "'readily 
accessible to the general public' means, with respect to a 
radio communication, that such communication is not . . . (F) 
an electronic communication." 18 U.S.C. § 2510(16)(F) 
(1994). The phrase "electronic communication" has been 
broadly defined since the Electronic Communications Privacy 
Act of 1986. In 1994, when § 2510(16)(F) was added, the 
Wiretap Act provided--as it still does today--that 
"'electronic communication' means any transfer of signs, 
signals, writing, images, sounds, data, or intelligence of any 
nature transmitted in whole or in part by a wire, radio, 
electromagnetic, photoelectronic or photooptical system that 
affects interstate commerce." 18 U.S.C. § 2510(12). As 
Google stresses in its briefs, and the statute plainly states, 
"radio communication" is a subset of "electronic 
communication." Yet § 2510(16)(F) conveyed that a "radio 
communication" was not "readily accessible to the general 
public" if it was an "electronic communication," which 
incoherently implies that the latter was a subset of the former. 
The repeal of § 2510(16)(F) could, therefore, have been a 
housekeeping matter designed to resolve this internal tension 
without affecting the protection afforded "electronic 
communications, including data" that the 1994 Congress 
sought to protect. 
Neither of these entirely plausible explanations for the 
amendment and repeal are consistent with Google's 
assumption that the pre-1994 conception of "radio 
communication" included data transmitted over a Wi-Fi 
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JOFFE V. GOOGLE, INC. 31 
network and the 1996 repeal of § 2510(16)(F) sought to 
restore that conception. The point is that we do not know 
why the 1996 Congress deleted § 2510(16)(F). We choose to 
rely on the ordinary meaning of the phrase "radio 
communication" rather than follow a trail of enactment 
history that culminates in silence and then speculate as to 
Congress's unexpressed intent. 
Finally, Google's fall back position is that the rule of 
lenity dictates that we accept its proposed definition of "radio 
communication." Although this is a civil suit, the Wiretap 
Act also carries criminal penalties so Google's reliance on the 
rule of lenity is not unfounded. See Leocal v. Ashcroft, 
543 U.S. 1, 11 n.8 (2004) ("Because we must interpret the 
statute consistently, whether we encounter its application in 
a criminal or noncriminal context, the rule of lenity 
applies."). But we do not resort to the rule of lenity every 
time a difficult question of statutory interpretation arises. 
Rather, "the rule of lenity only applies if, after considering 
text, structure, history, and purpose, there remains a 'grievous 
ambiguity or uncertainty in the statute.'" Barber v. Thomas, 
130 S. Ct. 2499, 2508 (2010) (citations omitted); see also 
Smith v. United States, 508 U.S. 223, 239 (1993) ("The mere 
possibility of articulating a narrower construction [ ] does not 
make the rule of lenity applicable. Instead, that venerable 
rule is reserved for cases where, '[a]fter "seizing every thing 
from which aid can be derived,"' the Court is 'left with an 
ambiguous statute.'") (citations omitted). Here, the 
traditional tools of statutory interpretation are sufficient. The 
ordinary meaning of "radio communication" is consistent 
with the structure of the Act and avoids absurd results without 
running afoul of any clearly expressed congressional intent. 
We need not resort to the rule of lenity where, as here, the 
ambiguity can be fairly resolved. 
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JOFFE 32 V. GOOGLE, INC. 
B. Wi-Fi Transmissions Are Not "Readily Accessible to the 
General Public" under 18 U.S.C. § 2511(2)(g)(i) 
In the previous section, we concluded that payload data 
transmitted over a Wi-Fi network is not a "radio 
communication" under 18 U.S.C. § 2510(16). As a result, the 
definition of "readily accessible to the general public" in 
§ 2510(16) does not apply to the exemption for intercepting 
an "electronic communication" that is "readily accessible to 
the general public" in § 2511(2)(g)(i). But that does not end 
the inquiry. Although payload data transmitted over an 
unencrypted Wi-Fi network is not "readily accessible to the 
general public" by definition solely because it is an 
unencrypted "radio communication," it is still possible for a 
transmission that falls outside of the purview of the 
§ 2510(16) definition to be considered "readily accessible to 
the general public" under the ordinary meaning of that 
phrase.7 We now hold, in agreement with the district court, 
that payload data transmitted over an unencrypted Wi-Fi 
network is not "readily accessible to the general public" and, 
7 The phrase "readily accessible to the general public" is only defined 
insofar as the communication at issue is a "radio communication." See 
18 U.S.C. § 2510(16) ("'readily accessible to the general public' means, 
with respect to a radio communication . . ."). The phrase is undefined 
where, as here, the transmission is an "electronic communication" that is 
not a "radio communication." Since the term at issue is undefined, we 
look to its ordinary meaning. See Hamilton, 130 S. Ct. at 2471 ("When 
terms used in a statute are undefined, we give them their ordinary 
meaning."). Joffe does not dispute that payload data transmitted over a 
Wi-Fi network is an "electronic communication," which the Act defines 
as "any transfer of signs, signals, writing, images, sounds, data, or 
intelligence of any nature transmitted in whole or in part by a wire, radio, 
electromagnetic, photoelectronic or photooptical system that affects 
interstate or foreign commerce" subject to specific exceptions that do not 
apply here. 18 U.S.C. § 2510(12). 
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JOFFE V. GOOGLE, INC. 33 
consequently, that Google cannot avail itself of the 
§ 2511(2)(g)(i) exemption. 
First, Wi-Fi transmissions are not "readily" available 
because they are geographically limited and fail to travel far 
beyond the walls of the home or office where the access point 
is located. Google was only able to intercept the plaintiffs' 
communications because its Street View vehicles passed by 
the street outside of each plaintiff's house. The FCC 
generally limits the peak output of Wi-Fi broadcasts to 1 watt. 
See 47 C.F.R. § 15.247(b). Meanwhile, AM, FM, and other 
traditional radio broadcasts typically range from 250 to 
100,000 watts. See Fed. Commc'n Comm'n, Encyclopedia 
- FM Broadcast Station Classes and Service Countours, 
available at http://www.ntia.doc.gov/files/ntia/publications/ 
2003-allochrt.pdf (last visited Aug. 13, 2013); see also Fed. 
Commc'n Comm'n, Encyclopedia - AM Broadcast Station 
Classes; Clear, Regional, and Local, available at 
http://www.fcc.gov/encyclopedia/am-broadcast-stationclasses- 
clear-regional-and-local-channels (last visited Aug. 
13, 2013). As a result, AM radio stations have a service 
range of up to 100 miles, while individual Wi-Fi access 
points usually have a range of less than 330 feet. See Fed. 
Commc'n Comm'n, Encyclopedia - Why AM Radio Stations 
Must Reduce Power, Change Operations, or Cease 
Broadcasting at Night, http://www.fcc.gov/encyclopedia/ 
why-am-radio-stations-must-reduce-power-changeoperations- 
or-cease-broadcasting-night (last visited Aug. 13, 
2013); Encyclopedia Brittanica Online, Wi-Fi, 
http://www.britannica.com/ EBchecked/topic/1473553/Wi-Fi 
(last visited Aug. 13, 2013). 
Second, the payload data transmitted over unencrypted 
Wi-Fi networks is only "accessible" with some difficulty. 
Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 33 of 35 
JOFFE 34 V. GOOGLE, INC. 
Unlike traditional radio broadcasts, a Wi-Fi access point 
cannot associate or communicate with a wireless device until 
it has been authenticated. See IEEE Computer Soc'y, IEEE 
Standard for Information Technology -- Telecommunications 
and Information Exchange Between Systems -- Local and 
Metropolitan Area Networks -- Specific Requirements: Part 
11: Wireless LAN Medium Access Control (MAC) and 
Physical Layer (PHY) Specifications 473, Fig. 11-6 (2007). 
Devices on Wi-Fi networks--even unencrypted networks-- 
communicate via encoded messages sent to a specific 
destination over the wireless channel. Id. Therefore, 
intercepting and decoding payload data communicated on a 
Wi-Fi network requires sophisticated hardware and software. 
To capture this information, a wireless device must initiate a 
connection with the network and send encapsulated and 
coded data over the network to a specific destination. If the 
communications were intercepted by a traditional analog 
radio device they would sound indistinguishable from random 
noise. Wi-Fi transmissions are not "readily accessible" to 
the "general public" because most of the general public lacks 
the expertise to intercept and decode payload data transmitted 
over a Wi-Fi network.8 Even if it is commonplace for 
8 Google argues that unencrypted data transmitted over a Wi-Fi network 
is "readily accessible to the general public" because the hardware used to 
intercept the data can be purchased by anyone and the software used to 
decode the data can be downloaded from the internet. A district court also 
reached this conclusion in a patent case. See In re Innovatio IP Ventures, 
LLC Patent Litig., 886 F. Supp. 2d 888, 893 (N.D. Ill. 2012) ("In light of 
the ease of sniffing Wi-Fi networks, the court concludes that the 
communications sent on an unencrypted Wi-Fi network are readily 
accessible to the general public."). The availability of the technology 
necessary to intercept the communication cannot be the sole determinant 
of whether it is "readily accessible to the general public" as the phrase is 
ordinarily understood. A device that surreptitiously logs a computer 
user's keystrokes can be purchased online and easily installed, but that 
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JOFFE V. GOOGLE, INC. 35 
members of the general public to connect to a neighbor's 
unencrypted Wi-Fi network, members of the general public 
do not typically mistakenly intercept, store, and decode data 
transmitted by other devices on the network. Consequently, 
we conclude that Wi-Fi communications are sufficiently 
inaccessible that they do not constitute an "electronic 
communication . . . readily accessible to the general public" 
under 18 U.S.C. § 2511(2)(g)(i) as the phrase is ordinarily 
understood. 
IV. CONCLUSION 
For the foregoing reasons, we affirm the judgment of the 
district court. 
AFFIRMED. 
hardly means that every keystroke--whether over a wired or a wireless 
connection--is "readily accessible to the general public." 
Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 35 of 35

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