[Scan-DC] Googe Wi-Fi case again

[Andrew Feinberg]

For the purposes of the a Wiretap Act, I would explain the definition
of a "radio communication" as a signal that not only is transmitted in
the clear but is meant for -- and readily understood by -- not just
the specific recipient of the signal (e.g. Police Officer to
dispatcher) but third parties listening in (other officers and/or
general public).

A Wi-Fi signal from your laptop to say, google.com, is a one-to-one
transmission specifically routed from sender to recipient using TCP/IP
-- more like a phone call.

Does this help?

A



> On Sep 28, 2013, at 2:19 AM, Alan Henney <alan at henney.com> wrote:
>
>
> 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
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 1 of 35
> 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.
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 2 of 35
> 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.
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 3 of 35
> 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.
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 4 of 35
> 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.
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 5 of 35
> 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.
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 6 of 35
> 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."
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 7 of 35
> 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
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 8 of 35
> 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
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 9 of 35
> 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
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 10 of 35
> 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).
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 11 of 35
> 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).
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 12 of 35
> 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
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 13 of 35
> 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).
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 14 of 35
> 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
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 15 of 35
> 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),
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 16 of 35
> 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.
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 17 of 35
> 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
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 18 of 35
> 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"
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 19 of 35
> 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
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 20 of 35
> 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
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 21 of 35
> 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
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 22 of 35
> 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
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 23 of 35
> 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
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 24 of 35
> 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.").
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 25 of 35
> 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
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 26 of 35
> 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
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 27 of 35
> 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
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 28 of 35
> 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
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 29 of 35
> 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
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 30 of 35
> 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.
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 31 of 35
> 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).
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 32 of 35
> 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
> Case: 11-17483 09/10/2013 ID: 8775648 DktEntry: 53-1 Page: 34 of 35
> 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
>
> For more information please visit: http://www.gpo.gov/
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