[Scan-DC] Googe Wi-Fi case again

[Jeff Krauss]

Totally wrong-headed.
Google has already appealed:
http://cdn.ca9.uscourts.gov/datastore/general/2013/09/26/11-17483_PFREB.pdf



At 11:46 PM 9/25/2013, Alan Henney 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.
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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.
>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.
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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
>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
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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),
>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.
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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
>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
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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
>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
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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
>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
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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.
>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
>
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