Google Rips Ninth Circuit Ruling in Street View Case
Google was looking for a quick way out of a high-stakes class action over its Street View project when it took a pretrial appeal to the Ninth Circuit over the meaning of the Wiretap Act.
Now the tech giant is upset that the appellate court may have ended the dispute too quickly.
On Tuesday, Google accused the U.S. Court of Appeals for the Ninth Circuit of reaching out to decide an issue not properly before the court in its big privacy decision earlier this month — specifically, whether emails and other personal data streaming across home Wi-Fi networks are "readily accessible to the general public" and therefore not protected by the Wiretap Act.
The Ninth Circuit's Sept. 10 decision against Google in Joffe v. Google is "a mistake" that "defies black-letter rules of civil and appellate procedure," the company argues in a petition for rehearing by its new lawyer, WilmerHale appellate guru Seth Waxman, and Google's attorneys at Wilson Sonsini Goodrich & Rosati.
The panel's sweeping decision also "raised questions" about whether everyday users of wireless devices violate the Wiretap Act whenever they encounter another user's unencrypted Wi-Fi network, the lawyers say.
An amicus curiae attorney on the plaintiffs' side called the argument a stretch. "This is an interlocutory appeal filed by Google," said Alan Butler of the Electronic Privacy Information Center. "It's a bit disingenuous to say the Ninth Circuit doesn't have the authority to rule on the very question they appealed on."
Google is accused of committing widespread privacy violations when it used Wi-Fi sniffing technology to download "payload" content — including user names, passwords, email addresses and other sensitive data — as part of its Street View mapping project.
The Ninth Circuit rejected Google's argument that Wi-Fi transmissions are exempt from liability under the Wiretap Act because they're "radio communications" that anyone can access. "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," Judge Jay Bybee wrote for a unanimous panel. "Intercepting and decoding payload data communicated on a Wi-Fi network requires sophisticated hardware and software," he added.
This week Google argued that finding is premature, and wrong.
Google appealed after U.S. District Judge James Ware denied its motion to dismiss. Therefore, both Ware and the Ninth Circuit were limited to facts alleged in the complaint. "The panel's ruling on an issue that was neither addressed below nor raised on appeal deprived Google of its right to be heard, rests on mistaken factual premises, and casts a legal cloud over everyday activities involving Wi-Fi networks," write Waxman and Wilson Sonsini partner Michael Rubin.
Google appears to be correct that the issue of the Wi-Fi decoding technology was not formally presented on appeal. The question certified was only "whether Wi-Fi transmissions are 'radio communications' under section 2510(16) of the Wiretap Act and thus presumptively 'readily accessible to the general public.'"
But the company may have a hard time persuading the court it didn't open the door with its arguments. Like Bybee's opinion, Rubin's opening brief for Google is peppered with citations to technology treatises, online encyclopedias, news articles and other outside material to make arguments about the Wiretap Act and its exceptions. "Plaintiffs did not plead that any of those exceptions covers their unencrypted Wi-Fi transmissions," Rubin wrote, "and none does."
In any event, Bybee is wrong because packet-sniffing technology is commonplace, Waxman and Rubin argue in their petition for rehearing.
Packet sniffers are used to manage security in enterprise networks, and everyday Wi-Fi devices continually receive and de-code all nearby packets to determine which ones are intended for that device, they say. "The sweeping language in the panel's decision," they argue, "creates uncertainty about whether these everyday occurrences now violate the Wiretap Act."