Ben Joffe v. Google
In 2007, Google launched its Street View project to capture street-level images from various cities in the US and around the world. Privacy advocates raised numerous objections to the program, but they focused primarily on the collection of images by the Google Street View digital cameras. However, as Google ultimately disclosed, the Street View vehicles also intercepted and stored a vast amount of Wi-Fi data from nearby home networks. Following independent investigations, Google conceded that it gathered MAC addresses (the unique device ID for Wi-Fi hotposts) and network SSIDs (the user-assigned network ID name) tied to location information for private wireless networks. Google also admits that it has intercepted and stored Wi-Fi transmission data, which included email passwords and email content.
As a result of the interception of private wireless network communications, plaintiffs in many states filed suit against Google. Plaintiffs alleged violations of the federal Wiretap Act, 18 U.S.C. §§2511, et seq., the California Business and Professional Code, and various state wiretap statutes. In re Google Inc. St. View Elec. Communications Litig., 794 F. Supp. 2d 1067, 1072 (N.D. Cal. 2011). On August 17, 2010, the United States Judicial Panel on Multidistrict Litigation transferred eight cases to the Northern District of California. The Wiretap Act provides a private right of action against any person who "intentionally intercepts ... any wire, oral, or electronic communication..." 18 U.S.C. § 2511(1)(a). However, Section 2511(2) provides exceptions to this private right of action where the "electronic communications system [is] configured so that such electronic communication is readily accessible to the general public." 18 U.S.C. § 2511(2)(g)(i).
The District Court considered three issues: “(1) what ‘radio communication’ means within the purview of the Wiretap Act; (2) whether wireless home internet networks are ‘radio communications’ within the purview of the Wiretap Act’s usage of that term; and (3) whether cellular telephone calls constitute ‘radio communications’ as intended by Congress when drafting the Wiretap Act and, if so, whether such technology properly fits within any of the five enumerated exceptions to the definition of ‘readily accessible to the general public’ as outlined in Section 2510(16)." Id. at 1072.
The District Court dismissed the plaintiffs’ claims under state wiretapping law, finding that the federal Wiretap Act preempts the state wiretap statutory schemes. Id. at 1085. However, the District Court did not dismiss the plaintiffs claims under the Wiretap Act. The court did not accept Google's argument that the Wiretap Act's prohibitions were inapplicable to communications sent over an "open" Wi-Fi network. Id. at 1079. Specifically, the court found that Congress did not intend to "electronic communications" such as Wi-Fi to be included in the narrow exception [2511(2)(g)(i)] for radio services "readily accessible to the general public." Id.
EPIC has an interest in the privacy and security of communications that are transmitted over home wireless networks. In fact, EPIC has taken several legal actions regarding Google’s specific interception of wireless network communications. EPIC also submitted an amicus brief to the district court in the instant case in response to the District Judge's request for supplemental briefing.
In February 2011, EPIC filed a Freedom of Information Act lawsuit against the Federal Trade Commission over the agency's failure to disclose to EPIC information about the FTC's decision to end the Google Spy-Fi investigation. See EPIC v. FTC, No. 11-cv-00881 (D.D.C. May 12, 2011). EPIC sought documents that the FTC widely circulated to members of Congress and their staff that provide the basis for the agency's decision. Documents obtained earlier by EPIC under the FOIA suggest that the FTC did not even examine the data Google gathered from private residential Wi-Fi routers in the United States. Ultimately, EPIC settled the case after the FTC turned over to EPIC agency records which suggested that the agency believed it lacked enforcement authority. However, the closing letter in the case also indicated that the Commission never undertook an independent investigation to determine whether other violations of law may have occurred.
United States Court of Appeals for the Ninth Circuit
- Google Reply Brief, In re Google Inc. Street View Electronic Commn'c, 794 F. Supp. 2d 1067 (N.D. Cal. 2011), appeal docketed, Ben Joffe v. Google, No. 17483 (9th Cir Apr. 20, 2012)
- EPIC "Friend of the Court" Brief, In re Google Inc. Street View Electronic Commn'c, 794 F. Supp. 2d 1067 (N.D. Cal. 2011), appeal docketed, Ben Joffe v. Google, No.17483 (9th Cir Mar. 30, 2012)
- Plaintiffs' Brief, In re Google Inc. Street View Electronic Commn'c, 794 F. Supp. 2d 1067 (N.D. Cal. 2011), appeal docketed, Ben Joffe v. Google, No.17483 (9th Cir Mar. 23, 2012)
- Google Opening Brief, In re Google Inc. Street View Electronic Commn'c, 794 F. Supp. 2d 1067 (N.D. Cal. 2011), appeal docketed, Ben Joffe v. Google, No.17483 (9th Cir Feb. 8, 2012)
United States District Court for the Northern District of California
- In re Google Inc. Street View Electronic Commn'c, 794 F. Supp. 2d 1067 (N.D. Cal. 2011).
- EPIC's "Friend of the Court" Brief
Law Review Articles and Books on Wi-Fi Security and the Wiretap Act
- Matthew Beirlein, Note, Policing the Wireless World: Access Liability in the Open Wi-Fi Era, Ohio St. L.J. (2006)
- David Kravets, Judge: Google Can Be Sued for Wiretapping in Street View Debacle, Wired, June 30, 2011.