Northern District of California Denies Google’s Motion to Dismiss

On June 29, 2010, Chief Judge James Ware of the Northern District of California denied Google Inc.’s motion to dismiss a class action claim alleging it violated the federal Wiretap Act, 18 U.S.C. §§ 2511, et seq.[1] The lawsuit was filed by residents in nine U.S. states who claim Google Street View vehicles – primarily used to collect photographic images along roadways – violated the federal statute by also intercepting, decoding and storing personal information transmitted via unsecured wireless, or Wi-Fi networks.

Google began using the Street View vehicles back in 2007, and publicly acknowledged their primary purpose of collecting 360 degree photographic images. However, the company failed to disclose that the vehicles were also equipped with so-called “wireless sniffers” or “packet analyzers” – a proprietary technology that has the ability to intercept data transmitted over Wi-Fi networks, decode the information and then analyze and store it.

The presence and use of this technology first came to light in 2010, when a European privacy authority began making inquiries into the internet company’s Street View collection practices. Google initially acknowledged only that it had intercepted SSIDs and MAC addresses, but later revealed that it had also collected about 600 gigabytes of information including whole e-mails, usernames, passwords and other private data from more than 30 countries.

In response to the alleged wiretap violations, Google moved to dismiss the claims arguing that its actions fell within one of the statute’s express exemptions because the information was “readily accessible to the general public,” as it had been intercepted over unsecured Wi-Fi networks. Wading through the murky and outdated language of the 1986 Act, which was passed at a time when wireless networks were “a technology unknown to the 99th Congress,” the court was forced to rely heavily on the legislative history to interpret its structure and intent. Although Judge Ware rejected the plaintiffs’ contention that the statute’s limited exception applied only to “radio communications” and not the more broadly defined “electronic communications,” he nonetheless found that information transmitted over unsecured wireless networks, like cellular communications, is “architected” to make intentional monitoring by third parties difficult. Despite the plaintiffs’ acknowledgement that their wireless networks were “open” and “unencrypted,” this only meant that users could freely log on and use the network to send or receive information that was intended to be shared. In contrast, without the use of “rare packet sniffing software” – a technology not in the possession of the general public – the court determined that the interception and subsequent decryption of information exchanged over Wi-Fi networks that was not intended to be shared would be very difficult and would fall outside the “readily accessible” exemption.

In light of these considerations, the court found that the plaintiffs had sufficiently pleaded a cause of action and denied Google’s motion to dismiss the federal wiretap allegations.