Tuesday, July 12, 2011

WiFi Nets are not "Readily Accessible to the Public;" Google's Motion to Dismiss EPCA Claim in SpyFi Case Denied

In re Google Inc. Street View Electronic Communications Litigation, No. C 10-MD-02184 JW., United States District Court, N.D. California, San Francisco Division. June 29, 2011.

PROCEDURE:  Defendant Google's Motion to Dismiss. Fed. Rule 12(b)(6)

BACKGROUND: "Plaintiffs bring this putative class action against Google, Inc. ("Defendant"), alleging three causes of action for violation of the federal Wiretap Act, 18 U.S.C. §§ 2511, et seq., violation of Cal. Bus. & Prof. Code §§ 17200, et seq., and violation of various state wiretap statutes. Plaintiffs allege that Defendant intentionally intercepted data packets, including payload data, from Plaintiffs' Wi-Fi networks utilizing specially designed packet sniffer software installed on Defendant's Google Street View vehicles."

ANALYSIS:

Wiretap Act
  • Defendant: Plaintiffs have failed to plead that their Wi-Fi broadcasts were not "readily accessible" and thus, Defendant is entitled to exemption from liability under the Wiretap Act 18 U.S.C. § 2511(2)(g)(i) ("exemption G1");
  • Plaintiff: 
    • the Wiretap Act's statutory definition of "readily accessible" relied on by Defendant solely applies to "radio communications" under § 2511(2)(g)(ii) ("exemption G2") and is, thus, inapplicable to "electronic communications" under exemption G1 and the ordinary meaning of "readily accessible" should be used; 
    • exemption G1 only applies to unlawful interception and access, and Plaintiffs allege that Defendant further used and disclosed the intercepted communications; 
  • Court: 
    • Congress defined "readily accessible to the public" in the context of radio communications.  18 USC § 2510(16). The District Court through statutory construction concludes that "radio communications" means traditional radio broadcast communications and not all wireless electronic communications, specifically not WiFi.
    • "the Court finds that Congress did not intend Section 2510(16)'s narrow definition of "readily accessible to the general public" to apply for purposes of exemption G1."  In other words, the G1 exception would only apply to traditional radio, not something like Wifi.
    • Motion to Dismiss Wiretap Act Claim denied
Preemption
  • Defendant: Plaintiffs' claims based on state law wiretap statutes are preempted by the Wiretap Act and, alternatively, fail to state a claim; 
  • Plaintiff: the state wiretap statutes are not preempted by the Wiretap Act either expressly, by field preemption, or by conflict
  • Court: 
    • "the Court finds that, while the ECPA contains no express preemptive statement on the part of Congress, the ECPA was intended to comprehensively regulate the interception of electronic communications such that the scheme leaves no room in which the states may further regulate."
    • Motion to Dismiss as to this cause of action granted
State Cause of Action
  • Defendant: Plaintiffs' "unlawful" and "unfair" Cal. Bus. & Prof. Code §§ 17200 claims are also preempted by the Wiretap Act and, alternatively, fail to state a claim or plead standing under Proposition 64. (Motion at 5-19.) 
  • Plaintiff: claims under Cal. Bus. & Prof. Code §§ 17200, et seq., are not preempted by the Wiretap Act as they are qualitatively different and are properly pleaded. (Opp'n at 3-25.) The Court addresses each ground in turn.
  • Court:  "the Court finds that Plaintiffs fail to plead facts sufficient to support Proposition 64 standing."  Motion to Dismiss as to this cause of action granted without prejudice.
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