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Joffe v. Google, Inc.

United States Court of Appeals, Ninth Circuit

September 10, 2013

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.

Argued and Submitted June 10, 2013—San Francisco, California

Amended December 27, 2013

Appeal from the United States District Court for the Northern District of California James Ware, District Judge, Presiding D.C. No. 5:10-md-02184-JW

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.

Ashok Ramani and Michael S. Kwun, Keker & Van Nest LLP, San Francisco, California, for Amicus Curiae Information Technology & Innovation Foundation.

Before: A. Wallace Tashima and Jay S. Bybee, Circuit Judges, and William H. Stafford, Senior District Judge. [*]

SUMMARY[**]

Wiretap Act

The panel granted in part a petition for rehearing, filed an amended opinion affirming the district court, and denied a petition for rehearing en banc on behalf of the court in an interlocutory appeal from the district court's order denying a motion to dismiss claims that Google violated the Wiretap Act when it collected data from unencrypted Wi-Fi networks in the course of capturing its Street View photographs.

The Wiretap Act imposes liability on a person who intentionally intercepts any electronic communication, subject to a number of exemptions. In the amended opinion, the panel held that data transmitted over a Wi-Fi network is not a "radio communication" exempt from the Wiretap Act under 18 U.S.C. § 2511(2)(g)(i) as an "electronic communication" that is "readily accessible to the general public."

The panel held that the phrase "radio communication" in 18 U.S.C. § 2510(16) excludes payload data transmitted over a Wi-Fi network, and that 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 § 2511(2)(g)(I).

ORDER

Appellant's motion for leave to file a reply brief in support of its petition for rehearing and rehearing en banc, filed on November 6, 2013, is GRANTED.

Appellant's petition for rehearing, filed on September 24, 2013, is GRANTED IN PART. The court's opinion, filed on September 10, 2013, and appearing at 729 F.3d 1262 (9th Cir. 2013), is hereby AMENDED. An amended opinion is filed concurrently with this order.

Judge Bybee votes to deny Appellant's petition for rehearing en banc, filed on September 24, 2013, and Judge Tashima and Judge Stafford so recommend. The full court has been advised of Appellant's petition for rehearing en banc, and no request to vote on whether to rehear the case en banc has been made. Appellant's petition for rehearing en banc is DENIED.

No subsequent petitions for rehearing or rehearing en banc shall be filed by either party.

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


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