Cross-posted by at On The Docket

Last July, in Move by State Attorneys General on “Street View” Exemplifies Online Privacy Compliance Challenges, we noted that class action lawsuits had been filed against Google Inc. after states began investigating alleged privacy invasions during Google’s collection of information for its “Street View” project. Almost a year later as Wired Magazine’s Threat Level blog reported, a federal trial court issued a ruling on those suits this week. That decision is the first to rule on this set of facts in the context of the now-ancient Electronic Communications Privacy Act (ECPA). The judge’s ruling is not only important for all users and providers of Wi-Fi, but also provides a timely illustration of the law’s outdated status.

ECPA contains no reference to Wi-Fi or transmission of information contained in data packs. So Northern District of California Judge James Ware had to engage in a searching probe of the law, the meaning of terms like “radio communications,” and ECPA’s legislative history. It’s a prime example of the raw authority judges possess to say what the law is, and what judges have to do when Congress doesn’t draft laws clearly or keep them updated.

The case’s outcome turned on whether the Wi-Fi broadcasts were “radio communications” which were “readily accessible to the public.” If the broadcasts fit those terms, Google would be immune from suit under ECPA’s wiretapping standards. After an analysis of the plain meaning of the relevant terms of the statute was inconclusive, Judge Ware delved into ECPA’s legislative history. He found that Congress did not intend to include cellular phone broadcasts as the type of “radio communication” whose interception could be immune from liability. He thus analogized Wi-Fi to cell phone broadcasts:

Unlike in the traditional radio services context, communications sent via Wi-Fi technology, as pleaded by Plaintiffs, are not designed or intended to be public. Rather, as alleged, Wi-Fi technology shares a common design with cellular phone technology . . .

Judge Ware also held that the unsecured nature of the plaintiffs’ Wi-Fi routers was not relevant in determining whether the data was “readily accessible to the public.” Thus, under ECPA, the judge found that the plaintiffs pled sufficient facts to establish a Wiretap Act violation. That part of the case is allowed to proceed on a track towards trial. Judge Ware also held that ECPA preempts state wiretap laws, and that the plaintiffs did not establish the type of injury needed to proceed under California’s §17200 law. Unless the plaintiffs can show some injury, only the ECPA claim will remain.

The WiFi = cell phone ruling may be a temporary victory for the plaintiffs, as they must now convince the court to allow the case to proceed as a class action. The decision is, however, a precedent other plaintiffs can point to in future cases. Also, no doubt proponents of ECPA reform will use In re Google Inc. Street View Electronic Communications Litigation as further proof that a congressional update of the law is sorely needed.