Judge Denies Google’s Motion to Dismiss as to Federal Wiretap Act Claims in Street View Class Action

Published On July 6, 2011 | By Elizabeth Banker | General, Litigation, Privacy
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On June 29, 2011, Judge Ware of the Ninth Circuit issued an order granting in part and denying in part Google’s motion to dismiss the class action lawsuit In re Google Inc. Street View Electronic Communications Litigation.  Google’s motion to dismiss challenged plaintiffs’ federal wiretap claim, state wiretap claim, and their claim under California’s Section 17200 for unfair business practices.

Google was successful in having the state wiretap claim and the Section 17200 claim dismissed.  The state wiretap claim was dismissed based on the court’s view that the federal Electronic Communication Privacy Act preempts state “wiretap statutory schemes.”  In making this finding, Judge Ware used broad language which seems to call into question the ability of the states to impose stricter requirements, such as two-party consent, than exist in federal law.  Such an interpretation of the federal Wiretap Act’s preemption of state law would run counter to the precedent in the California Supreme Court (see, e.g., Kearny v. Salomon Smith Barney, 39 Cal.4th 95 (2006) citing People v. Conklin, 12 Cal.3d. 259 (1974)).  The court also dismissed the Section 17200 claim, not based on pre-emption as Google had argued, but rather solely based on the plaintiff’s failure to meet the pleading requirements of Proposition 64 which require an injury in fact and for which a breach of privacy is not sufficient.  Plaintiff’s have until August 1, 2011 to amend their complaint.

As to the Federal Wiretap Act claim that alleges that Google intentionally intercepted data packets containing, among other things email messages, from wireless home networks, the court denied Google’s motion to dismiss.  Google argued that the claim should be dismissed because the alleged actions pertained to communications which were “readily accessible to the general public” and thus exempt from the Wiretap Act under 18 U.S.C. § 2511(2)(g)(i).  “Readily accessible to the general public” is defined in Section 2510(16) of the Wiretap Act, but only as to radio communications.  The plaintiffs argued that the narrow definition of “readily accessible” was not intended to pertain to electronic communications.  After statutory analysis and reviewing the legislative history, Judge Ware agreed.  After rejecting the narrow definition of “readily accessible,” the court found that the pleadings were sufficient to survive the motion to dismiss by arguing that though the wifi networks at issue were open for anyone to use that the communication sent over those networks were scrambled in such a way that they were not available to the general public and only to those with specialized packet sniffing equipment.

If the litigation continues, it could continue to shed light on what “readily accessible” means in the context of electronic communications.

About The Author

Elizabeth Banker has developed a practice that includes advising clients on interactions with foreign and domestic law enforcement, strategic issues related to data storage and transfers, providing advice on surveillance and employee monitoring laws inside and outside the U.S., as well as data protection, security and consumer protection issues.