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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

Key Holdings in Google Street View Litigation: WiFi Not “Readily Accessible to the General Public” and ECPA Preempts State Wiretap Laws

Posted in Litigation, United States

The Northern District of California issued two key rulings last week in denying in part a motion to dismiss in In re Google Inc. Street View Electronic Communications Litigation, a consolidated action arising out of Google’s acknowledged interception of “payload data,” including emails, usernames, password, and other private data, from unencrypted home wireless networks using technology installed on Google’s Street View vehicles.    

First, in a matter of first impression Judge Ware rejected Google’s argument that its interception of Wi-Fi communications content was not restricted by the Wiretap Act (Title 1 of the Electronic Communications Privacy Act or ECPA), due to a “readily accessible to the general public” exception contained in the statute.  Instead, the court held that this exception applies only to communications using traditional radio broadcast technology.  Significantly, Judge Ware distinguished Wi-Fi technology from traditional radio services, which presumptively are intended to be public, instead likening Wi-Fi to cellular technology, in that both are designed to send communications privately.  The court also held that plaintiffs’ Wiretap Act claim was plausibly pleaded, meaning that the litigation will continue beyond Google’s motion to dismiss. 

Second, citing the Central District of California’s holding in Bunnell v. Motion Picture Ass’n of Am, the court held that ECPA was intended to comprehensively regulate the interception of electronic communications and preempts state wiretap statutory schemes.  Although not binding on other courts, this is a significant holding on an issue that has seen divergent decisions, including a recent ruling from within the Northern District of California in Valentine v. NebuAd Inc, which allowed a California Invasion of Privacy Act claim to survive a motion to dismiss under an analysis that there was no federal preemption.    

It was reported today that Google plans to seek an immediate appeal of the District Court decision to the Ninth Circuit.