Google has moved to dismiss a conslidated class action complaint alleging that it violated the federal Wiretap Act, among other laws, by allowing its Street View cars to collect the contents of communications transmitted over unsecured WiFi networks.  The motion was filed in the Northern District of California, where more than a dozen suits arising out of the Street View activity were consolidated for pretrial proceedings.  (The plaintiffs had filed a consolidated complaint in early November.) 

Google’s principal argument in support of its motion to dismiss the federal wiretapping claim–and parallel state law claims–is that communications sent from unsecured WiFi networks may be intercepted lawfully under the Wiretap Act if they are “readily accessible to the general public.”  18 U.S.C. § 2511(2)(g)(i).  Google contends that the plaintiffs have alleged interception of “radio communications,” and that under the Wiretap Act, such communications are presumed to be “readily accessible” unless the plaintiff can show that they fall within one of five categories of radio communications that the Act defines as not readily accessible.  According to Google, the plaintiffs have not satisfied this burden.

The court could simply dismiss the complaint with leave to amend, which would give the plaintiffs a chance to fix any pleading deficiencies.  But Google has asked for a broader ruling.  It argues that the complaint should be dismissed with prejudice because the plaintiffs cannot plead facts sufficient for liability under the statute.  Google effectively contends that unsecured WiFi communications are by nature “readily accessible to the general public” and unprotected by the Wiretap Act.  Such a ruling would be significant not only for Google, but for expectations of privacy generally in our increasingly wireless world.