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.