By Bob Scott and John Seiver In the latest development in the Google Street View case, the 9th Circuit once again upheld the lower court’s decision that Google’s collection of unencrypted Wi-Fi does not fit within an exception to the Wiretap Act that allows the interception and use of “radio transmissions” that are “readily accessible to the public,” although it narrowed the reasoning of its earlier opinion.

After initially upholding the district court order denying Google’s motion to dismiss the case because of the Wiretap Act exception, the court asked for briefing on Google’s petition for panel and en banc rehearing.  Technically, the panel granted part of Google’s motion for rehearing and modified its opinion, but it did not change its decision that unencrypted Wi-Fi transmissions are protected from interception by the Wiretap Act.  Google now could ask the U.S. Supreme Court to review the case, pursue further litigation in the district court, or settle.

The panel’s initial opinion found that unencrypted Wi-Fi signals do not fit within the Wiretap Act exception for two reasons: they are not “radio transmissions” and, as electronic communications, they are not “readily accessible to the public.”  The revised order eliminates discussion of the “readily accessible” element, and now rests only on the 9th Circuit’s belief that unencrypted Wi-Fi is not “radio communication” under the Wiretap Act.  The revision suggests that the court had enough concern about the validity of its prior conclusion that unencrypted Wi-Fi is not “readily accessible to the public” to eliminate it as a second reason to uphold the lower court.

But the court’s determination that Wi-Fi is not “radio communication” is difficult to square with existing law and precedent.  The Federal Communications Commission’s Enforcement Bureau conducted a separate investigation of Google Street View and assumed that Wi-Fi signals are radio communications subject to that agency’s jurisdiction under a related provision of the Communications Act (Section 705(a)), which prohibits the interception of “radio communications” except as allowed in the Wiretap Act.  The FCC considered Google’s identical arguments that collection of unencrypted Wi-Fi did not violate the Wiretap Act, and decided not to impose fines or any other enforcement action (although it fined Google for inadequate cooperation with the investigation).  The 9th Circuit never mentions the FCC’s consideration of StreetView’s Wi-Fi collection, or the FCC’s treatment of Wi-Fi as “radio” in many other contexts.

Court decisions like this one – squeezing new technology into the Wiretap Act – will continue to encourage creative arguments by the plaintiffs’ bar in class actions against innovating technology companies.