By John D. Seiver
Google held true to its promise to seek SCOTUS review of the Ninth Circuit’s interpretation of the term “radio communications” in the Wiretap Act when it filed its Petition for Certiorari last week. Google had argued in the Ninth Circuit that intercepting unencrypted Wi-Fi transmissions is within a specific exemption, but the Ninth Circuit (initially and on rehearing) held instead that unencrypted Wi-Fi is protected from interception by the Wiretap Act. Absent an extension, oppositions are due April 30, 2014.
In its petition to the Supreme Court, Google argues that the Ninth Circuit got it wrong when it held that the express exemption in the Wiretap Act allowing for interception of “unencrypted radio communications” applies only to “predominantly auditory broadcasts.”  And Wi-Fi, as we all know, is everything – data, video, and audio, with some narrowcast while others are broadcast.  While legislative history and interpretations can be used to support either argument, the Ninth Circuit reached its result by distinguishing between the terms “radio communications” and “communications by radio,” holding that the latter was expansive and the former restrictive.
The case is important for not only the potential massive liability of Google, but also to ongoing efforts to interpret and possibly amend the Wiretap Act and other provisions included in the Electronic Communications Privacy Act.