Back in April
, Google filed a Petition for Certiorari with the U.S. Supreme Court in the Street View case
, seeking review of the Ninth Circuit’s decision
holding that unencrypted Wi-Fi signals are protected from interception by the federal Wiretap Act. Over the summer, the U.S. Supreme Court denied
Google’s petition, thus allowing the plaintiffs to move forward with their putative class action.
With their foot in the door, plaintiffs now have to demonstrate standing, and are looking to Google’s collection of Street View data to do it. However, plaintiffs want access to Google’s data on their terms as well. Most recently, plaintiffs argued before U.S. District Judge Charles Breyer of the Northern District of California that the recommended jurisdictional discovery plan to control the search for evidence supporting plaintiffs’ standing was inadequate in several respects.
In August federal Magistrate Judge Maria-Elena James recommended that a Special Master be appointed to cull through Google’s Street data to hunt for evidence of plaintiffs’ communications. Judge James also recommended that Google’s Jurisdictional Discovery Proposal be used to help select the special master, develop protocols and rules for depositing information, and all related matters. Plaintiffs accepted the suggestion of a Special Master but objected to the use of Google’s Jurisdictional Discovery Proposal to guide the process. Plaintiffs argued that, as designed, Google’s proposal improperly limits the Special Master’s searches to interceptions made at the point of transmission only , doesn’t require the Special Master to provide plaintiffs with each search result to see if their communications are among those returned, and “improvidently allow[s] Google to participate in the formulation of the searches.”
In his Order, Judge Breyer said that plaintiffs’ quest for evidence of their communications within Google’s Street View data to help demonstrate standing amounted to looking for “a needle in a haystack.” But Judge Breyer agreed with plaintiffs that the Special Master’s searches should be expanded. “Plaintiffs allege Google violated the Wiretap Act by intercepting their Wi-Fi communications and that such interception could have occurred at the point of transmission or
the point of reception (or both).” Accordingly Judge Breyer held that the searches “should include not only each Plaintiff’s network from which communications might have been sent, but also any other network on which Plaintiffs’ communications might have been received.” Further, Judge Breyer agreed that Google’s Street View data is not susceptible to a simple keyword search, and that Plaintiffs should be allowed to see the results of the Special Master’s searches in order to study the data “and provide the Special Master with feedback to aid in subsequent searches.”
However, Judge Breyer disagreed with Plaintiffs’ third concern, saying that, at this stage, “the Court has every expectation that the parties will work together to facilitate the Special Master’s task and accomplish the discovery this Court has ordered.”
Judge Breyer’s Order gives the parties until October 3 to exchange names of up to five proposed Special Masters, and requires both sides to work together to select a Special Master from amongst the candidates suggested. Judge Breyer’s Order also requires that the Special Master share the results of his or her searches with both parties.
Whether the Special Master’s search will even turn up any evidence sufficient to establish plaintiffs’ standing is still unknown. But the district court’s ruling will undoubtedly open a new way for plaintiffs to dodge standing problems by engaging in discovery of the defendant. The thin ice of the ruling on “radio communications” is now supporting an even bigger fishing expedition.