Update December 28, 2021: The district court approved the cy pres settlement which was affirmed by the Ninth Circuit. The court rejected two objectors' challenge to the recipients of the cy pres payments and the award of attorneys' fees, holding that "the district court correctly applied our circuit's law and did not err in certifying the class for settlement purposes or approving the proposed settlement agreement." However, one judge on the panel questioned whether cy pres awards are inherently unfair and often unjustified due to "ethical, procedural, and constitutional problems," suggesting that "it is time we reconsider the practice of cy pres awards."
In 2007, Google began gathering photographs for its Google Maps “Street View” application featuring adjustable panoramic, street-level images tied to addresses searched in Google Maps. Google captured these photographs with cameras mounted on company vehicles traveling on public roads.
However, the cars were also equipped with Wi-Fi reception antennas collecting data transmitted by homes and businesses over unencrypted Wi-Fi networks in areas where the Street View vehicles photographed. In addition to collecting basic identifying information about the Wi-Fi networks, Google also collected “payload data,” including messages, search queries, and other communications sent and received over the unencrypted Wi-Fi networks as the vehicles travelled and photographed the surroundings.
In 2010, plaintiffs filed a number of class action lawsuits alleging Google violated the Wiretap Act and other state laws and wiretap statutes by collecting this payload data from the unencrypted Wi-Fi networks. The cases were consolidated in the Northern District of California where Google’s motions to dismiss were denied.
9th Circuit Interpretation of Wiretap Act Allows Suit to Proceed
On appeal the 9th Circuit affirmed, holding the Wiretap Act prohibits this kind of “interception” and collection of transmissions from unencrypted Wi-Fi networks even though the Wiretap Act does not prohibit interception of electronic communications that are “readily accessible to the general public,” as well as a variety of “radio transmissions.” But the 9th Circuit held the radio transmission exception was limited to traditional (audio) radio stations, and that the availability of equipment to receive unencrypted Wi-Fi did not make unencrypted Wi-Fi networks “readily accessible to the general public.”
The ruling was a departure from a more conservative reading of the Wiretap Act reflected in the FCC’s earlier decision not to pursue enforcement against Google for its interception of the unencrypted Wi-Fi signals (discussed here).
Google sought certiorari which was denied in 2014, thus allowing the plaintiffs to move forward with their putative class actions. Discovery ensued (jurisdictional as well as merits) and the court appointed a Special Master to take custody of the Google Street View data and to oversee searches of the data.
The Special Master submitted a final report on December 14, 2017 (under seal) but apparently discovery “revealed that the alleged intercepted electronic communications include 297,758,782 payload data frames.” Settlement negotiations were successful and announced on July 19, 2019, in a joint motion for preliminary approval of settlement.
Biggest Wiretap Lawsuit Results in Modest Settlement
If finally approved, Google would pay “a modest $13 million” to end the litigation and, after attorney’s fees, administrative costs, plus incentives to the class representatives are paid out, the remainder would be divvied up among eight cy pres recipients. This surprisingly small settlement, after the case was billed as the biggest U.S. wiretap case ever, could mean the case disappears with nary a whimper.
As of publication, a hearing on the motion for preliminary approval is scheduled for September 6, 2019, in San Francisco.