Appeals Court Rules Google ‘Wi-Spy’ Class Action Lawsuit Can Continue

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Google has been under fire in the court system for the practices of its Street View cars that collected not just photos of property, but also captured Wi-Fi network data. The Ninth Circuit Court of Appeals ruled on September 10 that the company could not have a privacy class action lawsuit dismissed because the exemptions it claims under the federal Wiretap Act do not apply.

First, if a “radio communication” is freely available to the public, then there is no assumption of privacy on behalf of those who transmit data over that medium. The Ninth Circuit decided that public Wi-Fi data that Google collected was not a radio communication because doing so would apply a novel reading to a relatively clear statute. As an example, while radio, Wi-Fi and TV all operate on the same portion of the electromagnetic spectrum, one would not consider television such a communication.

The September 10 opinion noted: “Google’s proposed definition is in tension with how Congress — and virtually everyone else — uses the phrase. In common parlance: watching a television show does not entail ‘radio communication.’ Neither does sending an email or viewing a bank statement while connected to a Wi-Fi network.”

The second question concerned the “readily accessible to the general public” language of the Wiretap Act.

Even had Google been able to obtain a ruling that the Wi-Fi data — which included emails and other personal information — was a radio communication, the appeals court wrote that it was impossible to consider the data “readily” available. The Google Street View cars were only able to record the data by being within a few hundred feet of the networks, where AM and FM stations can have a range of up to 100 miles.

In addition, a user has to make a connection to the network and the use of “sniffers” by Google Street View car drivers requires expertise that “most of the general public lacks.”

The Google Wi-Spy Class Action Lawsuit is Benjamin Joffe, et al. v. Google, Inc., Case No. 11-17483, U.S. District Court, Northern District of California. The tech firm settled a similar case with 38 states in March, paying a $7 million fine.

Privacy class action lawsuit attorneys are increasingly looking into the practices of large technology companies and whether or not they are adequately informing consumers what information will be collected during their usage of products and services and courts have recently been ruling in favor of consumers, not companies.

UPDATE 1: Class action lawsuits over the so-called “Google Wi-Spy” debacle have been consolidated and are continuing, despite several attempts by Google to have them dismissed. A federal judge ruled Feb. 14, 2014, to lift a stay on proceedings, moving the litigation to the discovery phase. Top Class Actions will continue to update our readers on the progress of the case, now known as In re: Google Inc. Street View Electronic Communications Litigation, MDL No. 2184, U.S. District Court, Northern District of California.

UPDATE 2: On June 30, 2014, the U.S. Supreme Court said it would not review the Google Street View class action lawsuit, rejecting an appeal by the tech giant to have the case thrown out. 

UPDATE 3: On July 19, 2019, Google reached a $13 million settlement with customers who claimed that the company illegally gathered Wi-Fi network data with its Street View car fleet. 

UPDATE 4: October 2019, the Google Street View class action settlement is now open. Click here to learn more.

UPDATE 5: On Jan. 20, 2020, nine attorneys general filed an amicus brief objecting to a $13 million cy pres settlement between Google and consumers which would end a class action lawsuit related to company’s gathering of Wi-Fi data with its Street View vehicles.