Benjamin Joffe v. Google Inc. ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENJAMIN JOFFE; LILLA MARIGZA; No. 11-17483
RICK BENITTI; BERTHA DAVIS;
JASON TAYLOR; ERIC MYHRE; JOHN D.C. No.
E. REDSTONE; MATTHEW BERLAGE; 5:10-md-02184-
PATRICK KEYES; KARL H. SCHULZ; JW
JAMES FAIRBANKS; AARON LINSKY;
DEAN M. BASTILLA; VICKI VAN
VALIN; JEFFREY COLMAN; RUSSELL ORDER AND
CARTER; STEPHANIE CARTER; AMENDED
JENNIFER LOCSIN, OPINION
Plaintiffs-Appellees,
v.
GOOGLE, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted
June 10, 2013—San Francisco, California
Filed September 10, 2013
Amended December 27, 2013
2 JOFFE V. GOOGLE, INC.
Before: A. Wallace Tashima and Jay S. Bybee, Circuit
Judges, and William H. Stafford, Senior District Judge.*
Opinion by Judge Bybee
SUMMARY**
Wiretap Act
The panel granted in part a petition for rehearing, filed an
amended opinion affirming the district court, and denied a
petition for rehearing en banc on behalf of the court in an
interlocutory appeal from the district court’s order denying a
motion to dismiss claims that Google violated the Wiretap
Act when it collected data from unencrypted Wi-Fi networks
in the course of capturing its Street View photographs.
The Wiretap Act imposes liability on a person who
intentionally intercepts any electronic communication,
subject to a number of exemptions. In the amended opinion,
the panel held that data transmitted over a Wi-Fi network is
not a “radio communication” exempt from the Wiretap Act
under 18 U.S.C. § 2511(2)(g)(i) as an “electronic
communication” that is “readily accessible to the general
public.”
*
The Honorable William H. Stafford, Jr., Senior District Judge for the
U.S. District Court for the Northern District of Florida, sitting by
designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
JOFFE V. GOOGLE, INC. 3
The panel held that the phrase “radio communication” in
18 U.S.C. § 2510(16) excludes payload data transmitted over
a Wi-Fi network, and that as a consequence, the definition of
“readily accessible to the general public [ ] with respect to a
radio communication” set forth in § 2510(16) does not apply
to the exemption for an “electronic communication” that is
“readily accessible to the general public” under §
2511(2)(g)(I).
COUNSEL
Michael H. Rubin (argued), David H. Kramer, Brian M.
Willen, and Caroline E. Wilson, Wilson Sonsini Goodrich &
Rosati Professional Corporation, Palo Alto, California, for
Defendant-Appellant.
Elizabeth J. Cabraser (argued) and Jahan C. Sagafi, Lieff,
Cabraser, Heimann & Bernstein, LLP, San Francisco,
California; Kathryn E. Barnett, Lieff, Cabraser, Heimann &
Bernstein, LLP, Nashville, Tennessee; Jeffrey L. Kodroff,
John A. Macoretta, and Mary Ann Giorno, Spector Roseman
Kodroff & Willis, P.C., Philadelphia, Pennsylvania; Daniel
A. Small and David A. Young, Cohen Milstein Sellers &
Toll, PLLC, Washington, D.C., for Plaintiffs-Appellees.
Marc Rotenberg, Alan Butler, and David Jacobs, Electronic
Privacy Information Center, Washington, D.C., for Amicus
Curiae Electronic Privacy Information Center.
Ashok Ramani and Michael S. Kwun, Keker & Van Nest
LLP, San Francisco, California, for Amicus Curiae
Information Technology & Innovation Foundation.
4 JOFFE V. GOOGLE, INC.
ORDER
Appellant’s motion for leave to file a reply brief in
support of its petition for rehearing and rehearing en banc,
filed on November 6, 2013, is GRANTED.
Appellant’s petition for rehearing, filed on September 24,
2013, is GRANTED IN PART. The court’s opinion, filed
on September 10, 2013, and appearing at 729 F.3d 1262 (9th
Cir. 2013), is hereby AMENDED. An amended opinion is
filed concurrently with this order.
Judge Bybee votes to deny Appellant’s petition for
rehearing en banc, filed on September 24, 2013, and Judge
Tashima and Judge Stafford so recommend. The full court
has been advised of Appellant’s petition for rehearing en
banc, and no request to vote on whether to rehear the case en
banc has been made. Appellant’s petition for rehearing en
banc is DENIED.
No subsequent petitions for rehearing or rehearing en
banc shall be filed by either party.
OPINION
BYBEE, Circuit Judge:
In the course of capturing its Street View photographs,
Google collected data from unencrypted Wi-Fi networks.
Google publicly apologized, but plaintiffs brought suit under
federal and state law, including the Wiretap Act, 18 U.S.C.
§ 2511. Google argues that its data collection did not violate
JOFFE V. GOOGLE, INC. 5
the Act because data transmitted over a Wi-Fi network is an
“electronic communication” that is “readily accessible to the
general public” and exempt under the Act. 18 U.S.C.
§ 2511(2)(g)(i). The district court rejected Google’s
argument. In re Google Inc. St. View Elec. Commc’n Litig.,
794 F. Supp. 2d 1067, 1073–84 (N.D. Cal. 2011). We affirm.
I. BACKGROUND
A. Facts and History
Google launched its Street View feature in the United
States in 2007 to complement its Google Maps service by
providing users with panoramic, street-level photographs.
Street View photographs are captured by cameras mounted on
vehicles owned by Google that drive on public roads and
photograph their surroundings. Between 2007 and 2010,
Google also equipped its Street View cars with Wi-Fi
antennas and software that collected data transmitted by Wi-
Fi networks in nearby homes and businesses. The equipment
attached to Google’s Street View cars recorded basic
information about these Wi-Fi networks, including the
network’s name (SSID), the unique number assigned to the
router transmitting the wireless signal (MAC address), the
signal strength, and whether the network was encrypted.
Gathering this basic data about the Wi-Fi networks used in
homes and businesses enables companies such as Google to
provide enhanced “location-based” services, such as those
that allow mobile phone users to find nearby restaurants and
attractions or receive driving directions.
But the antennas and software installed in Google’s Street
View cars collected more than just the basic identifying
information transmitted by Wi-Fi networks. They also
6 JOFFE V. GOOGLE, INC.
gathered and stored “payload data” that was sent and received
over unencrypted Wi-Fi connections at the moment that a
Street View car was driving by.1 Payload data includes
everything transmitted by a device connected to a Wi-Fi
network, such as personal emails, usernames, passwords,
videos, and documents.
Google acknowledged in May 2010 that its Street View
vehicles had been collecting fragments of payload data from
unencrypted Wi-Fi networks. The company publicly
apologized, grounded its vehicles, and rendered inaccessible
the personal data that had been acquired. In total, Google’s
Street View cars collected about 600 gigabytes of data
transmitted over Wi-Fi networks in more than 30 countries.
Several putative class-action lawsuits were filed shortly
after Google’s announcement, and, in August 2010, the cases
were transferred by the Judicial Panel on Multidistrict
Litigation to the Northern District of California. In
November, 2010, Plaintiffs-Appellees (collectively “Joffe”)
filed a consolidated complaint, asserting claims against
Google under the federal Wiretap Act, 18 U.S.C. § 2511;
California Business and Professional Code § 17200; and
various state wiretap statutes. Joffe seeks to represent a class
comprised of all persons whose electronic communications
were intercepted by Google Street View vehicles since May
25, 2007.
Google moved to dismiss Joffe’s consolidated complaint.
The district court declined to grant Google’s motion to
1
Google may have also used its software to capture encrypted data, but
the plaintiffs have conceded that their wireless networks were
unencrypted.
JOFFE V. GOOGLE, INC. 7
dismiss Joffe’s federal Wiretap Act claims.2 In re Google
Inc. St. View Elec. Commc’n Litig., 794 F. Supp. 2d at 1084.
On Google’s request, the court certified its ruling for
interlocutory appeal under 28 U.S.C. § 1292(b) because the
district court resolved a novel question of statutory
interpretation. We granted Google’s petition, and we have
jurisdiction under 28 U.S.C. § 1292(b).
B. District Court’s Decision
Google maintained before the district court that it should
have dismissed Joffe’s Wiretap Act claims because data
transmitted over unencrypted Wi-Fi networks falls under the
statutory exemption that makes it lawful to intercept
“electronic communications” that are “readily accessible to
the general public.” 18 U.S.C. § 2511(2)(g)(i). The question
was whether payload data transmitted on an unencrypted Wi-
Fi network is “readily accessible to the general public,” such
that the § 2511(2)(g)(i) exemption applies to Google’s
conduct.
To answer this question, the district court first looked to
the definitions supplied by the Act. In re Google Inc. St.
View Elec. Commc’n Litig., 794 F. Supp. 2d at 1075–76. The
statute provides in relevant part that “‘readily accessible to
the general public’ means, with respect to a radio
communication, that such communication is not . . . (A)
scrambled or encrypted.” 18 U.S.C. § 2510(16). An
unencrypted radio communication is, therefore, “readily
2
The district court granted Google’s motion to dismiss Joffe’s claims
under California law and other state wiretap statutes. In re Google Inc. St.
View Elec. Commc’n Litig., 794 F. Supp. 2d at 1085–86. These claims are
not at issue here.
8 JOFFE V. GOOGLE, INC.
accessible to the general public.” In short, intercepting an
unencrypted radio communication does not give rise to
liability under the Wiretap Act because of the combination of
the § 2511(2)(g)(i) exemption and the § 2510(16) definition.
The district court then considered whether data
transmitted over a Wi-Fi network is a “radio communication”
because the phrase is not defined by the Act. In re Google
Inc. St. View Elec. Commc’n Litig., 794 F. Supp. 2d at
1076–81. The court reasoned that “radio communication”
encompasses only “traditional radio services,” and not other
technologies that also transmit data using radio waves, such
as cellular phones and Wi-Fi networks.3 Id. at 1079–83.
Since Wi-Fi networks are not a “radio communication,” the
definition of “readily accessible to the general public”
provided by § 2510(16) does not apply because the definition
is expressly limited to electronic communications that are
radio communications.
Finally, the court addressed whether data transmitted over
unencrypted Wi-Fi networks is nevertheless an “electronic
communication” that is “readily accessible to the general
public” under § 2511(2)(g)(i). Id. at 1082–84. Although the
court determined that Wi-Fi networks do not involve a “radio
communication” under § 2510(16) and are therefore not
“readily accessible to the general public” by virtue of the
definition of the phrase, it still had to resolve whether they
are “readily accessible to the general public” as the phrase is
ordinarily understood because the statute does not define the
phrase as it applies to an “electronic communication” that is
3
It is less clear whether the district court’s definition also excludes
television broadcasts. Joffe argued at oral argument that television
broadcasts are “traditional radio services.”
JOFFE V. GOOGLE, INC. 9
not a “radio communication.” The court reasoned that
“without more, merely pleading that a network is unencrypted
does not render that network readily accessible to the general
public and serve to remove the intentional interception of
electronic communications from that network from liability
under the [Electronic Communications Privacy Act].” Id. at
1084. The court accordingly declined to grant Google’s
motion to dismiss Joffe’s Wiretap Act claims. Id.
II. OVERVIEW OF THE WIRETAP ACT
The Wiretap Act imposes liability on a person who
“intentionally intercepts . . . any wire, oral, or electronic
communication,” 18 U.S.C. § 2511(1)(a), subject to a number
of exemptions. See 18 U.S.C. § 2511(2)(a)–(h). There are
two exemptions that are relevant to our purposes. First, the
Wiretap Act exempts intercepting “an electronic
communication made through an electronic communication
system” if the system is configured so that it is “readily
accessible to the general public.” 18 U.S.C. § 2511(2)(g)(i).
“Electronic communication” includes communication by
radio, 18 U.S.C. § 2510(12), and “‘readily accessible to the
general public’ means, with respect to a radio
communication” that the communication is “not . . .
scrambled or encrypted,” 18 U.S.C. § 2510(16)(A). Second,
the Act exempts intercepting “radio communication” by “any
station for the use of the general public;” by certain
governmental communication systems “readily accessible to
the general public,” including police, fire, and civil defense
agencies; by a station operating on an authorized frequency
for “amateur, citizens band, or general mobile radio
services;” or by a marine or aeronautical communications
system. 18 U.S.C. § 2511(2)(g)(ii)(I)–(IV).
10 JOFFE V. GOOGLE, INC.
Google only argues, as it did before the district court, that
it is exempt from liability under the Act because data
transmitted over a Wi-Fi network is an “electronic
communication . . . readily accessible to the general public”
under § 2511(2)(g)(i). It concedes that it does not qualify for
any of the exemptions for specific types of “radio
communication” under § 2511(2)(g)(ii). Joffe, however,
argues that if data transmitted over a Wi-Fi network is not
exempt as a “radio communication” under § 2511(2)(g)(ii),
it cannot be exempt as a radio communication under the
broader exemption for “electronic communication” in
§ 2511(2)(g)(i). This argument has some force, and we wish
to address it before we consider Google’s claims.
Joffe contends that the definition of “readily accessible
to the general public” in § 2510(16) does not apply to
the § 2511(2)(g)(i) exemption. Instead, Joffe argues,
the § 2510(16) definition applies exclusively to
§ 2511(2)(g)(ii)(II), which exempts specifically enumerated
types of “radio communication” when they are “readily
accessible to the general public.” We ultimately reject Joffe’s
alternative reading of the statute, although—as we will
explain—we find § 2511(2)(g)(ii) useful as a lexigraphical
aid to understanding the phrase “radio communication.”
As noted, § 2510(16) defines “readily accessible to the
general public” solely with respect to a “radio
communication,” and not with respect to other types of
“electronic communication.” Although § 2511(2)(g)(i) does
not use the words “radio communication,” the statute
nevertheless directs us to apply the § 2510(16) definition to
the § 2511(2)(g)(i) exemption. First, “radio communication”
is a subset of “electronic communication.” See 18 U.S.C.
§ 2510(12) (providing that, subject to certain exceptions,
JOFFE V. GOOGLE, INC. 11
“‘electronic communication’ means any transfer of signs,
signals, writing, images, sounds, data, or intelligence of any
nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic or photooptical system”)
(emphasis added). Second, the statute directs us to apply
§ 2510(16) to the entire chapter. The definitions in 18 U.S.C.
§ 2510 are prefaced with the phrase, “As used in this
chapter.” We cannot disregard this command by holding that
the definition of “‘readily accessible to the general public’ [ ]
with respect to a radio communication” applies to
§ 2511(2)(g)(ii), but not § 2511(2)(g)(i).
Admittedly, following the plain language of the statute
creates some tension with § 2511(2)(g)(ii)(II), which provides
an exemption for intercepting “any radio communication
which is transmitted . . . by any governmental, law
enforcement, civil defense, private land mobile, or public
communications system, including police and fire, readily
accessible to the general public.” Under our reading of the
statute—which is the same reading adopted by the district
court, Google, and Joffe in his lead argument—
§ 2511(2)(g)(i) exempts all electronic communications
(including radio communications) that are “readily accessible
to the general public” as the phrase is defined in § 2510(16).
This reading likely renders § 2511(2)(g)(ii)(II) superfluous.
As discussed, that section exempts specific kinds of radio
communications that are “readily accessible to the general
public,” such as those transmitted by a law enforcement
communications system. But this exemption is unnecessary
when § 2511(2)(g)(i) already exempts all radio
communications that are “readily accessible to the general
public.”
12 JOFFE V. GOOGLE, INC.
Although our reading may render § 2511(2)(g)(ii)(II)
superfluous or at least redundant, we understand that
Congress “sometimes drafts provisions that appear
duplicative of others—simply in Macbeth’s words, ‘to make
assurance double sure.’ That is, Congress means to clarify
what might be doubtful—that the mentioned item is covered.”
Shook v. D.C. Fin. Responsibility & Mgmt. Assistance Auth.,
132 F.3d 775, 782 (D.C. Cir. 1998). This interpretation is
especially plausible given that Congress was concerned that
radio hobbyists not face liability for intercepting readily
accessible broadcasts, such as those covered by
§ 2511(2)(g)(ii)(II), which can be picked up by a police
scanner. See 132 Cong. Rec. S7987-04 (1986) (“In order to
address radio hobbyists’ concerns, we modified the original
language of S. 1667 to clarify that intercepting traditional
radio services is not unlawful.”).
In short, we agree with Google that the definition of
“readily accessible to the general public” in § 2510(16)
applies to the § 2511(2)(g)(i) exemption when the
communication in question is a “radio communication.”
With that understanding, we now turn to whether data
transmitted over a Wi-Fi network is a “radio communication”
exempt from the Wiretap Act as an “electronic
communication” under § 2511(2)(g)(i).
III. ANALYSIS
Google contends that data transmitted over a Wi-Fi
network is a “radio communication” and that the Act exempts
such communications by defining them as “readily accessible
to the general public,” 18 U.S.C. § 2511(2)(g)(i), so long as
“such communication is not . . . scrambled or encrypted,”
JOFFE V. GOOGLE, INC. 13
18 U.S.C. § 2510(16)(A). We reject this claim.4 We hold
that the phrase “radio communication” in 18 U.S.C.
§ 2510(16) excludes payload data transmitted over a Wi-Fi
network. As a consequence, the definition of “readily
accessible to the general public [ ] with respect to a radio
communication” set forth in § 2510(16) does not apply to the
exemption for an “electronic communication” that is “readily
accessible to the general public” under 18 U.S.C.
§ 2511(2)(g)(i).
A. The Ordinary Meaning of “Radio Communication” Does
Not Include Data Transmitted over a Wi-Fi Network
The Wiretap Act does not define the phrase “radio
communication” so we must give the term its ordinary
meaning. See Hamilton v. Lanning, 130 S. Ct. 2464, 2471
(2010) (“When terms used in a statute are undefined, we give
them their ordinary meaning.”); United States v. Daas,
198 F.3d 1167, 1174 (9th Cir. 1999) (“If the statute uses a
term which it does not define, the court gives that term its
ordinary meaning.”).
According to Google, radio communication “refers to any
information transmitted using radio waves, i.e., the radio
frequency portion of the electromagnetic spectrum.”
Appellant’s Br. at 28. The radio frequency portion of the
4
This case raises a question of statutory interpretation, which we review
de novo. Phoenix Mem'l Hosp. v. Sebelius, 622 F.3d 1219, 1224 (9th Cir.
2010). We begin by “determin[ing] whether the language at issue has a
plain and unambiguous meaning with regard to the particular dispute in
the case.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002). We
must assume that “the ordinary meaning of that language accurately
expresses the legislative purpose [of Congress].” Park 'N Fly, Inc. v.
Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985).
14 JOFFE V. GOOGLE, INC.
spectrum is “the part of the spectrum where electromagnetic
waves have frequencies in the range of about 3 kilohertz to
300 gigahertz.” Id. at 27.
Google’s technical definition does not conform with the
common understanding held contemporaneous with the
enacting Congress. See United States v. Iverson, 162 F.3d
1015, 1022 (9th Cir. 1998) (“When a statute does not define
a term, we generally interpret that term by employing the
ordinary, contemporary, and common meaning of the words
that Congress used”) (emphasis added). The radio frequency
portion of the electromagnetic spectrum covers not only Wi-
Fi transmissions, but also television broadcasts, Bluetooth
devices, cordless and cellular phones, garage door openers,
avalanche beacons, and wildlife tracking collars. See Fed.
Commc’n Comm’n, Encyclopedia – FM Broadcast Station
Classes and Service Countours, available at
http://www.ntia.doc.gov/files/ntia/publications/2003-
allochrt.pdf (last visited Aug. 13, 2013). One would not
ordinarily consider, say, television a form of “radio
communication.” Not surprisingly, Congress has not
typically assumed that the term “radio” encompasses the term
“television.” See, e.g., 18 U.S.C. § 1343 (imposing liability
for “[f]raud by wire, radio, or television”) (emphasis added);
18 U.S.C. § 2101 (imposing liability for inciting a riot by
means of “mail, telegraph, radio, or television”) (emphasis
added); 7 U.S.C. § 2156 (defining an “instrumentality of
interstate commerce” as “any written, wire, radio, television
or other form of communication); see also FCC v. Nat'l
Citizens Comm. for Broad., 436 U.S. 775, 815 (1978) (noting
that “radio and television stations are given different weight,”
under the regulations at issue, and describing regulations
governing “a radio or television broadcast station”) (emphasis
added).
JOFFE V. GOOGLE, INC. 15
The Wiretap Act itself does not assume that the phrase
“radio communication” encompasses technologies like
satellite television that are outside the scope of the phrase as
it is ordinarily defined. For example, the statute’s damages
provision sets out specified penalties when the “violation of
this chapter is the private viewing of a private satellite video
communication that is not scrambled or encrypted or if the
communication is a radio communication that is transmitted
on [frequencies specified by regulation].” 18 U.S.C.
§ 2520(c)(1) (emphasis added). Congress described
separately the act of “viewing [ ] a private satellite video
communication” even though such communication is
transmitted on a radio frequency and would fall within
Google’s proposed definition of “radio communication.”
Taken together, these disparate provisions offer evidence that
Congress does not use “radio” or “radio communication” to
reference all of the myriad forms of communication that use
the radio spectrum. Rather, it uses “radio” to refer to
traditional radio technologies, and then separately describes
other modes of communication that are not ordinarily thought
of as radio, but that nevertheless use the radio spectrum.
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.” Nor does sending an email or
viewing a bank statement while connected to a Wi-Fi
network. There is no indication that the Wiretap Act carries
a buried implication that the phrase ought to be given a
broader definition than the one that is commonly understood.
See Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 1707
(2012) (favoring a definition that matches “how we use the
word in everyday parlance” and observing that “Congress
remains free, as always, to give the word a broader or
16 JOFFE V. GOOGLE, INC.
different meaning. But before we will assume it has done so,
there must be some indication Congress intended such a
result”).
Importantly, Congress provided definitions for many
other similar terms in the Wiretap Act, but refrained from
providing a technical definition of “radio communication”
that would have altered the notion that it should carry its
common, ordinary meaning. See, e.g., 18 U.S.C. § 2510(1)
(defining “wire communication”); 18 U.S.C. § 2510(12)
(defining “electronic communication”); 18 U.S.C. § 2510(15)
(defining “electronic communication service”); 18 U.S.C.
§ 2510(17) (defining “electronic storage”). As Google writes
in its brief, “[t]he fact that the Wiretap Act provides
specialized definitions for certain compound terms—but not
for ‘radio communication’—is powerful evidence that the
undefined term was not similarly intended [to] be defined in
a specialized or narrow way” but rather “according to its
ordinary meaning.” Appellant’s Br. at 29. We agree and,
accordingly, we reject Google’s proposed definition of “radio
communication” in favor of one that better reflects the
phrase’s ordinary meaning.
B. A “Radio Communication” is a Predominantly Auditory
Broadcast, Which Excludes Payload Data Transmitted
over Wi-Fi Networks
There are two telltale indicia of a “radio communication.”
A radio communication is commonly understood to be (1)
predominantly auditory, and (2) broadcast. Therefore,
television—whether connected via an indoor antenna or a
satellite dish—is not radio, by virtue of its visual component.
A land line phone does not broadcast, and, for that reason, is
not radio. On the other hand, AM/FM, Citizens Band (CB),
JOFFE V. GOOGLE, INC. 17
‘walkie-talkie,’ and shortwave transmissions are
predominantly auditory, are broadcast, and are, not
coincidentally, typically referred to as “radio” in everyday
parlance. Thus, we conclude that “radio communication”
should carry its ordinary meaning: a predominantly auditory
broadcast.5
The payload data transmitted over unencrypted Wi-Fi
networks that was captured by Google included emails,
usernames, passwords, images, and documents that cannot be
classified as predominantly auditory. They therefore fall
outside of the definition of a “radio communication” as the
phrase is used in 18 U.S.C. § 2510(16).
5
We need not reach the question of what exactly constitutes a
“broadcast” because the Wi-Fi transmissions in question were not
predominantly auditory. Whether cell phone calls—which are projected
wirelessly over great distances—are broadcast would similarly be a close
question.
We also need not fully consider the extent to which non-auditory
transmissions may be included in a broadcast before that broadcast is no
longer a radio broadcast. Modern FM radio stations, for example,
commonly transmit small amounts of data denoting the artist and title of
the song. But because such data is ancillary to the audio transmission,
they likely do not remove the transmissions from the domain of a “radio
communication” under the Act.
And, finally, we do not address how to classify a traditional radio
broadcast delivered to a web-enabled device connected to a Wi-Fi
network, such as a radio station streamed over the internet. Here,
Google’s collection efforts were not limited to auditory transmissions.
18 JOFFE V. GOOGLE, INC.
C. Defining “Radio Communication” to Include Only
Predominantly Auditory Broadcasts is Consistent with the
Rest of the Wiretap Act
Crucially, defining “radio communication” as a
predominantly auditory broadcast yields a coherent and
consistent Wiretap Act. Google’s overly broad definition
does not. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281,
291 (1988) (“In ascertaining the plain meaning of the statute,
the court must look to the particular statutory language at
issue, as well as the language and design of the statute as a
whole.”)
Throughout the Wiretap Act, Congress used the phrase
“radio communication”—which is at issue here—and the
similar phrase “communication by radio.” Even within the
very provision that we are construing—18 U.S.C.
§ 2510(16)—Congress used both phrases. We must ascribe
to each phrase its own meaning. See SEC v. McCarthy,
322 F.3d 650, 656 (9th Cir. 2003) (“It is a well-established
canon of statutory interpretation that the use of different
words or terms within a statute demonstrates that Congress
intended to convey a different meaning for those words.”).
The phrase “communication by radio” is used more
expansively: it conjures an image of all communications
using radio waves or a radio device. See, e.g., 18 U.S.C.
§ 2510(16)(E) (describing radio communication that “is a
two-way voice communication by radio transmitted on a
frequency “not exclusively allocated to broadcast auxiliary
services.”).
When read in context, the phrase “radio communication”
tends to refer more narrowly to broadcast radio technologies
rather than to the radio waves by which the communication
JOFFE V. GOOGLE, INC. 19
is made. “Radio communication” is typically surrounded by
words that evoke traditional radio technologies whenever it
is used in the Act. See Gustafson v. Alloyd Co., 513 U.S. 561,
575 (1995) (“”[A] word is known by the company it keeps
(the doctrine of noscitur a sociis). This rule we rely upon to
avoid ascribing to one word a meaning so broad that it is
inconsistent with its accompanying words, thus giving
‘unintended breadth to the Acts of Congress.’”). For
example, 18 U.S.C. § 2511(2)(g)(ii), inter alia, exempts from
liability the interception of “any radio communication which
is transmitted . . . by a station operating on an authorized
frequency within the bands allocated to the amateur, citizens
band, or general mobile radio services.” These are traditional
audio broadcasts that fit squarely within the ordinary meaning
of “radio communication.” The phrase “radio
communication” is used five times in the Wiretap Act. See
18 U.S.C. § 2510(16), 18 U.S.C. § 2511(2)(g)(ii), 18 U.S.C.
§ 2511(2)(g)(v), 18 U.S.C. § 2511(5)(a)(i)(B), 18 U.S.C
§ 2520(c)(1). Defining the term as a predominantly auditory
broadcast would not distort the meaning of any of these
provisions or otherwise lead to incoherence or inconsistency.
On the other hand, the Wiretap Act uses “communication
by radio” to refer more broadly to any communication
transmitted by radio wave. See 18 U.S.C. § 2510(12)
(defining “electronic communication” to include any
communication “transmitted in whole or in part by . . .
radio”); 18 U.S.C. § 2511(1)(b)(ii) (prohibiting the use of a
“device to intercept any oral communication” if the “device
transmits communications by radio”); 18 U.S.C. § 2511(2)(b)
(authorizing FCC employees, in carrying out their official
duties, “to intercept . . . [an] oral communication transmitted
by radio”). Congress’s decision to use both of these phrases
implies that it intended to distinguish “radio communication”
20 JOFFE V. GOOGLE, INC.
from “communications by radio.” See McCarthy, 322 F.3d
at 656. Ideally, Congress would have supplied definitions to
make the distinction between these terms more apparent.
Nevertheless, by relying on their ordinary meaning and
evaluating how they are used in context, we conclude that the
former refers more narrowly to a predominantly auditory
broadcast while only the latter encompasses other
communications made using radio waves.
The way the phrase “radio communication” is used in
18 U.S.C. § 2511(2)(g)(ii) is particularly relevant in defining
the term because that provision specifically exempts from
liability the interception of certain kinds of radio
communication. The provision is not directly at issue here
because—as Google acknowledges—Google’s conduct is not
encompassed by any of the § 2511(2)(g)(ii) exemptions,
hence its reliance on § 2511(2)(g)(i). But it is instructive to
understand the types of communication exempted by
§ 2511(2)(g)(ii) since the phrase “radio communication” is
“known by the company it keeps,” Gustafson, 513 U.S. at
575. The exemptions include, inter alia, radio
communications transmitted “by any station for the use of the
general public,” 18 U.S.C. § 2511(2)(g)(ii)(I), “by a station
operating on an authorized frequency within the bands
allocated to the amateur, citizens band, or general mobile
radio services,” 18 U.S.C. § 2511(2)(g)(ii)(III), and “by any
marine or aeronautical communications system,” 18 U.S.C.
§ 2511(2)(g)(ii)(IV). Other than the fact that they all use the
radio spectrum, these radio communications have little in
common with a home Wi-Fi network. Of course
§ 2511(2)(g)(i) exempts radio communications that are
“readily accessible to the general public” even if they are not
specifically set out in § 2511(2)(g)(ii). But it would be odd
for Congress to take pains to identify particular kinds of radio
JOFFE V. GOOGLE, INC. 21
communications that should be exempt in § 2511(2)(g)(ii)
only to exempt broad swaths of dissimilar communications,
such as data transmitted over a Wi-Fi network, under the
auspices of § 2511(2)(g)(i). It is more sensible to read the
general exemption in § 2511(2)(g)(i)—insofar as it applies to
“radio communication” rather than other kinds of “electronic
communication”—in light of the specific exemptions in
§ 2511(2)(g)(ii).
Relatedly, giving “radio communication” its ordinary
meaning as a predominantly auditory broadcast also avoids
producing absurd results that are inconsistent with the
statutory scheme. See Griffin v. Oceanic Contractors, Inc.,
458 U.S. 564, 575 (1982) (“[I]nterpretations of a statute
which would produce absurd results are to be avoided if
alternative interpretations consistent with the legislative
purpose are available.”); Ariz. State Bd. for Charter Schools
v. U.S. Dep’t of Educ., 464 F.3d 1003, 1008 (9th Cir. 2006)
(“[W]ell-accepted rules of statutory construction caution us
that ‘statutory interpretations which would produce absurd
results are to be avoided.’ When a natural reading of the
statutes leads to a rational, common-sense result, an alteration
of meaning is not only unnecessary, but also extrajudicial.”).
Under the expansive definition of “radio communication”
proposed by Google, the protections afforded by the Wiretap
Act to many online communications would turn on whether
the recipient of those communications decided to secure her
wireless network. A “radio communication” is “readily
accessible to the general public” and, therefore, exempt from
Wiretap Act liability if it is not scrambled or encrypted.
18 U.S.C. § 2510(16). Consider an email attachment
containing sensitive personal information sent from a secure
Wi-Fi network to a doctor, lawyer, accountant, priest, or
spouse. A company like Google that intercepts the contents
22 JOFFE V. GOOGLE, INC.
of that email from the encrypted home network has, quite
understandably, violated the Wiretap Act. But the sender of
the email is in no position to ensure that the recipient—be it
a doctor, lawyer, accountant, priest, or spouse—has taken
care to encrypt her own Wi-Fi network. Google, or anyone
else, could park outside of the recipient’s home or office with
a packet sniffer while she downloaded the attachment and
intercept its contents because the sender’s “radio
communication” is “readily accessible to the general public”
solely by virtue of the fact that the recipient’s Wi-Fi network
is not encrypted. Surely Congress did not intend to condone
such an intrusive and unwarranted invasion of privacy when
it enacted the Wiretap Act “to protect against the
unauthorized interception of electronic communications.”
S. Rep. No. 99-541 (1986), at 1; see also Konop v. Hawaiian
Airlines, Inc., 302 F.3d 868, 875 (9th Cir. 2002) (“The
legislative history of the [Wiretap Act] suggests that
Congress wanted to protect electronic communications that
are configured to be private, such as email.”); In re
Pharmatrak, Inc. Privacy Litig., 329 F.3d 9, 18 (1st Cir.
2003) (“The paramount objective of the Wiretap Act is to
protect effectively the privacy of communications.”).
The definition of “readily accessible to the general
public” in § 2510(16) is limited to “radio communication,”
and does not encompass all “electronic communication.”
Congress’s decision to carve out “radio communication” for
less protection than some other types of “electronic
communication” makes sense if “radio communication” is
given its ordinary meaning. Traditional radio services can be
easily and mistakenly intercepted by hobbyists. See 132
Cong. Rec. S7987-04 (1986) (“In order to address radio
hobbyists’ concerns, we modified the original language of
S. 1667 to clarify that intercepting traditional radio services
JOFFE V. GOOGLE, INC. 23
is not unlawful.”). But “radio hobbyists” do not mistakenly
use packet sniffers to intercept payload data transmitted on
Wi-Fi networks. Lending “radio communication” a broad
definition that encompasses data transmitted on Wi-Fi
networks would obliterate Congress’s compromise and create
absurd applications of the exemption for intercepting
unencrypted radio communications. For example,
§ 2511(2)(g)(ii)(II) exempts from liability, inter alia, the act
of intercepting “any radio communication which is
transmitted . . . by any governmental, law enforcement . . . or
public safety communications system, including police and
fire, readily accessible to the general public.” This provision
reinforces the work performed by § 2511(2)(g)(i), which
already exempts a “radio communication” that is “readily
accessible to the general public.” Congress’s decision to
ensure that these communications were exempt makes sense
if “radio communication” encompasses only predominantly
auditory broadcasts since these transmissions can be picked
up by widely available police scanners. But if “radio
communication” includes data transmitted over Wi-Fi
networks, then § 2511(2)(g)(ii)(II) also underscores that
liability should not attach to intercepting data from an
unencrypted Wi-Fi network operated by, say, a police
department or government agency. It seems doubtful that
Congress wanted to emphasize that Google or anyone else
could park outside of a police station that carelessly failed to
secure its Wi-Fi network and intercept confidential data with
impunity.
Next, Google strenuously argues that the rest of the
Wiretap Act supports its position that “radio communication”
in 18 U.S.C. § 2510(16) means “any information transmitted
using radio waves.” Google leans heavily on § 2510(16)(D)
and the accompanying legislative history, which together
24 JOFFE V. GOOGLE, INC.
suggest that cellular telephone and paging systems are a form
of “radio communication.” If cell phone and paging systems
are a type of “radio communication,” Google argues, it must
be the case that Congress intended that the phrase include Wi-
Fi networks and the rest of the radio spectrum because these
technologies differ from paradigmatic radio communications
like AM/FM, CB, and shortwave transmissions. But cell
phone communications were not dissimilar from CB,
shortwave, or other two-way forms of traditional radio
broadcasts when § 2510(16)(D) was added to the Wiretap Act
in 1986 as part of the Electronic Communications Privacy
Act, Pub. L. No. 99-508, 100 Stat. 1848. When Congress
enacted § 2510(16)(D), cell phones were still called “cellular
radiotelephones.” See H.R. Rep. No. 99-647, at 20 (1986).
As with other audio broadcasts, cellular conversations were
often inadvertently picked up by radio hobbyists “scanning
radio frequencies in order to receive public communications.”
S. Rep. No. 99-541, at 3560 (1986); see also H.R. Rep. No.
99-647, at 20 (“Cellular telephone calls can be intercepted by
either sophisticated scanners designed for that purpose, or by
regular radio scanners modified to intercept cellular calls”).
The fact that technology has evolved and cellular
communications are no longer as similar to CB broadcasts as
they once were does not require us to read “radio
communication” to include all communications made using
radio waves. Rather, the historical context surrounding
Congress’s protection of cellular conversations as a form of
a “radio communication” is consistent with the commonsense
definition of the term because, at the time of the enactment of
the definition in 1986, cellular conversations could have
reasonably been construed as analogous to a form of two-way
JOFFE V. GOOGLE, INC. 25
radio.6 Assuming, arguendo, that the phrase “radio
communication” covers cell phone transmissions as they
existed in 1986 does not inevitably lead to the conclusion that
it also encompasses transmissions that are plainly not
predominantly auditory broadcasts, such as payload data
transmitted over a Wi-Fi network.
Google also looks beyond the Wiretap Act in an effort to
fit its expansive definition of “radio communication” into the
statutory scheme. It points out that the Communications Act
expressly defines the phrases “radio communication” and
“communication by radio” broadly to include “the
transmission by radio of writing, signs, signals, pictures, and
sounds of all kinds.” 47 U.S.C. § 153(40). But when
Congress wanted to borrow a definition from the
Communications Act to apply to the Wiretap Act, it expressly
said so. See 18 U.S.C. § 2510(1) (giving the phrase
“communication common carrier” the meaning that it has “in
section 3 of the Communications Act”). Here, Congress
refrained from incorporating the definition of “radio
6
With modern advances in cellular technology, it is less clear how cell
phones would fit within the statutory scheme today. We need not resolve
this question here. Whether cell phone transmissions are an example of
a “radio communication” is relevant to defining the phrase, but it is not a
precursor to observing that a “radio communication” is ordinarily a
predominantly auditory broadcast or to holding that payload data
transmitted over a Wi-Fi network is not a “radio communication.” We
previously held that cell phone communications are “wire
communications” for purposes of the Wiretap Act, but we did not address
whether they are an example of a “radio communication.” See In re U.S.
for an Order Authorizing Roving Interception of Oral Commc'ns, 349 F.3d
1132, 1138 n.12 (9th Cir. 2003) (“Despite the apparent wireless nature of
cellular phones, communications using cellular phones are considered
wire communications under the statute, because cellular telephones use
wire and cable connections when connecting calls.”).
26 JOFFE V. GOOGLE, INC.
communication” used in the Communications Act. And, as
previously discussed, the Wiretap Act uses the phrases “radio
communication” and “communication by radio” differently,
indicating that Congress did not intend to import the
Communications Act’s definition, which treats them as
synonyms. See 47 U.S.C. § 153(40). Furthermore, the
Communication Act’s definition of “radio communication”
encompasses technologies like television by including “the
transmission by radio of . . . pictures . . . of all kinds,”
47 U.S.C. § 153(40), while the Wiretap Act sometimes
distinguishes them. See, e.g., 18 U.S.C. § 2520(c)(1)
(providing specified penalties when the “violation of this
chapter is the private viewing of a private satellite video
communication that is not scrambled or encrypted or if the
communication is a radio communication that is transmitted
on [frequencies specified by regulation]”). Separate
references to television-related communications would be
redundant when paired with the phrase “radio
communication” if we were to assume that the
Communication Act’s definition applied to the Wiretap Act.
Importantly, the presumption that a definition set out in one
part of the code is intended to govern another is hardly
unyielding in the face of such contradictory evidence. See,
e.g., General Dynamics Land Sys., Inc. v. Cline, 540 U.S.
581, 595 (2004) (holding that the word “age” carries a
different meaning in different sections of the ADEA);
Robinson v. Shell Oil, 519 U.S. 337, 343 (1997) (holding that
the term “employees” carries a different meaning in different
sections of Title VII).
Google also leans heavily on a series of amendments to
18 U.S.C. § 2510(16) to argue that Congress impliedly gave
the phrase “radio communication” a meaning other than the
ordinary one that we adopt here. In 1990, Senator Patrick
JOFFE V. GOOGLE, INC. 27
Leahy commissioned a task force to study the effect of new
technologies, including the precursors to wireless networking,
on the statutory scheme created in 1986 by the Electronic
Communications Privacy Act. See S. Hrg. 103-1022, at 179
(1994). In its report, the task force indicated it was concerned
that communications by “‘wireless modems’ which can
transmit data between computers . . . will not be protected
unless the user goes to the expense of full data encryption.”
Id. at 183. The section of the report on “Wireless Data
Communications” concluded that “[t]he task force
recommends appropriate amendments to legally protect
digital communications of this type from unauthorized
interception.” Id. In short, the task force was of the opinion
that the version of 18 U.S.C. § 2510(16) enacted in 1986 did
not adequately protect unencrypted “wireless data
communications.” The task force must have implicitly
decided that “wireless data communications” were a “radio
communication” because otherwise it would not have been
concerned with § 2510(16), which only applies to “radio
communication.” See id.
In 1994, Congress amended § 2510(16) to add a new
category of communication—which it called an “electronic
communication”—that it deemed to be a “radio
communication” that was not “readily accessible to the
general public.” In relevant part, the statute provided that
“‘readily accessible to the general public’ means, with respect
to a radio communication, that such communication is not . . .
(F) an electronic communication.” 18 U.S.C. § 2510(16)
(1994). Google claims that Congress added § 2510(16)(F) in
1994 in order to protect from interception new technologies
that transmitted data using radio frequencies, including the
contemporary versions of wireless networks. There is some
support for this proposition in the congressional record. See
28 JOFFE V. GOOGLE, INC.
H.R. Rep. No. 103-827, at 18 (1994) (explaining that the bill
“[e]xtends privacy protections of the Electronic
Communications Privacy Act to cordless phones and certain
data communications transmitted by radio”).
The significance of all of this is that Congress repealed
18 U.S.C. § 2510(16)(F) in 1996. Google attempts to draw a
series of inferences from the 1994 and 1996 amendments:
The 1994 Congress thought that data transmissions across the
wireless networks of the day were a type of “radio
communication.” Otherwise, Congress would not have
needed to amend § 2510(16) in order to shield them from
interception given that the provision only applies to “radio
communication.” By deleting § 2510(16)(F), the 1996
Congress removed the sole protection for unencrypted data
transmissions over wireless networks by returning § 2510(16)
to its pre-amendment form. From Google’s perspective, the
upshot of this historical narrative is that payload data
transmitted over an unencrypted Wi-Fi network is a “radio
communication” that is “readily accessible to the general
public” before the 1994 amendment and, crucially, after the
1996 repeal.
This evidence of congressional action and inaction is far
more equivocal than Google acknowledges. First, the task
force’s report does not control what the phrase “radio
communication” meant to Congress when it enacted
§ 2510(16) in 1986. The task force’s report suggests that it
thought that the “wireless data communication” technology
that existed in 1991 entailed “radio communication” as the
phrase is used in § 2510(16). But the task force’s opinion on
questions of statutory interpretation has no independent
authority; it is not charged with divining congressional intent.
The task force’s recommendation informs us that in 1991 a
JOFFE V. GOOGLE, INC. 29
group of fifteen individuals thought that early versions of
wireless networks involved “radio communication” under the
statute. Their opinion is not indicative of what Congress
intended when it included the phrase in the Wiretap Act. It
may be considered evidence of the phrase’s ordinary
meaning. But it does not outweigh the more substantial
evidence, discussed at length above, indicating that the
ordinary meaning of “radio communication” excludes data
transmitted over a Wi-Fi network.
Second, Congress’s decision to add § 2510(16)(F) in 1994
does not prove that it thought data transmitted over a Wi-Fi
network constituted a “radio communication.” The 1994
Congress was certainly concerned about ensuring that
“certain data communications transmitted by radio” were
protected from interception. But that does not necessarily
mean that it was of the view that such communications were
a “radio communication” under § 2510(16). Congress might
have been forestalling the possibility that evolving
technologies would be construed as radio communications,
contrary to the ordinary meaning of the phrase.
Third, and perhaps most importantly, there is no reliable
indication of what the 1996 Congress intended to accomplish
by repealing § 2510(16)(F). Google mines the 1991 task
force report and the 1994 congressional record, but it cannot
close the loop on its argument because the 1996 Congress did
not leave behind the snippets of enactment history that are
essential to Google’s narrative. Consider two possible
rationales for the 1996 repeal of § 2510(16)(F): first,
Congress might have deleted the provision because it found
it redundant. That is, Congress might have thought that data
transmitted over a radio frequency was not a “radio
communication,” which would render the additional
30 JOFFE V. GOOGLE, INC.
protection for such communications offered by § 2510(16)(F)
unnecessary.
Alternatively, Congress might have (correctly)
determined that § 2510(16)(F) made the statute incoherent.
Recall that the short-lived provision provided that “‘readily
accessible to the general public’ means, with respect to a
radio communication, that such communication is not . . . (F)
an electronic communication.” 18 U.S.C. § 2510(16)(F)
(1994). The phrase “electronic communication” has been
broadly defined since the Electronic Communications Privacy
Act of 1986. In 1994, when § 2510(16)(F) was added, the
Wiretap Act provided—as it still does today—that
“‘electronic communication’ means any transfer of signs,
signals, writing, images, sounds, data, or intelligence of any
nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic or photooptical system that
affects interstate commerce.” 18 U.S.C. § 2510(12). As
Google stresses in its briefs, and the statute plainly states,
“radio communication” is a subset of “electronic
communication.” Yet § 2510(16)(F) conveyed that a “radio
communication” was not “readily accessible to the general
public” if it was an “electronic communication,” which
incoherently implies that the latter was a subset of the former.
The repeal of § 2510(16)(F) could, therefore, have been a
housekeeping matter designed to resolve this internal tension
without affecting the protection afforded “electronic
communications, including data” that the 1994 Congress
sought to protect.
Neither of these entirely plausible explanations for the
amendment and repeal are consistent with Google’s
assumption that the pre-1994 conception of “radio
communication” included data transmitted over a Wi-Fi
JOFFE V. GOOGLE, INC. 31
network and the 1996 repeal of § 2510(16)(F) sought to
restore that conception. The point is that we do not know
why the 1996 Congress deleted § 2510(16)(F). We choose to
rely on the ordinary meaning of the phrase “radio
communication” rather than follow a trail of enactment
history that culminates in silence and then speculate as to
Congress’s unexpressed intent.
Finally, Google’s fall back position is that the rule of
lenity dictates that we accept its proposed definition of “radio
communication.” Although this is a civil suit, the Wiretap
Act also carries criminal penalties so Google’s reliance on the
rule of lenity is not unfounded. See Leocal v. Ashcroft,
543 U.S. 1, 11 n.8 (2004) (“Because we must interpret the
statute consistently, whether we encounter its application in
a criminal or noncriminal context, the rule of lenity
applies.”). But we do not resort to the rule of lenity every
time a difficult question of statutory interpretation arises.
Rather, “the rule of lenity only applies if, after considering
text, structure, history, and purpose, there remains a ‘grievous
ambiguity or uncertainty in the statute.’” Barber v. Thomas,
130 S. Ct. 2499, 2508 (2010) (citations omitted); see also
Smith v. United States, 508 U.S. 223, 239 (1993) (“The mere
possibility of articulating a narrower construction [ ] does not
make the rule of lenity applicable. Instead, that venerable
rule is reserved for cases where, ‘[a]fter “seizing every thing
from which aid can be derived,”’ the Court is ‘left with an
ambiguous statute.’”) (citations omitted). Here, the
traditional tools of statutory interpretation are sufficient. The
ordinary meaning of “radio communication” is consistent
with the structure of the Act and avoids absurd results without
running afoul of any clearly expressed congressional intent.
We need not resort to the rule of lenity where, as here, the
ambiguity can be fairly resolved.
32 JOFFE V. GOOGLE, INC.
IV. CONCLUSION
For the foregoing reasons, we agree with the district court
that data transmitted over a Wi-Fi network is not a “radio
communication” under 18 U.S.C. § 2510(16).
AFFIRMED.