Benjamin Joffe, et al v. Google Inc.

Filing 5

Filed (ECF) Petitioner Google Inc. Motion for miscellaneous relief [Motion for Leave to File Reply in Support of Petition for Permission to Appeal Pursuant to 28 U.S.C. Section 1292(b)]. Date of service: 08/16/2011. [7860673] (MHR)

Case No. 11-80186

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re Google Inc. Street View Electronic
Communications Litigation

GOOGLE INC.’S REPLY IN SUPPORT OF PETITION FOR
PERMISSION TO APPEAL PURSUANT TO 28 U.S.C. § 1292(b)
Petition from the United States District Court
for the Northern District of California, Case No. 10-MD-2184 JW
Hon. James Ware, District Judge
David H. Kramer
Michael H. Rubin
Bart E. Volkmer
Caroline E. Wilson
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
[phone]
Counsel for Petitioner Google Inc.

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES........................................................................ii
INTRODUCTION ........................................................................................ 1
ARGUMENT ................................................................................................ 2
A. The District Court’s Wiretap Act Ruling Concerns a
Novel Issue of Law Over Which Reasonable Jurists Could
Disagree, Satisfying the Substantial Ground for Difference
of Opinion Element .................................................................................. 2
CONCLUSION............................................................................................. 7

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TABLE OF AUTHORITIES

Cases

Page(s)

In re Application of the United States, for an Order
Authorizing the Roving Interception of Oral
Communications, 349 F.3d 1132 (9th Cir. 2003) ..................... 4, 5, 6
Reese v. BP Exploration (Alaska) Inc.,
643 F.3d 681 (9th Cir. 2011) .............................................................. 2
Steve Jackson Games, Inc. v. United States Secret Service,
36 F.3d 457 (5th Cir.1994) ................................................................. 5
U.S. v. Smith,
155 F.3d 1051 (9th Cir. 1998) ............................................................ 5
Statutes
18 U.S.C. § 2510(1) .................................................................................. 4, 6
18 U.S.C. § 2510(12) .................................................................................... 6
18 U.S.C. § 2510(16) .................................................................................... 3
18 U.S.C. § 2510(18) .................................................................................... 4
18 U.S.C. § 2511(1) ...................................................................................... 6
18 U.S.C. § 2511(2)(g)(i) .......................................................................... 3, 6
18 U.S.C. § 2511(4)(b)(ii) ............................................................................. 6
28 U.S.C. § 1292(b) .............................................................................. 1, 2, 7
Rules
Fed. R. App. P. 5 .......................................................................................... 1
Miscellaneous
Pub.L. 107-296, § 225(j)(1) .......................................................................... 6
S. Rep. 99-541............................................................................................... 6

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INTRODUCTION
Defendant-petitioner Google Inc. (“Google”) submits this reply in
support of its petition pursuant to 28 U.S.C. § 1292(b) and Fed. R. App.
P. 5 for permission to appeal the district court’s certified order of June,
29, 2011 denying Google’s motion to dismiss plaintiffs’ claim for relief
under the federal Wiretap Act (the “June 29 Order”).
Plaintiffs agree, as they did below, that two elements of 28 U.S.C.
§ 1292(b)’s three-part test are satisfied here: the certified issue involves
a “controlling question of law” and interlocutory appeal “may materially
advance the litigation.”

Plaintiffs argue only that there are not

substantial grounds for difference of opinion concerning the certified
question.

But, as District Court Judge Ware himself concluded in

granting certification, plaintiffs are wrong:

there are compelling

grounds for a conclusion different from the one he reached.

The

question presented is novel and there is no controlling precedent in the
Ninth Circuit or elsewhere that answers it.

Indeed, the case that

plaintiffs rely on in their opposition to this motion (a case they have
never previously cited as on-point despite multiple opportunities below)
actually further supports the conclusion that Judge Ware erred in

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excluding the Wi-Fi transmissions at issue in this case from the
Wiretap Act’s definition of “radio communication.”
Because all three Section 1292(b) elements have been satisfied,
immediate appeal is appropriate.
ARGUMENT
A.

The District Court’s Wiretap Act Ruling Concerns a
Novel Issue of Law Over Which Reasonable Jurists
Could Disagree, Satisfying the Substantial Ground for
Difference of Opinion Element.

This Court recently made clear that Section 1292(b)’s substantial
ground for difference of opinion element is satisfied where the certified
question involves a novel legal issue on which fair-minded jurists might
reach contradictory conclusions. Reese v. BP Exploration (Alaska) Inc.,
643 F.3d 681, 688 (9th Cir. 2011). That is precisely what happened
here:

after defining “radio communications” to exclude Wi-Fi

transmissions and to cover only “traditional radio services,” Judge Ware
agreed with Google that his definition afforded a credible basis for a
difference of opinion. July 18, 2011 Certification Order (“Certification
Order”) at 2.
By its own terms, the June 29 Order makes clear that this action
involves novel issues:
2

The matter before the Court presents a case of first
impression as to whether the Wiretap Act imposes liability
upon a defendant who allegedly intentionally intercepts data
packets from a wireless home network. The case also
presents a novel question of statutory interpretation as to
how the definition in Section 2510(16) of “readily accessible
to the general public” modifies exemption [18 U.S.C.
§ 2511(2)(g)(i)], if at all.
June 29 Order at 7-8 (emphasis added). The district court affirmed this
view in its Certification Order, holding that “in light of the novelty of
the issues presented, the Court finds that its June 29 Order involves a
controlling question of law as to which there is a credible basis for a
difference of opinion . . . .” Certification Order at 2.
In light of that ruling from the very judge whose substantive
decision they embrace, plaintiffs should bear a heavy burden to show
the impropriety of permission to appeal. But plaintiffs instead offer
word play, attempting to draw a distinction between a novel issue and
an issue of first impression, arguing that only the former satisfies the
test. Opp’n Brief at 9 n.2. That is a distinction without a difference in
any case, but all the more so here, where the district court expressly
determined that this matter involves both “novel” issues and “issues of
first impression.” June 29 Order at 7-8. And Judge Ware was correct in
that regard: no other court has interpreted “radio communication.”
3

Plaintiffs, however, now claim that In re Application of the United
States, for an Order Authorizing the Roving Interception of Oral
Communications, 349 F.3d 1132 (9th Cir. 2003) is controlling precedent
that forecloses any difference of opinion. That is meritless.
In re United States does not in any way purport to define the term
“radio communication,” or even offer any meaningful guidance on how
the term ought to be defined. The panel in that case merely observed
that cellular telephone calls are “wire communications” within the
meaning of the Wiretap Act.1 To the extent that decision bears at all on
the certified question, the case supports Google’s position, not
plaintiffs.
In the June 29 Order, the district court expressed concern that the
definition of “radio communication” that Google advanced would allow
for the interception of cellular telephone calls. To avoid that outcome,
The Wiretap Act defines “wire communication” to mean “any aural
transfer made in whole or in part through the use of facilities for the
transmission of communications by the aid of wire, cable, or other like
connection . . . .” 18 U.S.C. § 2510(1). It defines “aural transfer” as “a
transfer containing the human voice . . . .” Id. § 2510(18). Based on
these definitions, the In re United States panel found that “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.” 349 F.3d at 1138 n.12.
1

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which it felt was not consistent with Congressional intent, the court
defined the phrase “radio communication” narrowly, to apply only to
“traditional radio services.” In so doing, the court eschewed a plain
language interpretation, disregarded clear legislative history, and
ignored key interpretative cannons.2

But In re United States makes

plain that the concern that guided the district court – that cellular
telephone

calls

could

be

intercepted

if

the

phrase

“radio

communications” took its ordinary meaning – is misplaced. The In re
United States panel held that although cellular telephone calls are

Plaintiffs’ contention that the district court applied “established
methods of statutory construction” is wrong. Opp’n Brief at 15. There
is nothing traditional in departing from a plain language analysis in the
way the district court did. Likewise, plaintiffs’ suggestion that the Rule
of Lenity is inapplicable here because the certified question is “not so
bedeviling” makes little sense when the district court itself found the
Wiretap Act ambiguous, and this Court has recognized that the Wiretap
Act is famously unclear (even with regard to the unrelated issues in the
Councilman case upon which plaintiffs rely). See U.S. v. Smith, 155
F.3d 1051, 1055 (9th Cir. 1998) (“When the Fifth Circuit observed that
the Wiretap Act ‘is famous (if not infamous) for its lack of clarity,’ Steve
Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457, 462
(5th Cir.1994), it might have put the matter too mildly.”); June 29
Order at 13 (“[T]he Court finds that a plain reading of ‘radio
communication’ from the statutory text, as well as reading the text in
the context of the structure and purpose of the Act, fails to yield a
definitive and unambiguous result.”).
2

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“radio communications,”3 their status as “wire communications”
protects them from interception. 18 U.S.C. § 2511(1)(a) et seq. 4
The only bearing In re United States has on this motion and the
certified issue is to demonstrate that one need not interpret “radio
communications” to exclude new technologies in order to protect cellular
telephone calls from interception. They are already protected.
***

Before it was amended in 2002, the Wiretap Act specifically referred to
cellular telephone calls as “radio communications.”
18 U.S.C.
§ 2511(4)(b)(ii) (repealed 2002, Pub. L. 107-296, § 225(j)(1)). And the
legislative history of the 1986 ECPA amendments to the Wiretap Act
explicitly refers to cellular telephone calls as radio communications.
See S. Rep. 99-541 at 7 (“cellular calls are radio-based
communications”), 20 (referring to “the radio portion of a cellular
telephone” call as a “radio communication”).
3

The term “wire communication” – as defined in the Wiretap Act and
construed by In re United States – provides no guidance to the proper
definition of the phrase “radio communication” and is certainly not a
“polestar,” as plaintiffs suggest. Opp’n brief at 13. The Wi-Fi
transmissions at issue in this case are “electronic communications,” not
“wire communications.” See Dist. Ct. Dkt. No. 54 at ¶¶ 1, 2, 4, 119,
122, 129, 130 (alleging interception of “electronic communications” and
not referencing “wire communications”). And the definitions of “wire
communication” and “electronic communication” are wildly different,
expressly mutually exclusive under the statute, and subject to
significantly different parts of the Wiretap Act. Compare 18 U.S.C. §
2510(1) to § 2510(12); see also §§ 2511(1), 2511(2)(g)(i).
4

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Google has shown, and the district court has agreed that fairminded jurists could reach differing conclusions about the proper
definition of “radio communication.”

Plaintiffs’ opposition has not

overcome that showing. With all three elements of the Section 1292(b)
analysis established, immediate appeal of the certified question should
be granted.
CONCLUSION
For the reasons stated above, the Court should grant Google’s
petition for permission to appeal pursuant to 28 U.S.C. § 1292(b).
Respectfully submitted.
DATED: August 16, 2011
/s/ Michael H. Rubin
David H. Kramer
Michael H. Rubin
Bart E. Volkmer
Caroline E. Wilson
WILSON SONSINI GOODRICH & ROSATI
650 Page Mill Road
Palo Alto, CA 94304
[phone]
Counsel for Petitioner Google Inc.

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CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 27(d)(1)(E), this brief complies with
the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style
requirements of Fed. R. App. P. 32(a)(6) because it is written in 14-point
Century Schoolbook font, and with the length limitations of Fed. R.
App. P. 5(c) and Fed. P. App. P. 27(d)(2) because it contains 7 pages,
excluding the portions exempted thereunder.
DATED: August 16 , 2011
/s/ Michael H. Rubin
David H. Kramer
Michael H. Rubin
Bart E. Volkmer
Caroline E. Wilson
WILSON SONSINI GOODRICH & ROSATI
650 Page Mill Road
Palo Alto, CA 94304
[phone]
Counsel for Petitioner Google Inc.

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