Hibnick v. Google Inc.

Filing 126

*** FILED IN WRONG CASE. NO NEW DOCUMENT. *** Brief For Amicus Curiae Electronic Privacy Information Center In Support of Plaintiffs filed byElectronic Privacy Information Center. (Chavez, Mark) (Filed on 4/11/2011) Modified on 4/12/2011 (ewn, COURT STAFF).

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MARK A. CHAVEZ (Bar No. 90858)
[e-mail]
Chavez & Gertler LLP
42 Miller Ave.
Mill Valley, CA 94941
[phone] (telephone)

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MARC ROTENBERG1 (to be admitted pro hac vice)
[e-mail]
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20009
[phone] (telephone)
[phone] (facsimile)
Attorneys for Amicus Curiae
the Electronic Privacy Information Center
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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IN RE GOOGLE STREET
VIEW ELECTRONIC
COMMUNICATIONS
LITIGATION

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This Pleading Relates To:
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ALL CASES
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____________________________)

Case No. 5:10-CV-00672-JW

BRIEF FOR AMICUS CURIAE
ELECTRONIC PRIVACY INFORMATION
CENTER IN SUPPORT OF PLAINTIFFS

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Mr. Rotenberg is barred in the District of Columbia, the Commonwealth of
Massachusetts, the U.S. Supreme Court, and several federal Circuits Courts. He
participated in the development and drafting of the ECPA of 1986. EPIC Appellate
Advocacy Fellow Conor Kennedy contributed to the preparation of this brief.
Case No. 10-2184-JW – Amicus Curiae ELECTRONIC PRIVACY INFORMATION CENTER'S
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The Electronic Privacy Information Center (“EPIC”) respectfully files this amicus

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curiae brief in response to this Court's order request for supplemental briefing (Dkt. No.

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73).

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Interest of Amicus Curiae

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The Electronic Privacy Information Center (”EPIC”) is a public interest research
center in Washington, D.C. EPIC was established in 1994 to focus public attention on
emerging civil liberties issues and to protect privacy, the First Amendment, and other
Constitutional values.
EPIC has participated as amicus curiae in numerous cases that concern emerging

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privacy issues before the Supreme Court and other courts, including IMS Health Inc. v.
Sorrell, 630 F.3d 263 (2d Cir. Vt., 2010) cert. granted, Sorrell v. IMS Health, 79
U.S.L.W. 3397 (U.S. Jan. 11, 2011) (No. 10-779), Tolentino v. New York, 2011 U.S.

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LEXIS 2593 (U.S. Mar. 29, 2011); NASA v. Nelson, 131 S. Ct. 746 (2011); Doe v. Reed,

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130 S. Ct. 2811 (2010); Quon v. City of Ontario, 130 S. Ct. 2619 (2010); Flores-

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Figueroa v. United States, 129 S. Ct. 1886 (2009); Herring v. United States, 555 U.S. 135

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(2009); Crawford v. Marion County Election Board, 553 U.S. Ct. 181 (2008); Hiibel v.

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Sixth Judicial Circuit of Nevada, 542 U.S. 177 (2004); Doe v. Chao, 540 U.S. 614

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(2003); Smith v. Doe, 538 U.S. 84 (2003); Department of Justice v. City of Chicago, 537

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U.S. 1229 (2003); Watchtower Bible and Tract Society of N.Y., Inc. v. Village of Stratton,

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536 U.S. 150 (2002); Reno v. Condon, 528 U.S. 141 (2000).

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Summary

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The Electronic Communications Privacy Act (“ECPA”) constitutes a set of

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amendments to the federal wiretap law of 1968 that seek to update and expand privacy

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protections for modern communications technologies. As such, the law should be

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understood to establish privacy safeguards for users of new communications services.
“The paramount purpose of the Wiretap Act is to protect effectively the privacy of 

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Case No. 10-2184-JW – Amicus Curiae ELECTRONIC PRIVACY INFORMATION CENTER'S
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communications.”  In re Pharmatrak, Inc., 329 F.3d 9, 18 (1st Cir. 2003).  Exemptions

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set out in the Act address specific circumstances identified by lawmakers where it was

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either impractical or undesirable to prohibit the interception of private communications at

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a particular moment in time.

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The term “configured” in the evaluation of those communications that are
“publicly accessible” reflects an intent by Congress to create a presumption in favor of
confidentiality except in those circumstances where the user has knowingly chosen to
broadcast communications to the general public. While a handful of operators of home
networks may choose to configure their wireless devices to enable public access to the

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Internet, the vast majority of operators of such home devices have not done so. Indeed, it
is widely know that to configure devices in this way makes wireless networks subject to
attack. The straightforward reading of the purpose of the Act is to treat the interception of

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such communications as unlawful.

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(a) “Radio Communications” are Protected From Intercept Under ECPA where the
User of a Communications Device Does Not Intend to Broadcast Communications to
the General Public

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In 1986, the drafters of the amendments to the federal wiretap law exempted a

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very specific set of "radio communications" from the general provisions protecting

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"electronic communications" against third party interception. 18 U.S.C. §§ 2510(16)(A)-

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(E); 2511(2)(g)(i), (ii). Congress's decision to exempt radio interception reflected the fact

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that public-interest amateur hobbyists operated on the radio portion of the
electromagnetic spectrum at the time of ECPA's passage. As such, Congress sought to
protect the broadcast transmission of radio operators from the penalties established by the

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ECPA. As the House Committee Report noted:
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The Committee considered listing all the existing radio services which are exempt
from the bar on interceptions, but rejected that approach because it would been
cumbersome, possibly redundant, and would have had a built-in obsolescence . . . .
Therefore instead of listing all of these services the Committee listed some of the

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more common radio services. In addition, the bill includes a "generic" exception
relating to radio services which are "readily accessible to the general public."

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H.R. Rep. No. 99-647 at 42 (1986). But the exemption was narrow and intended to apply

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to amateur radio operators only. Congress noted that that FCC Rules and Regulations

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governing amateur radio services even "prohibit[ed] business communications" and other

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commercial uses of the spectrum. Electronic Communications Privacy Act: Hearings on

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H.R. 3378 Before the Subcomm. on Courts, Civil Liberties, and the Administration of

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Justice of the House Comm. on the Judiciary, 99th Cong., 1st & 2d Sess. 151.

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The House Committee Report accompanying the bill to the floor declared that

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"[a]mateur radio communications . . . . are certainly not those to which this legislation is

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aimed," predominantly because "[a]mateurs have legitimate reason to monitor

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frequencies outside the amateur bands." H.R. Rep. No. 99-647 at 42 (1986). Congress
called upon the largest membership associations of amateur radio enthusiasts in the
country to supply testimony to the Subcommittee that drafted ECPA. Electronic

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Communications Privacy Act: Hearings on H.R. 3378 Before the Subcomm. on Courts,
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Civil Liberties, and the Administration of Justice of the House Comm. on the Judiciary,
99th Cong., 1st & 2d Sess. 146-209 (1985) (statements of Larry E. Price, President,
American Radio Relay League and Richard T. Colgan, Executive Secretary, Ass'n of N.

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Am. Radio Clubs). In hearings, both groups testified that radio scanning practices

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uniquely enabled their amateur operators to provide emergency communications for

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distress calls where other facilities are "destroyed or overtaxed." Id. at 168. Amateur

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radio operators also explained the significance of their role in "phone patching"

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communications between wounded American military personnel and hospital ships or

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family members back home. Id. at 153. The House Committee Report reflected these

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interests:

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Many amateurs, for instance, are enrolled in the Military Affiliate Radio System
and the Civil Air Patrol . . . Some 30,000 amateurs are part of Skywarn, a system
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operated by the National Weather Service for tracking and warning of severe
weather conditions.

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H.R. Rep. No. 99-647 at 42. See also, 47 C.F.R. § 97.1 (1988) (discussing benefits of

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amateur radio operations).

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Commentators have also noted that the exception for amateur radio operators

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would not apply more broadly to other activities. See, e.g., Fred Jay Meyer, Don't Touch

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That Dial: Radio Listening Under the Electronic Communications Privacy Act of 1986,

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63 N.Y.U. L. Rev. 416, 423-24 (1988) (“Those who conduct electronic surveillance,

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utilizing radio receivers and other electronic equipment to seek out, intercept, and

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monitor targeted electronic communications, are distinct from hobbyists and other casual

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radio listeners.”)

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Regarding the statutory carve-out for unscrambled and unencrypted radio messages, 18
U.S.C. § 2510(16)(A), the provision does not apply to private Wi-Fi networks. The
provision was first proposed by the Association of North American Radio Clubs,

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Electronic Communications Privacy Act: Hearings on H.R. 3378 Before the Subcomm.
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on Courts, Civil Liberties, and the Administration of Justice of the House Comm. on the
Judiciary, 99th Cong., 1st & 2d Sess. at 169-70, and was designed to permit amateur
radio wave operators to exempt their efforts to listen to mobile radio services that "do not

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take even minimal precautions against interception of their transmissions." Id. at 168.

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Radio scanners are a niche community of sophisticated users who have

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understood the widespread availability of receivers that scan amateur radio signals for

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local emergency communications. Amongst experts, encryption was a proxy for the

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transmitter's regard for the protection of its communications: "a test of whether the

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system provider or user expects . . . privacy." Id. But for a typical user of a device that

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had a broadcast capability, the distinction would not be meaningful as the general user

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would not have the training or the ability to enable or disable this functionality.

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The Act anticipated this problem by including the word “configured” in the

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consideration of whether or not the transmission was “publicly accessible.” The aim was

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to ensure that the operators of devices would make a knowing decision to enable access

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to broadcast communications.

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(b) Typical Wireless Home Networks Enable Communications Among Devices
within the Home and are Not Configured for Public Access.

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Many people establish home wireless networks, also called “Wireless Local Area

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Networks” (“WLAN”), to enable communications between devices within the home. For

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example, a WLAN might connect a desktop computer in an office with a laptop in the

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kitchen and a media device in the living room. The home network might provide a

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common printer available to each of the devices, as well as Internet access so that each

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device within the home can share a single subscription with an Internet Service Provider

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(“ISP”). The use of a wireless network device in this configuration is both less expensive
and more flexible than a hardwired Local Area Network (“LAN”), which would require
fixed cabling and additional switching. The functionality of wireless networks is directed

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toward those within the home who take advantage of these shared services.
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WLANs typically have a limited transmission range. Unlike broadcast
technologies, WLAN are not intended to be accessible to the general public. However,
there are separate categories of devices that are designed to broadcast to a wider region

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and that may operate as an alternative to cellular networks. These devices include

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Wireless Metropolitan Area Networks (“WMAN”), which are described by the IEEE

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802.16 standard and includes WiMAX, and Wireless Wide Area Networks (“WWAN”)

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networks that “cover large outdoor areas.” See generally, Wikipedia, “Wireless

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networks.” (WiMAX is viewed as a possible replacement for cellular phone technologies

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such as GSM and CDMA precisely because it can cover a broad geographic region.)

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There is also Long Range Wi-Fi, also known as “Wi-Fi over Long Distance”

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(“WiLD”) that is intended to provided long distance wireless access. “The (TIER) project

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at University of California at Berkeley, in collaboration with Intel, utilizes a modified

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Wi-Fi setup to create long-distance point-to-point links for several of its projects in the

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developing world.” Wikipedia, “Long Range Wi-Fi,” http://en.wikipedia.org/wiki/Long-

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range_Wi-Fi.
Within this taxonomy, a WLAN to enable communications among devices within
a home would not be considered a broadcast technique. Its purpose is to establish a Local
Area Network, accessible to an identifiable set of users.

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A wireless Home network should also be distinguished from a “Wi-Fi Hotspot”
that is configured so as to enable public access to the Internet. Many commercial
businesses, particularly those that are trying to generate walk-in traffic such as coffee

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shops, might choose to create a Wi-Fi hotspot to attract customers. By way of example,

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Starbucks has an estimated 7,000 Wi-Fi hotspots in the United States. The company

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recently decided to make the hotspots freely available and advertised this fact to promote

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business. Starbucks, “Free Wi-Fi for Everyone. Now at Starbucks,”

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http://www.starbucks.com/coffeehouse/wireless-internet/. And Starbucks took the

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necessary steps to ensure that the devices were accessible to the public. Municipalities

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might also choose to establish free public Wi-Fi access points. Seattle is among the cities

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leading an effort to promote Internet access through “Seattle Wi-Fi.” As the city explains,

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“The goals of the City's Wi-Fi pilot project are: to attract more customers to local

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business districts, support small businesses, encourage the use of public parks and

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facilities, and enable more citizens to access City services online.” Seattle.gov, “Wi-Fi in

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Seattle – Technology – Community – Living in Seattle – Seattle.gov,”

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http://www.seattle.gov/html/citizen/wifi.htm

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Wi-Fi Hotspots serve an important purpose, when they are configured by the

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operator, to enable Internet access. But it would be very unusual for the operator of a

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residential network to configure a device in this way. Not only would the home user

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obtain none of the typical benefits for public Wi-Fi Hotspot – increased interest in and

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traffic to the physical location – the user would take on the additional risk that the

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network could be hijacked and used for spam, fishing, and other illegal activities.

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(c) Under ECPA, Cellular Communications were First Protected by Warnings to the
Consumer, and then Further Amendments to Act
In 1986, Congress determined that cordless telephones would not be protected in

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the amendments to the Wiretap Act because "those conversations are often picked up

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unintentionally on FM radio receivers." Mary Thornton, House Panel Votes to Modernize

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Curbs on Electronic Eavesdropping, Wash. Post, May 15, 1986, at A13. However,

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Congress also sought to provide adequate warnings to consumers about the risk of using
wireless devices that lacked legal protection. It required a prominent warning label:
"PRIVACY OF COMMUNICATIONS MAY NOT BE ENSURED WHEN USING

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THIS PHONE." H.R. Rep. No. 99-647 at 43.
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No similar warnings are provided to residential users of wireless network devices.
In 1994, Congress provided the same statutory protections to radio
communications services as it did to other electronic communications. Communications

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Assistance for Law Enforcement Act of 1994, Pub. L. No. 103-414, § 202, 108 Stat.

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4279, 18 U.S.C. § 2510. This decision followed, in part, from the 1991 Privacy and

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Technology Task Force Report, which found that:

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[t]he cordless phone, far from being a novelty item used only at 'poolside,' has
become ubiquitous . . . More and more communications are being carried out by
people [using cordless phones] in private, in their homes and offices, with an
expectation that such calls are just like any other phone call.
See H.R. Rep. No. 103-827, at 19 (1994).

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Conclusion

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The Electronic Communications Privacy Act reflects an intent by Congress to

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update privacy protections for electronic communications in response to technological

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innovation. Congress understood that there would be a category of broadcast

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communications, generally accessible to the public, that should fall outside the reach of

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ECPA. But Congress sought to keep that exception narrow and to make clear that the
operator of the service, through the configuration of the device, intend that the
communications be public. It is not reasonable, sensible, or consistent with the intent of
ECPA to imagine that the operator of a wireless home network would intend that the

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network be accessible to the general public.
Dated: April 11, 2011

Respectfully submitted,

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________/s/ Mark A. Chavez ________
MARK A. CHAVEZ (Bar No. 90858)
Chavez & Gertler LLP
42 Miller Ave.
Mill Valley, CA 94941
[phone] (telephone)

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___________/s/ Marc Rotenberg________
MARC ROTENBERG2 (to be admitted pro
hac vice)
ELECTRONIC PRIVACY
INFORMATION CENTER
1718 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20009
[phone] (telephone)
[phone] (facsimile)
[e-mail] (email)
Attorneys for the Amicus Curiae
the Electronic Privacy Information Center

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Mr. Rotenberg is barred in the District of Columbia, the Commonwealth of
Massachusetts, the U.S. Supreme Court, and several federal Circuits Courts.
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Case No. 10-2184-JW – Amicus Curiae ELECTRONIC PRIVACY INFORMATION CENTER'S
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