Aligning Online Privacy Protection with Reasonable Expectations of Privacy: How Joffe Can Be Used to Modernize the Wiretap Act

Abstract

Between May 2007 and 2010, as part of its popular Street View project, Google collected an enormous amount of Wi-Fi data transmitted from unencrypted networks throughout the United States and over thirty countries worldwide. After initially denying the collection of any payload data, Google publicly acknowledged that fragmented samples of payload data were collected from open Wi-Fi networks due to a code mistakenly included in its Street View software. Several months later, however, Google admitted that the data collected was not just fragmentary in nature; in some instances the full content of e-mails, URL searches, passwords, and financial transactions were collected. In response to what has been called a “big brother-like . . . invasion of privacy,” investigations have been launched in the United States and abroad. In a private action against Google, the Northern District of California denied Google’s motion to dismiss a claim alleging that Google’s collection of payload data from unencrypted Wi-Fi networks violated the Wiretap Act. The Ninth Circuit affirmed, holding that Wi-Fi communications do not constitute an “electronic communication . . . readily accessible to the general public” under the Wiretap Act, and thus are not exempt from liability. The Ninth Circuit’s ruling in Joffe v. Google, Inc. raises a number of important issues that may have significant implications on privacy protections for Internet and other electronic communication. Joffe exposed our current privacy protection framework as inadequate for new technologies and advancements in communication. Such inadequacy raises the question as to what extent, and in what way, Congress must update the Wiretap Act to accommodate a changing communication landscape since the enactment of the Electronic Communications Privacy Act (ECPA) in 1986. Furthermore, it becomes necessary to consider whether users of unsecured Wi-Fi networks have a reasonable expectation of privacy in their transmitted electronic communications. As a corollary, it is important to examine how offline Fourth Amendment principles may be applied to an increasingly online society to protect an individual’s electronic and Internet communications. This Comment seeks to examine how Congress, and the courts, might use Joffe as a springboard to bring privacy protections up to date with technological and communication advances. This Comment analyzes the reasoning and holding advanced by the Joffe court, placing Joffe in context with the current state of the law, and argues that Congress and courts should use Joffe to align the reality of users’ knowledge of Wi-Fi technology and reasonable expectations of privacy with the Wiretap Act. This Comment concludes that Congress should amend the ECPA to expressly protect both encrypted and unencrypted Wi-Fi transmissions, and that courts should adapt offline Fourth Amendment principles to protect online and other electronic communications.