Benjamin Joffe v. Google Inc.

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 1362 (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.