Courts Rule on Issues of Data Privacy, with Important Implications for Electronic Monitoring and Searches

Two recent appellate decisions addressed important legal questions involving communications technology and data privacy. One case involved allegations that the internet company Google violated the Wiretap Act, 18 U.S.C. § 2511, by obtaining personal data from unsecured home wireless computer networks, or “WiFi networks.” The Ninth Circuit Court of Appeals rejected Google’s claim that they only obtained “public” information. Joffe v. Google, 746 F.3d 920 (9th Cir. 2013). In the other case, a Florida appellate court reversed a defendant’s conviction on Fourth Amendment grounds, criticizing the state’s argument that police could not obtain a search warrant for cell phone data because of a non-disclosure agreement with the manufacturer of the cell phone tracking technology. Thomas v. Florida, 127 So.3d 658 (Fla. App. 1st Dist. 2013).

“Street View” is a component of Google’s “Maps” service. It allows users to access panoramic images of certain areas by clicking on maps on Google’s website. Google obtains many of these images by deploying cars equipped with cameras that record 360-degree images. The plaintiff in Joffe alleged that these cars were illegally accessing WiFi networks and recording information about them. In addition to basic location information, the cars were also allegedly obtaining “payload data” from unsecured networks, which might include email messages, passwords, and anything else transmitted over the network.

The lawsuit, a putative class action, alleged violations of the Wiretap Act. Google claimed that the information it collected was “readily accessible to the general public” and therefore exempt from the Wiretap Act. 18 U.S.C. § 2511(2)(g)(i). The district court denied Google’s motion to dismiss on this ground, and the Ninth Circuit affirmed the lower court’s ruling. The Ninth Circuit noted that the exemption claimed by Google explicitly applied only to a “radio communication,” id. at § 2510(16), and held that WiFi data transmissions are not “radio communications.” Joffe, 746 F.3d at 936.

In Thomas, police made use of a device called a “stingray” to determine the location of a cell phone allegedly stolen by the defendant. The stingray mimics a cell phone tower, causing the cell phone to send it location data. The public is generally not informed about the use of these devices, and police rarely obtain a warrant. After the police had waited for several hours outside the apartment where they had located the cellphone, an officer knocked on the door. The woman who answered refused to allow the officer to enter, but the officer prevented her from closing the door, removed her from the apartment, and commenced a search. The woman then verbally consented to a search.

After the defendant and the cell phone were located, the defendant was arrested and charged with multiple offenses. The trial court denied the defendant’s motion to suppress, finding that exigent circumstances were a factor. The appellate court vehemently disagreed. It held that the situation did not present a risk that the defendant would escape or destroy evidence. It did not rule on the legality of the cell phone monitoring, but noted that police generally used the technology without warrants. This factored into its finding that the initial warrantless entry into the apartment violated the defendant’s Fourth Amendment rights. Thomas, 127 So.3d at 667 n. 12.

Michael J. Brown is a board-certified criminal defense attorney in west Texas. He has fought for the rights of people facing alleged criminal charges in state and federal court for more than two decades. To schedule a confidential consultation with an experienced and knowledgeable advocate, please contact us today online or at (432) 687-5157.

More Blog Posts:

Appellate Court Finds Fourth Amendment “Right to Delete” Data Seized in Overbroad Computer Searches, Texas Criminal Lawyer Blog, October 15, 2014
Microsoft Fights Search Warrant Seeking Email Data Stored on Overseas Servers, Texas Criminal Lawyer Blog, October 9, 2014
“Cyberstalking” Across State Lines Falls Under Federal Jurisdiction, Is Not Protected by First Amendment, Says Court, Texas Criminal Lawyer Blog, September 4, 2014

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