I’m shocked to discover that the august Ninth Circuit has been tampering with the balloting for the Privies, perhaps hoping to save its own Judge Bybee from winning the award for “Dumbest Privacy Case” of 2014.
The nomination was for a decision that exposed Google to liabilty for gathering wi-fi signals while driving by on the street.
As we noted in the nomination, “the law exempts the capturing of radio broadcasts and publicly accessible communications; there’s not much doubt that wi-fi uses radio waves and can be accessed by the public if it’s not secured. But Judge Bybee of the Ninth Circuit wasn’t deterred by either of the barriers to holding Google liable. He decided that radio communications are only those things we hear on the AM-FM dial. As for being publicly accessible, he writes, why that’s ridiculous: if you listened to wi-fi signals on an AM radio, “they would sound indistinguishable from random noise.”
Now Judge Bybee seems ready to admit that he didn’t really think that whole “how would the signals sound on an AM radio/” thing through. Responding to the imminent threat of a Privy Award (and, okay, Google’s rehearing petition), the panel has modified the opinion to make it less, well, dumb. It has granted rehearing and dropped the entire discussion about what is and is not publicly accessible, leaving the definition of “publicly accessible” to be argued before the district court in the first instance.