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Court decision in Google Street View case called unpersuasive, flawed

Jaikumar Vijayan | Sept. 16, 2013
Tech think-tank argues Google did not violate Wiretap Act

A U.S appellate court's decision earlier this week to permit a wiretapping case against Google to proceed, is based on flawed reasoning, a leading technology think-tank says.

On Tuesday, the U.S. Appeals Court for the Ninth Circuit rejected Google's motion to dismiss claims that it had violated the federal Wiretap Act when it collected data from unencrypted Wi-Fi networks when capturing Street View photographs.

In 2010, Google admitted that its Street View cars had inadvertently captured data transmitted by open Wi-Fi networks in homes and businesses when shooting photographs. The company publicly apologized for what it claimed was an honest mistake and offered to destroy or make inaccessible the nearly 660GB of data it had collected from the networks.

Several individuals later sued Google, claiming the company had violated the Wiretap Act, which prohibits the intentional interception of electronic data. In the lawsuit, the plaintiffs noted that Google's Street View cars had recorded a considerable amount of data from open Wi-Fi networks including SSIDs, MAC addresses and even "payload" data such as personal emails, passwords, videos and documents.

Google claimed that it had not violated any laws because the data it had inadvertently collected had been unencrypted and was "readily accessible to the general public," and was therefore statutorily exempt under the Wiretap Act.

The company maintained that under the Wiretap Act, people who do not make an affirmative attempt to make their communications private, can have no expectation of privacy if that communication is later intercepted over an open Wi-Fi network

A District Court judge who heard the case rejected Google's argument and held that the company had indeed violated the Wiretap Act. In coming to its conclusion the judge noted that the statutory exemption that Google claimed under the Wiretap Act only applied to "radio communications," and not to electronic data transmitted over a Wi-Fi network, because the term was not defined in the Act.

The judge also maintained that unencrypted communications sent from or received by an open Wi-Fi network was not generally accessible to the public, as defined under the Wiretap Act.

The three-judge panel from the Ninth Circuit that considered Google's appeal of the District Court ruling also came to the same conclusion. In a 35-page ruling, the panel concurred with the District Court's ruling and rejected Google's motion for dismissal of the lawsuit.

Like the District Court judge, the appellate court judges too held that payload transmitted over an open Wi-Fi network is not "radio communication" as defined under the Wiretap Act, and is therefore not exempt under the act.

The judges also maintained that Wi-Fi transmissions over an unencrypted network are not readily accessible to the general public, because "they are geographically limited and fail to travel far beyond the walls of the home or office where the access point is located."


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