Google has lost its appeal to dismiss a class action lawsuit over its Street View cars' poaching of data from unsecured WiFi networks. "Google went out like fishermen with nets and scooped up whatever electronic fish were out there and processed it," said tech attorney Ray Van Dyke. It "could have thrown those fish back but did not. Indeed, if the fish was protected, Google still kept it."
The 9th United States Circuit Court of Appeals has ruled, in essence, that Google broke federal wiretap laws when its Street View cars collected data from unencrypted WiFi networks.
The federal court affirmed a district court's order denying Google's motion to dismiss the claim.
Google's data collection did not fall within the ambit of an exemption set forth in the United States Code governing wiretaps, the appeals of court found.
"Google sometimes pushes the legal boundaries and sometimes the law pushes back, such as here," remarked Raymond Van Dyke, principal at Van Dyke Law.
"We are disappointed in the Ninth Circuit's decision and are considering our next steps," Google spokesperson Nadja Blagojevic told TechNewsWorld, echoing earlier statements the company made on the ruling.
The Essence of the Case
Google contended that its capture of data from unencrypted WiFi networks was inadvertent and that the data qualified as radio communications readily accessible to the general public under a provision of the Wiretap Act.
The Act states that it is not unlawful for any person to intercept or access an electronic communication that is basically readily accessible to the general public, or intercept what amount to public radio broadcasts, among other things.
In the ruling that Google was appealing, U.S. District Judge James Ware of the Northern District of California found that the Wiretap Act uses the term "radio communications" to mean traditional, broadcast radio services, and not all communications that travel over radio waves.
He also stated in essence that although the WiFi networks Google got the data from were not encrypted, the networks were configured to prevent the general public from gaining access to the data without using sophisticated technology.
In the 9th Circuit Court's ruling, Circuit Judge Jay Bybee upheld Judge Ware's finding. He also wrote that Google's "expansive" view of the Wiretap Act exemptions would have produced the absurd result that the protection of the law would depend on whether a recipient of communications was using a secure network.
This could theoretically let someone park outside the home or office of a person using an unsecured network and use a packet sniffer to capture data being transmitted over that network without penalty, Judge Bybee said.
The Miracle of the Fishes
Accidental capture was not a good defense, because Google used the information it captured, Van Dyke told TechNewsWorld.
"Google went out like fishermen with nets and scooped up whatever electronic fish were out there and processed it," Van Dyke continued.
The company "could have thrown those fish back but did not. Indeed, if the fish was protected, Google still kept it," he said.
Making Public WiFi Networks Safer
The 9th Circuit Court's ruling "is a very strong decision for privacy," John M. Simpson, privacy project director at Consumer Watchdog, told TechNewsWorld.
"Under this ruling, when someone intercepts messages you send or receive on your laptop over a public network at, for example, Starbucks, that action would violate wiretap laws," Simpson explained. "That had not been clearly stated before."
The ruling means a consolidated class action suit against Google over its Street Car data collection can proceed.
Google could appeal the decision to the full Appeals Court and "could possibly push it all the way to the Supreme Court," Simpson suggested.
Looking Across the Pond
It is not clear just how the EU will respond to the 9th Circuit Court's ruling.
Germany has fined Google about US$200,000 for scooping up data with its Street View cars, and the UK ordered it to destroy all such data captured from residents there.
France is looking into the issue following Google's admission that it did not delete data captured by its Street View cars as promised.