Google Can’t Get Creative With Wiretap Law

(CN) - Google cannot use a broad definition of "radio communication" to escape claims that its Street View cars violated federal privacy laws, the 9th Circuit ruled Tuesday.

Street View cars, which travel the world taking photographs and capturing data for Google, inadvertently collected some 600 gigabytes of private data from unencrypted Wi-Fi networks in more than 30 countries. The company collected the data, which included "personal emails, usernames, passwords, videos, and documents," between 2007 and 2010, after which it purportedly corrected the issue, the court noted.

Upon admitting the mistake, however, Google faced a number of potential class actions. The complaints were eventually consolidated in California, where lead plaintiff Benjamin Joffe and others sought to certify a class of "all persons whose electronic communications were intercepted by Google Street View vehicles since May 25, 2007."

The plaintiffs claimed that Google had violated various points of the federal Wiretap Act, which prohibits the interception of "wire, oral, or electronic communication," except in a few instances. The law provides an exemption for "electronic communication made through an electronic communication system" that is "readily accessible to the general public." Unscrambled radio and television broadcasts fall under this exemption.

In a motion to dismiss the proposed class action, Google had argued that all data transmitted over any Wi-Fi network is an electronic "radio communication," and thus exempt, just as any other radio broadcast, from the prohibition on interception the same. It supported this argument by defining radio communication as "any information transmitted using radio wave." Google also justified the interception of unencrypted WiFi networks because they are "readily accessible to the general public."

U.S. District Judge James Ware in San Jose disagreed on all points and refused to dismiss the complaint, and Google took the issue to the 9th Circuit.

At oral argument before a three-judge panel in June, the proposed class's attorney, Elizabeth Cabrader, warned that Google's interpretation of the law could open a "loophole ... big enough for massive government intrusion."

Affirming the lower court unanimously on Tuesday, the appellate judges said that Google's "expansive" definition could bring "absurd" results, as it would apply to "Bluetooth devices, cordless and cellular phones, garage door openers, avalanche beacons, and wildlife tracking collars" - all of which use the radio frequency portion of the electromagnetic spectrum.

"Google's proposed definition is in tension with how Congress- and virtually everyone else - uses the phrase," Judge Jay Bybee wrote for the court. "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."

Bybee added that, under Google's contention that unsecured WiFi networks are accessible to public, "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."

"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," the panel concluded.

A Google spokesperson called the decision disappointing and said the company is considering its "next steps."

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