Google Fights WiFi Sniffing Claims in the 9th

     SAN FRANCISCO (CN) – Google’s use of Street View vehicles to collect unencrypted WiFi data jeopardized constitutional privacy protections, class counsel told the 9th Circuit.
     A three-judge panel heard arguments on the case Monday after Google failed to secure dismissal of a class action led by Benjamin Joffe.
     The class accuses Google of creating an illegal data-collection system that used so-called “wireless sniffers” to ferret out personal emails, passwords and other personal data from unsuspecting users on non-password-protected WiFi networks in more than 30 countries.
     Consumers have decried the snooping as a violation of the Wiretap Act, which Congress passed as part of an omnibus crime bill in 1968 and last amended in 1986 through the Electronic Communications Privacy Act (ECPA).
     Google had told the court that it could not be accused of wiretapping because the WiFi networks it allegedly accessed were open and unencrypted, but Chief U.S. District Judge James Ware called this argument “misplaced.”
     Picking up on this thread at the appellate hearing Monday, class counsel Elizabeth Cabrader said the Wiretap Act aims to ensure that citizens are protected under the Fourth Amendment against searches of electronic communications “into the future, including emerging technologies that Congress could not then imagine specifically, but that it hoped to encourage in terms of innovation.”
     The WiFi transmissions that antennas on Google’s vehicles picked up are not the type of radio communications that Congress meant to exempt from sanctions when it included language in the Wiretap Act that says transmissions are fair game if they are “readily accessible,” the Lieff Cabraser Heimann & Bernstein attorney added.
     “If this is excused, the loophole is big enough for massive government intrusion,” Cabraser said.
     But Google’s lawyer, Michael Rubin with Wilson Sonsini Goodrich & Rosati, insisted that this is “a private litigation.”
     “There is no government involvement whatsoever, and the Wiretap Act speaks in this context to radio communications by a private actor,” Rubin said.
     Cabraser called Google’s interpretation of the act “unclear, dangerous in terms of the privacy rights and an invitation for the government to intrude.”
     Recent U.S. Supreme Court cases show that the Fourth Amendment must guard against intrusions from innovative technology that can compromise the privacy of a home or building, Cabraser added.
     “Technology evolves, but privacy endures,” she said. “That is the promise of the Fourth Amendment as upheld by the Supreme Court in the 21st Century.”
     If businesses or individuals can intercept WiFi communications, people will be reluctant to use WiFi networks, the lawyer continued.
     “It may be odd” to see Google presenting “an anti-innovation interpretation,” Cabraser conceded, but “that’s exactly what happened here.”
     Rubin, the Google lawyer countered: “I’m a bit surprised to hear arguments about innovation because what I think ultimately chills innovation is a lack of clarity.”
     Joffe’s class action blamed Google for the “systematic misappropriation … of private electronic information belonging to tens of thousands of individuals throughout the United States.”
     The technology used to collect the WiFi data goes by different names, including packet analyzer, wireless sniffer, network analyzer, packet sniffer or protocol analyzer.
     “Google, via its Street View Wi-Fi data collection practices, intentionally intercepted and collected the electronic information and communications contained on the Wi-Fi networks of plaintiff and the class, without their authorization, knowledge, or consent, while the communications were en route,” the complaint stated.
     Joffe noted that communications sent via Wi-Fi are no intended to be public, “unlike in the traditional radio services context.”
     “Rather, as alleged, Wi-Fi technology shares a common design with cellular phone technology, in that they both use radio waves to transmit communications, however they are both designed to send communications privately, as in solely to select recipients, and both types of technology are architected in order to make intentional monitoring by third parties difficult,” the complaint statd.
     Rubin, the Google lawyer, argued to the 9th Circuit that Congress has never prohibited the reception of unencrypted radio transmissions.
     He said WiFi communications are carried by radio waves, and are therefore radio communications under the Wiretap Act.
     Ware misinterpreted the law by “arbitrarily defining ‘radio communications’ as being limited to an unstated set of ‘traditional radio services,’ a meaning that bears no resemblance to term’s ordinary meaning and is not supported by the text or history of the Act,” Ware argued.
     In Google’s brief to the court, it said Ware’s “approach defies basic canons of statutory construction and is irreconcilable with how the term ‘radio communication’ is used throughout the Wiretap Act.”
     “The court’s interpretation also introduced significant ambiguities into the statute that improperly leave the public to guess, on pain of criminal liability, which radio-based communications are lawful to acquire,” the brief continued.
     Judge Jay Bybee, one of three members on the panel hearing Monday, challenged Rubin on his claim that the plain language of the Wiretap Act allowed Google’s activities.
     Their back-and-forth exchange was punctuated with long silences as the judges read their notes.
     Calling Rubin’s interpretation of the way Congress wrote the law “a pretty cumbersome plain text argument,” Bybee asked why Congress failed to make clearer distinctions about which types of communications were subject to the Act.
     Rubin replied: “I don’t think anyone would argue that the Wiretap Act is the model of clarity.”

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