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Google Wiretap Suit Gets Another Round in 9th

(CN) - Google's bid to dismiss claims that it violated wiretap laws in collecting data for its Street View program will again go before the 9th Circuit, but not an en banc panel, the court said Friday.

After launching Street View in 2007, Google learned that the cars it had travel the world to take photographs had inadvertently collected some 600 gigabytes of private data from unencrypted Wi-Fi networks in more than 30 countries.

The collected data included "personal emails, usernames, passwords, videos, and documents" before Google purportedly corrected the issue.

Lead plaintiff Benjamin Joffe and others say Google violated various points of the federal Wiretap Act, which prohibits the interception of "wire, oral, or electronic communication," except in a few instances, while collecting data for Street View between 2007 and 2010.

The Wiretap Act 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 its 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 of 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 a three-judge panel of the 9th Circuit affirmed this past September, finding Google's definition dangerously expansive.

"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."

On Friday, the 9th Circuit agreed to rehear the matter before its three-judge panel. It refused, however, to grant en banc review.


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