Google Appeals Wiretapping Definition Ruling

When Google “accidentally” picked up data from encrypted wireless networks, the gates of Hades burst open. Lawsuits have flown freely since, and a recent ruling has opened the field to charges of wiretapping. Google is now appealing that ruling.

The Case Ruling, Implications, and Appeal

Google Streetview Red Car

A Silicon Valley Federal Judge, James Ware, examined a case from plaintiffs to evaluate whether wiretapping charges could be brought against Google for the data it intercepted. On June 29, he made the official ruling that Google could be held liable for those charges. His ruling didn’t represent a loss of a case for Google, but rather a definition on the sort of case that people could bring against the search giant.

“The court finds that plaintiffs plead facts sufficient to state a claim for violation of the Wiretap Act,” stated Ware. This simple ruling means that anyone whose personal data was sniffed by the Street View cars can potentially seek damages from Google for violating the U.S. Wiretap Act.

Google immediately responded to the ruling, saying that the judge “should have dismissed the wiretap claim” and that the company is now “exploring our options.” On July 11, Google officially appealed the ruling.

One of Google’s attorneys, Michael Ruben, made the official filing, stating that the courts should review the decision made by Ware “before forcing [Google] to proceed with protracted litigation at the district court” (as reported by Wired). The basis for the appeal, as per the official filing, is that Ware’s decision “addresses novel questions of law and applies them to new technologies in ways which reasonable judges could disagree.”

The choice to appeal is likely the least costly of Google’s options. Since Google settling with the plaintiffs would set a legal precedent for wiretapping suits, the company’s choice to appeal is very much in line with expectations.

Meanwhile, Google Street View itself continues plugging along – albeit without the data-packet sniffing. Google announced the biggest update in the history of Google Street View. New imagery for 13 countries was included in the release. Google is also archiving Japan scenery showing the aftermath of the March earthquake and tsunami.

Should Google Win the Appeal?

Here’s the core of the debate on the ruling: The 1986 update to the Wiretap Act decided that it wasn’t wiretapping “to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public.” The main purpose of this was to ensure that intercepting radio channels, including personal ones that could be tuned from standard radio receivers, wouldn’t be counted as wiretapping.

Google’s defense was that this language applies to open WiFi networks. It’s fairly easy as a tech-savvy users to understand why Google might see data from unencrypted networks as being “readily accessible to the general public.”

I’ve personally tapped into open networks, seen shared files, and even – telling myself it was to teach my neighbors the importance of securing your network – added a password to a stranger’s router. Not one of these things was particularly hard. But was Google only working within the more superficial boundaries?

According to Wired, “the [Street View] cars also secretly gathered snippets of Americans’ data,” and Ware ruled that “the packets were not readable by the general public without the use of sophisticated packet-sniffer technology.” While there hasn’t been public data on what exact sorts of content was gathered, Ware also stated that the Street View technology was used “to intercept plaintiffs’ data packets, arguably electronic communications, from plaintiffs.”

If the Street View technology really was sophisticated enough that it picked up more than data attached to the surface of the unencrypted network – especially if it included email communication – then the issue is readily apparent. More concerning, it would be very hard for this more advanced data sniffing to be unintentional. And the real question: If Google’s tech really was intercepting and storing personal communications – why?

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