Google's Wi-Fi sniffing defense slapped down by appeals court

Google (NASDAQ:GOOG) had its hand seriously slapped by a federal appeals court over the Wi-Fi sniffing activities of its Google's Street View photo-taking cars, which were permanently parked in 2010. The court ruled that Google could be held liable for civil damages sought by a class-action lawsuit brought against it for secretly intercepting data on open Wi-Fi routers.

The San Francisco-based 9th U.S. Circuit Court of Appeals decided that picking up unencrypted content from wireless routers is not exempt from the Wiretap Act and rejected Google's contention that open Wi-Fi networks are "radio communications." The company had argued that it is not illegal to intercept data from non-password-protected Wi-Fi networks because radio-based networks, such as Wi-Fi, AM/FM Radio, citizens' band and police and fire bands, are "readily accessible" to the general public.

According to TechDirt, the rather curious ruling from the three-judge panel said the "telltale signs" of "radio communications" are that they're "auditory" and "broadcast." The court further declared that the Wi-Fi content Google picked up was not technically broadcast because it was data and therefore not auditory. 

Further, the court contended Wi-Fi signals are not readily accessible because they are "geographically limited." That, of course, also applies to any radio signal, but the court insisted Wi-Fi is not radio communications.

Google's remaining options include going to trial, agreeing to a settlement with the plaintiffs, asking the appeals court to rehear the case before an 11-judge panel or petitioning the Supreme Court to review the appeals court's decision.

A Google spokeswoman told the San Jose Mercury News that the company is disappointed in the 9th Circuit ruling and is "considering our next steps."

A district judge first declined to dismiss the class-action lawsuit against Google two years ago, similarly claiming that data traveling over open Wi-Fi networks is not "readily accessible to the general public."

In in March 2013, the search giant agreed to pay a $7 million fine in a multistate settlement regarding its unauthorized collection of data from unsecured Wi-Fi networks. The fine settled a two-year probe by 38 states and the District of Columbia. Connecticut led the eight-state committee that actually investigated Google's data collection practices.

For more:
- see this Reuters article
- see this San Jose Mercury News article
- see this Wired article
- see this TechDirt article
- see this Ars Technica article

Related articles:
Google coughing up $7M over Street View privacy violations
Google moves to give Wi-Fi users way to opt out of location database
Judge declines to dismiss Wi-Fi sniffing lawsuit against Google
Google agrees to hand over Wi-Fi data to Connecticut
Congressmen ask FCC to fully investigate Google's collection of Wi-Fi payload data
Unsecured Wi-Fi routers becoming legal problem
Google's Street View cars done for good
Judge orders Google to hand over private WiFi data


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