Google's unwitting Wi-Fi spying not exempt under Wiretap Act

Three years later, the search giant is still battling a class action lawsuit claiming its Street View cars illegally captured usernames, passwords, and other payload data.

James Martin/CNET

Google is still facing civil damages for accidentally spying on Wi-Fi users with its Street View cars after a federal appeals court Tuesday rejected the company's latest appeal in a class action suit alleging it violated the Wiretap Act.

The U.S. 9th Circuit Court of Appeals issued its ruling affirming a previous judgment that denied Google's motion to dismiss, meaning that the company can't yet drive away unscathed from the scandal.

"We are disappointed in the Ninth Circuit's decision and are considering our next steps," a Google spokesperson told CNET.

Between 2007 and 2010, Google's Street View cars, equipped with Wi-Fi antennas, collected and stored "payload data" such as e-mails, usernames, passwords, videos, and documents that were sent and received over unencrypted Wi-Fi connections. Google collected around 600 gigabytes of data transferred over Wi-Fi networks in more than 30 countries, according to court documents.

In May 2010, the company apologized for the inadvertent transgression, but was soon hit with several class action lawsuits that were eventually consolidated into a single complaint that accused Google of violating federal and state wiretap statutes.

Google sought to have the suit dismissed, claiming that its actions were not illegal because data transmitted over a Wi-Fi network is an electronic radio communication that is "readily accessible to the general public" and therefore exempt under the Wiretap Act. The original district court rejected Google's argument, as did the federal appeals court, which held that radio communication excludes payload data transmitted over a Wi-Fi 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 of intercepting unencrypted radio communications," the 9th U.S. Circuit Court wrote in its ruling.

"We now hold, in agreement with the district court, that payload data transmitted over an unencrypted Wi-Fi network is not 'readily accessible to the general public' and, consequently, that Google cannot avail itself to the exemption."

With the court discrediting the crux of Google's argument, the search company can go to trial, settle, ask the court to rehear the case, or petition the Supreme Court, according to Wired, which was first to report on the ruling.

 

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