Politicians press Google on Street View Wi-Fi flap

Google's accidental interception of some Wi-Fi transmissions is, for at least a few politicians, the gift that keeps on giving.

A trio of U.S. House of Representatives members wrote a letter (PDF) to Google CEO Eric Schmidt on Wednesday asking a dozen detailed questions about the Street View flap, including whether the inadvertently intercepted data were destroyed and whether an outside review of privacy practices will take place. It was signed by Henry Waxman (D-CA), Ed Markey (D-MA), and Joe Barton (R-TX).

The letter comes exactly a week after Markey and Barton called on the Federal Trade Commission to investigate whether the search company's inadvertent collection of Street View Wi-Fi data violates the law. A few days earlier, Google had acknowledged that because of a programming error, its Street View cars had intercepted fragments of data from unencrypted Wi-Fi networks for periods of 200 milliseconds at a time.

In response to a query from CNET, a Google representative said: "As we have said before, this was a mistake. Google did nothing illegal and we look forward to answering questions from these congressional leaders." (Google declined to say whether or not it was talking with the FTC.)

Wi-Fi networks that aren't encrypted--that is, open wireless networks--are trivial for anyone to monitor. Some of the more popular packet-sniffing tools are even free.

But just because it's technically possible to capture packets on an open Wi-Fi connection doesn't mean it's legally permitted.

A federal law called the Electronic Communications Privacy Act says that anyone who "intentionally intercepts" any electronic communication, including a wireless communication, is guilty of a crime. But accidental or inadvertent interception doesn't count.

That is why some of the class action lawsuits that have been filed--at least three so far, in California, Oregon, and Massachusetts--come as a bit of a mystery, if not a surprise.

Robert Carp, a lawyer in the Boston area who filed one of the lawsuits seeking class action status, says that "Google's collection of data is nothing more than a further attempt to enhance their advertising capabilities." But it's improbable that Google's rather well-compensated executives would countenance federal felonies in pursuit of a few more advertising dollars, and even less likely that, if they did, they would have publicly admitted it in a blog post two weeks ago.

Moreover, Google says the data collected, totaling about 12 Blu-ray discs' worth of data worldwide, has never been reviewed or analyzed. (It's possible that there's more to this story than has been made public, of course, but given the amount of regulatory scrutiny in Europe so far, we'll find out soon enough.)

A bigger risk

The risk for Google goes beyond this single privacy flap. The bigger problem for the search company is that news of the Street View Wi-Fi interception erupted at a time when politicians, bureaucrats, and activists are paying an unusual amount of attention to tech companies' data collection and use practices.

There was Google Buzz's launch, relaunch, and re-relaunch earlier this year. There was Facebook's loss of face on privacy, culminating in a press conference with CEO Mark Zuckerberg in Palo Alto, Calif., on Wednesday to announce a set of simpler data-sharing settings. Even Apple has been accused of being Big Brother.

When you're one of the biggest companies in an industry that has the good fortune to fall into Washington's crosshairs at the moment, you don't want even the slightest privacy misstep, let alone one that becomes an international incident. That invites new proposals for more regulation (that even liberal groups don't like very much) and other negative consequences.

Wednesday's letter to Google from Barton, Markey, and Waxman, who chairs the committee overseeing Internet regulation, asks questions like "Have all Street View vehicles documenting United States roads been engaged in the monitoring or data collection of Wi-Fi transmissions at all times during these activities?" And: "Please explain why Google chose to collect the data and how it intended to use the data."

It would be entertaining if Barton were asked why, if he cares so much about privacy, he supported efforts by the Bush administration to expand government surveillance. And if Markey is committed to civil liberties, why did he vote last week for the DNA collection of Americans who have been arrested for, but not convicted of, a crime?

But Eric Schmidt didn't survive the Microsoft antitrust wars by being impolitic. Look for Google's polite response by the politicos' June 7 deadline.

Disclosure: Declan McCullagh is married to a Google employee not involved with Street View.