A U.S appellate court's decision earlier this week to permit a wiretapping case against Google to proceed, is based on flawed reasoning, a leading technology think-tank says.
On Tuesday, the U.S. Appeals Court for the Ninth Circuit rejected Google's motion to dismiss claims that it had violated the federal Wiretap Act when it collected data from unencrypted Wi-Fi networks when capturing Street View photographs.
In 2010, Google admitted that its Street View cars had inadvertently captured data transmitted by open Wi-Fi networks in homes and businesses when shooting photographs. The company publicly apologized for what it claimed was an honest mistake and offered to destroy or make inaccessible the nearly 660GB of data it had collected from the networks.
Several individuals later sued Google, claiming the company had violated the Wiretap Act, which prohibits the intentional interception of electronic data. In the lawsuit, the plaintiffs noted that Google's Street View cars had recorded a considerable amount of data from open Wi-Fi networks including SSIDs, MAC addresses and even "payload" data such as personal emails, passwords, videos and documents.
Google claimed that it had not violated any laws because the data it had inadvertently collected had been unencrypted and was "readily accessible to the general public," and was therefore statutorily exempt under the Wiretap Act.
The company maintained that under the Wiretap Act, people who do not make an affirmative attempt to make their communications private, can have no expectation of privacy if that communication is later intercepted over an open Wi-Fi network
A District Court judge who heard the case rejected Google's argument and held that the company had indeed violated the Wiretap Act. In coming to its conclusion the judge noted that the statutory exemption that Google claimed under the Wiretap Act only applied to "radio communications," and not to electronic data transmitted over a Wi-Fi network, because the term was not defined in the Act.
The judge also maintained that unencrypted communications sent from or received by an open Wi-Fi network was not generally accessible to the public, as defined under the Wiretap Act.
The three-judge panel from the Ninth Circuit that considered Google's appeal of the District Court ruling also came to the same conclusion. In a 35-page ruling, the panel concurred with the District Court's ruling and rejected Google's motion for dismissal of the lawsuit.
Like the District Court judge, the appellate court judges too held that payload transmitted over an open Wi-Fi network is not "radio communication" as defined under the Wiretap Act, and is therefore not exempt under the act.
The judges also maintained that Wi-Fi transmissions over an unencrypted network are not readily accessible to the general public, because "they are geographically limited and fail to travel far beyond the walls of the home or office where the access point is located."
The payload transmitted over open Wi-Fi networks are also only accessible with some difficulty, the judges noted in their ruling. "Intercepting and decoding payload data communicated on a Wi-Fi network requires sophisticated hardware and software," the judges noted.
Wi-Fi transmissions are not readily accessible to the general public also because the general public lacks the expertise to intercept and decode Wi-Fi traffic.
"Even if it is commonplace for members of the general public to connect to a neighbor's unencrypted Wi-Fi network, members of the general public do not typically mistakenly intercept, store and decode [data transmitted by others on the network.]"
Daniel Oliver, a senior analyst with the Information Technology and Innovation Foundation (ITIF), called the Court's ruling unpersuasive and flawed.
Intercepting unprotected wireless traffic these days is no more difficult than intercepting CB radio transmissions were in the past, he said. So to maintain that the same exemption that is available for unprotected radio transmissions is not available for unprotected Wi-Fi transmissions is unfair, he said.
"It's the first time the Wiretap Act has been interpreted this way," Oliver said. "The Wiretap Act says you can't eavesdrop or tap into a conversation. But if the communications is not protected, then it is clearly not a wiretap.If you are broadcasting your message in the clear and if somebody else receives that message, it is not their fault [for receiving it]."
The court's interpretation that the Wiretap Act exemptions are available specifically for radio communications, but not wireless communications, also violates technology neutrality, Oliver said. Neutrality requires that the law neither favor or discriminates against a technology and instead treats them equally, he said.
When Google first admitted that it had been inadvertently harvesting Wi-Fi data, dozens of state Attorneys General had indicated they might take legal action against the company, Oliver noted. The fact that none of the them did shows that they did not believe the company had violated wiretaps laws, he said.
In its opinion, the court noted on several occasions that the Wiretap Law makes no reference to Wi-Fi communications. Oliver said Congress should consider clarifying the Wiretap Act to ensure that data sent unencrypted over a wireless network does not have an expectation of privacy.
Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at @jaivijayan or subscribe to Jaikumar's RSS feed. His e-mail address is firstname.lastname@example.org.
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