Google Inc. (GOOG), while fighting a U.S. demand for private user information in a national security probe, urged an appeals court to find that its Street View program didn’t violate federal wiretap law by uploading personal data from home Wi-Fi networks.
The company, operator of the world’s most popular search engine, is seeking reversal of a judge’s 2011 ruling that its data collection, which included e-mails, user names, passwords and other private data, broke the federal Wiretap Act. The ruling came in a class-action, or group, lawsuit filed on behalf of residents in nine U.S. states whose homes were depicted on Google Street View, which allows users see photographs of roadsides.
“Under any plausible interpretation of the Wiretap Act,” the uploading “is not a Wiretap Act violation,” Michael Rubin, Google’s attorney, told a three-judge U.S. Court of Appeals panel today in San Francisco.
Google said in May 2010 that it had mistakenly gathered information from open wireless networks while it was capturing images of roadways and houses for Street View and that it would stop using Wi-Fi information for the service. Computer users filed lawsuits alleging that their privacy was invaded and government agencies in the U.S. and other countries including France and Germany opened investigations into the company’s data-gathering practices.
Under the Wiretap Act it’s not illegal to intercept radio communications or any “form of electronic communication readily accessible to the general public,” which includes communications over unencrypted Wi-Fi networks, Rubin said.
The Wiretap Act provides for $100 in damages for each day of violation.
Attorney Elizabeth Cabraser, representing consumers, said Congress intended for the law, which doesn’t define radio communications and was created before Wi-Fi came into use, to exempt from prosecution people such as ham radio enthusiasts or citizens’ band radio users communicating over long distances.
Home Wi-Fi network communications, which are broadcast over very short distances for privacy, were meant to be protected from interception under the law, and Google’s argument that they are exempted is “an attempt to create a loophole to serve its own purposes,” Cabraser argued today.
“Congress somehow failed to foresee the convoluted and strained interpretation that Google wants to place on its law,” Cabreser told the appeals court.
The panel didn’t indicate when it will rule.
Google agreed in March to pay $7 million to settle a multistate probe over Street View. The settlement with 38 states and the District of Columbia requires Mountain View, California-based Google to educate employees about the privacy or confidentiality of user data and sponsor a nationwide public-service campaign to teach customers about securing wireless networks and protecting their personal information.
Google also pledged to continue to secure and eventually destroy data collected and stored by its Street View vehicles in the U.S. from 2008 to March 2010. The antenna-equipped vehicles had collected network identification information along with data being transmitted over unsecured wireless networks as they were driving by.
In a separate matter, Google filed a petition March 29 challenging a demand for records under a U.S. law authorizing the Federal Bureau of Investigation to issue National Security Letters. The letters require wire and electronic communication service providers to turn over subscriber information and other records that the agency certifies are relevant to an investigation of international terrorism or clandestine intelligence activities.
U.S. District Judge Susan Illston in San Francisco, who ruled March 14 in a different case that provisions of the law are unconstitutional, said in a May 20 order that Google must comply with most of the NSLs.
Last week, in response to disclosures that the U.S. government tapped into servers of nine companies to spy on communications, Google said it has never joined any program that would give any government direct access to its servers.
The case is Joffe v. Google Inc., 11-17483, U.S. Court of Appeals for the Ninth Circuit (San Francisco).
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