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Google Loses Bid for Wiretap Suit Appeals Court Rehearing

Dec. 27 (Bloomberg) -- Google Inc. lost a bid for a rehearing before a federal appeals court that said the operator of the world’s most-used search engine must face claims that its Street View program violated federal wiretap law.

The U.S. Court of Appeals in San Francisco today amended and affirmed its ruling in September that the Wi-Fi network data collected by the company is covered by the privacy protections of the U.S. Wiretap Act. The court also denied Google’s request for review of the ruling by a larger panel of judges.

Google, based in Mountain View, California, 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 alleged in lawsuits that their privacy was invaded and Google has been fined by regulators worldwide over the Street View Wi-Fi breaches.

Google has argued that it isn’t illegal under the Wiretap Act to intercept radio communications or any “form of electronic communication readily accessible to the general public.” That includes communications over unencrypted Wi-Fi networks, it said.

Google said in an e-mailed statement that it’s pleased the court revised its opinion, “but we are disappointed that the order was not completely revised and are considering our next steps.”

‘General Public’

Elizabeth Cabraser, a lawyer representing plaintiffs in the case, said today’s opinion deleted from the previous order a discussion addressing whether the Wi-Fi communications at issue are “readily accessible to the general public as a matter of fact.”

The appeal dealt with the question of whether such communications are automatically exempt as a matter of law, Cabraser said. “The 9th Circuit ruled they’re not exempt,” she said, meaning Google will have to prove to a jury that “anybody driving or walking down the street could’ve intercepted the content of these communications, just as it did.”

Today’s opinion “doesn’t alter the key ruling” in the case permitting it to go forward, Cabraser said.

The case is Joffe v. Google, 11-17483, U.S. Court of Appeals for the Ninth Circuit (San Francisco).

To contact the reporter on this story: Joel Rosenblatt in San Francisco at jrosenblatt@bloomberg.net

To contact the editor responsible for this story: David E. Rovella at drovella@bloomberg.net

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