Wi-Fi packet data is not “readily accessible to the general...

ruled last week. The company has repeatedly apologized for what it characterized as bad judgment by some engineers in designing the software for its Street View cars to broadly collect router and “payload” data -- conduct for which it’s under investigation by the FCC and for which it has been penalized by European authorities. But Google claimed in a motion to dismiss the lawsuit, which is seeking class-action status, that the collection didn’t violate the Wiretap Act because the Wi-Fi broadcasts were “readily accessible,” and further that the plaintiffs’ California wiretap and “unfair” business claims were preempted by federal law. Ware agreed with Google that the state claims were preempted. But the judge said the plaintiffs’ claims clearly fall under the Wiretap Act. Plaintiffs said the Wiretap Act’s exception for “radio communication” doesn’t apply to the “electronic communication” that Google collected. Ware said Congress did the court no favors by failing to define “radio communication” in the law. But the references to “radio communication” in the law are “drafted for the particular design of radio broadcast technologies,” not other communications technologies that use radio waves, Ware said. If he interprets the term broadly to include wireless Internet and cellphones, “this exception could lead to absurd results,” he said: The law already includes an exception for intercepting radio communications from “ships, aircraft, vehicles, or person in distress,” which would make cellular-call interceptions legal in vehicles. Under another exception, a broad definition would allow eavesdropping on airplane Wi-Fi, the judge added. Other legislative definitions for compound terms such as “electronic communication” suggest Congress aims for narrow and “nuanced” definitions, Ware said. The legislative history around the Electronic Communications Privacy Act, which updated the Wiretap Act, also indicates Congress put limits on how broadly to interpret exceptions to liability for radio-based technologies that are “architected in such a way as to be private,” he said. The plaintiffs claim that Wi-Fi data can’t be readily accessed “without the use of sophisticated packet sniffer technology” such as that Google used -- hence their claims fall under the Wiretap Act, Ware said: It’s not relevant that the networks were open and not password-protected. The judge gave plaintiffs until Aug. 1 to file an amended complaint. The Association for Competitive Technology, a group in which Microsoft figures prominently, applauded the ruling against what it termed Google’s “Wi-Spy” behavior. “Google has been a bad actor in our industry when it comes to privacy,” broadly harming the reputation of Internet and mobile app developers, said ACT President Jonathan Zuck. A Google spokesman told us the company believes the claims are “without merit” and it’s still “evaluating our options at this preliminary stage.”