Google asks US Supreme Court to review ruling on Wi-Fi packet sniffing

Google claims that its collection of data from unencrypted Wi-Fi networks was legal

Google has asked the U.S. Supreme Court to review a decision by an appeals court that its collection of data from unencrypted Wi-Fi networks is not exempt under federal wiretap laws.

The company argues that its data collection does not violate the Wiretap Act as it fell under an exemption that makes it lawful to intercept electronic communications that are readily accessible to the general public.

The U.S. Court of Appeals for the 9th Circuit ruled in September that Wi-Fi network data collected by Google was not radio communications that is readily accessible to the public. The ruling was in an appeal by Google from a decision by a District Court in a consolidated class-action suit.

The Wiretap Act provides that radio communications that are readily accessible to the general public are exempt from the prohibition on interception if they are not "scrambled or encrypted."

The question posed by Google to the Supreme Court, docketed this week, is whether the 9th Circuit got it wrong in holding that "radio communications" under the Wiretap Act are restricted to "predominantly auditory broadcasts" and do not include Wi-Fi communications even though these communications are transmitted using radio waves.

Between 2007 and 2010, Google equipped its Street View cars with Wi-Fi antennas and software that collected data transmitted by Wi-Fi networks in nearby homes and businesses, which included both network identifying information and so-called payload data transmitted over unencrypted Wi-Fi networks. The company acknowledged in May 2010 that it had inadvertently collected some personal data from unencrypted networks and apologized for it.

Google in its appeal to the Supreme Court does not, however, accept that the collection of the data was illegal, pointing out that the U.S. Department of Justice, Federal Trade Commission and the Federal Communications Commission declined to take enforcement action after investigating Google, including for possible violations under the Wiretap Act.

The company said in its appeal that an adverse ruling could in fact hurt security professionals who routinely use the same kind of technology as Google's Street View cars did to collect packet data in order to secure company networks.

"And unlike Google, which never used the payload data it collected, security professionals also parse and analyze the data collected from wired and wireless networks, including networks operated by other persons or entities, to identify vulnerabilities in and potential attacks on the networks they protect," it added.

John Ribeiro covers outsourcing and general technology breaking news from India for The IDG News Service. Follow John on Twitter at @Johnribeiro. John's e-mail address is john_ribeiro@idg.com

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