Google Wi-Fi Judge Asks if Packet Sniffing Is Spying

The question of whether Google is liable for damages for secretly intercepting data on open Wi-Fi routers across the United States is boiling down to the definition of a “radio communication.”

That appears to be the legal theory embraced by the Silicon Valley federal judge presiding over nearly a dozen combined lawsuits seeking damages from Google for eavesdropping on open Wi-Fi networks from its Street View mapping cars. The cars had been equipped with Wi-Fi–sniffing hardware to record the names and MAC addresses of routers to improve Google location-specific services.

But those cars were also capturing the contents of internet packets that were sent over unencrypted Wi-Fi as they drove by, something the company said was an accidental leftover from testing.

While the company quickly admitted that it had made a mistake and temporarily grounded its fleet of mapping vehicles last year, the company was confronted with a number of investigations around the world, as well as class-action lawsuits that were joined in San Jose, California. The lawsuits are being heard by U.S. District Judge James Ware.

At the center of the legal flap is whether Google breached the Wiretap Act. The answer is important not only to Google, but to the millions who use open, unencrypted Wi-Fi networks at coffee shops, restaurants or any other business trying to attract customers.

Google said it is not illegal to intercept data from unencrypted, or non-password-protected Wi-Fi networks. Plaintiffs’ lawyers representing millions of Americans whose internet traffic was sniffed by Google think otherwise, and are seeking unspecified damages.

Judge Ware, however, suggested the answer to the far-reaching privacy dilemma lies in an unanswered question. He has asked each side to define “radio communication” (.pdf) as it applies to the Wiretap Act, and wants to know whether home Wi-Fi networks are “radio communications” under the Wiretap Act.

In response, Google wrote last week that open Wi-Fi networks are akin to “radio communications” like AM/FM radio, citizens’ band and police and fire bands — and are “readily accessible” to the general public. Indeed, packet-sniffing software, such as Wireshark and Firesheep, is easily available online.

Hence, because unencrypted Wi-Fi signals travel over the radio spectrum, they are not covered by the Wiretap Act, (.pdf) Google responded.

“There can be no doubt that the transfer of any sign, signal, writing, images, sound, data, or intelligence of any nature transmitted over the radio spectrum constitutes a ‘radio communication.’ Indeed, there is nothing in the text or legislative history of the Wiretap Act that would exclude any transmission sent over the radio spectrum from the definition of ‘radio communication,’” Google wrote.

The plaintiffs’ lawyers countered that the communications in question started on a computer and only briefly were relayed on radio waves “across the living room from the recipient’s router to her laptop.”

“The fact that either the first or final few feet of the electronic communication may have gone via wireless transmission ['Wi-Fi'] does not transform the communication into a ‘radio communication’ broadcast similar to an AM/FM radio or a CB.,” (.pdf) plaintiffs’ lawyer Elizabeth Cabraser wrote. “Nor is there anything in the statute to define ‘radio communications’ as synonymous with anything sent on a radio wave, however briefly and without regard to the entirety of the communication system at use.”

Both sides agree, however, that it’s illegal to listen in on cordless phones. ...

via Google Wi-Fi Judge Asks if Packet Sniffing Is Spying | Threat Level | Wired.com.