You may remember that, last September, we told you about a 9th Circuit decision holding that Google violated federal Wiretap Act when it collected individual consumers' unencrypted wi-fi data while capturing "Street View" photographs. Here's what the 9th Circuit said at the time:
In the course of capturing its Street View photographs, Google collected data from unencrypted Wi-Fi networks. Google publicly apologized, but plaintiffs brought suit under federal and state law, including the Wiretap Act, 18 U.S.C. § 2511. Google argues that its data collection did not violate the Act because data transmitted over a Wi-Fi network is an “electronic communication” that is “readily accessible to the general public” and exempt under the Act. 18 U.S.C. § 2511(2)(g)(i). The district court rejected Google’s argument. In re Google Inc. St. View Elec. Commc’n Litig., 794 F. Supp. 2d 1067, 1073–84 (N.D. Cal. 2011). We affirm.
The Ninth Circuit's opinion, which was later modestly revised, can be read here .
As Google’s Street View cars drove across the country—and around the world—from 2007 to 2010, Google, like a 21st century Peeping Tom, surreptitiously intercepted and recorded private communications from inside people’s homes as the data traveled between people’s computers, smartphones, and tablets, and their WiFi routers. When caught, Google initially denied that it had intercepted and recorded those private data. Once forced to admit this intrusion, Google acknowledged that what it did was wrong—it had “screwed up,” in its terms—and regulators domestic and foreign have rightly sanctioned Google for this privacy transgression.
Google claims that the U.S. citizens whose data it secretly captured cannot bring an action against Google for statutory damages under the Wiretap Act. Google claims that Congress—in seeking to expand the privacy protections of ordinary citizens in the face of increasingly intrusive technology—actually authorized its massive and secret interception of private communications for the brief moment they traveled over the plaintiffs’ home WiFi networks.
Google may continue to pursue other defenses, including its claim that the plaintiffs lack standing to sue. But Google's apology and regulators' reactions to Google's conduct may complicate Google's defense on the merits. Perhaps settlement is on the horizon. Stay tuned.