Antitrust Law Daily Wrap Up, PRIVACY NEWS: Supreme Court denies Google’s petition to review Street View Wi-Fi case, (Jun 30, 2014)

By Greg Hammond, J.D.

The Supreme Court has denied Google Inc.’s petition for certiorari in a case involving data collected as part of the company’s Street View product. Google was attempting to overturn a decision made by the U.S. Court of Appeals in San Francisco, finding that the Wiretap Act’s exemption for acquiring “radio communications” that are not scrambled or encrypted did not apply to unencrypted Wi-Fi transmissions gathered by Google, because they were “non-auditory.” Google filed its petition on March 27 (Google v. Joffe, Dkt. 13-1181).

Data collected. According to its petition, Google’s Street View product is an online mapping service that provides panoramic, street-level photographs. The company obtained the panoramic photographs through cameras mounted on cars that drove on public roads. However, the vehicles were also equipped with radio equipment and software to collect identifying network information such as MAC addresses and SSIDs from Wi-Fi networks along the road. Although Google learned that the cars also collected “payload data” that was sent over unencrypted Wi-Fi networks, the company did not use any of that data and took its Street View automobiles off the road. The FTC, FCC, and Department of Justice opened investigations of Google, but all three declined to take enforcement action.

The question presented by Google was, “Whether the Ninth Circuit erred in holding that ‘radio communications’ under the Wiretap Act are restricted to ‘predominantly auditory broadcasts’ and do not include Wi-Fi communications even though Wi-Fi communications are transmitted using radio waves.”

According to Google, the circuit court’s interpretation of “radio communication” conflicts with the established meaning of the term in the telecommunications field and under federal law. Specifically, the company argued that “radio communication,” under the Wiretap Act, includes transmissions that are not “predominantly auditory.” In addition, Google contended that the Ninth Circuit’s decision failed to account for modern technological development and will have a wide range of harmful consequences including: (1) a line between “auditory” and “non-auditory” transmissions that has become meaningless; (2) significant uncertainty with regard to the scope of the Wiretap Act; (3) doubt on the legality of standard security procedures in the information technology industry; and (4) a significant legal issue of whether unencrypted Wi-Fi communications are covered by the Wiretap Act.

Companies: Google Inc.

News: Privacy