The search giant now says that the three 9th Circuit judges who issued the ruling had an “incorrect understanding” of the facts. What's more, Google argues, the ruling will result in “significant uncertainty about the legal status of ordinary activities involving Wi-Fi networks.”
The dispute stems from news that Google's Street View cars collected “payload” data -- including emails, passwords and URLs visited -- from WiFi networks that weren't password-protected. Google admitted in 2010 that its Street View cars gathered this data. At the time, the company apologized and said it intended to destroy the data.
But the admission prompted a class-action lawsuit against the company -- not to mention a host of bad publicity and investigations by other agencies.
Google said the class-action should be dismissed. The company argued that it didn't violate the wiretap laws which, it says, only ban the interception of password-protected WiFi transmissions. That argument hinges on a section of the law that allows companies to intercept "radio communications” that are “readily accessible to the general public.”
The trial judge who presided over the class-action disagreed with Google. Several weeks ago, a three-judge panel of the 9th Circuit Court of Appeals also said it disagreed with Google.
The appellate judges ruled that WiFi networks are not publicly accessible because “most” of the public “lacks the expertise to intercept and decode payload data transmitted over a Wi-Fi network.”
But Google says the panel lacks evidence for that conclusion.
“The tools needed to receive, store, and monitor data transmitted on nearby Wi-Fi networks thus are available to virtually anyone with a personal computer,” Google says in papers arguing for a new hearing. The company adds that packet-sniffers are “sold by Cisco and other mainstream commercial providers, and indeed are included as a standard feature of Apple’s desktop operating system and offered by Microsoft as a free download for Windows.”
The company is asking the entire 9th Circuit to rehear the case in order to “undo the panel’s mistake and alleviate the serious legal and practical uncertainties” the decision created.