Commentary

Wi-Spy Ruling Criticized For Violating 'Technology Neutrality'

Privacy advocates cheered this week's court decisionthat Google potentially violated the federal wiretap law when its Street View cars accessed WiFi transmissions that were not password-protected. But not everyone thinks the court made the right call. Some observers are warning that the ruling is “short-sighted” and rests on “flawed logic.”

The anti-Google decision hinges on whether WiFi transmissions should be considered “readily accessible” to the public. That's because the wiretap law prohibits companies from intercepting electronic communications, but has an exception for transmissions that are readily accessible. But that 1980s-era law, written well before WiFi was commonplace, begs the question of what makes a transmission “accessible.”

Google argued that WiFi networks that weren't password-protected were fair game. The 9th Circuit disagreed. The appellate panel ruled that the transmissions weren't readily accessible because “most of the general public lacks the expertise to intercept and decode payload data transmitted over a Wi-Fi network.”

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The ruling means that a class-action lawsuit against Google can proceed. Privacy advocates, who have long wanted to see Google sanctioned for the infamous Street-View interceptions -- which captured people's emails, URLs and other personal information -- said the court made the right call.

But the think tank Information Technology and Innovation Foundation says the decision violates a core value: technology neutrality. “Technology neutrality requires that the law neither favor nor discriminate against a particular technology, but instead treats technologies equally,” ITIF senior analyst Daniel Castro writes in a blog post.

He adds that intercepting wireless network traffic isn't much harder today than intercepting CB radio transmissions was in the past. “A user with a wireless card and a packet sniffer will intercept unencrypted wireless traffic in the exact same manner that a radio hobbyist would intercept analog communications. Packet sniffing is a common practice in the security field and a basic tool of IT security professionals,” he writes. “The court’s interpretation would seem to make this technique illegal, even though it is common in the industry and taught in top universities around the country.”

The rationale of the 9th Circuit's ruling against Google also could be bad news for hacker Andrew “weev” Auernheimer. He was convicted of violating the Computer Fraud and Abuse Act by accessing the email addresses of iPad users -- which AT&T placed on publicly availableWeb  pages.

He is now arguing on appeal that he shouldn't have been convicted of a crime for visiting Web pages that weren't protected by passwords. While Auernheimer's argument isn't identical to Google's argument, it's somewhat similar.

In fact, on a fundamental level, the cases pose a similar question: When is it illegal to access information that people haven't tried to secure with passwords?

Of course, there are enough differences in the Computer Fraud and Abuse Act and the wiretap law that the courts won't necessarily reach the same conclusion in Auernheimer's case as Google's. Also, Auernheimer's is in the 3rd Circuit Court of Appeals, which might view technological matters differently than the 9th Circuit.

Either way, the decision this week in the Google Wi-Spy case probably isn't the last word on the matter. Google could ask for the entire 9th Circuit to take up the case, and if that isn't successful, could seek to appeal to the Supreme Court.

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