Google Gains Support In Wi-Spy Battle

Google is getting some help in its effort to convince a federal appellate court to reconsider its recent ruling that the company might have violated wiretap laws by snooping on open WiFi networks.

The think tank Information Technology and Innovation Foundation has filed a friend-of-the-court brief arguing that the decision will have “devastating consequences” on healthcare, banks, retailers, home computer users and anyone else that relies in wireless technology. “The court’s decision will make it harder for IT security professionals to do their jobs, thus rendering wireless networks more susceptible to intrusion,” the ITIF argues.

That's because, according to the nonprofit, the ruling “calls into legal question practices used by IT security professionals every day to secure wireless networks.”

The ITIF is hoping to convince the court to grant Google's request to reconsider last month's ruling, which cleared the way for a class-action lawsuit against the company to proceed.



The litigation against Google stems from the revelation that the company's Street View cars collected so-called “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 information. The company apologized at the time and said it intended to destroy the data. But that didn't stop consumers from suing Google for allegedly violating the federal wiretap law by intercepting their communications.

Google said in court that it didn't violate any laws, arguing that the wiretap law allows companies to intercept communications that are “readily accessible to the general public.” Google says that WiFi networks that aren't protected by passwords are accessible to the public.

A three-judge panel of the 9th Circuit Court of Appeals disagreed. The judges based their ruling on the notion that “most” of the public “lacks the expertise to intercept and decode payload data transmitted over a Wi-Fi network.”

Google recently asked the entire 9th Circuit to reconsider, arguing that the panel lacked evidence for its conclusion. “The tools needed to receive, store, and monitor data transmitted on nearby Wi-Fi networks ... are available to virtually anyone with a personal computer,” Google said in its papers.

The ITIF agrees with Google on that point. “As a matter of technological fact, an unencrypted Wi-Fi communication is readily accessible to the general public,” the ITIF argues.

“Members of the general public can (and do) readily access Wi-Fi communications using commonly available, off-the-shelf hardware and software -- personal computers with Wi-Fi cards,” the ITIF says in its brief. “And if a member of the general public wants to inspect Wi-Fi packets other than those addressed to or from the user’s computer, off-the-shelf software for that purpose, such as the 'Wireshark' network protocol analyzer, is also readily accessible to the general public -- indeed, for free.”

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