• by Wendy Davis  @wendyndavis, November 5, 2013

A group of consumers who are suing Google for intercepting WiFi traffic are asking an appellate court to reject the company's request for a new hearing.

The consumers say that a three-judge panel of the 9th Circuit Court of Appeals correctly held that Google potentially violated the federal wiretap law when its Street View cars intercepted emails, passwords and other data from WiFi networks that lacked passwords.

“If adopted, Google’s interpretation of the Wiretap Act would threaten the very privacy rights that the Act was enacted to protect,” the consumers contend in papers filed late last week with the 9th Circuit.

The lawsuit 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. The revelations prompted regulatory probes and a class-action lawsuit.

Google publicly admitted that its Street View cars gathered the data, but argued that the lawsuit should be dismissed on the ground that the company didn't violate the wiretap law. Google contends that the wiretap law only bans the interception of password-protected WiFi transmissions. That argument hinges on a section of the statute 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. In September, a three-judge panel of the 9th Circuit Court of Appeals also ruled against Google. The appellate judges said in a written opinion 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.”

Google is now asking the entire 9th Circuit to reconsider the case and “undo the panel's mistake.” The company says that the panel lacked evidence for its conclusion that most people are unable to intercept WiFi transmissions.

“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 consumers counter that Google's interpretation of the wiretap law “would undermine privacy within the home.” They add that Google's petition “does not provide a basis for rehearing.”