• by Wendy Davis  @wendyndavis, April 1, 2014

Google is asking the Supreme Court to decide whether the company potentially violated the federal wiretap law by collecting payload data -- including emails, passwords and URLs visited -- from unencrypted WiFi networks.

Last year, the 9th Circuit Court of Appeals ruled against Google on that question. Google had argued that the wiretap law -- which prohibits the interception of electronic transmissions -- doesn't apply to radio communications that are publicly accessible.

The appellate court rejected that position last December, ruling that a WiFi transmission isn't a “radio communications,” because it's not “a predominantly auditory broadcast.” If that decision stands, it will enable consumers to proceed with their lawsuit against the company.

Google says in its newest court papers that the 9th Circuit's conclusion is “irreconcilable with modern communications technology, which does not distinguish between the transmission of auditory and other data files.” Google adds that text messages can be sent as voice messages, and technology now allows people to give voice commands to computers.

“In the world of Internet protocol communications, a bit of data is simply a bit of data,” Google says. “The Ninth Circuit’s decision offers no intelligible rationale for distinguishing 'auditory' bits from 'non-auditory' ones.”

The legal proceedings date to 2010, when it came to light that Google's Street View cars collected a host of data from WiFi networks that weren't password-protected. The company apologized and said that it intended to destroy the data, but the so-called “Wi-Spy” revelations still prompted a class-action lawsuit against the company -- as well as investigations by government agencies in the U.S. and abroad.

Google contends that it didn't violate the wiretap law, due to the wording of the statute. While the law bans the interception of radio and electronic communications, it also has an exception for radio communications that are “readily accessible” to the public.

The search company argued that it met the requirements for that exception, given that it only captured data from unsecured networks. A trial judge ruled against Google, and the 9th Circuit upheld that decision on appeal.

Google is now seeking to appeal to the Supreme Court. The company says that the 9th Circuit's decision, based on a distinction between auditory and non-auditory transmissions, “creates significant complications regarding application of the Wiretap Act to information technologies and introduces significant legal uncertainty.”