Apr 2, 2014 · 4 minutes

Google has asked the United States Supreme Court to consider its case that collecting emails, passwords, and other personal information as part of its Street View program was legal.

The request comes after the company failed to persuade an appeals court that gathering the data was protected by the Wiretap Act because it "only" collected unencrypted information from public networks that anyone could access. Circuit Judge Jay Bybee wrote in the court's decision that this defense is faulty. "Even if it is commonplace for members of the general public to connect to a neighbor's unencrypted Wi-Fi network," Bybee wrote, "members of the general public do not typically mistakenly intercept, store, and decode data transmitted by other devices on the network." Snooping on public Wi-Fi networks is not allowed by the Act, Bybee and the other judges hearing the case decided, and the lawsuit was allowed to continue.

Google thinks otherwise. It argues in its request that the appeals court's decision threatens the Act's ability to protect Americans from having their phone calls intercepted because of how it defines "radio waves." Furthermore, Google claims it "fails to account for modern technological developments and will have wide-ranging harmful consequences," arguing that because security professionals sometimes accidentally gather information from public Wi-Fi networks that this decision will prevent them from doing their jobs.

Wired contests those claims. "If the Supreme Court hears the case and eventually rules that unencrypted Wi-Fi sniffing is legal, that might be seen as a boon to criminals who eavesdrop on public access points to sniff out passwords or credit card numbers," it notes in its report. Put another way: Google's contention that its collection of medical records, private messages, and other personal information should be ignored because any arguments against that right will create more problems than they solve is deceitful. But Google isn't worried about that -- the company has a history of relying on underhanded defenses of the Street View program.

In December 2013, Pando's Yasha Levine described Google's attempts to confound Federal Communications Commission investigators as they looked into the Street View program:

As FCC regulators struggled to get a handle on Google’s mass surveillance program, the company used every corporate crisis management trick in the book to avoid scrutiny. It issued a series of shifting denials that its Street View cars collected wireless transmissions, ignored requests for documents, misled investigators about the extent of its data collection and, in a last ditch effort, tried shifting the blame for the whole thing on a single Google engineer. The company claimed that this employee had gone rogue, building and deploying the Wi-Fi surveillance feature without approval of his superiors.

In the end, FCC investigators obtained documents and internal correspondence showing without a doubt that upper management knew about and signed off on Street View’s wiretapping capabilities. And even more disturbing: the FCC obtained emails showing Google had been analyzing and integrating the data that it had intercepted. Google hasn't offered an honest defense of its Street View program in all the years that government officials have been investigating its systematic erosion of consumer privacy. The company claims that the information gathered from public Wi-Fi networks was collected by accident, but then analyzed that very data it had intercepted. It argues that any decision against its right to collect that information could further endanger the privacy of millions of people, but seems to think that its attempts to gather personal information should be protected by the same laws it hopes to undermine. Now Google wants to bring the Supreme Court into the mix.

Perhaps the company could use Street View to find the "don't be evil" principles it once held.

Reactions from around the Web

Ars Technica notes how important a Supreme Court verdict on this issue would be:

Google wants the Supreme Court to reverse a decision concluding that the media giant could be held liable for hijacking data on unencrypted Wi-Fi routers via its Street View cars.

The legal flap should concern anybody who uses open Wi-Fi connections in public places like coffee houses and restaurants. That’s because Google claims it is not illegal to intercept data from Wi-Fi signals that are not password protected. PCWorld adds further background on the case and notes that the FCC's unwillingness to bring Google to bear could assist it if the Supreme Court decides to hear its argument:

Between 2007 and 2010, Google equipped its Street View cars with Wi-Fi antennas and software that collected data transmitted by Wi-Fi networks in nearby homes and businesses, which included both network identifying information and so-called payload data transmitted over unencrypted Wi-Fi networks. The company acknowledged in May 2010 that it had inadvertently collected some personal data from unencrypted networks and apologized for it.

Google in its appeal to the Supreme Court does not, however, accept that the collection of the data was illegal, pointing out that the U.S. Department of Justice, Federal Trade Commission and the Federal Communications Commission declined to take enforcement action after investigating Google, including for possible violations under the Wiretap Act. Pando weighs in

Yasha Levine's continued coverage of the scandal from December 2013:

And the most troubling part of the story: we would have never found out about any of this, if it hadn’t been for a few persistent German regulators, who hounded Google and forced it to disclose its internal Street View documentation. Without them, Google would still be spying on our internet traffic, and we’d be none the wiser.

Google’s Street View program showed the dangers of allowing seemingly benevolent technology companies to deploy powerful surveillance technology in public spaces with zero oversight. It also showed how little power the average person has against a giant company like Google, how little protection or recourse we have.