A federal judge sided with Google on Monday, granting the search giant the right to appeal his ruling that packet-sniffing on non-password-protected Wi-Fi networks is illegal wiretapping.

The decision by U.S. District Judge James Ware tentatively sets aside his June 29 ruling in nearly a dozen combined lawsuits seeking damages from Google for eavesdropping on open, unencrypted Wi-Fi networks from its Street View mapping cars. The vehicles, which rolled through neighborhoods across the country, were equipped with Wi-Fi–sniffing hardware to record the names and MAC addresses of routers to improve Google location-specific services. But the cars also secretly gathered snippets of Americans' data.

Over the objection of plaintiffs' attorneys, Judge Ware said Monday that his June 29 decision was the first ruling of its kind, and that it would be best for an appellate court to decide whether he was right before more litigation in the case against Google proceeded.

Ware's move means a decision from the 9th U.S. Circuit Court of Appeals to the wiretap question will go unanswered for some time, perhaps a year or more. The San Francisco-based appeals court is one stop short of the U.S. Supreme Court, where the case is likely headed.

"Thus, in light of the novelty of the issues presented, the court finds that its June 29 order involves a controlling question of law as to which there is a credible basis for a difference of opinion, and also finds that certification of the June 29 order for appeal would materially advance the litigation," Ware ruled.

Google claims it is was not a breach of the Wiretap Act to intercept data from unencrypted, or non-password-protected Wi-Fi networks. Google said open Wi-Fi networks are akin to "radio communications" like AM/FM radio, citizens' band and police and fire bands, and are "readily accessible" to the general public – a position Ware rejected.

Google asked for the right to appeal last week. Google said Ware's ruling "addresses novel questions of law and applies them to new technologies in ways which reasonable judges could disagree."

Ware's rulings are important not only to Google, but to the millions who use open, unencrypted Wi-Fi networks at coffee shops, restaurants or any other business that tries to attract customers by providing Wi-Fi.

Google said it didn't realize it was sniffing packets of data on unsecured Wi-Fi networks in about a dozen countries over a three-year period until German privacy authorities began questioning last year what data Google's Street View cars were collecting. Google, along with other companies, use databases of Wi-Fi networks and their locations to augment or replace GPS when attempting to figure out the location of a computer or mobile device.

Google said it committed a "mistake," and that it only collected "fragments" of data as its Street View cars drove through neighborhoods. Google said it has not reviewed the data, which now remains under courthouse lock and key.

Because the case before Ware was not final and was in its infancy, Ware's permission was needed for what is known as an "interlocutory" appeal.

Photo: dspain/Flickr

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