A federal judge has found that Google can be held liable for damages for secretly intercepting data on open Wi-Fi routers. The ruling is a serious legal setback for the search giant over activity it has engaged in across the United States for years.

That decision, the first of its kind, was handed down late Wednesday by a Silicon Valley federal judge presiding over nearly a dozen combined lawsuits seeking damages from Google for eavesdropping on open 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.

"The court finds that plaintiffs plead facts sufficient to state a claim for violation of the Wiretap Act. In particular, plaintiffs plead that defendant intentionally created, approved of, and installed specially-designed software and technology into its Google Street View vehicles and used this technology to intercept plaintiffs' data packets, arguably electronic communications, from plaintiffs' personal Wi-Fi networks," U.S. District Judge James Ware ruled. "Further, plaintiffs plead that the data packets were transmitted over Wi-Fi networks that were configured such that the packets were not readable by the general public without the use of sophisticated packet-sniffer technology." (.pdf)

Judge Ware's ruling is 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. The decision comes on the heels of a Federal Trade Commission antitrust probe into Google's search and ad businesses, and comes as attorneys general from several states are settling an inquiry into the Wi-Fi affair.

Google, in seeking a dismissal, claimed it is was not illegal 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 rejected by Ware.

Christian Jenkins, an Ohio attorney on the case against Google, said in a telephone interview that the decision means Google's actions were an "invasion of privacy."

"We would not have signed up for this case if we didn't think that's what the judge would decide," he said. "This sends a very, very simple message. Don't intercept peoples' e-mail. Period."

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 told the public the affair was 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.

Google said in a statement that the lawsuit is "without merit," and that the judge "should have dismissed the wiretap claim." The Mountain View, California company said it was "exploring our options," which include litigating the case or settling.

According to the Wiretap Act, amended in 1986, it's not considered wiretapping "to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public," according to the text of the federal wiretapping statute.

But Judge Ware said that interpretation did not apply to open, unencrypted Wi-Fi networks and instead applied only to "traditional radio services."

"The matter before the court presents a case of first impression as to whether the Wiretap Act imposes liability upon a defendant who allegedly intentionally intercepts data packets from a wireless home network," Ware ruled.

No hearing date has been set.

Photo: dspain/Flickr

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