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Googling the Wiretap Act

Somewhat off-topic but interesting:  There has been a lot of controversy in recent years about the amount of data about Americans that the NSA and other government agencies have been vacuuming up.  But private businesses have been vacuuming orders of magnitude more.  Most of that activity is perfectly legal, so far, but some maybe not.

Here is the court summary of Joffe v. Google, Inc., USCA 9 No. 11-17483:

The panel granted in part a petition for rehearing, filed an amended opinion affirming the district court, and denied a petition for rehearing en banc on behalf of the court in an interlocutory appeal from the district court's order denying a motion to dismiss claims that Google violated the Wiretap Act when it collected data from unencrypted Wi-Fi networks in the course of capturing its Street View photographs.

The Wiretap Act imposes liability on a person who intentionally intercepts any electronic communication, subject to a number of exemptions. In the amended opinion, the panel held that data transmitted over a Wi-Fi network is not a "radio communication" exempt from the Wiretap Act under 18 U.S.C. § 2511(2)(g)(i) as an "electronic communication" that is "readily accessible to the general public."

The panel held that the phrase "radio communication" in 18 U.S.C. § 2510(16) excludes payload data transmitted over a Wi-Fi network, and that as a consequence, the definition of "readily accessible to the general public [ ] with respect to a radio communication" set forth in § 2510(16) does not apply to the exemption for an "electronic communication" that is "readily accessible to the general public" under § 2511(2)(g)(I).

The certiorari petition asking the US Supreme Court to review this case was filed March 27 as Google, Inc. v. Joffe, No. 13-1181.

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