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US court opens the floodgates for wiretap lawsuits against Google

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By Simon Davies

In a scathing decision today the US 9th Circuit court of Appeals has given the green light for the commencement of several class action lawsuits against Google for violation of federal wiretap laws.

The judgment relates to a claim against the advertising giant over its mass collection of private WiFi data that occurred during the company’s Street View mapping operation. The court unanimously rejected Google’s argument that it was exempt from wiretap law, effectively branding the company’s “no expectation of privacy” defence as preposterous.

The ruling is likely to have substantial implications for other suits against Google over interception of private data within its Gmail service 

The appellate decision upholds an earlier ruling by a federal judge who had decided on the legal standing of nearly a dozen combined lawsuits seeking damages from Google for eavesdropping on open Wi-Fi networks. The vehicles, which mapped neighborhoods around the world, were covertly equipped with Wi-Fi–sniffing hardware to record technical details of routers to improve Google location-specific services. However the cars also secretly gathered snippets of private data.

In its defence, Google had argued that it was covered by a carve-out under federal wiretap law that exempts interception of “radio communications” that are “readily available to the public”. The court delivered a humiliating blow to the company by determining that the defence was entirely unsustainable, lambasting the foundation of Google’s key definitions in the words “Google’s proposed definition is in tension with how Congress – and virtually everyone else – uses the phrase”.

The ruling is likely to have substantial implications for other suits against Google over interception of private data within its Gmail service. In response to those cases the company had lodged a similar “no expectation of privacy” defence.

“Surely Congress did not intend to condone such an intrusive and unwarranted invasion of privacy when it enacted the Wiretap Act to protect against the unauthorized interception of electronic communications,’” the San Francisco-based court warned in today’s judgment.

The ruling is also significant in that claimants can now proceed in the US District Court to obtain discovery of documents. As these cases are subject to statutory damages it is possible that the true number of victims of the WiFi grab will now become known, as such numbers will be required to calculate an award.

The ruling occurs at a moment when Google is under mounting pressure in the EU over repeated violation of European privacy laws, resulting in condemnation by senior officials and regulators.