Digital Privacy’s New Age: Supreme Court Turns off Google’s Radio After Holding That We Are Our Cell Phones

by Wendel, Rosen, Black & Dean LLP
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In another installment of “Google does WHAT?!?,” the Supreme Court on June 30 rejected the Silicon Valley giant’s bid to stop a lawsuit accusing the search company of wiretapping. You read that right. Wiretapping.

You know those cool Google Street View cars that drive around taking pictures that allow you to look at your house on Google Maps? Well, it turns out that those Street View cars weren’t only looking at your house, they were also looking into your house, or, more specifically, the information available over your home Wi-Fi network. Google’s argument that it was simply listening to your home radio station fell flat in the Ninth Circuit, and the Supreme Court has now refused to grant certiorari to review the appeals court’s decision.

How Street View Collected Data

The Google wiretapping suit focuses on the Street View cars’ previous practice of collecting information from unprotected Wi-Fi networks as they drove by snapping photographs for Google Maps. As they were rolling through a neighborhood, the cars would record the GPS coordinates of wireless routers and save data transmitted over any network it detected that was not password-protected. The connections only lasted for a split-second each, but that is enough time to download around 25 or more emails and/or other data, including passwords, images, and other personal information. Moreover, if you happened to be transmitting data from a password-protected site as the Street View-mobile drove by, the information from that site, too, would potentially be recorded, unless the site was encrypted. In sum, if you needed another reason to password protect your home Wi-Fi network, here it is.

For Google’s part, it claims that the Street View data mining described above was the result of a rogue programmer (though this assertion has been challenged by regulators in the U.S. and abroad) and that the company never put the information obtained to commercial use.

How Google's Street View data mining worked (graphic from nytimes.com)

How Google’s Street View data mining worked (graphic from nytimes.com)

Google’s Legal Argument:  It’s Just a Radio!

When consumers first filed their class action suit against Google, the company moved to dismiss the lawsuit, claiming that its conduct did not constitute wiretapping. Citing a statute applicable to radio communications, Google claimed that the Wi-Fi communications that it recorded were “electronic communications” that were “readily accessible to the general public.” District Court Judge James Ware, Chief Judge of the Northern District of California, denied Google’s motion in June of 2011.

Last September, the Ninth Circuit Court of Appeals unanimously affirmed Judge Ware’s decision in a strongly-worded opinion. Discussing the term “radio communication,” the Court stated that “Google’s proposed definition is in tension with how Congress — and virtually everyone else — uses the phrase.” A “radio communication,” said the court, does not include “sending an e-mail or viewing a bank statement while connected to a Wi-Fi network.”

Following the Ninth Circuit’s ruling, Google petitioned the Supreme Court for a writ of certiorari. On Monday, the Court denied Google’s petition without comment (as is the Court’s usual practice in denying such petitions).

Data Privacy in the Supreme Court

Despite the absence of any comment from the Supreme Court, its decision to leave the Ninth Circuit’s ruling undisturbed is significant, particularly in light of the Court’s unanimous decision last week Riley v. California, which held that the police must obtain warrants before searching the cell phones of individuals whom they arrest. The Riley decision reveals a surprising sensitivity from the Court regarding the data privacy concerns raised by modern technology.

In Riley, the Court rejected the government’s analogizing the search of a cell phone’s contents to the warrantless search of the contents of a cigarette pack found on an arrestee’s person, which the Court condoned in United States v. Robinson. The Court reasoned that “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. . . Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. . . But the possible intrusion on privacy is not physically limited in the same way when it comes to cell phones.” Both the aggregation of different types of media and the sheer storage capacity of modern cell phones set the devices apart from a privacy perspective. “The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet.” An individual’s interests, medical condition, and travel history, among other things, can be traced through a search of their phone’s contents, said the Court.

Given the Court’s refusal in Riley to fall back on arcane pre-digital conceptions of Fourth Amendment privacy rights, its decision to allow the Google wiretapping case to proceed is unsurprising. Lending any credence whatsoever to the argument that mining data from private home Wi-Fi networks is akin to listening to “radio communications” would be entirely discordant from a Court that acknowledges that “the sum of an individual’s private life” can be contained in a single application on your cell phone.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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