Published by LawTechie - April 19, 2011 - LawTechie

In Google’s latest privacy violation adventure, the one where Google trucks have inadvertently (allegedly) intercepted WiFi communications from people on their drives, a Silicon Valley federal Judge has requested the parties to define what “radio communication” means under the Wiretap Act. As Wired reports:

In response, Google wrote last week that 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. Indeed, packet-sniffing software, such as Wireshark and Firesheep, is easily available online.

Hence, because unencrypted Wi-Fi signals travel over the radio spectrum, they are not covered by the Wiretap Act, Google responded.

Interestingly, plaintiff has not yet raised the question of whether Google’s actions violate 47 USC 605, which specifically forbids the interception of radio communication. So if Google wins the argument and convinces that Judge that Wi-Fi networks are like radio communications, then who is to say that Google’s WiFi interceptions do not violate 47 USC 605?

Last year, Harold Feld at the Wetmachine wrote an excellent analysis on what would happen if Wi-Fi communications were considered radio communications. Specifically, that such a definition would allow the FCC to impose net neutrality rules on broadband communication (which, recall, a DC District court did not allow because it defined broadband as an “information service” rather than telecommunications):

There are, however, rather interesting consequences to applying [47 USC 605] to broadband traffic, especially when considering the prohibition on self-benefit as well as the prohibition on making the “contents, substance, purport, effect, or meaning” known to another. On its face, this would appear to ban deep-packet inspection or other forms of information scanning to which a subscriber does not explicitly consent. The statute, on its terms, applies to the carrier entrusted with the message as well as to any outside entity.

Thus, if broadband falls under the auspices of radio communication pursuant to 47 USC 605, then ISPs are effectively prohibited from inspecting broadband packets; and if the ISPs cannot inspect to discover their origin, then the ISPs cannot promote one set of packets over another. This creates de facto net neutrality.

So, if Google wins on this radio communication argument, then double win for Google…

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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