WHEN DOES SNOOPING GO TOO FAR? GOOGLE MAY SOON FIND OUT
June 2010
Recent Events. After being the first to file a nation-wide class action lawsuit against Google for violating the Wiretap Act last month, this month Foley Bezek Behle & Curtis, LLP ("FBBC") filed its First Amended Complaint in that action adding two new state sub-classes and a fourth putative class representative. Since FBBC's filing of the original complaint in May, numerous copycat and tag-a-long putative class cases have been filed in courts across the Country and multiple governmental agencies have commenced investigations. As a consequence, the matter has been referred to the Panel on Multi-District Litigation, where it will likely be consolidated for all pretrial purposes before one Judge. Google has represented to the Panel that it would not oppose consolidation and transfer to Judge James Ware of the Northern District of California (San Jose) - the court where FBBC's case is pending.
Allegations. FBBC's class action complaint alleges that Google impermissibly intercepted and endeavored to intercept consumer and business communications transmitted over wireless networks. The case was filed after Google admitted that its Google Street View ("GSV") vehicles that were ostensibly crisscrossing the globe taking only visual images and "locational data", were also intercepting the "payload" (e.g., substantive) data that was being transmitted on the wireless networks that they drove by. Special hardware and software known as snoopers and sniffers are needed to collect such data.
Google contends that it was collecting such data "accidentally" and that it made no illicit use of the data collected. But, many people found Google's claim that it didn't know it was collecting electronic communications for nearly four years doubtful. And, public interest groups, including EPIC (the Electronic Privacy Information Center), as well as politicians and 30 States Attorneys General have commenced an investigation.
A Violation of Law. Google's big problem is that intercepting wireless communications - irrespective of whether the communication is then used for any purpose - is a violation of the Wiretap Act as well as multiple states' privacy and/or communications laws. A defendant found to have violated those statutes is liable for monetary fines and damages and equitable relief for each instance of an interception.
A Matter of First Impression. Google contends that the information on the wireless networks was "publically available" and so it did nothing wrong when it intercepted it. As a matter of first impression, the Court will ultimately need to decide whether Google's conduct amounted to a violation of the wiretap act and other privacy laws. In so doing, it may ultimately either carve out a new exception to privacy leaving less and less that consumers and business can truly call their own, or, it may affirm the average person's notion of what is "off-limits" to others and ensure that privacy does not become collateral damage on our march into this new data saturated digital era.
The litigation is being handled by partners Peter J. Bezek and Justin Karczag.
