By John Seiver

Last week, the Ninth Circuit held that the Wiretap Act prohibits the kind of “interception” and collection of transmissions from unencrypted Wi-Fi networks that Google reportedly followed in compiling Street View data. Technically, the court affirmed a district judge’s order denying Google’s motion to dismiss, but the importance of the ruling was in extending Wiretap Act protections to unencrypted Wi-Fi traffic.

The Wiretap Act does not prohibit interception of electronic communications that are “readily accessible to the general public” or a variety of “radio transmissions.” The court held that the radio transmission exception was limited to traditional (audio) radio stations, and that the availability of equipment to receive unencrypted Wi-Fi did not make unencrypted Wi-Fi networks “readily accessible to the general public.” This is a departure from a more conservative reading reflected in the FCC’s earlier decision not to pursue enforcement against Google’s interception of unencrypted signals (which we discussed here). Although the court includes language seeking to limit any unintended consequences of its ruling, it remains to be seen what the effect may be under a broader set of communications laws that some read to distinguish encrypted from unencrypted traffic.