After dismissing 4th Amendment for FBI, court slams Google for tapping open WiFi

Google may face prosecution for mote in eye while feds are applauded for beam in their own

Google could be facing fines or prosecution following a federal court's decision that passively listening in on unencrypted WiFi connections as you drive by in a car could count as illegal wiretapping.

In pointing the finger at Google, however, federal courts have evidently decided to punish Google for the equivalent of overhearing a conversation on a street corner, while giving carte blanche to law enforcement agencies to break in to the talkers' apartment, search the place, bug the phones and record every sound from the bedroom and bathroom without a warrant or any reason to believe residents are up to no good.

Yesterday, the U.S. District Court in San Francisco ruled that Google Street View vans violated rules on wiretapping by putting WiFi receivers in its StreetView vans to detect, sample data from and map unsecured wireless LANs along their routes.

[Also see: Lock down your Wi-Fi or the FBI might come knocking]

Google is already in trouble for the practice in Europe. France fined it 100,000 Euros and officials in England are still investigating it.

U.S District Court Judge James Ware apparently believes, as does most of Europe, that listening in on someone else's wireless LAN is verboten. His explanation is a little convoluted, however.

"Merely pleading that a network is unencrypted does not render that network readily accessible to the general public," his decision read.

Being unencrypted – or at least security limiting access only to those with the right password or MAC address does – does, in fact, mean the network is readily accessible to the general public.

The fact that Google used special equipment to do its eavesdropping means it wasn't just passively overhearing WLAN broadcasts, it was seeking them and sampling data from them on purpose. That makes it liable for civil suits and federal prosecution under federal wiretap laws, the judge ruled.

Contrast that with the melee over the FBI's right to stick a GPS device on someone's car to track his or her movements for more than a month, as they did to at least two people who discovered the surveillance in 2005. Both are now suing for invasion of privacy. One is an animal-rights activist ; the other is Arab American.

In neither case did the FBI have a warrant for the surveillance. The Supreme Court will hear arguments this week about whether that level of intrusion is illegal, or if the Fourth Amendment to the Constitution doesn't count any more.

The FBI claims provisions in the Patriot Act, Foreign Intelligence Surveillance Act and half a dozen other civil rights-eroding rulings allow it to conduct investigations willy nilly, without having to explain in most cases why it believes it should be allowed to invade the privacy of an individual or company.

As with every option to bypass the rules, byes on warrantless investigation and wiretapping regulations led to abuses:

  • FBI agents harassing friends and supporters of WikiLeaker Bradley Manning;
  • it spied on children;
  • responded with misleading information to Freedom of Information requests about its warrantless investigations;
  • harassed, investigated and wiretapped Muslims with no documented connection to political or terrorist groups;
  • and raided the homes and computers of activists protesting U.S. foreign policy and labor issues.

FBI adminstrators also "expanded agents' authority to comb databases, follow people and rummage through their trash even if they are not suspected of a crime," according to a piece civil-rights analyst and author David Shipler wrote for the New York Times.

Arguments supporting expansion of police powers are mostly based on the need to make investigations faster and more efficient to prevent terrorist attacks, and track both terrorists and ordinary criminals through the "trackless" Internet (which actually tracks every click, keystroke and pageview of every person to ever connect to it, though data that comprehensive is, so far, impossible to collect and analyze on a mass basis).

A report from civil-rights think-tank/watchdog group the Breakthrough Institute, however, showed warrantless surveillance helped federal officials break only two cases:

The Portland Seven – Oregon Muslims who tried to travel to Afghanistan to join the Taliban in 2001.

Najibulla Zazi – an Afghan living in Colorado who planned a suicide attack on New York's subways.

The rest " were broken open due to the combination of well-deployed undercover agents, information from citizen or undercover informants and tips from foreign intelligence agencies," according to the report. (Google Docs Quickview, or PDF).

"We find good evidence that controversial CT [counterterrorism] tactics may have been counterproductive in several ways: increasing the ratio of informational ‘noise’ to terrorist ‘signal,’ undermining the state’s legitimacy among potential civilian informants, and legitimizing terrorists’ preferred status as ‘warriors.’ In no case is there credible evidence showing that these controversial CT measures significantly helped catch terrorists or offered other strategic advantages outweighing their disadvantages," the report read.

Though some have suggested that post-9/11 CT tactics have aided efforts to thwart terrorist attacks, all available credible evidence suggests that the foiling of terrorist plots since 9/11 has owed to the help of citizen informants, foreign intelligence tips, and standard police work — a conclusion that security officials and other recent analyses affirm.

As FBI Special Agent George Venezuelas said in a press conference after Faisal Shazhad’s failed Times Square bombing attempt: “It’s the tips from the public that really disrupt these terrorist plots.”

Giving up civil rights in exchange for more protection doesn't work, as Ben Franklin said in 1759 and Shipley repeats in a modern context.

The constitutional system of case law and precedent applies rulings on rights universally. So, legally, if a black man in a poor neighborhood can be stopped and frisked with minimal reason, so can a white woman in a rich neighborhood — even if the police tactics differ," Shipley wrote.

"A similar process is taking place now, as the F.B.I. has begun using counterterrorism tools to search, infiltrate and investigate groups of American peace activists and labor leaders in the Midwest.

"The Fourth Amendment is weaker than it was 50 years ago, and this should worry everyone. “Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government,” Justice Robert H. Jackson, the former chief United States prosecutor at the Nuremberg trials, wrote in 1949."

It's morally offensive to allow gross violations of the Fourth Amendment to law enforcers investigating foreigners, minorities and people who are more counterculture than Contra, without the need to justify their actions.

Excusing it while deciding to punish Google for offenses that don't begin to compare with those of the FBI is a gross logical contradiction as well.

I agree the courts shouldn't stand idly by while Google scoops up bits of our personal data off the street and spirits it off into a meta-universal database to be analyzed for its profit and our loss.

I don't agree that the police should be allowed to strip search our digital selves, our physical selves and demand the right to know every move we make and every word we speak simply because we don't speak loudly enough against the law-enforcement hobby-horse obsession of the moment.

Sixty years ago you could become unemployable for having spoken approvingly of socialism while drunk in college; 40 years ago you could be investigated and harassed for wearing your hair long and belonging to a liberal fringe party.

Ten years ago you could be investigated, arrested and imprisoned indefinitely for no reason other than that someone accused you, with no other evidence, of being an Al Queda sympathizer.

Today, a federal court has ruled you can be prosecuted under federal wiretapping laws if your laptop picks up someone else's unencrypted wireless signal as you drive down the street.

But to gather evidence for that prosecution, federal agents are allowed to violate every right written in to the Constitution by founding fathers who were not conservative-political beatic figures. They were bitter victims of a system that allowed law enforcers to violate the law in order to enforce it.

The Constitution and Bill of Rights they agreed on wasn't a holy document to be worshipped in theory and ignored in practice.

It was a carefully crafted set of barriers designed to protect the people from the state and to make the state explain itself and get approval from the people every time it wanted to cross one of those barriers – whether it was thought it was trying to protect us at the time from the British, the Indians, Muslim terrorists or Google.

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