A Google Street View Camera Car (2008 Subaru Impreza Five Door)
A Google Street View Camera Car (2008 Subaru Impreza Five Door) (Kowloonese via Wikimedia Commons)

SAN FRANCISCO — The U.S. Supreme Court has shown increasing interest in privacy cases recently, but not enough to intercede in a potential class action over Google Inc.’s Street View project. The high court denied the technology company’s petition for certiorari Monday, leaving intact a Ninth Circuit decision that opens Google to liability for scooping up data from residential Wi-Fi networks.

“The ruling creates substantial uncertainty regarding the scope of civil and criminal liability under the Wiretap Act,” Google’s lawyers at Wilmer Cutler Pickering Hale and Dorr and Wilson Sonsini Goodrich & Rosati wrote in their petition. That uncertainty is particularly troubling given “the potential for sizeable statutory damage awards” under the Wiretap Act, they added.

The cert denial means that a potential class of home computer users can move forward against Google before U.S. District Judge Charles Breyer in San Francisco. The plaintiffs are led by Lieff Cabraser Heimann & Bernstein, Cohen Milstein Sellers & Toll and Spector Roseman Kodroff & Wills.

“Google, like a 21st century Peeping Tom, surreptitiously intercepted and recorded private communications from inside people’s homes as the data traveled between people’s computers, smartphones, and tablets, and their Wi-Fi routers,” they wrote in their opposition to the cert petition.

Google set out six years ago to map street-level views of cities and neighborhoods around the world. The company’s Street View vehicles also carried Wi-Fi-sniffing technology that captured data from commercial and residential wireless networks, unless they were encrypted. Google says the goal was only to map wireless access points, and blames a rogue engineer for developing a program that also captured payload content, including user names, passwords, email addresses and other sensitive data, as it streamed across those wireless networks. The engineer invoked the Fifth Amendment before the Federal Communications Commission.

Google argues that Wi-Fi transmissions are “radio communications” exempt from coverage by the Wiretap Act because radio has historically been accessible to the public. U.S. District Judge James Ware disagreed and a Ninth Circuit panel led by Judge Jay Bybee affirmed.

Contact the reporter at sgraham@alm.com.