FCC Is Investigating Google

November 11, 2010. Rep. Ed Markey (D-MA) stated in a release on November 10, 2010, that the Federal Communications Commission (FCC) "is rightly investigating whether Google's Street View cars steamrolled privacy laws in pursuit of mapping information."

Rep. Ed MarkeyRep. Markey (at right) continued that "I commend the Commission for taking action -- the potential for this technology to be used for drive-by snooping into people's personal lives is not something to be taken lightly. I raised concerns about Google Street View cars when it was first revealed that the company had collected computer passwords, emails, and other personal data from Wi-Fi routers, and I will continue to actively monitor developments in this important area."

Also, on November 11, 2010, the Wall Street Journal published a story by Amy Schatz and Amir Efrati titled "FCC Investigating Google Data Collection" that states that the FCC "is investigating whether Google Inc. broke federal laws when its street-mapping service collected consumers' personal information".

The Electronic Privacy Information Center (EPIC) filed a complaint [5 pages in PDF] with the FCC on May 18, 2010, urging the FCC "to open an investigation". The complaint documents the nature of Google's Wi-Fi surveillance activities, to the extent that Google had then disclosed, as well as Google's history of withholding pertinent and incriminating information from the public and various government investigators around the world.

The EPIC alleged that Google's capture of data "could easily constitute a violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, also known as the Wiretap Act, as amended by the Electronic Communications Privacy Act (ECPA) of 1986 to include electronic communications."

The relevant criminal prohibition, which is codified at 18 U.S.C. 2511, provides that "any person who ... intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... shall be punished". Also, 18 U.S.C. 2520 provides a private right of action.

The Department of Justice (DOJ) is the federal agency with exclusive authority to bring criminal prosecutions for violation of the Wiretap Act.

Nevertheless, the EPIC complaint states that the FCC "is charged with protecting the interest of US consumers of communications services in the United States and with safeguarding the security and integrity of network services."

The EPIC complaint also sites and relies upon 47 U.S.C. 605. Subsection 605(a) provides, in part, that "no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception ... on demand of other lawful authority. No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto." (Parentheses in original.)

This section also provides for FCC enforcement, as well as private rights of action.

The EPIC complaint continues that Google "routinely and secretly mapped private communications data and the company routinely and secretly mapped private communications hotspots. Moreover, they said not a word about the Wi-Fi data collection during the three-year privacy debate over Street View."

It concludes with the statement that "The FCC has broad authority to execute and enforce the provisions of the Communications Act and the Commission plays a critical role in safeguarding the privacy of American users of communications services."

The FCC has not yet taken any action against Google. However, it should be noted that it was a petition by the EPIC back in August of 2005 that preceded the FCC's adoption, on February 10, 2006, of a Notice of Proposed Rulemaking (NPRM) [34 pages in PDF] regarding the practice of pretexting to obtain consumers' confidential phone records. Then, on March 13, 2007, the FCC adopted a Report and Order [101 pages in PDF] amending FCC rules. (The FCC released the new rules on April 2, 2007). See also, story titled "FCC Adopts NPRM Regarding Privacy of Consumer Phone Records" in TLJ Daily E-Mail Alert No. 1,308, February 13, 2006. That proceeding involved the Customer Proprietary Network Information (CPNI) statute, which is codified at 47 U.S.C. 222, rather than Section 605.