Google not guilty of privacy crime, your honour

The New Zealand Privacy Commissioner’s office has reportedly met with police to discuss a possible criminal investigation into Google’s controversial WiFi data collection. A civil investigation sure, but a criminal one? Really? I hope the police have rather more pressing matters.

But let’s do a quick judge-and-jury exercise. Two relevant laws are sections 252 and 216B of the Crimes Act 1961.

Section 252, which is often misunderstood and is broader than many people may think, prohibits unauthorised access to computer systems. However, based on the reported information, Google’s collection of WiFi data did not involve any kind of “access”, and prosecution under this section is unlikely.

Section 216B prohibits “intentionally [intercepting] any private communication by means of an interception device”. This crime appears most likely to be the subject for any investigation. The key definition of this section is “private communication”, defined in s 216A (which the Law Commission rightly described as “not straightforward” – NZLC IP14, 10.47):

private communication:

(a) means a communication (whether in oral or written form or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but

(b) does not include such a communication occurring in circumstances in which any party* ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.

It seems clear that Google’s activities amounted to “interception” by an “interception device”. Indeed, any cellphone, laptop computer, or even a tape recorder could be used for such activities and meet the Crimes Act definitions. But are WiFi transmissions “private communications”, as required under s 216B?

Let’s look at some known (or presumed) facts:

  1. All of the data was collected from public locations, specifically from public roads.
  2. The data was being actively transmitted into those public locations.
  3. The data collected was unencrypted (if it turns out encrypted data was collected, things might change).

These facts seem to exclude Google’s activities from part (a) of the definition. How was there any indication that “any party to the communication [i.e. the collected WiFi packets] desires it to be confined” when the WiFi data was being broadcast, in unencrypted form, to the public? And how would Google or anyone else be expected to know that? The question whether the users to whom the data belonged knew it was being publicly broadcast is not the issue. The issue is that a publicly broadcast, unencrypted WiFi communication does not (in this juror’s opinion) give a “reasonable indication” that the person making it “desires it to be confined”. If anything, it conveys the opposite.

Of course, if the collected data is able to be reconstructed into a communication that indicates confidentiality, that could raise further questions. However, that is not known, and may well be beyond the intended working of s 216B.

Part (b) of the definition provides another hurdle, although as the Law Commission has noted, it is problematic. It excludes communications that a party “ought reasonably to expect” may be intercepted. Cribbing from the Law Commission’s recent report “Invasions of Privacy: Penalties and Remedies” stage 3:

In Moreton v Police, William Young J noted that while public awareness has developed over time that cellphone communications are not particularly secure, this does not automatically give rise to an expectation that any particular call will be intercepted. While the method of communication used and public awareness of its security levels may not be determinative on their own, they will nevertheless be relevant to whether at least one of the parties has indicated a desire that the communication be confined to the parties, and to whether there is a reasonable expectation (by both parties) that the communication may be intercepted. …

We anticipate that the main areas of enquiry by the courts will be whether the actions of the parties disqualify their communication from being a private one, and whether any particular method of communication disqualifies a communication from being a private one. By “the actions of the parties”, we mean their conduct of the communication itself; for example, whether they are talking in a private room where they expect no one else can hear them, or talking loudly in a public place.

Judge David Harvey has said that listening in to a conversation on CB radio, or using a police scanner, would not be offences because no-one could reasonably expect the communications to be confined.

Putting aside multi-party complexities for now, this reasoning is applicable to WiFi communications. Today, isn’t using unencrypted WiFi like talking loudly in a public place, or using CB radio? Is the “openness” of unencrypted WiFi well known enough to remove an expectation of privacy? Time will tell, but to some extent the Google situation has shown that could well be the case (not that a person is able to benefit from their own wrong, of course).

Another question is whether WiFi data actually constitutes a “communication” within the definition of s 216A. The comments noted above, and the definition, assume a communication between two or more parties using similar technologies, akin to a conversation. It may be arguable that random WiFi packets collected on a drive-by do not constitute a “communication” capable of falling within the definition of s 216A.

“Intention” is another fundamental requirement (both in the definition and for criminal offences). Did Google intentionally intercept the communications? Intention must of course be proved, and this may not be as straight forward as it appears, with Google now blaming a “rogue engineer” for the data collection.

Based on the information to hand, this jury returns a verdict of not guilty, but with a recommendation of a good public flogging nevertheless (ably led by the Privacy Commissioner), to last until Facebook returns to being Privacy Enemy #1.

The debacle could prove timely, given the Law Commission’s recent review of such issues and the possible law changes that may result. But for now, let’s hope the police do not waste valuable resources on what would simply be a pointless witch-hunt.