"In light of this, we are writing to request that the Department [of Justice] evaluate ... whether it would be appropriate to re-open its investigation to assess whether Google's conduct may in fact have violated the law," wrote Frank Pallone Jr. (D-NJ) and John Barrow (D-Ga.) Thursday in a letter to Attorney General Eric Holder. "By ensuring that this matter is investigated to the fullest extent, we can understand what happened and how it can be prevented from ever happening again."
Google has long maintained that although the data collection might have been inappropriate, it wasn't illegal. "We have always been clear that the leaders of this project did not want or intend to use this payload data. Indeed Google never used it in any of our products or services," a Google spokesman said via email. "Both the DoJ and the FCC have looked into this closely--including reviewing the internal correspondence--and both found no violation of law."
The Federal Trade Commission in October 2010 also declined to fine Google following its Street View investigation, although the FTC received assurances from Google that it would delete all inadvertently collected Wi-Fi payload data. Google also said that it had already put new business processes in place to help prevent similar incidents from reoccurring. In May 2011, meanwhile, the Department of Justice declined to prosecute Google after investigating whether the company had violated the Wiretap Act.
Last month, however, the FCC released a report that included testimony from Google employees who had direct knowledge of the Street View program. Although Google had long maintained--and executives might have believed--that the Wi-Fi data collection was accidental, the report disclosed that "the data collection resulted from a deliberate software design decision by one of the Google employees working on the Street View project," and was detailed in a design document approved by managers.
In other words, Google actively engaged in wardriving, which is the practice of driving around and looking for accessible wireless networks or wireless data traffic, then sniffing and storing the data they're sending and receiving. But it's not clear whether this practice would have violated any U.S. laws.
In the wake of the report, European investigators are reportedly considering reopening their Google Street View investigations. Notably, although Canada and multiple European countries found that Google had violated their privacy laws, they let the matter rest after Google agreed to delete collected data and revise its privacy practices. France, meanwhile, also hit Google with a record privacy fine.
The FCC also fined Google $25,000 for having obstructed its investigation, but not for violating communications, wiretapping, or any other U.S. laws or regulations. Still, according to the FCC's report, "significant factual questions" remained unanswered, owing to the engineer who added the war-driving capabilities to Street View having "invoked his Fifth Amendment right against self-incrimination and declined to testify."
Might Google be called on to now answer those factual questions?
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