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Googlegate: Mapping a scandal of global proportions

Google is not above the law

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But in the interests of objectivity, even if we accept that this code was not noticed during the testing stage (which really is stretching the realms of possibility), once a project has been deployed testing continues on live data. This is important because once a project is deployed in the real world it often behaves differently to how it behaves in a lab environment. Resource efficiency needs to be checked, external factors need to be controlled or at least mitigated and data has to be accurate. This means that even if all the above stages failed to notice the data being generated by this code, once in a live environment it would be impossible to miss.

Frankly, for Google to even suggest that this is the case presents it as unprofessional for not adhering to basic project development principles - which given the success of Google and their market dominance would seem highly unlikely. One would not expect a company to have prevailed in the technology sector if it was delivering technologies in such a haphazard fashion.

Given my job, I have a responsibility to investigate these matters and report them to my colleagues at Privacy International so we can investigate further on whether or not we need to take any action. Given the above evaluation we decided that it was implausible to suggest that this was an accident and so we published an open letter insisting that the data collected should be retained as it was evidence which may be required for future prosecutions. We were deeply concerned that several regulators (including our own UK Information Commissioner) had asked Google to destroy this data and after discussing this with our legal advisers we put Google on notice for destruction of evidence. Google agreed to keep the data.

From that point we sought legal opinion on whether or not Google was likely to have breached criminal law in the UK, specifically the Regulation of Investigatory Powers Act 2000 (RIPA) and probably the Wireless Telegraphy Act 2006. RIPA covers the interception of communications without a warrant or the consent of all parties and the Wireless Telegraphy Act covers the unauthorised use of wireless stations and apparatus.

Allow me at this point to address all the people reading this piece yelling: “So what? People should have encrypted their Wi-Fi networks.” First, I agree of course that people should encrypt their Wi-Fi networks – As a privacy advocate it would be folly for me to suggest otherwise. But as always these issues are not so simple. The vast majority of the general population are not technical experts, they have no understanding of what encryption is nor how their Wi-Fi networks work; they just plug them in and use them. This is not something we have a right to criticise - it is the nature of the real world in which we live and just because that data is exposed it certainly doesn't give anyone the right to exploit the situation.

Back to the matter at hand. We were convinced that this could not be set aside as accidental, but at the same time when taking on a behemoth such as Google it is important to get it right, so we felt we needed more evidence before taking any direct action.

Then on June 3rd 2010 as a result of ongoing class action suits in the US it emerged that Google had filed a patent application for similar technology in 2008, this reinforced our opinion that this could not have been rogue code. In order for a patent application to be filed, it seemed obvious to us that Google's legal department would have had to review the technology and submit the application. This also would suggest that the project had been funded which in itself would require the attention of managers, designers, developers and testers.

We had further discussions with our legal advisers and felt this latest information strengthened our case but we wanted to take a few days to decide what we were going to do. Before we had a chance to make that decision, Google made it for us.

On 9th June 2010 an independent audit of the software was released which clearly showed that this data had been processed in a deliberate manner. Google's software was not just sucking up all this Wi-Fi data and archiving it to disk, it was treating encrypted and unencrypted data differently.

The encrypted data is useless to Google. The company can't read it and therefore has no use for it, so it was discarded. However, the unencrypted data which Google has admitted to grabbing contains emails and information on web browsing and other internet activities does have a real commercial value attached to it, and Google saved that data to disk. This deliberate processing is a clear example of intent to process and indeed proves the data was actually processed in a non-arbitrary manner.

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