In litigation in California over Google's collection of unencrypted Wi-Fi data as part of its "Street View" project, a major issue is whether a "Wi-Fi" signal is a "radio communication" under the federal Wiretap Act, which is part of the Electronic Communications Privacy Act.   In re Google Inc. Street View Electronic Communications Litigation (N.D. Cal. No. C10-MD-02184JW).  Google is arguing (1) that a Wi-Fi signal is a "radio communication" and (2) that its collection of unencrypted Wi-Fi signals is permissible under an exception allowing interception of "radio communications" that are "readily accessible to the general public" because the lack of encryption left the signals accessible.  18 U.S.C. §2511(2)(g)(i).

This appears to be a case of first impression.  The federal district court hearing the case ruled against Google, holding that a narrow interpretation of the term "radio communication" better fits the Act's purpose (even though Wi-Fi signals are plainly "radio" in a technical sense).  But the court has since granted a motion by Google to certify the question to the Court of Appeals for the Ninth Circuit.  The case also highlights once again that the Electronic Communications Privacy Act, enacted long before Wi-Fi became a common household feature, deserves a serious update.