Oregon complaint against Google Street View amended based on 2008 patent application

As Google continues to accede to demands from several European countries and U.S. courts to turn over copies of data it collected over unsecured wireless networks during its Street View program operations, plaintiffs in a class action lawsuit filed in Oregon are pointing to a 2008 patent application the company filed to challenge Google’s assertions that the data collection was unintentional. The application, for “Wireless network-based location approximation,” appears to emphasize the intent to fairly precisely determine the location of wireless access points, but the method proposed to make that determination clearly includes capturing packets transmitted from the access points being analyzed. Of course “packet capture” and even “packet analysis” do not necessarily equate to payload inspection, which is where the invasion-of-privacy claims lodged against Google seem to focus, but the patent application makes no distinction about use of different parts of captured packets (e.g. header vs. payload contents), so it there does not seem to be anything to back up Google’s publicly stated claims that it was never interested in the payload data. The company’s response to the latest allegations involving the patent application was to flatly deny any connection between the method for which the patent was sought and the Street View program.

It may be hard to try to prove intent on the part of Google merely by showing the absence of any explicit statement that clearly says what Google planned to do with data collected through the method it wanted to patent (or more specifically, that says exactly how wireless packets would be analyzed). Reading the patent application text, the prevailing purpose of the claims in the application is to identify the location of wireless transmission points, for the purpose of using that location information to try to provide (i.e., sell) location-based services. It certainly seems possible that location identification and traffic analysis for the purposes stated in the patent application could be performed using information in the packet headers alone (which also might prove viable when analyzing encrypted traffic, depending on the encryption method in use). In hindsight, it might be nice for Google now if its application had said it intended to strip out packet contents and keep only the header data, but prospective patents are rarely constrained to with only describing uses of the innovation that comply with laws or regulations that might be relevant should the technology or method be put into use. It remains to be seen how legally viable the plaintiff’s arguments will be about the patent application and what it means for the case, but Google’s explanations in the matter so far haven’t been very credible (save perhaps CEO Eric Schmidt’s simple statement, “We screwed up.”). If true, the current explanation offered by the company — which alleges the whole Street View data capture was an inadvertent oversight based on the work of one programmer working part-time on the project, raises its own set of concerns — such as wondering how many “rogue” developers there might be among the employees of a technology giant with a stake in just about every major online business.

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