News reports last week that the FCC is investigating possible violations by Google underscore the expansive view that this FCC is taking of its enforcement powers. According to reports such as this Wash Post article, the FCC has confirmed that it is investigating Google’s alleged capture of user data from open WiFi connections when it gathered information for its Street View product. The FCC investigation comes on the heels of an FTC no action letter released in late October concerning the same actions by Google.
So what is the FCC investigating?
This is the most interesting question resulting from the reports. The FCC, of course, has used its bully pulpit to investigate Google before. But it is not clear here what potential violations the FCC may be investigating. As we’ve seen, because Google is not a carrier (and clearly was not acting as a carrier in capturing WiFi data), the FCC would have to warn Google before it could impose any fines for its actions. If, as has been suggested, the FCC is investigating whether Google violated wiretapping laws, that, too would suggest an expansive view of FCC powers. The FCC has never issued an order enforcing the Electronic Communications Privacy Act or the Stored Communications Act, the two principal wiretapping statutes, and it is not clear that the FCC has authority to enforce either act.
Unfortunately, the publicly available information does not reveal the nature of the Google investigation. To learn more, we will have to wait for the FCC take action, assuming it has authority to do so.