Updates from the Committee on Corporations, Authorities and Commissions

Brodsky and Kavanagh Seek Attorney General Investigation of Google Eavesdropping
June 15, 2010

Assemblyman Richard Brodsky (D-Westchester), Chairman of the Committee on Corporations, Authorities and Commissions and Assemblyman Brian Kavanagh (D-Manhattan) today asked Attorney General Andrew Cuomo’s office to investigate Google for possible criminal or civil violations in its data gathering operations throughout the state. The Assemblymen had conducted a preliminary inquiry into whether Google’s conduct in the gathering of email communications on public WiFi systems constituted a violation of laws authored by Assemblyman Brodsky known as the computer trespassing law.

Beginning in 2007, while traveling New York State to compile images used in the Google Streets View project, Google intercepted and stored electronic data collected from unsecured Wi-Fi networks. Using antennae on company vehicles, Google gathered personal information from New Yorkers across the state.

In a letter to Attorney General Andrew Cuomo, Assemblyman Brodsky asked that an investigation be opened into Google’s violation of the computer trespass laws, which protect New Yorkers against unauthorized collection of computer data, as found in the Penal Law §56.00-156.50, along with possible violations of wiretapping statutes found in §§250.00-250.35, and the deceptive business practices statutes found in the General Business Law §§349-350 f. In addition to his letter to Attorney General Cuomo, Assemblyman Brodsky has also written to Governor David Paterson, requesting that he create a formal referral for an investigation, should that be necessary.

Assemblyman Brodsky stated, “I authored the Computer Trespass Law to make sure the privacy of New Yorkers was protected. After discussion with Google I've concluded that credible enforcement of computer privacy laws requires the Attorney General to do a full-blown investigation.”

Assemblyman Kavanagh stated, “New Yorkers have a right to have their privacy protected from intrusion by corporations and government. We have the strongest laws on this in the nation, thanks to Assemblyman Brodsky, and we must respond vigorously when they appear to have been violated—if only to ensure that no one else tries the kind of systematic surveillance Google has engaged in, now or in the future.”

The letters to Google, Attorney General Andrew Cuomo and Governor Paterson are below.


June 15, 2010

Andrew Cuomo
Attorney General
New York State
State Capitol Building
Albany, NY 12223

Dear Attorney General,

I have been involved in discussions with Google about possible violations of New York law stemming from its collection and storage of data from Wi-Fi networks across the state. I initiated these discussions along with Assemblyman Brian Kavanagh primarily because of the damage to the public's privacy. It is now possible for us to conclude that Google’s actions were in violation of the computer trespass laws which I authored which protect New Yorkers against unauthorized collection of computer data, as found in the Penal Law §56.00-156.50. Our discussions also included the wiretapping statutes found in §§250.00-250.35, and the deceptive business practices statutes found in the General Business Law §§349-350 f.

As you can see from the attached letter to Google, we have concluded that there is a strong likelihood of a violation of the computer trespass law, and a degree of likelihood that the wiretapping and deceptive practices laws were violated. It is now appropriate for these inquiries to continue through the arms of government empowered to make law enforcement decisions. I ask that you immediately open a formal investigation of these actions and make a timely determination if these laws were violated and if so, what steps should be taken. I will be glad to provide to you any information we have with respect to such investigation.

Best wishes,
Richard Brodsky


June 15, 2010

Eric E. Schmidt
Chairman and Chief Executive Officer
Google Inc.
1600 Ampitheatre Parkway
Mountain View, California, 94043

Dear Mr. Schmidt,

Thank you for your continuing and thorough responses to questions we have raised about the actions of Google with respect to the interception and storage of certain electronic data from Wi-Fi networks as part of your compilation of visual images used in the Google Streets View project. In our discussions I referenced a number of state statutes that may have been violated. These include, but are not limited to, the computer trespass law I authored, state wiretapping laws, and state deceptive practices laws.

I have been joined in this inquiry by Assemblyman Brian Kavanagh. We've carefully considered the issues and your swift and intelligent responses. These responses need to be acknowledged as a matter of corporate responsibility and corporate citizenship. While many central factual issues remain unresolved, however, there appears to be enough information to reach an initial decision about the state law consequences of Google's actions.

Briefly summarized, there is sufficient prima facie evidence to conclude that a violation of the computer trespass law occurred. The decisions to install Wi-Fi capable antennae and data storage capacity on vehicles intended to record and store visual images of streets and building exteriors, to install and use a specific sampling code, and to store data over time are evidence that these behaviors were intentional. The lack of authorization or consent by network owners or individual users of such networks is evidence that the data was intercepted and stored without authorization. The data collected and stored is likely to contain what the statute defines as computer material. I've listened carefully to your legal analysis of these issues, and although they are neither frivolous nor irrational, the better analysis of the facts and law indicate a violation took place.

With respect to the wiretapping issues, the prima facie evidence is similarly strong. The affirmative defense that the statute permits actions that are either authorized or permitted by federal law or regulation is an important unresolved issue. I'm simply not comfortable reaching a conclusion of law on this matter with my present state of understanding.

With respect to the deceptive practices issues, it is clear that Google's activities were inconsistent with numerous public representations about its policies and practices, and therefore deceptive. It is much less clear that all the elements of a violation, including a measurable injury, have occurred.

In the face of these conclusions, I've determined to ask the State Attorney General to open a formal inquiry into these matters. I readily acknowledge the attempts by Google to openly discuss the events and laws that concern me and many others. These explanations should be weighed in any decisions made the Attorney General. But if, as I have concluded, the statute I wrote and others have been violated, the strong enforcement of these laws is both fair and appropriate.

I have an ongoing interest in making sure that the truth continues to come out, that citizens' right to privacy is protected, and that the laws are enforced. I urge you to continue to speak openly about past events and to continue to work to craft remedies that assure these behaviors will never occur again and that those damaged by them are made whole. In that effort, I hope to continue to work with you.

My letter to the Attorney General is attached.

Best wishes,
Richard Brodsky


June 15, 2010

David Paterson
Governor
Executive Chamber
Capitol, Office of the Governor
Albany, NY 12224

Dear Governor Paterson,

As you can see from the enclosed letters, I’ve asked the Attorney General to open an investigation into Google’s violation of the computer trespass laws, which protect New Yorkers against unauthorized collection of computer data, as found in the Penal Law §56.00-156.50, along with possible violations of wiretapping statutes found in §§250.00-250.35, and the deceptive business practices statutes found in the General Business Law §§349-350 f.

It is unclear if a formal investigation will require a referral from you. If so, I ask that you make that referral. I will be glad to provide to you any information we have with respect to this issue.

Best wishes,
Richard Brodsky