For sure.
But since they haven't, one must go with common sense: failure to secure an eminently securable technology means you are offering the public a freebie.
And, far from committing a crime, anyone who creates an index of such unsecured networks creates a public good, not a crime.
Actually, all Google was trying to do was create an index linking extant WiFi networks to lat-long, in order to supplement other ways of triangulating a smart-phone. The fact that they collected some unencrypted content along the way is only of interest to Euroturds, not red-blooded Americans, enrobed in black or not. If the judge rules against Google, he's a traitor.