Judge Rules Sniffing Open Wi-Fi Networks Is Not Wiretapping 308
An anonymous reader writes "Ars reports on a decision from a district judge in Illinois, who ruled that sniffing traffic on an unencrypted Wi-Fi network is not wiretapping. In the ruling, the judge points out an exception in the Wiretap Act which allows people to 'intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public.' He concludes that 'the communications sent on an unencrypted Wi-Fi network are readily available to the general public.' Orin Kerr disagrees with the ruling, saying that the intent of the person setting up the network is important: 'No one suggests that unsecured wireless networks are set up with the goal that everyone on the network would be free to read the private communications of others.'"
Re:Odd... (Score:5, Informative)
"I understand what you're saying about the 4th Amendment, but I can easily imagine a gov't agent back in the 1700s following a couple of people and listening as they have a discussion in public."
You still aren't getting it. When you have a conversation in public there is no reasonable expectation of privacy. Anyone can hear you. When you have a telephone conversation, however, it takes special effort and equipment to listen to your conversation. So it is rather reasonable to expect your conversation to be private. Whether it is a cell phone or land line. (All cell phone traffic is "encapsulated" in packets even when it is not encrypted).
And so is WiFi traffic. While your WiFi might be open, and so it is easy for anyone to detect it or use it (anybody can see you using your cell phone, or borrow it if you let them), actually determining the contents of the communication (i.e., both sides of the "conversation") is another matter. Even your typical sniffer won't do that. It might record those contents but making sense of it takes further work.
So, what it boils down to is that telephone calls and internet traffic are not like public conversations. It takes special effort and tools to intercept those communications. That leads straight to a "reasonable expectation of privacy".
Further, there are already Federal laws against law enforcement using any electronic means to determine any activity in your household that is not readily visible from the outside. Internet use would certainly fall into that category of activity. So this judge's ruling would likely lead to a perverse (but not unheard of) situation in which a regular citizen could intercept communications legally but law enforcement could not.
Re:stupid question but who is orin kerr? :) (Score:4, Informative)
Orin Kerr a law professor who has been published a fair number of time on Fourth Amendment computer-related issues. I think he's even had one or two blog posts from the Volokh Conspiracy cited in judicial opinions.
One of the notable ways he got that blog post wrong, though, is that the statute in question provides a specific definition of "an electronic communication system that is configured so that such electronic communication is readily accessible to the general public" -- and unencrypted WiFi networks are covered by that definition. One of the comments on the post provides a citation and the definition.