[ISN] Sniffing open WiFi networks is not wiretapping, judge says

http://arstechnica.com/tech-policy/2012/09/sniffing-open-wifi-networks-is-not-wiretapping-judge-says/

By Timothy B. Lee
Ars Technica
Sept 7, 2012

A federal judge in Illinois has ruled that intercepting traffic on 
unencrypted WiFi networks is not wiretapping. The decision runs counter 
to a 2011 decision that suggested Google may have violated the law when 
its Street View cars intercepted fragments of traffic from open WiFi 
networks around the country.

The ruling is a preliminary step in a larger patent trolling case. A 
company called Innovatio IP Ventures has accused various "hotels, coffee 
shops, restaurants, supermarkets," and other businesses that offer WiFi 
service to the public of infringing 17 of its patents. Innovatio wanted 
to use packet sniffing gear to gather WiFi traffic for use as evidence 
in the case. It planned to immediately delete the contents of the 
packets, only keeping the headers. Still, the firm was concerned that 
doing so might violate federal privacy laws, so it sought a preliminary 
ruling on the question.

Federal law makes it illegal to intercept electronic communications, but 
it includes an important exception. It's not illegal to intercept 
communications "made through an electronic communication system that is 
configured so that such electronic communication is readily accessible 
to the general public."

Judge James Holderman ruled that this exception applies to Innovatio's 
proposed packet sniffing. In the Google Street View case, a California 
judge had suggested that WiFi communications were not public, even if 
they were sent without encryption. But Judge Holderman reached the 
opposite conclusion:

[...]


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