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Judge Rules Sniffing Open Wi-Fi Networks Is Not Wiretapping
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.'"
It's wireless tapping... D'oh.
Open networks are just that. If your intent is to keep your transmissions private, you should be using something better than an open network. Intent may be applicable in a pre-trial hearing on the validity of not having a warrant, but requiring insight in to the intent of an open wifi is highly unlikely at the warrant stage without some pretty strong inside information already.
IFF the extent of it is to scan the wireless broadcast, not join the network and access the internet, their private network, files, printer(s), etc. then I think this is an amazing case of common sense. Joining their network and using the internet or anything similar to that is akin to going into someone's house and sleeping on their couch while they're not home. Sure, "you may not be harming them" and they're "not using it right now" but that's not relevant to whether you can jump in and use their resources.
Wireless broadcasts without encryption, however, are akin to a neighbor who yells loud enough for everyone to know their family's business. I don't see any difference between my neighbors having a heated conversation that I can hear inside my house and them sending unencrypted packets into my house. The criminality should only come in if and when they are used maliciously.
Bingo! Furthermore, the last few wireless routers I've setup automatically prompted to turn on some form of encryption during that process. If you choose not to use this feature, it should be viewed as a deliberate (not ignorant) choice in the nature of your setup.
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With enough ignorance, you can have an expectation of anything in any situation at all. The intent of "expectation of privacy" is that it's to a reasonably informed person, not to someone who is wholly ignorant of the topic.
I might have an expectation that I could step into an operating theatre and perform a successful heart transplant. I mean, how hard can it be? But that is based on my own ignorance, and has nothing to do with reality. The "expectation of privacy" clause should be interpreted in the context, "... by those who have some notion of reality", or it's completely meaningless, because ignorance knows no bounds.
There are many open wifi access points set up with the intent of giving internet access to anyone who happens to be there. How am I supposed to know that the owner of an open network wants to share it or not?
I don't think that follows. I don't know what happens to my letters after I give them to the post office; but I still expect they won't be read by the government without a warrant.
When my mother in law picks up the phone, she doesn't know any of the details of how her voice goes down that wire, or is switched, or amplified, put on microwaves, etc... but she still doesn't think anyone from the government has any business at all listening without a warrant.
Our expectations of privacy from government intrusion aren't set by specific technical processes; they are set by the 4th amendment.
Furthermore, I'm convinced that is exactly how they should be set. It's more than a little far-reaching to say that the only valid expectations require a technical understanding of the process involved.
I've fallen off your lawn, and I can't get up.