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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.
Do you like Japanese imports?
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.
"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.