Judge Who Doesn't Understand Technology Says WiFi Is Not a Radio Communication
techdirt.com
techdirt.com
Professor Eric Goldman adds his comments to the end of the linked piece, including the following:
"I continue to insist that the ECPA is one of the worst-drafted statutes of all time. . . . [N]o one knows what the statute really means . . . The class action plaintiffs have gone crazy with the statute, and due to its drafting deficiencies, the plaintiffs claims are rarely clearly wrong on the surface. The result has been a huge tax on innovation with no commensurate social benefits; only the private benefits of a few privacy class action lawyers getting fat and happy while feasting on Silicon Valley companies."
The statute was passed in 1986 and is badly out of date. Judge Ware, who is a very good judge, is left to struggle with trying to determine what Congress intended when it enacted the statute 25 years ago as its text might apply to technologies that did not exist at the time. This is a difficult task at best and is not likely to lead to consistent results among the courts. Congress therefore needs to act to fix this and to set the right policy choices based on the technology we have today.
First, if you actually read the decision, the judge demonstrates far more knowledge of the technology than Techdirt's writer.
Second, you have to keep in mind that this was in response to Google's motion to dismiss. When analyzing the law in response to such a motion, the judge should interpret that law as favorably as possible for the opposing party.
In fact skimming the judgement the Judge seems to have an exceptional understanding of technology and how it relates to law. IANAL, but he seems to be saying if he allows WiFi to be called a 'radio communication' then it will suddenly be legal to wiretap a lot of things that are presently illegal.
Quite specifically the judge mentions:
Section 2511(2)(g) makes it lawful to intentionally intercept any radio communication that “that relates to ships, aircraft, vehicles, or person in distress,” without reference to whether such radio communication was readily accessible to the general public and not scrambled or encrypted. Should the Court interpret radio communication so broadly within the Act to include such technologies as wireless internet and cellular phones, this exception could lead to absurd results. Specifically, pursuant to this interpretation, an unauthorized intentional monitoring of a cellular phone call could be lawful should the content of the communication relate to vehicles or persons in distress, but unlawful otherwise. Further, Section 2511(2)(g) makes it lawful to intentionally intercept any radio communication transmitted by “any marine or aeronautical communications system,” which could lead to equally arbitrary results when applying the exception to communications technologies other than radio broadcast technologies, e.g., a Wi-Fi network aboard an airplane.
Note the any radio communication and that the act actually doesn't prohibit that interception even if it's scrambled or encrypted.
His problem is that if he allows Google to call Wifi radio communication suddenly it's legal to wiretap people's encrypted wifi traffic as long as it relates to vehicles or if it's aboard a plane or boat.
Basically, in my brief scanning, he seems to be saying 'Congress, this could open an absurdly tricky loophole if I say yes, please do something'.
Which is how judges often work....
While the wording of the statute is certainly problematic, this assertion by the judge is, I would argue, mistaken (p. 3):
In order to view the contents of the data packets captured by the wireless sniffer in a readable form, the packets must be stored on digital media and then decoded using crypto-analysis or a similarly complicated technology. [...] As such, the data packets are not readable by the general public absent this sophisticated decoding and processing technology.
He seems to be confused about the fact that Wi-Fi networks may or may not use encryption; he's assuming they always do, when in fact the networks from which Google was gathering information were only the open ones, i.e. those not using encryption.
In fact I'm sure there are generally available apps -- maybe even for cell phones! -- that allow one to collect the same information. (If there aren't, they could certainly be written easily enough.) Surely this makes it "readable by the general public".
Check the top of page 2:
Plaintiffs allege as follows: then everything indented is from the Plaintiff's claim including your quote. Plaintiff's claim finishes page 4.
Also note the final judgement at the end of the whole thing, Judge dismisses in favour of Google on two parts of their motion. Just to highlight this is a complicated judgement.
See page 20, line 10 and read onwards, the Judge clearly understands the difference.
And further to that the Judge specifically calls out the underlying basis behind your objection and saying it's misplaced. (page 21, line 8)
On another note, I had no idea but this would seem that the Judge is saying that if you are caught running wireshark with your network card on promiscuous setting in a public wifi you are wire tapping. It's fine to connect to the network, just not listen to other people's packets.
Which seemed totally outrageous when I first realized it, then totally made sense the more I thought about it. After all, phone cables are publicly accessible, it's fine to use them for your phone calls, moment you hook up a physical wiretap to the publicly accessible telephone lines, boom, you're wiretapping.
No, that's the problem. It was discovered that Google recorded a large amount of data beyond just SSIDs.
Is the 'electronic communication system' simply the wifi router, or does it encompass the wifi router and the cable/dsl modem or ONT? Because the system as a whole was never intended for public access in that instance, and most ISPs specifically forbid it.
In fact the criticism of ECPA is that it is a very vague law and that is precisely why the court is struggling with the interpreting it.
IANAL nor have I read the ECPA itself, but from my understanding of the case, the judge fully understood the intention of the law and applied it appropriately to this case. Had the law been less ambiguous and more specifically defined "radio technologies," then we may have ended up with a situation where wiretapping encrypted wifi might actually be considered legal. See mattmanser's explanation above (http://news.ycombinator.com/item?id=2721831)
Of course, there is a fine line between being too vague and being too specific.
Wow people really did believe it was anything but sarcasm! Oh well.. But it is not hard to see how lay people can end up thinking there is no connection between WiFi and Radios.