If it's ok to collect electromagnetic emissions in range from 430 to 790 THz [http://en.wikipedia.org/wiki/Visible_spectrum], why it shouldn't be the same for 2.4 GHz?
It's all EM radiation, but monitoring one vs the other has very different real world implications.
In this particular instance, the plaintiffs had security options available on their wifi transmissions (unlike thermal emissions) and chose to transmit in the clear instead, so that's part of what the case is discussing.