“Open networks okay for sniffing”, says Illinois judge

September 10, 2012
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    So here’s the scenario: You have your own home network. It’s never been compromised as far as you know and it’s basically for sharing connections with tablets and smart-phones. Your WiFi hub is dutifully spitting out and receiving packets. One day, you get a notice from the MPAA saying you have a DMCA violation. They note they found it through your open WiFi network. Illegal? Not according to one federal judge in Illinois.

    According to Google’s case, in which they were handed a ruling they had breached public trust by capturing data over open WiFi networks, you would think everyone would be on the same page. However, this is not so, as Judge James Holderman had this to say about the exception he was ruling on. (The case he was presiding over deals with  Innovatio IP Ventures, a company bent on gathering evidence through WiFi packet sniffing, because it feels larger society is infringing on 17 of its patents.)

    Innovatio is intercepting WiFi communications with a Riverbed AirPcap Nx packet capture adapter, which is available to the public for purchase for $698.00. A more basic packet capture adapter is available for only $198.00. The software necessary to analyze the data that the packet capture adapters collect is available for download for free. With a packet capture adapter and the software, along with a basic laptop computer, any member of the general public within range of an unencrypted WiFi network can begin intercepting communications sent on that network.

    Many WiFi networks provided by commercial establishments (such as coffee shops and restaurants) are unencrypted, and open to such interference from anyone with the right equipment. In light of the ease of “sniffing” WiFi networks, the court concludes that the communications sent on an unencrypted WiFi network are readily available to the general public.

    Pretty straightforward view which rules in favor of the company. But the larger question of ethics still stands and for that, we turn to Orin Kerr, legal scholar, who vehemently disagrees with the ruling:

    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. In my view, that ends the matter: the exception doesn’t apply, and the interception of the contents of wireless communications is covered by the Wiretap Act.

    Federal law says in no uncertain terms that interception of, “communications made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public” is not illegal. This is the exception that Judge Holderman is likely referring to and will stand by, as Google heads to the United States Court of Appeals for the Ninth Circuit to see their famous “Street View” case appealed.

    Wherever the chips may fall, is to be seen, but one thing is for sure at the time of this writing: public privacy is protected by Federal law unless you leave yourself open. It’s a simple equation, really.

    What is your take on this issue? Should a company be suing to get judicial agreement so they can sniff around for evidence? Does this fit into a larger context of public privacy and its role in society?


    • matt_helm

      I think the judge is correct. When you “Broadcast” and unencrypted signal, it is not wiretapping. This is one of the problems when using “public” wifi connections. You can use a VPN on an open connection, which will protect you.

    • Holmes108

      Yep. “open” is just that, in my opinion. Open.

    • ChaosVoyager

      1. So lets see if I have this right. leave my WiFi open it’s legal for anyone to use. 2. lets see if I have this right, leave my front house door open and it’s legal for anyone to use whatever they want in my house. Why is it not illegal trespassing in both cases?

      • Holmes108

        Sorry, but I think that’s a terrible comparison. There is a long precedent of open wifi networks being intended for public use. Private property is a different issue entirely. I have a private and a guest zone set in my router. If I don’t want just anyone using my internet, I can remove that zone, or have a password protected network only. I have no doubt many ignorant people have open networks unintentionally, but that is their fault.