Computer technology confounds the establishment. Every time there's a new digital technology or a new use of one somewhere along the line some old dudex in politics or the judiciary will try to make a law or deliver a judgement that shows just how profoundly behind the curve The Man is.
And sometimes the old dudes don't just try, they succeed ... which was precisely the case (pun noted) when, a few days ago, a ruling from two years ago by a Silicon Valley federal judge was upheld by the U.S. 9th Circuit Court of Appeals. The original ruling in favor of the complainants, was on a stack of lawsuits that sought damages from Google for recording data traffic from open Wi-Fi networks using their Street View mapping cars that contended it was a violation of wiretapping laws.
Google argued that it was no more illegal to capture data from unencrypted radio transmissions than it is to listen in on citizens band, law enforcement, or fire service bands to which the wiretap laws do not apply. On top of that, the Federal Communications Commission had investigated Google's data collection and concluded that there was nothing illegal in what they did. Even so, the appeals court opined that:
... data transmitted over a Wi-Fi network is not an "electronic communication" that is "readily accessible to the general public." Under 18 U.S.C. § 2510(16)(A), a "radio communication" is by definition "readily accessible to the general public" so long as it is not scrambled or encrypted. The panel held that the Wi-Fi network data collected by Google was not a radio communication, and thus was not by definition readily accessible to the general public.
The argument that "the Wi-Fi network data collected by Google was not a radio communication" is as odd as it appears with the court having decided that:
A radio communication is commonly understood to be (1) predominantly auditory, and (2) broadcast. Therefore, television-whether connected via an indoor antenna or a satellite dish-is not radio, by virtue of its visual component. A land line phone does not broadcast, and, for that reason, is not radio. On the other hand, AM/FM, Citizens Band (CB), 'walkie-talkie,' and shortwave transmissions are predominantly auditory, are broadcast, and are, not coincidentally, typically referred to as "radio" in everyday parlance. Thus, we conclude that "radio communication" should carry its ordinary meaning: a predominantly auditory broadcast.
The appeals court further argued that:
Consider an email attachment containing sensitive personal information sent from a secure Wi-Fi network to a doctor, lawyer, accountant, priest, or spouse. A company like Google that intercepts the contents of that email from the encrypted home network has, quite understandably, violated the Wiretap Act. But the sender of the email is in no position to ensure that the recipient--be it a doctor, lawyer, accountant, priest, or spouse--has taken care to encrypt her own Wi-Fi network. Google, or anyone else, could park outside of the recipient's home or office with a packet sniffer while she downloaded the attachment and intercept its contents because the sender's "radio communication" is "readily accessible to the general public" solely by virtue of the fact that the recipient's Wi-Fi network is not encrypted.
And, as if to definitively underline the court's flawed logic, the ruling continued:
Surely Congress did not intend to condone such an intrusive and unwarranted invasion of privacy when it enacted the Wiretap Act to protect against the unauthorized interception of electronic communications
So, anyone who listens in on unencrypted data exchanges on an open WiFi network is quilty of wiretapping? My money is on this decision having serious unintended consequences.