A federal judge in Illinois has ruled that intercepting traffic on unencrypted WiFi networks is not wiretapping. The decision runs counter to a 2011 decision that suggested Google may have violated the law when its Street View cars intercepted fragments of traffic from open WiFi networks around the country.
The ruling is a preliminary step in a larger patent trolling case. A company called Innovatio IP Ventures has accused various “hotels, coffee shops, restaurants, supermarkets,” and other businesses that offer WiFi service to the public of infringing 17 of its patents. Innovatio wanted to use packet sniffing gear to gather WiFi traffic for use as evidence in the case. It planned to immediately delete the contents of the packets, only keeping the headers. Still, the firm was concerned that doing so might violate federal privacy laws, so it sought a preliminary ruling on the question.
Federal law makes it illegal to intercept electronic communications, but it includes an important exception. It’s not illegal to intercept communications “made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public.”