A couple years ago, we were disappointed to see a judge take the technologically wrong stance that data transmitted over WiFi is not a "radio communication," thereby making sniffing of unencrypted WiFi signals potentially a form of wiretapping. Indeed, based on that, the court eventually ruled that Google's infamous WiFi sniffing could be a violation of wiretap laws. This is wrong on so many levels... and tragically, an appeals court has now upheld the lower court's ruling.
There are serious problems with this. Under no reasonable view is WiFi not a radio communication first of all. That's exactly what it is. Second, sniffing unencrypted packets on an open network is a perfectly normal thing to do. The data is unencrypted and it's done on a network that is decidedly open. It's like saying it's "wiretapping" for turning on your radio and having it catch the signals your neighbor is broadcasting. That's not wiretapping. Third, even the court here admits that based on this ruling, parts of the law don't make any sense, because it renders those parts superfluous. Generally speaking, when a court ruling would render a part of a law completely superfluous, it means that the court misinterpreted the law . . .
Technologically Illiterate Court Claims Use of Open Wifi Is Wiretapping
While government agencies illegally and routinely spy on our everyday communications without repercussion, a court has ruled that sniffing open wifi signals may be considered wiretapping. From Tech Dirt: