Judge Who Doesn't Understand Technology Says WiFi Is Not A Radio ...

from the seriously? dept

Well, this is disappointing. As you probably know, about a year ago, Google admitted to accidentally collecting some data from open WiFi networks via its Google Street View cars. The cars were setup not just to photograph streets, but to do some location-based tracking by cataloging WiFi networks (a very common location setting technique). If you understand basic technology, you can understand what they were doing, and how it was almost certainly not to capture data from the network, but just to determine location info. Furthermore, the only data it collected was from open WiFi networks where people were transmitting unencrypted data in the open. This was data that was being broadcast.

But, lots of people don't understand technology and people around the world, including in governments, freaked out about this data collection. So, of course, people started filing highly questionable class action lawsuits. As more and more such lawsuits were filed, they were all consolidated into a single court. Earlier this year, we noted that the judge was trying to determine if Google's actions amounted to an illegal wiretap under ECPA (the Electronic Communications Privacy Act).

If you understand how wireless networks work, the idea that this is wiretapping is hilarious. And wrong. This is data that is broadcast in the open. Anyone can read it. You don't need special equipment or anything. You just need basic software to see what data is traveling across the network.

Tragically, the judge has gone the other way on this point (so far). Google had asked for the wiretapping/ECPA claim to be dismissed, as it claimed (quite reasonably) that it wasn't wiretapping. The judge put together an astoundingly confused ruling that decides otherwise. While the link here blames the wording of ECPA, which is certainly partly to blame, I think the judge's confusion over the technology is equally at fault. Basically, it's true that ECPA is somewhat vaguely worded, but it does say that:

It shall not be unlawful under this chapter or chapter 121 of this title for any person... to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public

Furthermore, the statue defines "readily accessible to the general public... with respect to a radio communication" by saying that it is the case if the communication is "not scrambled or encrypted."

So, this should be open and shut. An open WiFi network is clearly readily accessible to the general public by its nature. And the statute doubles down on that point by noting that the communication was not scrambled or encrypted, and thus is, by the definition in the statute, "readily accessible to the general public."

So we're done here. Right? Not unlawful. Except... no. The judge instead goes through some of the most convoluted reasoning imaginable to try to claim that data transmitted over WiFi is not radio communication. Say what now? It is true that ECPA was drafted before WiFi existed, but that doesn't mean it's not a radio communication. That's what all wireless communication is. It's a form of radio communication. That's just basic technology. But not to this judge. And, thus, Google doesn't get to dismiss the wiretapping charges. Hopefully they'll appeal and somewhere up the chain this will be corrected.

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Source: http://www.techdirt.com/blog/wireless/articles/20110701/12225114934/judge-who-doesnt-understand-technology-says-wifi-is-not-radio-communication.shtml

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