Court Finds Sniffing of Unencrypted Wi-Fi Does Not Violate ECPA.

The issue of wi-fi sniffing was recently addressed in a patent dispute, because certain wi-fi data was relevant to the parties’ claims, and the Northern District of Illinois had to consider the privacy concerns associated with using a program to capture unencrypted wi-fi data.  Consistent with other ECPA cases, the Court held that the mere acquisition of information, even without review of the information, could be an interception.[1]

The District Court then addressed whether electronic communications sent via unencrypted wi-fi could be captured under ECPA despite this conclusion.  In contrast to the Google Street View litigation[2], this court concluded that the sniffing of unencrypted wi-fi packets, even ones that contain electronic communications, was not improper under ECPA because the communications were readily available to the general public.  The difference in the cases is that the Court here examined the fact that it did not take “sophisticated” technology to sniff the unencrypted wi-fi traffic, which rendered it readily available to the public.  In contrast, the Google case, as it was on a motion to dismiss, assumed the plaintiff’s allegation in the case to be true—namely that it did in fact take sophisticated technology to sniff the wi-fi packets.

Here, by contrast, the court is not required to accept any such allegation. Moreover, upon examination, the proposition that Wi-Fi communications are accessible only with sophisticated technology breaks down. As mentioned above, Innovatio is intercepting Wi-Fi communications with a Riverbed AirPcap Nx packet capture adapter, which is available to the public for purchase for $698.00. See Riverbed Technology Product Catalog, http://www.cacetech.com/products/catalog/ (last visited Aug. 21, 2012). A more basic packet capture adapter is available for only $198.00. Id. The software necessary to analyze the  data that the packet capture adapters collect is available for d o w n l o a d   f o r   f r e e .   S e e   W i r e s h a r k   F r e q u e n t l y   A s k e d   Q u e s t i o n s, http://www.wireshark.org/faq.html#sec1 (last visited Aug. 21, 2012) (“Wireshark® is a network protocol analyzer. . . . It is freely available as open source . . . .”). 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 Wi-Fi network can begin intercepting communications sent on that network. Many Wi-Fi 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” Wi-Fi networks, the court concludes that the communications sent on an unencrypted Wi-Fi network are readily available to the general public.[3]

Noting that the public’s perception of privacy is different than the reality, the court concluded that the public’s awareness of the lack of privacy of unencrypted wi-fi did not change the conclusion that these communications were readily accessible to the general public.[4] Under this analysis, sniffing cases involving unencrypted wi-fi will likely be dismissed on summary judgment because the communications should be considered readily available to the general public.  This conclusion would change if the traffic was encrypted presumably.