We were pretty surprised a few weeks back when a judge claimed that Google could be subject to wiretapping charges for collecting snippets of data during the Street View data collection might be illegal wiretapping, because he didn't consider open WiFi to be radio communications. Under the law, open and unencrypted radio communications are not subject to wiretapping rules, because, well, they're open. Claiming that open WiFi isn't a radio communication made most techies' jaws drop... and Google quickly suggested that the judge let them get a second opinion on that point, before going through with a full trial.

Thankfully, the judge has agreed, recognizing that perhaps he didn't answer that initial question correctly.

Thus, in light of the novelty of the issues presented, the court finds that its June 29 order involves a controlling question of law as to which there is a credible basis for a difference of opinion, and also finds that certification of the June 29 order for appeal would materially advance the litigation

In other words... let's make sure I got that part right before we do anything else. That's good. I'm happy to see that Judge James Ware at least recognizes that people may disagree with his contention that WiFi is not a radio communication and will allow that point to be explored further.

Google's been facing a lot of difficulty lately due to its ridiculously dumb implementation of its WiFi access point data collection software. Lots of companies use such software to try to create a location map that can be used in the absence of GPS. Both Microsoft and Apple have similar projects, and yet it's really only Google that's gotten in trouble for theirs, mainly for the way it collected data. Now comes the news that Microsoft is releasing the source code of their WiFi data collection software, which only serves to raise more questions about why Apple and Google haven't done the same.

After an apparently, technically clueless judge ruled last week that WiFi is not a radio communication, and thus suggested Google's collection of open WiFi data represents illegal wiretapping, Google has asked for an immediate appeal on that point, noting that "reasonable judges could disagree," and that fighting a whole trial on other points wouldn't make sense if another court says WiFi is, in fact, a radio communication and, thus, an open WiFi network is not subject to wiretap laws.

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.

Every so often we hear from some random city where a bunch of folks who don't understand technology or radiation claim that WiFi is making people sick and it should be stopped. However, would all of Europe go that way? Apparently there's a proposal in the EU to ban all WiFi and cellular technology in schools to "protect" the children, of course. Notably, the proposal fails to provide any actual evidence, but uses the cop-out of "well, it could be harmful." The report says that since there is still research going on, we should wait until that research is done -- as if that kind of research is ever done. Even more ridiculous are things like:

pay particular attention to "electrosensitive" persons suffering from a syndrome of intolerance to electromagnetic fields and introduce special measures to protect them, including the creation of wave-free areas not covered by the wireless network;

How many times does this claim of "electrosensitive" persons need to be debunked? There is a ton of evidence that no such thing as electrosensitivity exists. There are studies that suggest the symptoms are real -- but they are not caused by exposure to electromagnetic fields (they may be caused by the person's own brain, or they may be some third factor). But there has been no serious study that has shown, in a controlled setting, that anyone can successfully and repeatedly "sense" when there's an electromagnetic field around. And we're talking dozens of studies on this, with pretty much all turning up the same result. So why should anyone create "wave free areas" since the evidence shows it won't actually do anything.

The proposal also suggests limits on wireless technology use even in your own home, saying that "preventative thresholds" should be established.

The proposal fails to cite any significant evidence to support most of its claims, instead choosing to use circumstantial claims -- such as noting that since there's an "ongoing public debate" about this, we should block it until that's all been worked out.

We already saw just how confused about the basics New Zealand politicians were before rushing through a poorly thought-out, US-driven copyright law change that put in place a "three strikes" provision. And, now, some of the consequences are becoming clear. While various librarians insist they made this issue known to elected officials, the law makes no exception for operations like a library. That is, if three people in a library use the internet connection there for infringing purposes, the entire library may lose its internet access.

Thus, in order to preserve internet access for those who work at the library, many New Zealand libraries are considering turning off internet access for the public (via TorrentFreak. This is a ridiculous and unfortunate result, but it's what happens when you have politicians making decisions based on economic and technological cluelessness, driven by specific lobbying interests.

With New Zealand rushing through their new three strikes copyright law to kick people off the internet based on accusations (not convictions) of online copyright infringement, some businesses are apparently noting that the law makes no distinctions on business and personal accounts, and any business with open WiFi may suddenly become liable for actions of their users. In other words, the many businesses that offer free and open WiFi to attract customers may have to turn it off to avoid losing all internet access.

In the consolidated cases against Google for intercepting some unencrypted data passing over open WiFi networks as part of its Street View operation, the judge is now looking to determine if basic packet sniffing is the equivalent of an illegal wiretap. Google, and one would imagine, most people who understand the technology, are arguing that's silly. The nature of WiFi is that it takes the unencrypted bits and makes them wide open to anyone on that network. That's how the technology is designed. If you don't like it, you encrypt. Arguing, retroactively, that seeing the data that is put in the open on purpose is somehow an illegal wiretap seems silly, but that's what the case hinges on. Hopefully, the judge is either technologically savvy enough to understand this, or can be well educated in the nature of how an open WiFi network works... Otherwise, a lot of people may be facing wiretapping charges for activity that many people consider perfectly normal on a network.

Copyright lawyer Ray Dowd points out that Boston College is telling students that simply using a wireless router is a sign of copyright infringement. Take a look at the image below: The page lists out a variety of other things that are a lot more likely (but not definitely) to involve infringing -- such as using file sharing networks to share copyrighted songs, or emailing songs around. But using a wireless router? As Dowd discusses, the three federal court rulings involving copyright that mention wireless routers, all use it as a defense against infringement, because it highlights how someone else may have used the connection.

So why is Boston College telling students that simply using a wireless router is a sign of infringement?

Slashdot points us to the news of a somewhat surprising ruling out of the Netherlands. Apparently, a Dutch court has ruled that hacking into an encrypted WiFi router to use the connection is legal. I'll have to remember that next time I'm searching for WiFi in the Netherlands. Along those lines, it also said that just hopping on open WiFi networks cannot be prosecuted. That latter point I certainly agree with. If you leave a router open, it should be perfectly legal to use it. As for why hacking into an encrypted router was deemed legal, it's basically because the law defines a computer as a machine that handles the storage, processing and transmission of data. And, with most routers, there's no storage. So it's not a computer. If the guy had hacked into someone's computer, it would have been a different story. Of course, I wouldn't be surprised to see the government now modify the law to cover routers and other devices as well.