Court Says WiFi Isn't Radio Because It's Not Audio; Therefore WiFi Sniffing Can Be Wiretapping

from the it's-not dept

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.

Bizarrely, the court seems to rely on the claim that most radio communications are "auditory" (i.e., involving sound) and thus data transmissions are somehow not radio. Seriously. This statement is so uninformed and flat out wrong that it's kind of shocking the court made it. Specifically the ruling says that the "telltale signs" of "radio communications" are that they're (1) "auditory" and (2) "broadcast" and then says it doesn't even need to consider whether or not WiFi signals are broadcast, since the fact that they're not auditory means they don't even have to consider that fact. Seriously. Read this and try not to bang your head on the nearest desk or wall:
We need not reach the question of what exactly constitutes a "broadcast" because the Wi-Fi transmissions in question were not predominantly auditory.
The court also stumbles badly on the other key question in the lawsuit -- over whether or not these things are "readily accessible to the general public." Again, here, if you know anything about the technology you know without question that broadcasting unencrypted data over an open WiFi network are by definition "readily accessible to the general public." That's how it works and how it was designed to work. But the court says it's not because someone might send something "sensitive" from a secured network to an open WiFi network, and the sender didn't intend for that info to be available via open WiFi. But that gets the calculus totally wrong. First, if I'm sending something "sensitive," it should be encrypted, full stop. Second, the security of the endpoint recipient is the responsibility of that recipient, not the sender, so the whole analogy makes no sense.

Later, the court argues that WiFi isn't readily accessible because the signal is "geographically limited." But, um, again, that's true of just about any radio signal. If I have a low-power transmitter, that's still a radio transmitter. It also claims that it's "difficult" to access unencrypted data on an open network, but that's not true at all. They claim it requires "sophisticated" hardware and software, but that's not actually true, and if you believe it's true, you could basically make the same argument about all kinds of radio transmissions.

Either way, there's a fundamental fact here that the courts don't seem to recognize: when you broadcast unencrypted data on an open network it's there for anyone to access. It seems ridiculous to then claim that it's illegal to access it when it's presented in a manner that more or less cries out "come take a look!" This really feels like a situation where the court looked at what Google did, decided it didn't like it, and then tried to tap dance around reality to make it a violation of the law even though it's almost certainly not a violation.


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  1.  
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    Anonymous Coward, Sep 10th, 2013 @ 12:57pm

    I believe the legal profession has created a whole new class of human beings, those people don't even speak the same language that the rest of us.

    I think somebody called that speciation or something.

     

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    Anonymous Coward, Sep 10th, 2013 @ 12:59pm

    So the NSA isn't getting sued for this why exactly?

     

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    DCX2, Sep 10th, 2013 @ 1:00pm

    Wow...

    The ninth circuit, too. :(

    Hopefully this goes to SCOTUS.

     

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    TheResidentSkeptic (profile), Sep 10th, 2013 @ 1:01pm

    One minor point

    how can it be "wire" tapping when it doesn't use "wire" ??

     

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    Anonymous Coward, Sep 10th, 2013 @ 1:05pm

    personally, even though the logic is ass backwards, I kinda like this ruling since if google isn't allowed to snoop open wifi, neither are the government agencies that would love to also snoop on them.

     

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    Anonymous Coward, Sep 10th, 2013 @ 1:09pm

    but...broadcast FM isn't audible. you need special equipment to hear it. So is AM. furthermore - if we go back to the HAM Radio days, and hook up a MODEM ... will that regain our constitutional rights to privacy? or did i just let the cat out of the bag?

     

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    Anonymous Coward, Sep 10th, 2013 @ 1:09pm

    WiFi: the same f*ckin thing as radio but with a different wavelenght.

    “The good thing about science is that it's true whether or not you believe in it.” -Neil deGrasse Tyson.

     

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    Anonymous Coward, Sep 10th, 2013 @ 1:17pm

    It seems that judges, like politicians do not believe that facts should impede the law.

     

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    Anonymous Coward, Sep 10th, 2013 @ 1:17pm

    Re:

    "I believe the legal profession has created a whole new class of human beings, those people don't even speak the same language that the rest of us."

    They can't speak the same language or we'd realize how stupid they are.

     

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    Andreas (profile), Sep 10th, 2013 @ 1:17pm

    I've got two words for this court: Packet radio

    (see http://en.wikipedia.org/wiki/Packet_radio )

     

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    That One Guy (profile), Sep 10th, 2013 @ 1:19pm

    Re:

    Nice thought, but you forget, they don't have to follow the same rules and laws, they get to make up their own.

     

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    out_of_the_blue, Sep 10th, 2013 @ 1:19pm

    Like Google, Mike thinks everything is open to the public.

    It's certain that when most people set up a wireless router, they don't wish anyone within range to make use of it, no more than putting a gazebo on your lawn makes it available for every drunk to stumble into, puke, and pass out. No one is intentionally broadcasting to the public.

    Private property and privacy already include the rulings of this court.

    Passers-by including Google Streetview have no right to access your network.

    As for Mike's all-inclusive "radio communications" -- PFFFT! Distinctions are easily made, and should be.

    Mike Masnick on Techdirt: "its typical approach to these things: take something totally out of context, put some hysterical and inaccurate phrasing around it, dump an attention-grabbing headline on it and send it off to the press."

     

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    Internet Zen Master (profile), Sep 10th, 2013 @ 1:29pm

    Re: Re:

    Posts like this are why we need a "sad but true" button.

     

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    TheLastCzarnian (profile), Sep 10th, 2013 @ 1:30pm

    Most Radio is audio...

    WTF is television? I'm pretty sure they broadcast that in on the RADIO. As a matter of fact, I have consumer radios that pick up the VIDEO portion as well as the audio portion of a broadcast (well, they did before digital, anyway.)
    Someone needs to send these intellectually challenged judges back to grade school, or buy them a "How and Why" book. (How and Why, for those who do not know, are books from the '60s and '70s which simplifies science for 8 to 12-year-olds)

     

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    Anonymous Coward, Sep 10th, 2013 @ 1:33pm

    TV antenna?

    Since HDTV "broadcasts" are not predominantly auditory (most of the bandwidth used is for video) does that mean using an HDTV antenna to receive programming could be considered wiretapping?

     

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    Anonymous Coward, Sep 10th, 2013 @ 1:37pm

    Not Radio? FCC?

    Does this also mean that the FCC can no longer regulate WiFi now a federal court has officially ruled that WiFi isn't radio?

     

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    Rikuo (profile), Sep 10th, 2013 @ 1:39pm

    Re: Like Google, Mike thinks everything is open to the public.

    A gazebo on your lawn is on your property, so a drunk who passes out in it is trespassing.
    An unencrypted, non passworded Wifi radio signal? It passes through the walls of your house and goes next door, where anyone can pick it up. Most, if not all routers, these days are intentionally manufactured with a password/phrase by default, so typically, if you detect a signal and it's open, it's by design. The last router I used had a guest access feature (too bad my current one doesn't) and I left that open intentionally for others to use, so that shoots a hole in your "No-one is intentionally broadcasting to the public".

     

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    Anonymous Coward, Sep 10th, 2013 @ 1:48pm

    What about HD Radio? It's a digital data stream to broadcasts audio.

     

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    Ed the Engineer, Sep 10th, 2013 @ 1:50pm

    1) TV signals have always been more than audio. Although I built simple AM radio receivers as a kid, I never managed a simple TV receiver, so I guess TV is not readily available.

    2)The first radio transmissions were digital, not audio.

    3)Cell phones are digitally transmitted audio signals. Does that mean listening in on cell phone calls is not wiretapping?
    Guess that's why the NSA can do it.

     

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    btr1701 (profile), Sep 10th, 2013 @ 1:51pm

    Predetermined Outcome

    It's obvious that the court(s) in this case have a predetermined outcome-- they want sniffing unencrypted wifi to fall under wiretapping laws-- and the only question for them is to come up with some way to justify it legally. They're starting with the conclusion and working backward, instead of doing it the proper way.

    One can usually tell when a court is doing something like this because it results in all manner of legal and factual absurdity. The most famous example of this is the Roe v. Wade case and the "penumbras of freedom" that somehow were discovered only in the 1970s.

     

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    Stan, Sep 10th, 2013 @ 1:52pm

    ...Because It's Not Audio

    "...broadcast FM isn't audible."

    The court seems to be fixated on whether or no the final product comes out a speaker as audio waves. When it does, they call it "audible" and i's not wire-tapping, according to the court's logic.

    By their thinking, it should be fine to capture the AUDIO-only portion of Skype traffic over wi-fi (or MagicJack, etc) and do what you want with it.


    BTW, I guess it's now a crime for me to fire up my short wave radio and listen to some CW only morse code traffic. Anyone care to contribute to my defense fund?

    Stan.

     

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    Anonymous Coward, Sep 10th, 2013 @ 2:01pm

    Re: Predetermined Outcome

    And this is trampling all over your right to sniff around in peoples WiFI?

     

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    Anonymous Coward, Sep 10th, 2013 @ 2:02pm

    Re: Predetermined Outcome

    This is exactly what I gathered from this ruling as well.

     

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    PW (profile), Sep 10th, 2013 @ 2:19pm

    To broadcast or not to broadcast, that is the question

    While the rationale for the ruling certainly seems screwy (technical term ;), it feels like the distinction here is that WiFi interactions aren't purely broadcast, in that a user initiates a request with the intent being for the response to only come back to them. The fact that someone else is packet sniffing, which is likely being done without the requester's knowledge or approval, makes this the surreptitious activity that is likely being called out.

    By way of analogy, sending a sealed envelope by "snail mail" offers no real protection beyond that which the seal's glue can provide. One could argue that it's not much protection, and yet we have developed laws as a means of building trust in that form of communication, that an opened sealed envelope by someone other than who it was originally addressed to, is a federal offense, and this carries harsh penalties. In other words, just because it's technically feasible to open an envelope (or to sniff a data stream) doesn't mean it should be legal. For their to be a modicum of trust in these communications, there needs to be disincentives. Of course, my disincentive logic fails immediately when we learn that the NSA isn't subject to any of this ;)

    Again, while I believe their ruling's justification is a kludge, I can't disagree with its intent.

     

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    Anonymous Coward, Sep 10th, 2013 @ 2:40pm

    FM & AM are audible..if you are SUPERMAN

    Did I miss the part where everyone else has some of kind of super hearing that picks up "audible" radio FM/AM signals without the benefit of any hardware? Where can I get some of that gen-tech!

     

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    Jesse (profile), Sep 10th, 2013 @ 2:40pm

    Re:

    They don't need warrants to wiretap. Gosh.

     

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    Anonymous Coward, Sep 10th, 2013 @ 2:48pm

    Re: Like Google, Mike thinks everything is open to the public.

    So if I'm yelling at someone in my yard and someone next door happens to hear it they are wiretapping?

    It's their responsibility to not listen to something that's there (just like air) as opposed to my responsibility to keep my voice down if I don't want people to hear?

    Before you go off saying my example is different, think carefully about a few things:

    1) Sound is simply a signal

    2) I broadcast it to a public area

    3) I somewhat have an expectation that people aren't just sitting outside listening to me

    4) My voice is geographically limited (I can't yell in quite a few areas - think library)

     

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    Jobastion, Sep 10th, 2013 @ 2:53pm

    Re: To broadcast or not to broadcast, that is the question

    The problem with this analogy is that with unsecured wifi, there is no envelope, just the letter. And the letter isn't delivered to just to your house, a copy is sent out to everyone in the neighborhood. The only protection is that the letters are all written using a 1960's crackerjack box encoder device, so you have to have a piece of red Cellophane to read them. In other words, fairly common technology can read any unencrypted, unsecured wifi connection.

     

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    CD (profile), Sep 10th, 2013 @ 3:11pm

    Time to put speakers on routers. I bet they sound like really fast dial-up modems or something. The blinky-blinky of the fiber light probably sounds like Morse code.

     

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    Not an Electronic Rodent (profile), Sep 10th, 2013 @ 3:33pm

    Oh great!

    So because a US court is dumb, in theory the entire structure of WiFi needs to be rebuilt? You can't not "sniff" WiFi... a wireless card that's on receives every packet in range and decides what to discard. That's how broadcast works. So now we'll all breaking the law again it seems...

     

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    Anonymous, Sep 10th, 2013 @ 3:45pm

    Radar isn't audio either, yet it's radio waves. And all a radar detector is is a radio that receives transmissions on on certain frequencies.

     

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    Anonymous, Sep 10th, 2013 @ 3:47pm

    Re:

    * "...transmissions on certain frequencies".

     

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  33.  
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    Anonymous Coward, Sep 10th, 2013 @ 3:54pm

    Federal Circuit Courts should be required to consult at least one independent technology expert when ruling on cases which involve technology that is obviously over their heads.

    Most judges are so far behind technology, that their profession is fast becoming obsolete. If they want to keep from going the way of the Dodo Bird, I advise the court to start hiring independent technology advisers, ASAP.

     

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  34.  
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    JMT (profile), Sep 10th, 2013 @ 3:55pm

    Re: Like Google, Mike thinks everything is open to the public.

    "It's certain that when most people set up a wireless router, they don't wish anyone within range to make use of it, no more than putting a gazebo on your lawn makes it available for every drunk to stumble into, puke, and pass out."

    Total analogy fail. Your lawn is on your property; your WiFi signals can reach well outside your property.

    "No one is intentionally broadcasting to the public."

    Except for those people deliberately running open WiFi for the specific purpose of providing public access.

    "Passers-by including Google Streetview have no right to access your network."

    Receiving open WiFi signals is not accessing a network! Now you sound just as technologically ignorant as this judge.

    "As for Mike's all-inclusive "radio communications" -- PFFFT! Distinctions are easily made, and should be."

    But we note you haven't made any distinctions, most likely because you know you can't.

     

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    R.H. (profile), Sep 10th, 2013 @ 4:00pm

    This could be interesting...

    So, since sniffing unencrypted packets in the 2.4GHz range has been declared 'wiretapping', will sniffing unencrypted packets in the 430–790 THz range be considered the same way? After all, I don't know if I want the visible light that I'm broadcasting unencrypted being seen by anyone.

     

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    Anonymous Coward, Sep 10th, 2013 @ 4:06pm

    Re: Re:

    Neato. I guess I'm going to have to kill my HSMM Mesh network on 2.4 GHZ now. It's on of "those certain frequencies", whatever that means. Even though I'm licensed for it.

     

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    Anonymous, Sep 10th, 2013 @ 4:17pm

    Re: Re: Re:

    Does it set your detector off? Not bloody likely, since even the age-old X band operates in the 10 GHz range. K band is 24.150 GHz, and Ka band is 33.400-36 GHz range.

     

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    fjpoblam, Sep 10th, 2013 @ 4:21pm

    Re: "readily available to the general public"

    This sounds like NSA- speak, to me. And makes any gripes Google may espouse about the NSA, and any profound concerns for "user" privacy, very duplicitous. The Wi-Fi targets were, of course, usees, not users.

     

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    PRMan, Sep 10th, 2013 @ 4:23pm

    Re: Most Radio is audio...

    How about Wifi for Dummies?

     

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    PRMan, Sep 10th, 2013 @ 4:25pm

    Re: Predetermined Outcome

    This is what's commonly known as "Judicial Activism". Legislating from the bench.

     

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    PRMan, Sep 10th, 2013 @ 4:26pm

    Re: Re: To broadcast or not to broadcast, that is the question

    Right. Replace "letter" with "town crier's news message" and you have the right analogy.

     

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    bullsballs (profile), Sep 10th, 2013 @ 5:30pm

    radio

    dumb judge, poor judgement...

    Radio is the wireless transmission of signals through free space by electromagnetic radiation of a frequency, or frequencies, as with spread spectrum transmissions.

    notice it does not say anything about audio, video, or digital, just signals, which means the transmission of anything you can modulate the radio frequency with.

     

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    Atkray (profile), Sep 10th, 2013 @ 5:31pm

    Re: TV antenna?

    OH snap, now poor Aereo is sunk.

     

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    jupiterkansas (profile), Sep 10th, 2013 @ 5:37pm

    Didn't we figure out this wireless transmission thing like a hundred years ago? A radio signal is a radio signal and anyone can receive it, whether you intended to broadcast it or not. Jeeze!

     

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    Anonymous Coward, Sep 10th, 2013 @ 5:50pm

    All this shows is how the laws need to keep up with the technology. The laws should be clear and informed or people should do their home work on what they are interpreting.

     

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  46. This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Sep 10th, 2013 @ 6:14pm

    Mike has as usual, UN-stated key facts:

    Becoming so dulled by Mike's non-stop mis-statements that I sometimes forget to add back what he takes out. But this piece in LATimes reminded me:

    http://www.latimes.com/business/technology/la-google-street-view-liable-wiretapping-20130910, 0,817289.story

    Between 2007 and 2010, the Street View fleet also contained Wi-Fi antennas and software that collected data transmitted by Wi-Fi networks in homes and businesses.

    The information included the networks’ names, the number assigned to the router transmitting the wireless signal, the signal strength and whether the network was encrypted. Such information enables business to provide services to help mobile phone users find nearby restaurants and attractions.

    But the Google equipment also gathered and stored data from unencrypted networks, including personal emails, usernames, passwords, videos and documents.

    And that was NOT by accident, occurred over three years.

    It's all lies from a mega-corporation that's keeping $48 billion offshore to dodge US taxes, until it can buy politicians to let it bring that in at a "legally" zero rate.

    When you think surveillance or spying or snooping, think Google!

     

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    Anonymous Coward, Sep 10th, 2013 @ 8:27pm

    Re:

    "Radar isn't audio either, yet it's radio waves."

    That's what the ignorant masses used to think. Luckily, we have the federal courts to teach us otherwise.

     

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    Anonymous Coward, Sep 10th, 2013 @ 8:31pm

    Re: Re: Predetermined Outcome

    Do you also avoid looking through all open windows?

     

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  49.  
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    Anonymous Coward, Sep 10th, 2013 @ 8:32pm

    Re: Mike has as usual, UN-stated key facts:

    You do not have the knowledge required to be credible.

     

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    techflaws (profile), Sep 10th, 2013 @ 10:17pm

    Re: Mike has as usual, UN-stated key facts:

    Ankle-biter #1 is dulled? No surprise there! We could easily guess that from your inane comments (the ones we actually bothered to read before immediately clicking 'report' on any bullshit that comes from you).

     

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    Anonymous Coward, Sep 10th, 2013 @ 10:21pm

    Radio is not audio it's a signal and if it's the right signal it can be decoded into audio, data, or whatever. You could just as easily translate that WiFi data into audio "though it would probably be unpleasant to listen to". Someone could also just as easily broadcast junk/pointless data that translates into nothing.

     

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  52.  
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    Patrick Bumbalough, Sep 10th, 2013 @ 11:23pm

    MAYBE LAWYERS AND JUDGES NEED AN IT GUY ON STAND BY FROM NOW ON.

     

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    PaulT (profile), Sep 11th, 2013 @ 1:14am

    Re: Mike has as usual, UN-stated key facts:

    "key facts"

    Why is the well-known fact that Google collected this information "key" to a moronic attempt to pretend that receiving information on a publicly owned radio magnetic spectrum frequency is wiretapping? What difference does it make to the idiocy being argued?

    Oh yeah, you couldn't stop masturbating over the idea that you can "attack" Mike by slandering Google again long enough to realise that this is irrelevant. Yet again, more insane drivel from an obsessed stalker, not a shred of facts or logical argument as to why the article being commented upon is incorrect. Quelle surprise!

     

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    Not an Electronic Rodent (profile), Sep 11th, 2013 @ 3:04am

    Re: Re: To broadcast or not to broadcast, that is the question

    The only protection is that the letters are all written using a 1960's crackerjack box encoder device, so you have to have a piece of red Cellophane to read them.
    A great turn of phrase, but that's secured WiFi you're talking about - at least secured by WEP.

    Un-secured WiFi would be like me posting this and then saying "I'm only talking to you so no-one else read it please".
    In other words, fairly common technology can read any unencrypted, unsecured wifi connection
    You mean every single WiFi device in existence. This is how WiFi works. Your WiFi card receives every packet and then chooses whether to throw it away afterwards based on who it says it's for.

    If it's like mail at all as PW says then would be like a postcard - a polite postman might not read what's next to the address, but would you really expect him not to?

     

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    Not an Electronic Rodent (profile), Sep 11th, 2013 @ 3:12am

    Re: To broadcast or not to broadcast, that is the question

    it feels like the distinction here is that WiFi interactions aren't purely broadcast
    Yes. They Are. Unsecured WiFi is like having a shouted conversation across a crowded restaurant. People choose not to pay attention.

    Secured WiFi on the other hand is more like having the same conversation in Attic Greek - everyone can hear it but no-one can understand unless they break the "code". This would fit better with your "snail mail" analogy.

     

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    Ninja (profile), Sep 11th, 2013 @ 3:23am

    I'm a criminal, I often scoop for open wifi connections with my mobile phone! Oh wait, 100% of the modern mobile phones do it. I have a proposal to the US Govt: build a wall around the US and write JAIL on the outside.

     

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    Not So Anonymous (NSA), Sep 11th, 2013 @ 5:50am

    The ruling would be different for the NSA who has their own pet court in a pocket.

     

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  58.  
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    Anonymous Coward, Sep 11th, 2013 @ 6:47am

    But the court says it's not because someone might send something "sensitive" from a secured network to an open WiFi network, and the sender didn't intend for that info to be available via open WiFi.

    Where the hell is this reasoning when the court is deciding if it's OK for the government to snoop on my communications based on whether I have a reasonable expectation of privacy?

     

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  59.  
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    nasch (profile), Sep 11th, 2013 @ 9:31am

    Re:

    personally, even though the logic is ass backwards, I kinda like this ruling

    We do not want courts to first decide what the outcome should be and then figure out how to make it that way regardless of what the law says. When that happens, laws have no meaning and courts can do whatever they want. If you like the outcome, then you should hope for the laws to be changed, but there is no reason to think this ruling is a good one.

     

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  60.  
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    Derek Kerton (profile), Sep 11th, 2013 @ 9:33am

    Re:

    Not at all.

    Snooping on open wifi is simply not a problem.

    If you think of the following analogy:

    Secured WPA WiFi with encrypted data is like a vault in your home. The contents of the vault are expected to be invulnerable.
    - It would be disastrous if someone got access.

    Secured WiFi is like a locked home. The contents of your house are expected to be relatively safe.
    - You wouldn't want anyone to break in, and have taken measures against it.

    Unsecured WiFi is like offering a connection to anyone. It's like leaving the contents of your house in a park with a "Free, take me" sign.
    - This is a useful tool for coffee shops, marketers, people hoping that users can easily get on the network.

    Our problem with government agencies is hardly that they are snooping on our open WiFi networks. I would care as little about that as I do about Google's mapping war drives. This discussion is soooo far away from what the government does, it's hard to see how you connected them.

    You don't *want* to broadcast your WiFi transmissions? Turn on security. Most routers have defaulted to this for almost 5 years. It should be considered a conscious choice if someone leaves their WiFi fully open.

    In fact, the very "openness" of the WiFi signal is the only indication I have as to whether you want your signal to be open or not.

    So, if you don't want people to snoop on your open WiFi...secure it. But that still won't stop the gov't from seeing your shit.

     

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  61.  
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    Jose_X, Sep 11th, 2013 @ 12:13pm

    Re: Re:

    >> Unsecured WiFi is like offering a connection to anyone. It's like leaving the contents of your house in a park with a "Free, take me" sign.

    For people who (a) are not tech savvy and (b) generally expect privacy, they see it instead as leaving your house unlocked and then having people come inside just because it's trivial to open an unlocked door.

    Most people who do not realize they have to use a lock, expect privacy and aren't voluntarily putting things outside with a "take me" sign.

     

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  62.  
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    BigKeithO, Sep 11th, 2013 @ 12:19pm

    Re: Re: Re:

    What is your point? Most people are stupid and or uneducated?

     

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  63.  
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    Jose_X, Sep 11th, 2013 @ 12:21pm

    Re:

    I believe the worry has to do with the disclosure of private data vs the disclosure of a song intended clearly for public consumption.

    In other words, it's not the technology but the expectations for that medium.

    This is what I think the judges are responding to. (I haven't read the rulings).

     

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  64.  
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    Anonymous Cowdard, Sep 11th, 2013 @ 12:27pm

    Re: Re: Like Google, Mike thinks everything is open to the public.

    Well, if you ARE intentionally broadcasting to the Public, it is no longer like the gazebo on your front lawn.

    Although it's disingenuous to compare a radio frequency signal to a gazebo, I think it would be more similar to your Gazebo sitting partially in your lawn and partially in the sidewalk; there's no mistake here that this is your gazebo, but damn it, you've placed it in and on an area that is considered a public easement. If you get upset that the public is now sitting in your gazebo, it is your responsibility to make sure it's no longer in a public easement.

    Wifi is the same reason, and this court's opinion is wrong exactly as you've defined the reason: Most routers have some basic form of security built in by default, so if you're broadcasting openly you're doing it intentionally. If you're intentionally broadcasting a signal to the public, it's no longer up to you who receives it. Containing the signal in a non-public way is YOUR responsibility.

     

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  65.  
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    I disagree, Sep 11th, 2013 @ 12:28pm

    Your ontology is absurd in the real world

    This article classifies wifi as radio because it uses the elcectromagnetic spectrum. It then argues that because radio waves can be listened to with out permission by people that wifi should be too. By that rationale our infrared emissions should also be viewable by people while we are in our houses. While this is logically consistent I think that it is bad for society.

    There are alternative ways to classify electromagnetic signals in terms of their privacy effects. Namely, if I expect people to not look then they shouldn't look. Radio broadcasts are meant to be publicly viewed by the people putting out the signal. I have never met a person who uses wifi to broadcast what they are doing online to other third parties.

    The argument that encryption should be used is also kind of weak. What if the crypto sucks and someone cracks it? I am not sure if it is legal or not to crack wifi crypto. If it is it seems like you run in to difficulties defining what is and isn't crypto. If I use an outdated easily broken cypher or realy stupid password doe sthe law protect me from people breaking it? If it does it seems like the law is just saying I am protected because I had the intent to remain private. If the law doesn't protect people who use shitty security practices then who gets to decide what qualifies as good practices in an age where the fundamentals of encryption protocols and practices are in doubt. Crypto is just prespective, if you gave a scientist from the 1950's access to a wifi signal stream he plausibly could look at it and assume that it was encoded to maintain privacy. Most citizens are that way today, they are no more likely to really understand the technical risks of using any given protocol online.

    I love techdirt and read it everyday but every once in a while they make an argument that just doesn't seem that sound.

     

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  66.  
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    Cowards Anonymous, Sep 11th, 2013 @ 12:48pm

    Re:

    Awesome, so when the police use a radar gun to check your speed they are wiretapping the waves that bounce back off your car. Unless they have a warrant or are the NSA, they can't use that evidence against you in the court of law (or the courts will have to invent another misinterpretation of plain English to make the law mean what they want it to mean).

     

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  67.  
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    nasch (profile), Sep 11th, 2013 @ 2:48pm

    Re: Your ontology is absurd in the real world

    By that rationale our infrared emissions should also be viewable by people while we are in our houses.

    If you could choose whether to emit infrared or not, maybe.

    Namely, if I expect people to not look then they shouldn't look.

    Not quite - if a court decides you have a reasonable expectation of privacy.

    I have never met a person who uses wifi to broadcast what they are doing online to other third parties.

    Everyone who ever uses an open wifi connection does exactly that, whether they realize it or not.

    The argument that encryption should be used is also kind of weak. What if the crypto sucks and someone cracks it?

    That has nothing to do with this situation, since this is about unencrypted wifi.

    Crypto is just prespective, if you gave a scientist from the 1950's access to a wifi signal stream he plausibly could look at it and assume that it was encoded to maintain privacy.

    That doesn't mean it actually is encrypted. Encryption is not a matter of perspective. An unencrypted signal doesn't become encrypted just because someone doesn't have the equipment or understanding to receive it. Encryption involves transforming the signal in such a way that a piece of secret information is (intended to be*) necessary to receive the message.

    * obviously sometimes encryption is broken

     

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  68.  
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    nasch (profile), Sep 11th, 2013 @ 2:49pm

    Re: Re: Re:

    For people who (a) are not tech savvy and (b) generally expect privacy, they see it instead as leaving your house unlocked and then having people come inside just because it's trivial to open an unlocked door.

    Google should not be punished for some people not understanding wifi.

     

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  69.  
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    Derek Kerton (profile), Sep 11th, 2013 @ 2:53pm

    Re: Re: Re:

    OK. Assume for a moment you are correct.

    Then how would someone who DOES want to put the wifi out there for automatic guest connections indicate they are offering access?

    Because that is what open wifi is saying with it's broadcast signal and beacon.

    People can sent the opposite message by using a lock/security, and that is now the default (so even the ignorant are safe from unwittingly sharing).

     

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  70.  
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    Derek Kerton (profile), Sep 11th, 2013 @ 3:01pm

    Re: Your ontology is absurd in the real world

    Not a bad argument, but there is a serious difference between fields and emissions your body emanates involuntarily, and those that require a deliberate effort.

    IR heat signatures are totally involuntary, and we have no option to stop transmitting. Wi-Fi is completely deliberate, and requires effort to openly broadcast a signal (since the defaults are secured).

    Once again, my main counter-argument is: how do people who WANT to share do so, if courts consider the technological equivalent of broadcasting an invitation as NOT an invitation. My side of this debate has given a clear answer as how people can signal that they don't want to share, but the opposition has not shown a way we can signal a share, given that signaling "I am open for connections" means not that.

     

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  71.  
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    Anonymous, Sep 11th, 2013 @ 3:09pm

    Re:

    Ah, the golden age of wireless. Does Thomas Dolby know about this?

     

    reply to this | link to this | view in thread ]

  72.  
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    MadderMak (profile), Sep 12th, 2013 @ 1:05am

    Re: Mike has as usual, UN-stated key facts:

    "And that was NOT by accident"

    Statement of fact or opinion? your opinion? no fact? really? are you sure?

    oblig: [citation required] you pusillanimous weasel

     

    reply to this | link to this | view in thread ]

  73.  
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    Derek Kerton (profile), Sep 12th, 2013 @ 8:52am

    Re: Mike has as usual, UN-stated key facts:

    The LA Times reporter stated some truth, but you and many others misinterpret it because the reporter wasn't clear enough:

    "But the Google equipment also gathered and stored data from unencrypted networks, including personal emails, usernames, passwords, videos and documents."

    What that really means is:

    But the Google equipment also captured the bits that happened to be transmitted in the few seconds as they were driving by. If those networks were not locked, that means Google would capture bits that represented parts of emails, web pages, or whatever content the WiFi network was broadcasting openly at the time.

    You see, the way the reporter positioned it, and the way you read it, it makes it look like Google went poking around INSIDE the "victim's" LAN network, snooping into PCs and programs to take documents, emails, etc. They did not. They just stored what was being transmitted freely into the streets, as they briefly drove by.

    You want security for your documents and emails (from Google), don't broadcast them, unencrypted into the street. Not when Google drives by...or not really ever. Easy to achieve.

     

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  74.  
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    Derek Kerton (profile), Sep 12th, 2013 @ 8:58am

    Google Stole My Kid's Toys

    "Google stole my kids toys!"

    "From where?"

    "From right in the city park, where I left them. I figured why take them home every night, then back to the park the next day, so I just left them there. But when I came back, they were gone."

    "Here's an idea. You should not leave your stuff in a public park where its free for anyone to access. People won't know whether it's public property, private, a freebie, and eventually some person will surely just take it. Next time, take your toys home, and put them inside your house. Then, lock your house."

    "Wow. That's easy to do. Thanks for the great advice."

     

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  75.  
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    PaulT (profile), Sep 13th, 2013 @ 1:51am

    Re: Google Stole My Kid's Toys

    Nice analogy, although since the data isn't stolen (they still have the original copy), it's more like Google took a photo of the toys and people are whining that they shouldn't have done that because the toys are private property even though they were in the public space.

     

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  76.  
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    Derek Kerton (profile), Sep 13th, 2013 @ 3:13pm

    Re: Re: Google Stole My Kid's Toys

    True. Even less egregious than I thought, which was "not at all".

     

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  77.  
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    John Fenderson (profile), Sep 19th, 2013 @ 11:32am

    Re: Re: Re: Re:

    Exactly. I do this -- I leave my WiFi open specifically so that others can use it.

    Also, since every consumer WiFi AP goes to great lengths to inform people that the need to secure their AP and make it as easy as possible to do, the only ones that are unaware of this are those who actively avoid looking at any documentation at all, even those little "IMPORTANT INFO" fliers.

    People who run sophisticated equipment without learning even the bare minimum about the equipment they're using are idiots. We should not design our society to cater to idiots.

     

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  78.  
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    John Fenderson (profile), Sep 19th, 2013 @ 11:44am

    Re: Your ontology is absurd in the real world

    Namely, if I expect people to not look then they shouldn't look.


    But how is do you inform people what your expectation are?

    In terms of Wifi, I think encryption can perform this function nicely.

    If you've turned on WEP, you're pretty clearly indicating that you don't want people to use your AP without permission. How easy the encryption is to break is irrelevant -- you've still signaled your expectations. If you're running an unsecured AP, then you cannot expect people to ignore your AP.

    It's very much like a window. You can't blame people for looking through it if you leave your blinds open. If you close them, you can, even if they can use some kind of trickery to see through them.

     

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  79.  
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    Jeremy Shawaf, Oct 18th, 2013 @ 11:17pm

    Re: Re: Like Google, Mike thinks everything is open to the public.

    Signals left open by design.....

    -Starbucks
    -Many Coffee Shops
    -Pacbell Park (San Diego)
    -City Wifi in Los Angeles
    -City Wifi in Downtown San Diego
    -City Wifi in XXXXX
    -Many Hotels and Motels
    -Any network that offers intentional guest access
    -A TON OF OTHER PLACES


    So the idea is to regulate all these places so people dont transmit Wifis from them? lol -.-

     

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  80.  
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    geneorama (profile), Dec 5th, 2013 @ 1:52pm

    Funny wi-fi names

    I guess the judge hasn't ever gotten those forwards about funny wi-fi names.
    e.g.
    http://www.freemake.com/blog/top-20-funny-wi-fi-names/

     

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  81.  
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    robyeldon (profile), Dec 18th, 2013 @ 8:06pm

    Judges

    Clearly, ignorant judges make bad decisions. It seems that the legal counsel had no idea what Wifi was either or they would have presented an expert witness to explain to the (un)learned judge that wifi is indeed a radio signal.

    On the issue of wiretapping, I have never understood how a wiretapping law could apply to videotaping anyone. Where is the wire being tapped?

     

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  82.  
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    nasch (profile), Dec 18th, 2013 @ 9:26pm

    Re: Judges


    On the issue of wiretapping, I have never understood how a wiretapping law could apply to videotaping anyone. Where is the wire being tapped?


    It depends how the law is written, not whether it's referred to in the press as a "wiretapping" law.

     

    reply to this | link to this | view in thread ]


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