Google Wants Another Court To Determine If Accessing Open WiFi Is Wiretapping

from the maybe-someone-who-understands-tech dept

Mon, Jul 11th 2011 4:13pm — Mike Masnick

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.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: open wifi, packet sniffing, street view, wifi, wiretap
Companies: google

50 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Steven (profile), 11 Jul 2011 @ 4:42pm

I have to think that somebody told this judge that 802.11a/b/g/n devices all work by sending and receiving radio waves. That they are, by definition, radio communication devices. Did he simply choose to ignore this information, or did somebody (coughlaywercough) spend enough time telling him that radio isn't really radio?
[ link to this | view in chronology ]
- Hothmonster, 11 Jul 2011 @ 5:37pm
  
  Re:
  Google has a lot of enemies with a lot of money, I'm sure a very eloquent bird whispered him a wonderful fantasy.
  [ link to this | view in chronology ]
  - Hephaestus (profile), 11 Jul 2011 @ 11:12pm
    
    Re: Re:
    Yeah ... I can think of one really large bird called facebook.
    [ link to this | view in chronology ]
    - ChrisB (profile), 12 Jul 2011 @ 7:04am
      
      Re: Re: Re:
      I just got my Google Plus invite. Goodbye Facebook. Goodbye Linkedin. Google Plus has Circles so you can have your boss as a friend and not worry about him seeing you drunk in Mexico.
      [ link to this | view in chronology ]
- Anonymous Coward, 11 Jul 2011 @ 5:51pm
  
  Re: Radio
  The judge was "technically clueless" about radio being radio? Not likely, since everybody knows what radio is. We all grew up with it, remember?
  
  That was a "bought" judge. Google has many enemies (its commercial competitors) who are desperate to see its wings clipped. There are none so blind as those who will not see.
  [ link to this | view in chronology ]
- Jon B. (profile), 11 Jul 2011 @ 7:33pm
  
  Re:
  Consider cordless household phones that operate on the 900MHz, 2.4GHz and 5.4GHz frequecenies. These radio frequencies are in the same range as some wifi. Remember talking on these phones, and sometimes, if you accidentally got on the wrong channel and live too close to the neighbors, you could hear their conversation. These phones aren't encrypted or anything. If you did this intentionally, surely you would agree that's no different from wiretapping? I don't think you want to go down the road that just because something operates on these frequencies it's the same thing as FM radio.
  
  That said, Google is still right. You have to consider the intent of the communication protocol. SSID broadcast is built into the protocol and happens on the same frequency. It's not Google's fault that the protocol makes no distinction between reading someone's welcome mat and rifling through their underwear. What Google did is no different from what any other Wifi device does except that the Google car threw those bits into a bucket to be sorted later instead of sorting through the bits immediately.
  [ link to this | view in chronology ]
  - Anonymous Coward, 11 Jul 2011 @ 11:19pm
    
    Re: Re:
    Consider cordless household phones that operate on the 900MHz, 2.4GHz and 5.4GHz frequecenies.
    
    Consider that telephone calls can also be passed over ham radio. These phones also aren't encrypted or anything and can be picked up and listened to by anybody with an appropriate receiver.
    
    If you did this intentionally, surely you would agree that's no different from wiretapping?
    
    So, you're saying that's wiretapping? Are you sure that you want to go down *that* road and criminalize a whole bunch of amateur radio operators for something they've been doing for many years?
    
    just because something operates on these frequencies it's the same thing as FM radio.
    
    FM is a particular type of radio modulation. I fail to see what difference the type of modulation makes.
    [ link to this | view in chronology ]
    - Jon B. (profile), 12 Jul 2011 @ 4:31pm
      
      Re: Re: Re:
      You managed to miss the entire point of my comment.
      
      Do you not agree that someone (neighbors, cops, Google) spying on your cordless phone conversation would be considered wiretapping?
      
      My point was that you can't make the type of radio wave your sole consideration for what constitutes wiretapping. Lots of things are transmitted over radio waves. Some are private (like phone calls) and some are not.
      
      I did say that Google is still right for other reasons, though.
      [ link to this | view in chronology ]
      - Anonymous Coward, 12 Jul 2011 @ 11:35pm
        
        Re: Re: Re: Re:
        Do you not agree that someone (neighbors, cops, Google) spying on your cordless phone conversation would be considered wiretapping?
        
        If it was broadcast in the clear? No.
        [ link to this | view in chronology ]
        
        Jon B. (profile), 13 Jul 2011 @ 5:55am
        
        Re: Re: Re: Re: Re:
        In many states, recording a conversation without either party's consent is illegal regardless of the method of the conversation or the method of recording.
        
        But again, it's clear that Google had no intention of recording conversations because of the nature of the protocol (not the frequency of the signal...)
        [ link to this | view in chronology ]
      - abc gum, 13 Jul 2011 @ 5:07am
        
        Re: Re: Re: Re:
        Due to your overly broad interpretation of what the word 'wiretapping' means, I assume that you must be employed in law enforcement.
        [ link to this | view in chronology ]
  - Any Mouse (profile), 12 Jul 2011 @ 12:45am
    
    Re: Re:
    Actually, encryption of these phones is a standard, these days. Mostly because ham and short wave operators could tune in to these (and cell phone conversations) quite easily. I remember 'discovering' these things in the 90's.
    [ link to this | view in chronology ]
- DannyB (profile), 12 Jul 2011 @ 6:17am
  
  Re:
  A secret appendix to the 802.11a/b/g/n specifications makes it quite clear that the antenna structures emit tiny magical unicorns that carry packets back and forth on rainbows between communicating devices.
  [ link to this | view in chronology ]
Grey Ferret, 11 Jul 2011 @ 4:47pm

Everybody knows that all radio begins with either a W or a K depending what part of the country you live in. So, obviously, this A/B/G/N nonsense can't be radio.
[ link to this | view in chronology ]
- LegitTroll (profile), 11 Jul 2011 @ 4:59pm
  
  Re:
  /sarc?
  [ link to this | view in chronology ]
  - Anonymous Coward, 11 Jul 2011 @ 5:26pm
    
    Re: Re:
    /derp?
    [ link to this | view in chronology ]
Anonymous Coward, 11 Jul 2011 @ 4:52pm

I saw it on the radio
Google is not am or fm, so how can it be radio? I only consider 93.9 radio myself, 100.3 is so bad it no longer qualifies ; )
[ link to this | view in chronology ]
- Anonymous Coward, 11 Jul 2011 @ 5:24pm
  
  Re: I saw it on the radio
  Oh dear do you by chance live near Detroit? Because our stations are indeed terrible.
  [ link to this | view in chronology ]
  - Sean T Henry (profile), 12 Jul 2011 @ 7:06am
    
    Re: Re: I saw it on the radio
    No I think he just lives in the US 95% of the radio stations suck, but thats because corporate radio sucks and that is 96% of the stations.
    [ link to this | view in chronology ]
Anonymous Coward, 11 Jul 2011 @ 5:01pm

All the judge had to do was Google it.
[ link to this | view in chronology ]
Pat, 11 Jul 2011 @ 5:11pm

What is 3G
It easy to make light of this. But why is google trying and what are mobile phones running on, how do you determine on a moble device if it is using a open network or 3G and who has the access. what about a secure wireless networks, interpretation is the thing that ness to be addresses. guess he has to look at all the possible cases. Anybody can collect data from a non secure source but if it is without the knowledge of the user who should be held accountable if it goes a miss. How many people do not understand that in open wireless networks people can steel private information, Maybe he is just trying to save some that knows as much about it as he does. You never know!
[ link to this | view in chronology ]
- abc gum, 11 Jul 2011 @ 6:04pm
  
  Re: What is 3G
  You have asked a lot of irrelevant questions.
  
  Judge Ware concludes that:
  
  the wireless networks were not readily accessible to the general public as defined by the particular communications system at issue, wireless internet networks, which are not "radio communications," as the term was intended by Congress in drafting Section 2510(16).
  [ link to this | view in chronology ]
  - Anonymous Coward, 11 Jul 2011 @ 6:32pm
    
    Re: Re: What is 3G
    I, for one, hope Google is able to find a judge who is open to the idea of "anyone with a smartphone or laptop can easily find and connect to it" counting as "readily accessible to the general public".
    
    C'mon, what's more likely to be in someone's pocket these days, a radio or a smartphone?
    [ link to this | view in chronology ]
    - Atkray (profile), 11 Jul 2011 @ 8:01pm
      
      Re: Re: Re: What is 3G
      It appears that some people may have Judges in their pockets.
      [ link to this | view in chronology ]
  - Anonymous Coward, 11 Jul 2011 @ 10:27pm
    
    Re: Re: What is 3G
    Judge Ware got it right.
    
    Just because something makes use of a radio waves does not make it "radio communications" in the sense of a public broadcast. Even the most basic open wi-fi is still digital data, and requires something beyond just a radio receiver to understand.
    
    Take a radio receiver, tune it up to your wi-fi frequencies, and listen to it. Tell me exactly how much information you can extract from the digital noise. The answer is zero.
    
    As soon as you have to perform a step to decode digital information, you are starting to cross the line from just receiving the signal and you are moving on to trying to decode it.
    [ link to this | view in chronology ]
    - Anonymous Coward, 11 Jul 2011 @ 11:31pm
      
      Re: Re: Re: What is 3G
      Take a radio receiver, tune it up to your wi-fi frequencies, and listen to it. Tell me exactly how much information you can extract from the digital noise. The answer is zero.
      
      As soon as you have to perform a step to decode digital information, you are starting to cross the line from just receiving the signal and you are moving on to trying to decode it.
      
      That sounds just like what some idiot (you?) said last time this came up. It was pointed out at the time that digital radio receivers pick up digital signals just fine. A point that you seem to be trying to ignore. And even analog broadcast signals can be encoded. FM stereo? The process by which the stereo information is included is called multiplex encoding. FM stereo receivers then "decode" the signal to get stereo. So you're apparently saying that decoding an FM stereo broadcast is "wiretapping". I find that to be ludicrous.
      
      Maybe you should stick to more basic shilling and stay away from technical topics you obviously know nothing about.
      [ link to this | view in chronology ]
      - Bergman (profile), 12 Jul 2011 @ 3:27am
        
        Re: Re: Re: Re: What is 3G
        Human ears are a decoding device that translates vibrations in the air into electrical neural impulses that can be read by the brain. By the standard the judge is applying, just hearing someone speaking could be wiretapping.
        [ link to this | view in chronology ]
    - abc gum, 12 Jul 2011 @ 5:12am
      
      Re: Re: Re: What is 3G
      "Just because something makes use of a radio waves does not make it "radio communications""
      
      It certainly is radio and if it is not communication, then what is it?
      
      Ware got it wrong - laughably wrong.
      
      I suppose demodulation could be considered decoding, but this would be counter to you argument because it includes AM, FM, etc. There is nothing magical about the demodulation of an RF signal into digital vs analog.
      [ link to this | view in chronology ]
    - DannyB (profile), 12 Jul 2011 @ 6:25am
      
      Re: Re: Re: What is 3G
      > Judge Ware got it right.
      
      Judge Ware got it wrong. Multiple ways.
      
      It is a radio transmission.
      
      It is also accessible to the general public just as anyone with a police scanner, walkie talkie, AM/FM/Shortwave radio, television, etc can pick up transmissions.
      
      Anybody can take an ordinary laptop, download freely available software, and within minutes be intercepting packets from nearby WiFi networks. That is just as "generally accessible to the public" as anyone using a walkie talkie, or police scanner.
      
      And it is a radio transmission.
      
      > Take a radio receiver, tune it up to your wi-fi
      > frequencies, and listen to it. Tell me exactly how
      > much information you can extract from the digital
      > noise. The answer is zero.
      
      Like I said. A laptop. Freely available software. Within minutes you'll be seeing all of the contents of packets right before your eyes. If someone logs into, for instance, Facebook, using an unencrypted transmission (eg, radio) you are picking up that radio broadcast out of the air and can see their password right on your screen.
      
      How did you think FireSheep worked?
      [ link to this | view in chronology ]
      - Anonymous Coward, 12 Jul 2011 @ 7:06am
        
        Re: Re: Re: Re: What is 3G
        DannyB, what I find amazing is that you wrote out the whole post and didn't realize that you proved my point for me.
        
        You said: "Anybody can take an ordinary laptop, download freely available software, and within minutes be intercepting packets from nearby WiFi networks. That is just as "generally accessible to the public" as anyone using a walkie talkie, or police scanner."
        
        That is the crux of the matter. As soon as you make a transformative step, you have decoded the transmission. The packets of data are not "generally accessable to the public" without special tools to decode them. More importantly, the other data that is on that wi-fi connection (beyond the SSID) isn't generally accessed by the public. Taking the time to decode and store it is itself crossing the line.
        
        If you can hear it with your human ears and figure out what it is, more power to you. When you have to use technology to determine what is in it, you have cross the line to decoding.
        
        "freely available software" is not a legal litmus test for figuring out if your actions are legal.
        [ link to this | view in chronology ]
        
        Chosen Reject (profile), 12 Jul 2011 @ 9:11am
        
        Re: Re: Re: Re: Re: What is 3G
        When you have to use technology to determine what is in it, you have cross the line to decoding.
        
        You mean like this? Or can your ears hear AM/FM signals without any kind of technology? If so, that must be the source of the voices in your head.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 12 Jul 2011 @ 11:03am
        
        Re: Re: Re: Re: Re: What is 3G
        The packets of data are not "generally accessable to the public" without special tools to decode them.
        
        You just get more ridiculous. By that reasoning, radio isn't generally accessible to the public without special tools to receive it, namely, radio receivers.
        
        If you can hear it with your human ears and figure out what it is, more power to you.
        
        If you can hear radio with just your human ears, you aren't "the general public" either.
        
        "freely available software" is not a legal litmus test for figuring out if your actions are legal.
        
        And modulation type is not the a legal litmus test for figuring out if something is radio.
        
        Typical copyright industry shill.
        [ link to this | view in chronology ]
    - Anonymous Coward, 12 Jul 2011 @ 8:25am
      
      Re: Re: Re: What is 3G
      HD radio anyone?
      [ link to this | view in chronology ]
  - Bergman (profile), 12 Jul 2011 @ 3:24am
    
    Re: Re: What is 3G
    By that standard, if I were to broadcast a signal that amounted to "this is a private message" in Morse code, then people would be guilty of wiretapping if they owned a radio that could receive the message.
    
    Broadcasts are broadcasts. Broadcasts in the clear are by definition not private. Encrypted broadcasts can be private, since you have to have the key or crack the encryption to listen in. But an unsecured wireless network isn't encrypted.
    [ link to this | view in chronology ]
    - Anonymous Coward, 12 Jul 2011 @ 8:28am
      
      Re: Re: Re: What is 3G
      Even more to the point, encrypted broadcasts are public, that's the whole purpose of WEP(defunct)/WPA/WPA2. It's so that a publicly accessible message is unusable to the public but can still be used by anyone in a private group.
      [ link to this | view in chronology ]
PrometheeFeu (profile), 11 Jul 2011 @ 5:12pm

This seems an awful lot like suing someone for remembering what you screamed at the top of your lungs in the middle of a crowd.
[ link to this | view in chronology ]
someone (profile), 11 Jul 2011 @ 5:23pm

Wi-Fi = wireless
The people who certify WiFi Products:
http://www.wi-fi.org/discover_and_learn.php

"How does Wi-Fi technology work?
Wi-Fi networks use radio technologies called 802.11 to provide secure, reliable, fast wireless connectivity."

I predict another judge will indeed determine that wifi does indeed work over radio.
[ link to this | view in chronology ]
lavi d (profile), 11 Jul 2011 @ 5:34pm

Enough!

It's not wireless, for Chrissakes.

It's a series of airborne tubes.

What is wrong with people?
[ link to this | view in chronology ]
- Casey Bouch (profile), 11 Jul 2011 @ 5:42pm
  
  Re: Enough!
  Does that have something to do with Al Gore?
  [ link to this | view in chronology ]
anoncow, 11 Jul 2011 @ 6:13pm

Uhmm, the FCC (& ETSI, etc) certifies all commercial wifi gear, both AP & stations. They are regulated as radio emitters, bound by federal law to specific radio frequencies (2.4 Ghz, 5.x GHz, etc) and energy limits. They share radio spectrum with things like Bluetooth devices and baby monitors. The power emmision limits (EIRPs) are expressed as milliwatts (or watts if running Point to Point, generally not applicable to google mapping), like a (tiny) radio station. They are measured and regulated for Specific Absorbtion Rates (SAR) like a cell phone and other radio emmitters The US military requires them to change radio frequency (A band only) when they interfere with their 5 GHz spectrum radar.

Any judge so ignorant of the fundamentals of a technology should recuse themselves or get a tutor before sitting in judgement of said tech.
[ link to this | view in chronology ]
Anonymous Coward, 11 Jul 2011 @ 6:52pm

This judge is an technical and intellectual troglodyte. He needs to retire for the good of society.
[ link to this | view in chronology ]
- LegitTroll (profile), 11 Jul 2011 @ 7:18pm
  
  Re:
  If only we were that lucky.
  [ link to this | view in chronology ]
Anonymous Coward, 11 Jul 2011 @ 7:32pm

Most of you people are making a big mistake with this ruling.

The issue is NOT is this technically a radio transmission from a geek point of view but is this LEGALLY a radio transmission in law.
[ link to this | view in chronology ]
- Nicedoggy, 11 Jul 2011 @ 7:52pm
  
  Re:
  Still there needs to be some anchor on reality or that law is useless.
  
  Also judges frequently take into account how those things work on the real word to help them interpret the law, so in a way that judge was poorly qualified to judge anything.
  [ link to this | view in chronology ]
- Anonymous Coward, 11 Jul 2011 @ 11:33pm
  
  Re:
  The issue is NOT is this technically a radio transmission from a geek point of view but is this LEGALLY a radio transmission in law.
  
  Of course it is.
  [ link to this | view in chronology ]
  - ComputerAddict (profile), 12 Jul 2011 @ 5:29am
    
    Re: Re:
    This comment made me think of Monty Python Argument Clinic: http://www.youtube.com/watch?v=teMlv3ripSM
    [ link to this | view in chronology ]
- Any Mouse (profile), 12 Jul 2011 @ 1:02am
  
  Re:
  As Anoncow pointed out, these devices are regulated by the FCC, under federal mandate, as radio communications devices, so... yes... In fact this is legally a radio transmission. The judge is incredibly incorrect.
  [ link to this | view in chronology ]
- DannyB (profile), 12 Jul 2011 @ 6:33am
  
  Re:
  As I point out elsewhere, it is as much a publicly accessible radio transmission as Walkie Talkie, Baby Monitor, Shortwave, Police Radio, AM/FM, TV, etc.
  
  Anyone with the proper receiver can listen in to your baby monitor.
  
  Anyone with a laptop and freely available software can within minutes be looking at all nearby WiFi packets being broadcast into the air. If someone nearby logs in to, say, Facebook, using an unencrypted connection, you can see their password on your screen.
  [ link to this | view in chronology ]
The Devil's Coachman (profile), 12 Jul 2011 @ 1:06pm

The judge is an idiot, period.
Nothing can change that. Ignorance can be successfully corrected, but ya can't fix stupid. And all the shills for this judge are equally idiots, thus rendering them impervious to reason, as well.
[ link to this | view in chronology ]
The Devil's Coachman (profile), 12 Jul 2011 @ 1:14pm

The judge is an idiot, period.
Nothing can change that. Ignorance can be successfully corrected, but ya can't fix stupid. And all the shills for this judge are equally idiots, thus rendering them impervious to reason, as well.
[ link to this | view in chronology ]