Judge Agrees That Perhaps It Would Be Best For Someone Else To Review His Claim That WiFi Isn't A Radio Communication

from the good-news dept

Tue, Jul 19th 2011 4:09am — Mike Masnick

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.

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Filed Under: data collection, radio communication, street view, wifi, wiretapping
Companies: google

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out_of_the_blue, 19 Jul 2011 @ 4:20am

A baby monitor is "radio communication" too.
But it's not intended to be public -- even if it IS -- and anyone who snoops on them is something of a creep.
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- Anonymous Coward, 19 Jul 2011 @ 4:22am
  
  Re: A baby monitor is "radio communication" too.
  Nice, except that has nothing to do with this.
  
  Good on him though. Except for the part about his "opinion" that Wifi isn't radio. There is no opinion involved, it's a fact. But at least he's trying.
  [ link to this | view in chronology ]
  - WysiWyg (profile), 19 Jul 2011 @ 5:08am
    
    Re: Re: A baby monitor is "radio communication" too.
    WiFi is definitely radio in a technical sense. The "matter of opinion" is if it's "radio" in the legal sense.
    [ link to this | view in chronology ]
    - abc gum, 19 Jul 2011 @ 5:11am
      
      Re: Re: Re: A baby monitor is "radio communication" too.
      "WiFi is definitely radio in a technical sense. The "matter of opinion" is if it's "radio" in the legal sense."
      
      Divergence between the technical and the legal definitions implies a need for correction. The technical definition is usually based upon fact.
      [ link to this | view in chronology ]
      - Anonymous Coward, 19 Jul 2011 @ 5:24am
        
        Re: Re: Re: Re: A baby monitor is "radio communication" too.
        You could pass a law saying that pi is exactly 3, but that still wouldn't make it true. (btw it's an urban legend, nobody ever tried to pass that law..)
        
        wifi is radio. Any opinion to the contrary is not merely a different definition, it's plain and flat out WRONG.
        [ link to this | view in chronology ]
        
        DannyB (profile), 19 Jul 2011 @ 8:21am
        
        Re: Re: Re: Re: Re: A baby monitor is "radio communication" too.
        > You could pass a law saying that pi is exactly 3,
        > but that still wouldn't make it true.
        > (btw it's an urban legend, nobody ever tried
        > to pass that law..)
        
        You could also pass a law to teach intelligent design and accept a definition of science that includes the supernatural.
        
        https://secure.wikimedia.org/wikipedia/en/wiki/Creation_and_evolution_in_public_edu cation#Kansas
        
        But that wouldn't make it true.
        
        And this is not an urban legend.
        
        So it would seem that legislators and/or judges ought to somehow be able to make radio not be radio. Radio broadcasts (of packets) are somehow magically not broadcasts of electromagnetic waves; those non-waves do not escape beyond your property; and magical forces prevent them from being freely received by anyone with a suitable receiver. (Suitable Receiver in this case being an ordinary laptop running freely downloadable software.)
        [ link to this | view in chronology ]
        
        PRMan, 19 Jul 2011 @ 10:49am
        
        Re: Re: Re: Re: Re: Re: A baby monitor is "radio communication" too.
        Of course it wouldn't MAKE it true, because it's already true. A worldview that excludes the supernatural by definition is flawed if, as most people believe, there actually are supernatural events.
        [ link to this | view in chronology ]
        
        DannyB (profile), 21 Jul 2011 @ 12:52pm
        
        Re: Re: Re: Re: Re: Re: Re: A baby monitor is "radio communication" too.
        I actually believe in the supernatural.
        
        But my belief (or worldview) has nothing to do with science. It doesn't belong in a science course.
        [ link to this | view in chronology ]
        
        The Groove Tiger (profile), 19 Jul 2011 @ 8:49am
        
        Re: Re: Re: Re: Re: A baby monitor is "radio communication" too.
        http://en.wikipedia.org/wiki/Indiana_Pi_Bill
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        Hephaestus (profile), 19 Jul 2011 @ 8:59am
        
        Re: Re: Re: Re: Re: A baby monitor is "radio communication" too.
        The Speed of light it's not just a good idea, it's the law!.
        [ link to this | view in chronology ]
      - WysiWyg (profile), 19 Jul 2011 @ 6:50am
        
        Re: Re: Re: Re: A baby monitor is "radio communication" too.
        I'm not saying that it is so, or that if it were that it would be right, all I'm saying is that I wouldn't be surprised if it were so.
        
        I have had the feeling that words in laws tend to not mean what you would normally mean by it.
        [ link to this | view in chronology ]
    - Anonymous Coward, 19 Jul 2011 @ 7:45am
      
      Re: Re: Re: A baby monitor is "radio communication" too.
      Light is also EM Radiation, so you could argue that since it is being broadcast publicly and as such, telescopes pointed into houses is just as legal as packet surfing.
      [ link to this | view in chronology ]
      - DannyB (profile), 19 Jul 2011 @ 8:28am
        
        Re: Re: Re: Re: A baby monitor is "radio communication" too.
        That's a reasonable argument.
        
        Some might think that a law against people pointing telescopes at other people's houses will fix the problem.
        
        Go ahead and think that. Your law still doesn't prevent those waves from reaching a neighbor's telescope.
        
        The real, obvious, workable, feasible, practical and EFFECTIVE solution is . . .
        
        . . . to close the drapes or blinds! (gasp, imagine that!)
        
        Similarly WiFi packets being broadcast by radio are exactly that. Law doesn't change physics. If you don't want someone reading them, then encrypt them. It is typically a checkbox and a password field in your WiFi router's setup. If you don't use it, then don't think any kind of law actually protects you.
        
        (Don't think any kind of law actually stops piracy either. Or free speech. But that's another topic.)
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      - Nicedoggy, 19 Jul 2011 @ 8:34am
        
        Re: Re: Re: Re: A baby monitor is "radio communication" too.
        Don't people have curtains for that reason?
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        Anonymous Coward, 19 Jul 2011 @ 8:37am
        
        Re: Re: Re: Re: Re: A baby monitor is "radio communication" too.
        And other people use encrypted wifi.
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      - Anonymous Coward, 19 Jul 2011 @ 1:48pm
        
        Re: Re: Re: Re: A baby monitor is "radio communication" too.
        Easily refuted.
        
        "Radio" waves are not the all inclusive of "EM Radiation" although the later includes the former in its definition; note that "Radio Spectrum" is defined as electromagnetic radiation within a frequency band lower than 'about' 300GHz. Visible Light is never included (neither is ultraviolet, heat/infrared, etc).
        [ link to this | view in chronology ]
- Anonymous Coward, 19 Jul 2011 @ 4:32am
  
  Re: A baby monitor is "radio communication" too.
  I'm pretty sure you'd have a hard time picking up anything, since the range on those things is pretty pathetic. You'd have to be pretty much inside the house which is WAY creepier.
  
  But this has nothing to do with anything. Yes, it's creepy. What do you want to do about it? When you speak in an open channel, you can't really complain that someone else is eavesdropping, even if it IS creepy because YOU ARE speaking in a public channel.
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  - Bill, 19 Jul 2011 @ 10:13am
    
    Re: Re: A baby monitor is "radio communication" too.
    I'm pretty sure you'd have a hard time picking up anything, since the range on those things is pretty pathetic. You'd have to be pretty much inside the house which is WAY creepier.
    
    When we used our baby monitor we used to hear peoples phone calls over it all the time. We heard people setting up drug deals, a couple who both were cheating on each other. We even heard the weekly prayer conference call that took place every Monday & Wednesday. We heard Credit Card and Social Security numbers, all while we were just listening for our daughter crying.
    
    We were in an apartment complex with less than 10 units and knew everyone in it. We told the people in our apartments to upgrade off of their 900mhz phone, but most of what we heard wasn't from our building.
    [ link to this | view in chronology ]
- abc gum, 19 Jul 2011 @ 4:34am
  
  Re: A baby monitor is "radio communication" too.
  "But it's not intended to be public"
  
  Ignorance of reality is no excuse.
  [ link to this | view in chronology ]
  - Anonymous Coward, 19 Jul 2011 @ 4:44am
    
    Re: Re: A baby monitor is "radio communication" too.
    This is exactly right.
    
    If I'm sitting in the middle of the mall talking loudly about a drug deal I'm about to do, and a cop hears it, I'm in trouble. But wait, it wasn't intended to be public right? Um, wrong.
    [ link to this | view in chronology ]
  - Nicedoggy, 19 Jul 2011 @ 5:15am
    
    Re: Re: A baby monitor is "radio communication" too.
    The greatest proof of that is the "lemon juice disguise robber"
    
    http://mindhacks.com/2010/02/11/the-burglar-with-the-lemon-juice-disguise/
    [ link to this | view in chronology ]
    - BeeAitch (profile), 19 Jul 2011 @ 11:14am
      
      Re: Re: Re: A baby monitor is "radio communication" too.
      Fucking hilarious! Wait. That sounds like some (most) of our congress critters. Damn, now it's just depressing. :(
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Anonymous Coward, 19 Jul 2011 @ 4:45am

And can we PLEASE get off the baby monitor issue? It has nothing to do with anything here.
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- Nicedoggy, 19 Jul 2011 @ 4:59am
  
  Re:
  Well another form of public broadcast is cordless phone s, the communication between the base and the phone set was not encrypted until very recently I believe and there was no scrambling(i.e. spectrum spreading) at all in the first models, people could hear your conversation using a TV set.
  
  Even today you need to watch out what you buy because some have zero privacy.
  
  Quote:
  Back in the day when it was legal to listen to them, cordless phones operated on some readily accessible portions of the RF spectrum. The base unit transmitted just above the AM broadcast band. It was possible to take most AM/FM radios, tune them to the top end of the AM band, and hear cordless phones up to a mile (or more) away. We called that particular station �WSPY�. The handsets operated on 49 Mhz. The frequencies were the same used by baby monitors and those cheap FM hands-free walkie-talkies you could get from Radio Shack. You could buy one for $50 and walk around your neighborhood tuning through the five channels to hear your neighbor. Glorious days.
  
  Source: http://phreaking.livejournal.com/28672.html
  
  Apparently baby monitors can also be picked up from a mile away.
  
  Those things are dangerous for privacy.
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- abc gum, 19 Jul 2011 @ 5:07am
  
  Re:
  It is not a valid point, it is simply a cheap attempt to sway opinion by using babies.
  [ link to this | view in chronology ]
  - Anonymous Coward, 19 Jul 2011 @ 5:24am
    
    Re: Re:
    But think of the children!
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  - Nicedoggy, 19 Jul 2011 @ 5:32am
    
    Re: Re:
    I disagree it is relevant because baby monitors are also radio transmitters, as are cordless phones that can be easily monitored depending on the model you have.
    
    You can pick up those transmissions from a mile away from what I read, but I'm sure you could pick up the transmissions with a TV set from the neighbor, because I saw that happen a lot when the channel is near the same frequency as the cordless phone.
    
    Now are those things private or not since they are being broadcasted in the open?
    
    If the guy is a pedo he probably would find no judge to say he had any expectation of privacy but if he was a another judge they probably say he had a expectation of privacy.
    
    That ambiguity on the courts is what takes away my confidence on the system, and the tendency to carve out ever expanding exceptions to the rules, until the law resembles nothing what when it started and gets confusing and even more ambiguous.
    [ link to this | view in chronology ]
    - abc gum, 19 Jul 2011 @ 6:07pm
      
      Re: Re: Re:
      "baby monitors are also radio transmitters, as are cordless phones that can be easily monitored depending on the model you have."
      
      Your concern is valid, and it is your choice to use or not use said item. Do not attempt to foist upon others the responsibility for your decisions. Even if you were unaware of the issue beforehand, that is your problem.
      [ link to this | view in chronology ]
      - Nicedoggy, 19 Jul 2011 @ 9:39pm
        
        Re: Re: Re: Re:
        I don't get what you are trying to say, but what I'm saying is that any radio transmitter that sends signals into the public airwaves should not be viewed differently from a public broadcast, the justice system should not try to carve out little exceptions or resort to mental contortionism to try and make the situation fit the law.
        
        In the case of baby monitors and cordless phones people should have the information about how private they really are on the package, and that is a problem for congress to solve forcing manufacturers to print on the box what security is being build into the devices, so people can know what to buy and what not to buy if they expect any privacy at all.
        
        Today we have people trying to create exceptions to rules and making the law confusing and difficult to understand let alone follow.
        [ link to this | view in chronology ]
      - Nicedoggy, 19 Jul 2011 @ 9:42pm
        
        Re: Re: Re: Re:
        Just to be clear, if you left your window open and somebody passing on the streets see you walking around in your underwear he should not be liable for your failure to have curtain.
        
        That is what I'm trying to say here.
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        abc gum, 20 Jul 2011 @ 5:16am
        
        Re: Re: Re: Re: Re:
        I agree.
        Society should not be required to fund the policing of the open airwaves simply to protect those who broadcast upon them.
        Caveat emptor
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Nicedoggy, 19 Jul 2011 @ 4:47am

Wasn't there a case about a guy who was caught with children photos by a police officer who snooped his WiFi without a warrant?

The judge in that case apparently had no problem making it clear if it was not encrypted and it was visible there was no need for a warrant and it was a public broadcast.
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- abc gum, 19 Jul 2011 @ 5:08am
  
  Re:
  "The judge in that case apparently had no problem making it clear if it was not encrypted and it was visible there was no need for a warrant and it was a public broadcast."
  
  But it's ok when the police do it. See groping.
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Anonymous Coward, 19 Jul 2011 @ 5:02am

Public Derision
More likely is that Judge James Ware has just realized that he is in line for an enormous amount of public derision, if he continues to fail to recognize that radio is radio. So he is rapidly back-pedaling and trying to surround himself with a fog of legal jargon. It is time he got to be no longer a judge.
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- Anonymous Coward, 19 Jul 2011 @ 5:05am
  
  Re: Public Derision
  So he does the right thing and it's "time he got to be no longer a judge?" Did I read that right??
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  - Chargone (profile), 19 Jul 2011 @ 5:21am
    
    Re: Re: Public Derision
    to me it looks like one of those things where it Really comes down to knowledge about his personality that we don't have.
    
    it's either strong evidence that he should be kept (though probably still not assigned tech cases until he's done some study on the subject)because he's willing to do the right thing in such situations rather than the typical government reaction of attempting to reject reality and punish dissent, or strong evidence that his decisions can be swayed more easily by public opinion than fact, and that he should be removed from the job as quickly as possible.
    
    which it is depends on information which, to the best of my limigted knowledge, we do not have. (i certainly don't.)
    [ link to this | view in chronology ]
- DannyB (profile), 19 Jul 2011 @ 8:32am
  
  Re: Public Derision
  I actually think that a judge making a mistake and then recognizing that mistake and allowing it to be corrected is a good thing.
  
  I would be saying he should no longer be a judge if he had tried to prevent any appeal of this obviously wrong decision.
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Nicedoggy, 19 Jul 2011 @ 5:15am

On the bright side the judge appears not be suffering from The Dunning-Kruger effect
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NullOp, 19 Jul 2011 @ 7:19am

Radio
WiFi - it's packet radio....duh!
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Anonymous Coward, 19 Jul 2011 @ 7:26am

Sounds like a gubernatorial candidate that is beating the publicity drum for their 2012 run.
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Jose Frio, 19 Jul 2011 @ 8:58am

Umm, did anyone else get chills...
>>>Wasn't there a case about a guy who was caught with children photos by a police officer who snooped his WiFi without a warrant?

OK, the WiFi may be unencrypted and open...but accessing the device containing the photos almost certainly involved some hacking...IANAPedo but I would think they'd be smart enough to have a password on the device.

Just sayin'...
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Julian Sanchez, 19 Jul 2011 @ 9:53am

Interpretive Charity
Much as I tend to agree this is a bad ruling, this framing is seems unfair to the judge. He may not be anyone's idea of a techie, but it's not like he somehow just fails to comprehend that WiFi technology uses radio signals. He's questioning whether it falls within the scope of what *Congress* meant by the term in 1986, when the distinction was supposed to ensure that nobody would be liable for ordinary operation of consumer gear that might pick up a neighbor's cordless phone. Googling "Rebecca Black greatest living singer" or "Barack Obama muslim kenya birth certifictate" could surely be described as an "unreasonable search," but that's not what the phrase means in the context of the Fourth Amendment.
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- Anonymous Coward, 19 Jul 2011 @ 10:46am
  
  Re: Interpretive Charity
  Just read the Wiretap Act (as amended), sometime...
  
  Congress got all screwy with the definitions. For instance:
  
  �electronic communication� ... does not include�
  ��(A) any wire or oral communication;
  
  Well, hold up there...
  
  �wire communication� means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection....
  
  Wait a second, WTF is an "aural transfer"?
  
  �aural transfer� means a transfer containing the human voice at any point between and including the point of origin and the point of reception
  
  Did you follow that?
  
  The god-damn act is a twisty-maze of confusing definitions!
  
  When the judge came up with his own screwy definition, he was just following Congress' lead. They set up the rules for this game of Calvinball.
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Anonymous Coward, 19 Jul 2011 @ 12:47pm

What the judge has done is to certify that the question is one of law and suitable for an interlocutory appeal. This is a commonplace procedure, but in most instances the relevant circuit court of appeal declines to hear the case at this stage in trial court proceedings.
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