This is a biased article as it doesn't highlight any of the reasons why the judge did it.
In fact skimming the judgement the Judge seems to have an exceptional understanding of technology and how it relates to law. IANAL, but he seems to be saying if he allows WiFi to be called a 'radio communication' then it will suddenly be legal to wiretap a lot of things that are presently illegal.
Quite specifically the judge mentions:
Section 2511(2)(g) makes it lawful to intentionally intercept any radio communication that “that relates to ships, aircraft, vehicles, or person in distress,” without reference to whether such radio communication was readily accessible to the general public and not scrambled or encrypted. Should the Court interpret radio communication so broadly within the Act to include such technologies as wireless internet and cellular phones, this exception could lead to absurd results. Specifically, pursuant to this interpretation, an unauthorized intentional monitoring of a cellular phone call could be lawful should the content of the communication relate to vehicles or persons in
distress, but unlawful otherwise. Further, Section 2511(2)(g) makes it lawful to intentionally intercept any radio communication transmitted by “any marine or aeronautical communications system,” which could lead to equally arbitrary results when applying the exception to
communications technologies other than radio broadcast technologies, e.g., a Wi-Fi network aboard an airplane.
Note the any radio communication and that the act actually doesn't prohibit that interception even if it's scrambled or encrypted.
His problem is that if he allows Google to call Wifi radio communication suddenly it's legal to wiretap people's encrypted wifi traffic as long as it relates to vehicles or if it's aboard a plane or boat.
Basically, in my brief scanning, he seems to be saying 'Congress, this could open an absurdly tricky loophole if I say yes, please do something'.
I have to agree that the article is very biased. The judge also says that if he interprets "radio communication" to include all technologies that transmit over radio waves, then it contradicts existing 9th circuit precedent that classifies cell phones as "wire communication". It seems like the judge understands the technology well enough, but is struggling to come up with a legal interpretation that makes sense.
While the wording of the statute is certainly problematic, this assertion by the judge is, I would argue, mistaken (p. 3):
In order to view the contents of the data packets captured by the wireless sniffer in a readable form, the packets must be stored on digital media and then decoded using crypto-analysis or a similarly complicated technology. [...] As such, the data packets are not readable by the general public absent this sophisticated decoding and processing technology.
He seems to be confused about the fact that Wi-Fi networks may or may not use encryption; he's assuming they always do, when in fact the networks from which Google was gathering information were only the open ones, i.e. those not using encryption.
In fact I'm sure there are generally available apps -- maybe even for cell phones! -- that allow one to collect the same information. (If there aren't, they could certainly be written easily enough.) Surely this makes it "readable by the general public".
No, you've made a mistake. That's taken from the Plaintiff's allegation and the judge didn't write that.
Check the top of page 2:
Plaintiffs allege as follows: then everything indented is from the Plaintiff's claim including your quote. Plaintiff's claim finishes page 4.
Also note the final judgement at the end of the whole thing, Judge dismisses in favour of Google on two parts of their motion. Just to highlight this is a complicated judgement.
See page 20, line 10 and read onwards, the Judge clearly understands the difference.
And further to that the Judge specifically calls out the underlying basis behind your objection and saying it's misplaced. (page 21, line 8)
On another note, I had no idea but this would seem that the Judge is saying that if you are caught running wireshark with your network card on promiscuous setting in a public wifi you are wire tapping. It's fine to connect to the network, just not listen to other people's packets.
Which seemed totally outrageous when I first realized it, then totally made sense the more I thought about it. After all, phone cables are publicly accessible, it's fine to use them for your phone calls, moment you hook up a physical wiretap to the publicly accessible telephone lines, boom, you're wiretapping.
The other thing to remember here is that this is not anything close to a final ruling against Google; the judge simply declined to dismiss all the charges that Google was moving to dismiss (he did dismiss two out of three). The result is simply that the remaining charge can go to trial.
Yeah the law seems badly worded..we also have situation of GPS not being exempted when used by non vehicle entities..ie the Police can ask cell carrier for gps info without warrants whereas if its a vehicle gps than they have to have a warrant..or did I understand it wrong?
Professor Eric Goldman adds his comments to the end of the linked piece, including the following:
"I continue to insist that the ECPA is one of the worst-drafted statutes of all time. . . . [N]o one knows what the statute really means . . . The class action plaintiffs have gone crazy with the statute, and due to its drafting deficiencies, the plaintiffs claims are rarely clearly wrong on the surface. The result has been a huge tax on innovation with no commensurate social benefits; only the private benefits of a few privacy class action lawyers getting fat and happy while feasting on Silicon Valley companies."
The statute was passed in 1986 and is badly out of date. Judge Ware, who is a very good judge, is left to struggle with trying to determine what Congress intended when it enacted the statute 25 years ago as its text might apply to technologies that did not exist at the time. This is a difficult task at best and is not likely to lead to consistent results among the courts. Congress therefore needs to act to fix this and to set the right policy choices based on the technology we have today.
The article from Techdirt, so I knew before reading it that it was probably wrong, and I was not disappointed.
First, if you actually read the decision, the judge demonstrates far more knowledge of the technology than Techdirt's writer.
Second, you have to keep in mind that this was in response to Google's motion to dismiss. When analyzing the law in response to such a motion, the judge should interpret that law as favorably as possible for the opposing party.
This is just the difference between legal reasoning and material rationalism. There are plenty of legal situations that find a car is not a "motor vehicle" in the eyes of the law that make perfect sense. "Radio communication" has a very specific legal meaning that this judge does not feel wifi met in this case.
Didn't they just map SSIDs to locations for their geo database? I don't think they have a case there. Actually it's pretty stupid not to do that, when you're company invests in the task of driving through every single street in the whole country. The judges should asks themselves how their phones are so good at knowing their exact location at any point of time and what kind of tremendous work it is to make that feature work so well.
It shall not be unlawful under this chapter or chapter 121 of this title for any person... to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public
Is the 'electronic communication system' simply the wifi router, or does it encompass the wifi router and the cable/dsl modem or ONT? Because the system as a whole was never intended for public access in that instance, and most ISPs specifically forbid it.
The underlying problem is that the people that wrote the law weren't technologically sophisticated enough to properly define what the law was meant to apply to. 'Radio communication' is incredibly ambiguous. They probably meant any data transmitted using electromagnetic waves as the physical data carrier, but we can never be sure, because 'radio communication' is also a specific application of that class of technologies.
Laws are usually meant to be ambiguous so that they can be interpreted by courts on a case-by-case basis and be somewhat future-proof. If politicians wrote more specific laws, then we would have to create new laws for every scenario. Sure, eventually the laws should still be rewritten once they've been sufficiently outdated, but until that happens, courts have some leeway in applying existing laws to new situations.
Not true. Law-makers never intend the law to be ambiguous. In fact, it makes the jobs of the court much harder since the interpretation of courts constitutes a precedence and guides the future decisions of the courts.
In fact the criticism of ECPA is that it is a very vague law and that is precisely why the court is struggling with the interpreting it.
I would argue that there's a subtle difference between being ambiguous and being vague. Being vague implies that the intended meaning cannot be discerned, while being ambiguous implies that the law can be interpreted and applied to multiple scenarios, even those that did not exist at the time of its writing.
IANAL nor have I read the ECPA itself, but from my understanding of the case, the judge fully understood the intention of the law and applied it appropriately to this case. Had the law been less ambiguous and more specifically defined "radio technologies," then we may have ended up with a situation where wiretapping encrypted wifi might actually be considered legal. See mattmanser's explanation above (http://news.ycombinator.com/item?id=2721831)
Of course, there is a fine line between being too vague and being too specific.
<sarcasm> Well radios are dead since long and WiFi is the newest gig in town. Besides no one has ever heard anyone talking over WiFi.
</sarcasm>
Wow people really did believe it was anything but sarcasm! Oh well.. But it is not hard to see how lay people can end up thinking there is no connection between WiFi and Radios.
In fact skimming the judgement the Judge seems to have an exceptional understanding of technology and how it relates to law. IANAL, but he seems to be saying if he allows WiFi to be called a 'radio communication' then it will suddenly be legal to wiretap a lot of things that are presently illegal.
Quite specifically the judge mentions:
Section 2511(2)(g) makes it lawful to intentionally intercept any radio communication that “that relates to ships, aircraft, vehicles, or person in distress,” without reference to whether such radio communication was readily accessible to the general public and not scrambled or encrypted. Should the Court interpret radio communication so broadly within the Act to include such technologies as wireless internet and cellular phones, this exception could lead to absurd results. Specifically, pursuant to this interpretation, an unauthorized intentional monitoring of a cellular phone call could be lawful should the content of the communication relate to vehicles or persons in distress, but unlawful otherwise. Further, Section 2511(2)(g) makes it lawful to intentionally intercept any radio communication transmitted by “any marine or aeronautical communications system,” which could lead to equally arbitrary results when applying the exception to communications technologies other than radio broadcast technologies, e.g., a Wi-Fi network aboard an airplane.
Note the any radio communication and that the act actually doesn't prohibit that interception even if it's scrambled or encrypted.
His problem is that if he allows Google to call Wifi radio communication suddenly it's legal to wiretap people's encrypted wifi traffic as long as it relates to vehicles or if it's aboard a plane or boat.
Basically, in my brief scanning, he seems to be saying 'Congress, this could open an absurdly tricky loophole if I say yes, please do something'.