Your comment made me realize why my comment was wrong: the issue isn't listening in, the issue is recording. Recording someone else's conversation without the permission of a participant is illegal in most states.
I think that it is legal to record someone else's conversation without permission if it is in public, since there is no expectation of privacy in a public place.
But there is in this case, you have to take extraordinary steps and specifically ask your network card to enter a special mode to start recording these conversations.
They aren't public at all as there is an expectation at the protocol level that you ignore the message that aren't intended for you. And they're explicitly flagged that they're not for you.
You're opening mail addressed to someone else and you know you're doing it. It's not legal to start opening other people's mail because it's lying in the same hallway as yours. This is exactly the same thing.
This judge just doesn't understand that. The legal expert is right, the judge will end up with egg on his face.
Why they don't just do a bit of street theatre like 'Here is a letter addressed to the judge. Because of the way the postal system works I got it as well. I am now opening it and reading it. Is this ok? No. Of course not. It's not for me. This is exactly what they deliberately did but it's just digital.'
We don't have a blanket law against reading other people's messages. The law on intercepting postal mail sent through the postal service does not apply to internet packets in radio transmissions. The judge can't extract the intent of that law and apply it to a different domain. If that was how our legal system worked, you could be stripped of your drivers license for playing a racing video game in your living room while drunk.
You have an argument for why intercepting others' wifi messages might be unethical, but not why it's illegal.
You're opening mail addressed to someone else and you know you're doing it. It's not legal to start opening other people's mail because it's lying in the same hallway as yours. This is exactly the same thing.
No it isn't, because the mail is in a closed envelope whereas unencrypted activity over wifi is equivalent to a public conversation that can easily be overheard. The steps required to sniff open traffic are hardly extraordinary.
Why they don't just do a bit of street theatre like 'Here is a letter addressed to the judge. Because of the way the postal system works I got it as well. I am now opening it and reading it. Is this ok? No. Of course not. It's not for me. This is exactly what they deliberately did but it's just digital.'
Well, no. If traffic is not encrypted then it is public in the same manner as a postcard. It's illegal to open people's mail, but you can't practically prevent people reading what's written on a postcard.
> The steps required to sniff open traffic are hardly extraordinary.
Neither is the step required to open the envelope.
Judge's reasoning is that it is quite easy to obtain tools to sniff the packet, and that those tools are sold to the public for very low price. I can present you with readily available envelope opening tool that costs less than a dollar.
You missed the point. The grandparent argued that sniffing traffic required the listener to undertake extraordinary measures to engage in such activity.
but a sealed letter has the expectaion of privacy that only the addressee will open it
postcards and unencrypted radio transmissions (like say 2.4 ghz or 900 mhz cordless phones, and fm & am radio) do not carry such an expectation, so it is not illegal to snoop such traffic (this is one of the reasons why cable and satellite tv is encrypted (ie scrambled); were it not encrypted in some fashion, it would be legal to set up your own equipment to capture the stream and do what yoou what with it like you do with fm and am radio).
encrypting the data, like putting something in a sealed, addressed envelope, lets everyone know that the data is not intended for anyone to read and creates an expectation of privacy. the ease of decrypting data is not really relevant (eg breaking a wep protected connection carries the same legal penalties as breaking a wpa2 protected connection) because the basis for the law against reading others' mail is the violation of a privacy that the victim took steps to create (eg its almost certainly legal to read others' postcards and definitely legal to read the outside of the envelope because no steps are taken to prevent anyone other than the intended recipient from reading the message).
you could argue that there is also an expectation of privacy inherent in the relevant link (for wifi and ethernet) layers of the networking stack since the standards call for ignoring all frames not addressed to you (a host on the network), but this argument is severely weakened by the fact that frames are sent to every host connected to the network and that determining whether you should be reading a given frame requires you to read the frame (and not just part of it, because FCS is over the whole frame, not just the header) anyway. These two facts make it much more comparable to a conversation in a public space, which carries no expectation of privacy and thusly no law against eavesdropping.
> postcards and unencrypted radio transmissions (like say 2.4 ghz or 900 mhz cordless phones, and fm & am radio) do not carry such an expectation, so it is not illegal to snoop such traffic
As to cell phone transmissions, yes, it is illegal to eavesdrop on them. This was true before they were digital -- when anyone with a suitable receiver could tune them in. It's just as illegal now, as well as being more difficult to eavesdrop because the entire system is now digital.
yes, but a major part of the reason that it is illegal to eavesdrop on them is because they are encrypted.
Generally speaking, it is not illegal to eavesdrop on unencrypted radio transmissions, but it is illegal to eavesdrop on any encrypted radio transmission (regardless of how effective the encryption is). This is because the people who crafted the law thought that an encrypted datastream was enough of a warning to potential eavesdroppers that the datastream is intended to be private. The crime isn't breaking the encryption, but violating a reasonable assumption of privacy.
The examples I cited all broadcast unencrypted datastreams, which is why it's legal to tune into them regardless of whether you are the intended recipient.
Exactly. Even in the "one-party" consent states (which is most of them), where a conversation, phone or otherwise, can be recorded if only one of the participants is aware of the recording, it's illegal almost everywhere to record a conversation you're not a party to.
It is legal, though I can only speak to US law. Its just that the police can take it as evidence, and that makes the task of making it 'disappear' pretty simple. Some jurisdictions also require the officer to be made aware of the recording as it goes on.
The policeman is likely to be saying something. And his focus is on the victim, and therefore unaware of the recording. So do we still think that should be illegal to record?
What the people nearby are saying is incidental to the thing you're actually recording, though. It's the same thing as, or very similar to taking a video while you're on vacation: the police aren't going to bust down your door and haul you away because your camcorder's mic happened to pick up a conversation between the people standing three feet away from you. When you break out a parabolic mic and start recording conversations from 30 meters away — without the knowledge or consent of the people having that conversation — however, you're doing something that's at best creepy, and probably also illegal.
EDIT: It would also probably be illegal to, in the course of taking your vacation video of whales breaching or whatever, instead start specifically recording a conversation happening nearby. IANAL, but I think the distinction has more to do with what you intend to record than what you happen to record. You don't have a "reasonable expectation of privacy" in public, but you do have a "reasonable expectation" of not being deliberately and specifically recorded by some random creeper while out in public.
EDIT 2: Further, with as often as it happens, and pursuant to the DoJ's own statements on the subject, the police don't have a "reasonable expectation" of not being recorded when they're going about their jobs — particularly when, in the course of executing said job, they end up beating someone into unconsciousness...
Personally, I feel such matters are resolved by the simple rule that things happening in public spaces are public, and things happening in private spaces are private. One can argue about public vs private spaces, but it removes intent and expectations from the equation.
Are you outside your house? If yes, expect to have all your actions recorded and available to be streamed on the internet.
