
Sniffing open WiFi networks is not wiretapping, judge says - nswanberg
http://arstechnica.com/tech-policy/2012/09/sniffing-open-wifi-networks-is-not-wiretapping-judge-says/
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rosser
How is sniffing open WiFi networks different from standing in earshot of a
conversation being held in public?

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aidenn0
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.

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tedunangst
What about recording the police beating somebody on the sidewalk?

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rosser
I wasn't aware that the intersection of truncheons and skulls was a
"conversation".

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tedunangst
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?

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dllthomas
A policeman operating in the course of his duties has a modified set of
permissions, rights, and restrictions.

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tedunangst
The policeman having more restrictions does not automatically mean you have
fewer restrictions.

Your recording is also likely to pick up the conversation of the people nearby
saying "hey look at that".

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rosser
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...

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tedunangst
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.

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aidenn0
Hasn't receiving radio signals sent "in the clear" always been legal? That
confused me with the Google case too. There are exceptions, particularly
surrounding cars (radar detectors, police scanners are both illegal in cars in
some states)

[edit] The issue isn't receiving, it's recording, duh!

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16s
It's a radio signal. It's broadcast and if you are in range, you can tune in
and listen. There's no possible way this can be construed as "wiretapping".

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rosser
Intercepting cellular signals, even before they've hit the tower and are being
transmitted on _actual wires_ is still _wiretapping_.

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joshAg
cell signals are encrypted, though, aren't they?

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sp332
It's illegal either way. But to answer your question: GSM and CDMA have weak
encryption. GSM at least has _optional_ encryption, and your phone won't tell
you if it's being sent in the clear.

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magicalist
It's actually not ( _edit: it actually is illegal either way for cell signals
in particular, see below_ ), according to federal code. We'll have to dig up
some old cordless phone interception cases, but if you weren't trying to
defraud the intercepted line (like racking up a bill), you're more or less in
the clear.

California and other states had stricter laws about telephone conversations in
particular, but as others have noted: when laws are particular about their
domain, that almost always means they are not applicable by analogy elsewhere.

Edit: ah, someone in the Ars comments brought up a good point: cell phone
frequencies are specially regulated and auctioned by the FCC, and intercepting
them is indeed prohibited (by my reading at least). Since your connection to
your cordless phone base station is itself not a common carrier, though, it
_is_ considered publicly accessible (by federal code), and so it is not
illegal to intercept it (when it's not encrypted).

