

Judge Who Doesn't Understand Technology Says WiFi Is Not a Radio Communication - grellas
http://www.techdirt.com/blog/wireless/articles/20110701/12225114934/judge-who-doesnt-understand-technology-says-wifi-is-not-radio-communication.shtml

======
grellas
A pretty good technical analysis of this decision is found here:
[http://blog.ericgoldman.org/archives/2011/07/judge_ware_goog...](http://blog.ericgoldman.org/archives/2011/07/judge_ware_goog.htm).

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The statute was passed in 1986 and is badly out of date.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.

------
tzs
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.

------
mattmanser
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'.

~~~
ScottBurson
EDIT: WHOOPS! Retracted. See mattmanser's reply.

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".

~~~
mattmanser
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.

~~~
mattmanser
This made me read more...

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.

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noonespecial
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.

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zyb09
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.

~~~
asynchronous13
> Didn't they just map SSIDs to locations for their geo database?

No, that's the problem. It was discovered that Google recorded a large amount
of data beyond just SSIDs.

------
chopsueyar
_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.

------
Confusion
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.

~~~
guptaneil
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.

~~~
prayag
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.

~~~
guptaneil
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.

------
blinkingled
<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.

~~~
joenathan
Wow, there is so much wrong in your comment I don't even know where to
start...

~~~
ScottBurson
I think that was sarcasm.

~~~
joenathan
I hope that was sarcasm, but if it was, it's wasn't a good execution.

