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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

Court Holds Interception of Unsecured Wi-Fi Communications Does Not Violate the Wiretap Act

Posted in Litigation, United States

Late last month — in a decision that seems to have been largely overlooked in the privacy trade press — a federal judge in Illinois held [PDF] that the Wiretap Act did not prohibit the interception of communications sent over unsecured Wi-Fi networks provided by hotels, restaurants, coffee shops and other commercial entities.  The decision came in a case, In re Innovatio Ventures, LLC Patent Litigation, that does not involve an alleged violation of the Wiretap Act.  Rather (as its name suggests), In re Innovatio is an infringement suit in which Innovatio has accused various commercial entities that provide Wi-Fi to their customers of violating its patents in Wi-Fi technology.  To gather evidence about the defendants’ alleged infringing uses, Innovatio has used “commercially available Wi-Fi network analyzers” to “intercept data packets that are travelling . . . between the Wi-Fi router[s] provided by [the Defendants] and any devices that may be communicating with [the routers].”  Innovatio apparently grew concerned that its activities violated the Wiretap Act and sought a preliminary ruling on the admissibility of the evidence it obtains through its “proposed sniffing protocol.”

The court held that Innovatio’s data collection activities do not violate the Wiretap Act because they fall within a statutory exception permitting the interception of an “electronic communication made through an electronic communication system that is configured so that [the communication] is readily accessible to the general public.” The court explained that the technology Innovatio used to intercept Wi-Fi communications “is available to the public for purchase for $698.000” and that a more basic version of the technology could be purchased for $198.00. On the basis of these findings, the court concluded that “to the extent that Innovatio’s proposed sniffing protocol accesses only communications sent over unencrypted Wi-Fi networks available to the general public, it is permissible under . . . the Wiretap Act.”

The Innovatio decision stands in contrast to last year’s decision in In re Google Inc. Street View Electronic Communications Litigation (which we discussed here), in which Chief Judge Ware of the Northern District of California held that Google’s alleged interception of unsecured Wi-Fi communications through its Street View vehicles did not fall within the “readily accessible” exception. The Innovatio court distinguished In re Google, noting that Chief Judge Ware had based his decision in part on the fact that the plaintiffs had alleged that their communications “were not readable by the general public without the use of sophisticated packet sniffer technology.” (Because of the posture of the case, Chief Judge Ware was required to accept this allegation as true.) The In re Google decision is currently on appeal to the Ninth Circuit.