“Sniffing” Does Not Violate Wiretap Act

                     

Sniff
Sniffing Technology Outpaces Legislation

The US District Court for the Northern District of Illinois (Judge Holderman) recently ruled that the interception of unencrypted, publicly available WiFi networks does not violate provisions of the federal Wiretap Act. In a decision involving admissibility of evidence, the court found that a party’s “intercept” fell within an exception to the Wiretap Act – allowing a person “to intercept or access an electronic communication made through an electronic communication system that is configured so that electronic communication is readily accessible to the general public.”

The issue arose in a a patent infringement case. Innovatio IP Ventures sued commercial users of wireless internet technology, such as hotels and coffee shops, for infringing its patents by making the technology available to their customers, as well as using the technology for managing internal processes. As discovery proceeded in the case, Innovatio used commercially-available WiFi network analyzers to collect information about the Wireless Network Users (hotels, restaurants, etc.) allegedly infringing networks. The process, known as “sniffing,” requires Innovatio’s technicians to enter the Users’ premises during business hours with a laptop and a packet capture adapter. The adapter can intercept data packets traveling wirelessly between the WiFi router provided by the Users and any devices that may be communicating with it.

Innovatio sought a ruling on the admissibility of the information it gained in the sniffing process. The court asked the parties to address the Wiretap Act issues. Rejecting both parties’ technical arguments (and experts),  the court focused on an exception to the Act. The Court distinguished this case from a ruling from the Google Street View litigation, by stating that the earlier ruling relied on accepting the premise that communications could only be intercepted using sophisticated technology. Basically, the court concluded that the technology continues to evolve faster than the court rulings and the legislation. The court noted that the public may still have some lack of awareness regarding the privacy of communications in a coffee shop setting, but that lack of awareness does not mean that parties utilizing technology to capture the communications are in violation of the Wiretap Act.

See, In Re Innovatio IP Ventures, LLC Patent Litigation, N.D.Ill., No. 1:11-cv-09308, Aug. 22, 2012

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