Limits of the Federal Wiretap Act's Ability to Protect against Wi-Fi Sniffing

Adoption of Wi-Fi wireless technology continues to see explosive growth. However, many users still operate their home Wi-Fi networks in unsecured mode or use publicly available unsecured Wi-Fi networks, thus exposing their communications to the dangers of "packet sniffing," a technique used for eavesdropping on a network. Some have argued that communications over unsecured Wi-Fi networks are "readily accessible to the general public" and that such communications are therefore excluded from the broad protections of the Federal Wiretap Act against intentional interception of electronic communications.This Note examines the Federal Wiretap Act and argues that the current Act's treatment of Wi-Fi sniffing might protect unsecured Wi-Fi communications under some circumstances, but that any such protections are incidental, unsystematic, and uncertain. This Note further argues that the current statute's "readily accessible to the general public" language should be interpreted in a way that addresses concerns about Wi-Fi sniffing and users' expectations of privacy. Users' current expectations stem from their limited understanding of the underlying Wi-Fi technology and the accompanying security risks and, more importantly, from the fact that private communications cannot be intercepted without specialized tools and knowledge not readily available to the general public. Finally, this Note advocates for amending the Federal Wiretap Act to remove uncertainty regarding protections against Wi-Fi sniffing. Clear protections against Wi-Fi sniffing would avoid the private and social cost of data theftresulting from sniffing and could close the gap between users' theoretical ability to protect themselves by using security mechanisms and their reduced practical ability to take any such protective measures.IntroductionWhen Google Street View1 became publicly available, people were fascinated by the ability to zoom into a particular location and see real pictures of homes or businesses from the comfort of their homes. To offer these features, Google deployed a fleet of cars equipped with a global positioning system ("GPS"), high-resolution 360-degree cameras, and radio scanners to roam neighborhoods and photograph the publicly visible environs. Most were unaware that, while scouring neighborhoods, Google's cars were also scanning the airwaves for active Wi-Fi2 networks.3In May 2010, Google admitted that since initiating its Street View program in 2007, it had collected upwards of 600 gigabytes of payload4 data-including private information like emails, voice communications, passwords, and financial and medical records-from open (i.e., unsecured) wireless networks.5 This admission raised serious concerns about privacy and potential Federal Wiretap Act ("the Act")6 violations. Google used "packet sniffing," a technology used to eavesdrop on a network by intercepting and decoding network communications,7 to collect users' private data transmitted over unsecured networks.8 Google claimed that any use of technology capturing payload data from unsecured wireless networks was accidental,9 and it firmly denied using any of the private data it had captured.10The Google incident demonstrates the rising privacy risks to users' private Wi-Fi communications posed by "sniffing." As open Wi-Fi network usage becomes even more popular, the threat to consumers' private data continues to rise.11 There has been an explosive growth in the adoption of wireless data networking technology, allowing users to connect to the internet wirelessly at private homes, offices, and public places. To meet the increased demand for wireless connectivity, more wireless access points, known as "hotspots," are becoming readily available in public places like airports, restaurants, and parks-and even on buses, trains, airplanes,12 and freeway rest stops.13 Intentionally or unintentionally, many individuals and businesses operate their Wi-Fi networks as unsecured, "open" networks. …