The threat of outdated legislation and its failure to protect unencrypted Wi-Fi networks

While most of us use Google Street View to check the physical appearance of an unfamiliar destination, or perhaps on a curious day, our friends’ backyards, some use this feature for stalking and planned misconduct. What perhaps none of us consider is how exactly these images got to Street View, and more importantly, what is being taken in addition to pictures of our homes and offices. For approximately two years, beginning in 2007, Google’s Street View cars, which were supposed to collect the locations of Wi-Fi access points, also collected e-mail and text messages, passwords, Internet-usage history, and other data from unsecured wireless networks.[1] A class action lawsuit ensued, and many were stunned to learn that legal protection under these circumstances is not guaranteed.

The federal wiretap statute prohibits the obtaining or accessing of contents of communications by a device, unless these contents are accessible to the general public.[2] This raises questions about the classification of Wi-Fi as a mode of transmission, and the distinction between encrypted and unencrypted networks. It is argued that under the definition of “readily accessible to the general public,” unencrypted radio communications, including Wi-Fi, may not be covered.[3] Google contends that because the data was not encrypted, it was not covered by the wiretap law.  Arguably, this holds some weight given that open Wi-Fi networks are in fact accessible by the public.

However, the other side of the argument remains that technology has progressed since the Electronic Communications Privacy Act (ECPA) was passed in 1968, and Wi-Fi communications are included under the wiretap law. [4] Judge James Ware, in the case before the U.S. District Court in California, held, “as matter of first impression, Wiretap Act’s narrow definition of “readily accessible to the general public” did not apply to exemption for electronic communication made through an electronic communication system to the extent that such communications that could not be fairly classified as “traditional radio services,” or radio broadcast technology.”[5]

This interpretation provides an important leap into recognizing the progress in technology, and filling in the gaps left by outdated legislation. It provides a sense of security to individuals about the privacy of their information. However, it does not answer all questions. In fact, even within the issue of unencrypted Wi-Fi networks, the law is unclear and may provide protection for some, but not all, of the wireless spectrum that’s used by Wi-Fi router channels. According to Kevin Bankston, senior counsel at the Center for Democracy and Technology, “Under one reading of the statute, only channel 11 is fully protected, while certain frequencies in channels 7 through 10 are protected, and channels 1 through 6 are not protected at all.”[6]

This lack of clarity and confusion in the law is a burden for judges, attorneys and the public alike. With increasing amounts of information transmitted over such methods of communications, it is incredibly important to re-evaluate and adapt outdated legislation to modern-day realities, and develop sound laws to protect private individuals and their information.

[1] Steven Musil, Lawmakers urge DOJ to reopen Google Street View Probe, CNET NEWS (May 24, 2012, 8:00PM),

[2] Elinor Mills, Laws on Wi-Fi sniffing still up in the air, say specialists, CNET NEWS (July 28, 2012),

[3] Id.

[4] Peter S. Vogel, More Legal Woes for Google, ECOMMERCE TIMES (July 13, 2011, 5:00AM),

[5] In re Google Inc. St. View Elec. Communications Litig., 794 F. Supp. 2d 1067 (N.D. Cal. 2011).

[6] Mills, supra note 2.

Author: Priyanka Desai

Priyanka Desai is a Notes and Comments Editor, and a third year student at Rutgers School of Law - Newark. She graduated with a Honors Bachelor of Arts Degree from Queen's University in Ontario, Canada, where she completed a double major in Political Studies and Global Development Studies. During her time at Rutgers Law, Priyanka has interned in the Chambers of the Honorable Judge James Rothschild, as well as at the Office of the Attorney General. She also worked as a summer associate at AIG at the end of her second year, adding in-house experience, to her existing civil litigation experience. She is currently a Teaching Associate for the Legal Research and Writing Program for first year students at Rutgers Law.

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