Jun 112013
 June 11, 2013  Court, Surveillance

Orin Kerr writes:

Google argues that the answer is “yes,” in this oral argument today in the Ninth Circuit in Joffe v. Google.   It’s an interesting question as a matter of statutory interpretation, largely because Congress wasn’t thinking about wireless Internet networks when it was writing about “radio communications.”  The statute reflects different carve-outs from different eras that each reflected technologies of its era, all of which now are now barnacles on the hull of the statute that exist decades later when the technologies are very different. As a common sense matter, it would be surprising if the courts hold that anyone can intercept unencrypted wireless communications.  It would be the kind of surprising interpretation that I suspect Congress might revisit if the courts reach it.  But purely as a matter of statutory interpretation, it’s an interesting and difficult question.

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