Orin Kerr writes:
The decision is In re INNOVATIO IP VENTURES, LLC PATENT LITIGATION. MDL Docket No. 2303, Case No. 11 C 9308. (N.D.Ill. August 22, 2012), via Cybercrime Review. The opinion holds that anyone can monitor the unencrypted wi-fi communications of anyone else without implicating the Wiretap Act. I think the decision is wrong, and I wanted to explain why.
The court holds that unsecured wireless communications are not covered by the Wiretap Act because of the exception found in 18 U.S.C. § 2511(g)(i). That exception states:
(g) It shall not be unlawful under this chapter or chapter 121 of this title for any person—
(i) to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public;
The Court concludes that this exception covers unsecured wi-fi communications, so that it is entirely lawful to snoop in on someone else’s private communications over an unsecured wireless network:
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