Orin Kerr writes:
My earlier post on how the Wiretap Act applies to wireless networks triggered a lot of comments on how the Fourth Amendment might apply, so I thought I would have a post specifically on the matter. Here’s the question: Does governmental interception and analysis of the contents of a person’s wi-fi traffic constitute a Fourth Amendment search? And does it depend on whether the traffic is encrypted or unencrypted?
The answer turns out to be surprisingly murky. Because the Wiretap Act has been thought to protect wireless networks, the Fourth Amendment issue has not come up: There’s a surprising lack of caselaw on it. Second, there are plausible arguments on either side of the debate both for encrypted and unencrypted transmissions. So I wanted to run through the arguments, starting with the case of unencrypted communications and then turning to encrypted communications, and then ask which side readers find more persuasive.
Read more on The Volokh Conspiracy.
Free Wifi image by tiseb/Flickr, used under Creative Commons License