So Google drove around with an antenna on their Street View cars for a few years, sniffing for wireless networks. This is very useful if you'd like to know your location but can't get a GPS signal, especially on devices with lower quality antennas or a location with poor sky visibility. As long as you have a data connection, you send the local Access Points off to Google's servers, and they will look up the location and feed it back to you. Simple, right?
Well, sniffing for access points (AP) is ridiculously simple. Your phone does that every time you look at a list of networks in your location, by looking for a special network frame called a beacon, which a regular access point send out roughly ten times a second. It's crucial to how WiFi works. It uses the same frame type as normal traffic, so even without a beacon you can still see at least the presence of traffic, and the MAC address associated with the AP. If the network is unencrypted, your WiFi network card automatically accepts those traffic frames too, then has it discarded by your kernel because it is not destined for your computer/smartphone/tablet etc ("your device").
I've done sniffing myself, in a practise known as "war driving". It sounds ominous, but it's also a very interesting excercise, for which I purchased a specific Atheros WiFi NIC, thanks to their products having excellent Linux support. Hook up a GPS receiver, and just go places. The software figures out where you are, looks at the list of APs nearby and pins them to a map. The problem here is that simply enabling your card to listen for APs does cause your system to store those traffic frames, since they are usefuol for determining the IP range in use on that network. Note I'm not trying to use those networks, I'm just interested in seeing how they're being used.
Now comes the interesting part: The court decided these signals being intercepted were not "radio communications" (despite being carried by photons) for the purposes of a legal interpretation, not "readily accessible to the general public" without "sophisticated hardware and software", and finally "most of the general public lacks the expertise to intercept and decode payload data transmitted over a Wi-Fi network".
On each point:
- It's radio. Learn physics. The lower court's opinion that the law covered "predominantly auditory broadcast" is an inference form the court; 18 USC § 2511 mentions audio only for satellite transmission, and only then to describe an audio channel used as a carrier for digital communications therein. If I speak ones and zeros into my walkie-talkie, does this suddenly become digital communications? Your meaning is divorced from reality, and I think it suits an agenda instead of fact.
- If I walk down a street, glancing into shops as I go, and see a person in one shop/office/etc handing a big photo with a red X through it to another person, with person in photo turning up dead and either of the two persons implicated at trial, I can't be prohibited for testifying because I got information not "readily accessible to the general public"(i.e. they were not standing on a street in plain view); a police officer seeing the same thing under the same circumstances is not prohibited from using the information for lack of a warrant or probable cause - it still doesn't affect the fact that photons bounced off the photo and got interpreted by "specialised hardware " (eyes) and "specialised software" (brain). Nobody's privacy is invaded, but information was blasted into the street nonetheless.
- WiFi NIC cost: $10 (shipping costs vary), down to as low as one. These devices are sophisticated, don't get me wrong, but then most computers are mind-numbingly powerful today. Linux kernel cost: nothing (download costs may vary, but is unlikely to make you hit your ISP's download cap), easily installed in an array of distributions. Laptop cost: Variable, but if you've got one lying around you already have your solution.
- Interception is easy stuff. Decoding is easy stuff, and your device "decodes" it as part of its' primary function.
- A further point the court asserted is that regular (AM/FM) radio communications can be received miles away, versus WiFi that "fail to travel far beyond the walls" of a location. Again, physics. Oh, and define "far" - my balcony is less than 15 meters from my AP and my signal comes and goes, while the street is 30 metres away (in the opposite direction) and I still get an association (but not much throughput) fairly reliably. I despise vagueness in court proceedings.
I'm used to seeing courts being out of touch with reality, especially in computing cases, but this is beyond unreasonable. I have no doubt Google had zero intention of capturing user detail such as e-mails, usernames or passwords (why would they, they run an e-mail service?), and are now being prosecuted for users' inability to secure their own networks.
But mostly: Physics!