ITIF has filed an amicus brief supporting Google's petition to be heard by the U.S. Supreme Court in the Google Inc. v. Joffe et al case. In that case, Google is accused of illegally intercepting transmissions from open WiFi networks during its Street View project. ITIF believes that the Ninth Circuit Court of Appeals needlessly treats modern digital communications different from old analog communications, creating confusion and uncertainty for innovators and IT security professionals and warranting review by the Supreme Court.
The Wiretap Act generally allows anyone to listen to radio communications that are not secured to be made private. However, the Ninth Circuit Court of Appeals has concluded that WiFi transmissions are not considered "radio communications."
ITIF contends that the Ninth Circuit was incorrect in holding that only "predominantly auditory broadcasts" like AM/FM radio are considered "radio communications." The court's reading is contrary to the plain meaning of the term "radio communication" and difficult to square with the rest of the Wiretap act. The law has a difficult enough time keeping up with technology without the introduction of arbitrary distinctions based on outmoded radio technologies. We should generally favor policies and interpretations that treat similar technologies alike. When WiFi access points are not encrypted, the communications it sends are available to the public using off-the-shelf equipment similar to a CB radio or walkie-talkie. The Supreme Court should clarify that these radio technologies are treated the same under the Wiretap Act.
What “radio communication” means is an important question of federal law because the narrow definition adopted by the court of appeals calls into question the legality of standard techniques used by IT professionals across the country every day to secure and optimize wireless networks. The lack of clarity that results from the court of appeals’ decision makes it harder for IT professionals to secure wireless networks, threatening the security of our nation’s wireless infrastructure.
View ITIF's amicus brief on Google v. Joffe filed with the U.S. Court of Appeals for the Ninth Circuit.