Extra-Judicial Wi-Fi “Sniffing” to Determine Device Configurations Did Not Violate Wiretap Act

The court approved plaintiff's motion for a protocol allowing it to engage in Wi-Fi "sniffing" at defendants' hotels, coffee shops, restaurants, supermarkets, etc., to determine what devices and configurations were being used, even though the parties disputed whether plaintiff's modified “sniffing” violated the Wiretap Act by intercepting the contents of the users' communications. "[E]ven assuming that [plaintiff's] proposed protocol intercepts Wi-Fi communications, [its] proposed protocol falls into the exception to the Wiretap Act allowing a person '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.'. . . With a packet capture adapter and the software, along with a basic laptop computer, any member of the general public within range of an unencrypted Wi-Fi network can begin intercepting communications sent on that network. . . . The public’s lack of awareness of the ease with which unencrypted Wi-Fi communications can be intercepted by a third party is, however, irrelevant to a determination of whether those communications are 'readily available to the general public.'"

Innovatio IP Ventures, LLC, Patent Litigation, 1-11-cv-09308 (ILND August 22, 2012, Order) (Holderman, J.).