Is Wireless Data Picked up by Google Publicly Accessible?

Some new developments in the Google Streetview WiFi monitoring controversy.

First, according to this article one of the lawyers suing Google is alleging that a Google patent application for increasing the accuracy of location based services by intercepting data communications indicates that the Google Streetview monitoring was intentional. I find this unconvincing. Unlike many other countries, the United States doesn't have a requirement that a company exploit patented technology. Absent some other evidence of intentionality, the patent application proves nothing (and, of course, if there was other evidence of intentionality, the patent application wouldn't be necessary).

Second, and more interestingly, some observers (e.g., here) have stated that the lawsuits against Google may have no merit because the electronic communications privacy act has a safe harbor for intercepting communications which are publicly accessible. It's an interesting argument, but I don't know it's a show stopper. The relevant statutory provision is 18 USC 2511(2)(g)(i):

(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;

"readily accessible to the general public" is then defined in 18 USC 2510(16):

(16) “readily accessible to the general public” means, with respect to a radio communication, that such communication is not—
(A) scrambled or encrypted;
...

That definition is the reason I don't think the publicly accessible argument is a show stopper. As I noted here, at least one of the parties bringing suit against Google has alleged that Google engaged in decrypting the communications it intercepted. I don't know what evidence they have to back that allegation. However, at this point, it doesn't matter, since at this stage in the litigation a court is bound to accept the allegations in the complaint as true.

Whether they have enough to get through discovery is another question entirely, but one which won't be raised until Google files its answer and moves for summary judgment.

How to Discuss Open WiFi

As reported in this article from C|NET, Cathy Paradiso, a technical recruiter who works out of her home near Pueblo, Colo., was recently threatened with having her internet access discontinued based on allegations of copyright infringement that ultimately proved unfounded. According to the article, Ms. Paradiso had an unsecured wireless network, and someone took advantage of her connection to download various television shows and movies.

Anyway, on its own, this isn't that big a deal. Certainly, it isn't that big a deal in the ongoing story of copyright infringement accusations and open WiFi (my thought is that this story about an Ohio county which had its free WiFi shut down over a copyright infringement complaint is much more noteworthy). However, something about the reporting on Ms. Paradiso's predicament rubbed me the wrong way. After noting that cutting off internet for someone who works from home is essentially the same as destroying that person's business, the article asked

is it right to penalize someone for not being tech-savvy enough to properly secure a wireless network?

To me, that's entirely the wrong question. Whether someone has open WiFi isn't just a matter of tech savvy. After all, even Bruce Schneier, who is probably the web's best known expert on computer security has advocated for open WiFi, saying that people who maintain open WiFi make the world a better place, by making a valuable resource more easily available to more people. While Mr. Schneier's analysis of the costs and benefits of leaving WiFi open might not convince everyone that open WiFi is the way to go, it certainly disproves the idea that leaving WiFi open is something that only the technically unsavy would do, and that policies should be built around the idea that leaving WiFi open is somehow a less legitimate choice than the alternative.

So, how would I like to have seen the article deal with the open WiFi issue? I think treating it as a real issue, with real policy consequences would have been a better way to go. For example, instead of assuming open WiFi is bad, it could have explained why the problems with open WiFi (e.g., making it harder to police copyright violations) outweigh the benefits (e.g., broader access to valuable resources). Or, in the alternative, it could have explained that open WiFi is valuable, and then discussed policies which would help foster it (for example, stripping ISPs who go after people with open WiFi of their protections under section 512 of the DMCA, under the theory that those providers are no longer acting as passive conduits, and so shouldn't be protected as if they were). Either way, it would have been a great deal more informative and interesting than simply treating open WiFi as something that happens only by mistake.