Limits of Federal Wiretap Act's Ability to Protect Against Wi-Fi Sniffing

Abstract

Adoption of Wi-Fi wireless technology continues to see explosive growth. However, many users still operate their home Wi-Fi networks in unsecured mode or use publicly available unsecured Wi-Fi networks, thus exposing their communications to the dangers of “packet sniffing,” a technique used for eavesdropping on a network. Some have argued that communica-tions over unsecured Wi-Fi networks are “readily accessible to the general public” and that such communications are therefore excluded from the broad protections of the Federal Wiretap Act against intentional interception of electronic communications.This Note examines the Federal Wiretap Act and argues that the current Act’s treatment of Wi-Fi sniffing might protect unsecured Wi-Fi communications under some circumstances, but that any such protections are incidental, unsystematic, and uncertain. This Note further argues that the current statute’s “readily accessible to the general public” language should be interpreted in a way that addresses concerns about Wi-Fi sniff-ing and users’ expectations of privacy. Users’ current expectations stem from their limited understanding of the underlying Wi-Fi technology and the accompanying security risks and, more importantly, from the fact that private communications cannot be intercepted without specialized tools and knowledge not readily available to the general public. Finally, this Note advocates for amending the Federal Wiretap Act to remove uncer-tainty regarding protections against Wi-Fi sniffing. Clear protections against Wi-Fi sniffing would avoid the private and social cost of data theft resulting from sniffing and could close the gap between users’ theoretical ability to protect themselves by using security mechanisms and their re-duced practical ability to take any such protective measures.