Academic journal article Federal Communications Law Journal

From Ship-to-Shore Telegraphs to Wi-Fi Packets: Using Section 705(a) to Protect Wireless Communications

Academic journal article Federal Communications Law Journal

From Ship-to-Shore Telegraphs to Wi-Fi Packets: Using Section 705(a) to Protect Wireless Communications

Article excerpt

TABLE OF CONTENTS  I. RADIO COMMUNICATIONS AND THEIR STATUTORY PROTECTIONS             528    A. Radio Communications from Telegraphs to Wi-Fi                 528    B. Federal Law Has Prohibited Intercepting Radio       Communications for over a Century                             531       1. The 1968 Wiretap Act Exemptions                            533       2. The 1986 Electronic Communications Privacy Act          Exemptions                                                 535 II. UNCERTAINTY HAS EMERGED AMONG COURTS AND THE FCC REGARDING     SECTION 705(A)'S SCOPE AND APPLICABILITY                        535    A. Currently, there is Substantial Uncertainty over What       Protections the Law Affords to Unencrypted Wi-Fi       Communications.                                               536 III. CORRECTLY INTERPRETED, SECTION 705(A) PROTECTS AMERICANS'      UNENCRYPTED WI-FI COMMUNICATIONS                               537    A. Section 705(a) Does Not Incorporate the Readily Accessible       to the General Public Exception, According to       Well-Established Canons of Statutory Construction,       Congressional Intent, and Early Interpretations of       the Section's Meaning.                                        538       1. The Reference Statute Canon Does Not Allow for the          "Readily Accessible" Exception to be Read into          Section 705(a).                                            538       2. Congress Did Not Intend for the "Readily Accessible"          Exception to Be Carved Out of Section 705(a).              539       3. Early Interpretations of Section 705(a) Support This          Interpretation.                                            541    B. Seemingly Contrary Case Law Is Not Dispositive on the       Issue of Incorporating the ECPA Exceptions into       Section 705(a).                                               542    C. In the Face of Persistent Uncertainty Regarding the Scope       of ECPA's Protections, Interpreting and Applying Section       705(a) to Protect Unencrypted Wi-Fi Would Serve Important       Economic and Social Objectives.                               543       1. Protecting Private Communications Spurs Economic Growth          by Fostering Public Trust in New Technologies Which in          Turn Encourages Adoption.                                  544       2. Protecting Private Communications Effectuates First          Amendment Values by Encouraging Private Speech.            545 IV. CONCLUSION                                                      546 

In early 2010, Google admitted that its Google Maps Street View cars had been capturing more than just street-level images of American communities. (1) For the past few years, the cars had also been collecting the contents of individuals' Internet activity from every Wi-Fi network they encountered. (2) The collected data included e-mails, text messages, Internet browsing history, and "other highly sensitive personal information." (3) The program had come about when a reportedly rogue Google engineer saw commercial opportunity in intercepting this data as it travelled through the most vulnerable link in the Internet relay: consumer Wi-Fi networks. (4)

This may sound like a modern problem--unique to our interconnected world--but the idea is not a new one. A hundred years ago, tabloid journalists had a similar idea, intercepting private telegrams as they travelled ship to shore via radio wave. (5) At the urging of the telegraph industry, Congress responded to these interceptions by enacting the first federal law to protect American wireless communications, prohibiting the unauthorized interception and disclosure of Americans' radio communications. (6)

The 1912 law remains on the books today as Section 705(a) of the Communications Act of 1934. (7) Despite the striking similarities between early interceptions and those undertaken by Google, the Federal Communications Commission (FCC) struggled with Section 705(a)'s applicability to Wi-Fi sniffing. …

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