Re: Hasn't the LA Times and Humphrey Cheung ever heard of the Electronics Communications Privacy Act?

[Matthew Murphy <mattmurphy () kc rr com>]

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On Apr 28, 2007, at 10:15 AM, Richard M. Smith wrote:

> See:
>
> http://www.floridalawfirm.com/privacy.html
>
> Sec.  2511.  Interception  and  disclosure  of  wire,  oral,   or
> electronic communications prohibited
>
>
> http://www.latimes.com/business/la-fi- 
> consumer22apr22,0,4976397,print.story?
> coll=la-home-headlines
>
> Public Wi-Fi may turn your life into an open notebook
>
> Don't assume wireless hot spots are secure. 'Sniffers' may be hacking
> nearby.

ECPA doesn't apply.  It's obvious that Cheung didn't "hack into" the  
network, as judged from the piece.  He sniffed a wide-open WLAN -- a  
communications system "readily accessible to the general public".   
That's specifically included as an affirmative defense under ECPA:

   (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;

[...]

      (16) "readily accessible to the general public" means, with
respect  to  a  radio communication, that such  communication  is
not--

          (A) scrambled or encrypted:

                (B) transmitted using modulation techniques whose
essential parameters have been withheld from the public with  the
intention of preserving the privacy of such communication;

          (C)  carried on a subcarrier or other signal subsidiary
to a radio transmission;

          (D) transmitted over a communication system provided by
a  common carrier, unless the communication is a tone only paging
system communication;

          (E) transmitted on frequencies allocated under part 25,
subpart  D,  E, or F of part 74, or part 94 of the Rules  of  the
Federal  Communications Commission, unless,  in  the  case  of  a
communication transmitted on a frequency allocated under part  74
that   is   not  exclusively  allocated  to  broadcast  auxiliary
services,  the communication is a two-way voice communication  by
radio;  or

          (F) an electronic communication;

California law, which requires mutual consent, is tougher, but not by  
enough to allow Cheung to be prosecuted; it also has a public  
communications exception.  You don't really think the paper would've  
published this story if it would've subjected an individual  
identified within to criminal prosecution, do you?


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