From ship-to-shore telegraphs to Wi-Fi packets: using section 705(a) to protect wireless communications.

• Author: Roller, Amy McCann
• Position: Communications Act of 1934

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. (8) Over the years, federal courts have similarly struggled with Section 705(a)'s construction, repeatedly decrying its notorious opacity. (9) Wi-Fi sniffing, however, is exactly the type of invasion of privacy that Section 705(a) and its predecessor statutes were designed to prohibit.

This Note argues that despite recent uncertainty among courts and regulators, Section 705(a) of the Communications Act does protect unencrypted Wi-Fi traffic from unauthorized interception and divulgence. Section II of this Note looks at the development of American radio communications and their federal statutory protection. Section III of this Note looks at the conflicting interpretations of the scope of Section 705(a)'s prohibitions and how that inconsistency muddied the FCC's attempts to enforce the provision against Google when it investigated the company for Wi-Fi sniffing. Section IV lays out a novel proposal for interpreting Section 705(a) to protect unencrypted Wi-Fi and addresses some counterarguments to the proposal.

1. RADIO COMMUNICATIONS AND THEIR STATUTORY PROTECTIONS

   Wireless communications, transmitted by radio wave, have been a part of American life for over a century and have been protected from unauthorized interception and disclosure for nearly as long. (10) Wireless transmission eases geographic barriers to communication by eliminating the extensive infrastructure and maintenance outlays required to lay and maintain a wired network. Unfortunately, for all their convenience, radio communications are especially easy to intercept because, unlike communications travelling over a closed wire, they travel multi-directionally through the airwaves. (11) Users and commercial operators can compensate for this special vulnerability by encrypting either the transmission or its content--i.e., the signal or the underlying communication--thereby rendering a message difficult to read, even if successfully intercepted. (12) Although sophisticated signal encryption is common for commercially transmitted wireless communications such as cell phone calls, many other wireless communications, particularly consumer Wi-Fi networks, are not. (13)

   1. Radio Communications from Telegraphs to Wi-Fi

      Statutorily, the Communications Act defines radio communication as "the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission." (14) In 1912, common radio communications included voiceless radiotelegraph and transmissions by amateur HAM-style radio operators, who numbered around 200,000. (15) By 1924, radio broadcasting was in full swing, with 16,590 amateur stations transmitting programming to the general public. (16) Later, toward the end of the twentieth century, America saw the rise of cordless phones. (17) Today, radio communications' prevalence, and concomitantly their importance, has only increased as new forms of radio communication facilitate Americans' Internet access. (18)

      Over the past fifteen years, consumer Wi-Fi has emerged as one of the most popular radio-based technologies in the Internet-access relay. (19) "Wi-Fi" is a proprietary term, registered to the Wi-Fi Alliance, that has been incorporated into the popular lexicon to describe wireless networks connecting consumer electronic devices to the Internet. (20) These consumer Wi-Fi networks operate using a common set of standards, established by the Institute of Electrical and Electronics Engineers, called the 802.11 protocols, which allow for interoperability of wireless devices among disparate brands of consumer electronics. (21) These end-user Wi-Fi networks connect devices such as laptops, tablets, cell phones, and game consoles (22) to a router via radio waves. (23) The router, in turn, couples with a modem that connects to the Internet via a hardwired connection. (24) A network configured in this manner negates the need for users to remain tethered to a wall while accessing the Internet. (25)

      While in transmission, the Internet data that Wi-Fi ferries across the airwaves is broken down into packets. (26) Each packet contains both "header" and "payload" data. (27) The header contains addressing information, like those seen on the outside of a letter sent through the postal system, while the payload contains the substance of the communication, like the letter within the envelope. (28) This Note deals only with the law relating to the interception of payload data.

      Wi-Fi, like other forms of radio communication, is particularly susceptible to interception. (29) When setting up his router, a consumer can configure his Wi-Fi network to be either encrypted or unencrypted. (30) The former prevents an interceptor from accessing the packets' content, even after he has intercepted the packets. (31) The latter, however, is the default set up for many consumer Wi-Fi routers. (32)

      In the United States, Wi-Fi devices are classified as Unlicensed National Information Infrastructure Devices and governed by Part 15 of the FCC's rules. (33) So-called "Part 15 devices," including Wi-Fi routers, operate in the unlicensed portions of the 2.4 GHz and 5 GHz bands. (34) FCC regulations make this spectrum available for public use, requiring no license to operate devices in these bands. (35) However, the spectrum's unlicensed status does not mean it is unregulated--unlicensed spectrum is still subject to the full panoply of Communications Act provisions and FCC rules. (36) Although the majority of spectrum is licensed, (37) this Note only concerns itself with the law as applied to interceptions on the unlicensed bands. Additionally, there are several other forms of contemporary radio communication, including baby monitors (38) and Bluetooth, (39) that operate on unlicensed bands and can be subject to similar interceptions. For manageability, however, this Note limits its analysis to Wi-Fi communications.

      Today, consumer Wi-Fi serves several important purposes. First, it helps to offload congestion from licensed spectrum bands used by mobile phone carriers. (40) In 2013, 57% of mobile data traveled over Wi-Fi rather than the mobile network. (41) By 2018, this is expected to increase to 64%. (42) Second, Wi-Fi serves as an important Internet onramp for consumers; (43) in fact, by 2017, 86% of consumers' in-home broadband traffic will traverse Wi-Fi. (44) Thus Wi-Fi is closely intertwined with both the continued efficiency of mobile networks and the continued expansion of Internet access, which both go to the core of the FCC's responsibilities.

   2. Federal Law Has Prohibited...