Google argues that the answer is “yes,” in this oral argument today in the Ninth Circuit in Joffe v. Google. It’s an interesting question as a matter of statutory interpretation, largely because Congress wasn’t thinking about wireless Internet networks when it was writing about “radio communications.” The statute reflects different carve-outs from different eras that each reflected technologies of its era, all of which now are now barnacles on the hull of the statute that exist decades later when the technologies are very different. As a common sense matter, it would be surprising if the courts hold that anyone can intercept unencrypted wireless communications. It would be the kind of surprising interpretation that I suspect Congress might revisit if the courts reach it. But purely as a matter of statutory interpretation, it’s an interesting and difficult question.
For further reading, I offered a blog post related to this issue here. I have also written at length on the Wiretap Act as a whole in Sections 4.5-4.6 of LaFave, et. al. Criminal Procedure. Thanks to Howard Bashman for the link to the 9th Circuit oral argument.
UPDATE from the comment thread: “One thing that makes the issue interesting is that the norms surrounding the issue have changed pretty quickly. A decade ago, the default was to use the unsecured mode; use of the secured mode was uncommon. Today, the default is to use the secured mode; use of the unsecured mode is uncommon. As a result, a lot of people have a very different reaction to the issue today than they had a decade ago. Meanwhile, it’s the same statute.”