WiFi sniffing & Patents

As a research student looking at Wireless networking I am always keen to follow up stories about the legality of war driving and other activities.

Today I came across this article http://www.scientificamerican.com/podcast/episode.cfm?id=is-wi-fi-sniffing-a-crime-12-09-13 on the Scientific American about the legality of actual sniffing data as opposed to my definition of war driving which involves locating wireless access points and the parameters of the 802.11 network traffic ie encrypted or not.

The article says a judge (in Illinois) ruled that Innovatio IP Ventures capturing wireless traffic in order to ascertain whether their patents had been infringed was legal.

This is certainly an interesting decision and I do wonder if Google might not try claiming they were trying to protect patents in future cases. Digs at Google aside the concerns of individuals rights to privacy and about what will happen to the collected do appear to be taken into account by the Judge as the company have to issue protocols about the collection of the data.

"Innovatio sought permission to obtain a preliminary ruling on the admissibility of the information that it gains in the sniffing process. (Dkt. No. 290.) The court granted permission to Innovatio to seek an admissibility ruling (Dkt. No. 323), but expressed some concern that Innovatio's sniffing may implicate the privacy interests of the customers using the Wi-Fi networks under the federal Wiretap Act. 18 U.S.C. §§ 2510-2522. Accordingly, the court ordered Innovatio's motion to describe its proposed sniffing protocol in detail and to address the applicability of the Wiretap Act. Innovatio has submitted a proposed protocol under seal (Dkt. No. 329, Ex. A), and now requests that the court approve that protocol and issue a preliminary ruling on the admissibility of any evidence Innovatio may gather through the use of that protocol."

The conclusion of the judgement says that " the evidence Innovatio collects through the use of that protocol will not be inadmissible because of a violation of those Acts. Accordingly, if Innovatio lays a proper foundation under the Federal Rules of Evidence at trial for the information it collects through the sniffing protocol, that evidence will be admissible." this I understand as at the moment it is not legal to sniff wireless data to gather evidence of patent infringement as it is not currently admissible.