Nothing is unclear about the law. Not knowing it does not make it unclear.
These are VERY clear
laws. The ONLY areas of un-clarity are in tortious actions. The un-clarity is
how much of a civil
penalty will you also get.
While I generally agree with your interpretation, and believe that
it's most likely illegal, the part that makes it a somewhat gray area
is in 18 USC 2511(2)(g)(i):
(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;
The question becomes is a wifi AP thats sending its packets out
everywhere within range 'readily accessible to the general public', in
which case I think the answer is yes it is readily accessible, but I'd
believe that if we were to look up case law and how this played out
that this situation would largely fall back to intent, was the
owner/operator intending for this to be readily accessible to the
general public and did they have a reasonable expectation of privacy,
in which case I'd think most people would say 'no, they didnt intend
for it to be public access' and 'yes they had the reasonable
expectation of privacy'.
It may seem odd that you would have the reasonable expectation of
privacy, but when you view it under the spectacle of other things that
have been ruled to have the reasonable expectation of privacy (i.e.
the PSTN or wired networks), it seems like it could be clearly
reasonable to expect privacy, and unquestionably if the signal is
encrypted. I seem to remember a case where the ESSID was something
like 'NOPUBLICACCESS' or similiar, and it ended up being ruled that
they had taken all of the steps necessary (legally) on their end to
keep people out and to setup a clear line that the defendant had
overstepped (although I would be hard pressed to actually find the
case if asked).
In summary, here's what I know for sure- you're probably doing
something illegal if you don't fall into one of the exceptions, you
may not be however, but either way I know that LEO tends to think you
are (and given the right set of circumstances would arrest you) and do
you really want to spend the money that it will take to get a decent
lawyer, and possibly X years fighting the case in the first place?
Even an arrest that doesn't result in conviction can be devastating,
it can last years and if unlucky you can find yourself in jail
awaiting all of those hearings and court dates, even if in the end
you're cleared you can find yourself having to explain it over and
over again to potential employers because they used a background check
company that violates (imho) the spirit of the judicial system and
collects and reports arrests/charges along with convictions
(California is the only state that I know of that prohibits such
actions), and so on.
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