Does the non-content trump the content?

In my previous post I referred to an interesting Wired story in which former U.S. federal prosecutor Paul Ohm says Google “likely” breached a U.S. federal criminal statute by intercepting the metadata and address information on residential and business WiFi networks.  The statute refers to a “pen register” – an electronic device that records all numbers dialed from a particular telephone line.  Wikipedia tells us the term has come to include any device or program that performs similar functions to an original pen register, including programs monitoring Internet communications.”  The story continues:

“I think it’s likely they committed a criminal misdemeanor of the Pen Register and Trap and Traces Device Act,” said Ohm, a prosecutor from 2001 to 2005 in the Justice Department’s Computer Crime and Intellectual Property Section. “For every packet they intercepted, not only did they get the content, they also have your IP address and destination IP address that they intercepted. The e-mail message from you to somebody else, the ‘to’ and ‘from’ line is also intercepted.”

“This is a huge irony, that this might come down to the non-content they acquired,” (.pdf) said Ohm, a professor at the University of Colorado School of Law.

I understand how people unacquainted with the emerging role of identity in the Internet can see this as an irony – a kind of side-effect – whereas in reality Google&#39s plan to establish a vast centralized database of device identifiers has much longer-term consequences than the misappropriation of content.  Metadata is no less important than other data –  and “addresses” being referred to are really device identifiers clearly associated with individual users, much like the telephone numbers to which the statute applies.  Given the similarity to issues that arose with pre-Internet communication, we should perhaps not be surprised that there may already be regulation in place that prevents “registering” of the identifiers.

The Wired article continues:

Google said it was a coding error that led it to sniff as much as 600 gigabytes of data across dozens of countries as it was snapping photos for its Street View project. The data likely included webpages users visited and pieces of e-mail, video and document files…

The pen register act described by Ohm, which he said is rarely prosecuted, is usually thought of in terms of preventing unauthorized monitoring of outbound and inbound telephone numbers.

Violations are a misdemeanor and cannot be prosecuted by private lawyers in civil court, Ohm said. He said the act requires that Google “knew, or should have known” of the activity in question.

Google denies any wrongdoing.

In fact, Google knew about the collection of MAC addresses, and has never said otherwise or stated that their collection of these addresses was done accidently.  In fact they have been careful to never state explicitly that their collection was limited to Wireless Access Points.  The Gstumbler report makes it clear they were parsing and recording both the source and destination MAC addresses in all the WiFi frames they intercepted. 

The Wired article explains:

As far as a criminal court goes, it is not considered wiretapping “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.”

It is not known how many non-password-protected Wi-Fi networks there are in the United States.

What makes this especially interesting is the fact that it is not possible to configure a WiFi network so that the MAC addresses are hidden.  Use of passwords protects the communication content carried by the network, but does not protect the MAC addresses.  Configuring the WIreless Access Point not to broadcast an SSID does not prevent eavesdropping on MAC addresses either.   Yet we can hardly say the metadata is readily accessible to the general public, since it cannot be detected except acquiring and using very specialized programs. 

Wired draws the conclusion that,  “The U.S. courts have not clearly addressed the issue involved in the Google flap.”

 

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