Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

Is it Ok to Read the Next Table's E-mails?

There is an interesting discussion on the CSO website about whether it is legal to sniff the next table’s packets next time you are out to a Starbucks. The Court’s may have shot themselves in the foot on this one.

In November of last year, a program was released called Firesheep which allows someone on the same network to intercept Facebook feeds and even impersonate that person online. The program works by monitoring the packets on an unsecure network. While instinctually you want to prosecute the creep that does this, Courts may have given them a free pass.

Privacy law and search and seizure law normally require a putative snoop to invade an area or place which a person enjoys a reasonable expectation of privacy that society is prepared to enjoy. The problem comes that when a court wants to help a police officer out on a bad search, they declare there is no reasonable expectation because the person did not take adequate measures to protect the privacy interest. The rub comes in that since invasion of privacy law has the exact same test, the same court is ill prepared to apply a different test without looking like a complete hypocrite. Since Courts have generally found that there is no privacy interest in an unprotected computer network (again to help the police), they have inadvertently also helped the hacker.

There is an old truism that “bad facts make bad law.” Well meaning, but results oriented judges, may have dug themselves into a hole on this issue.