Does U.S.C Title 18 Section 2512 apply to "wireless auditing tools?"

Question

Tools such as the "WiFi pineapple" are rising in popularity in penetration testing and hacking communities. These devices are designed to allow and explicitly marketed as being able to intercept WiFi communications. They are sold online to anyone who wants one. My question is weather or not these count as "communication intercepting devices" as defined by Section 2512. A well known version of this type of tool, the WiFi pineapple (https://www.wifipineapple.com/) specifically advertises the ability to intercept communications. To clarify, I'm trying to find out why they get a seeming exemption, and what would be too "far" to be legal for my own experimentation with wireless security hardware. The why it is fairly important so I know where to start for my own research.

Is it illegal to Manufacture, distribute, possess, or advertise the WiFi pineapple or similar devices, per Section 2512?

Answer 1

On the face of it, manufacturing such devices is a crime (but there is no civil remedy against the manufacturer if you get intercepted: see Javier Luis v. Awareness Technologies for a similar device:

The complaint therefore adequately alleges a violation of 18 U.S.C. § 2512(1)(b). This leads to the question whether Luis can sue for that violation. Section 2512(1)(b) itself does not allow for such a suit because it provides only that the violator will be “fined ․ or imprisoned.” Luis's private cause of action for such a violation thus depends on the proper interpretation of 18 U.S.C. § 2520.

Criminal prosecution can happen, see US v. McNutt, US v. Splawn, for cases involving satellite descramblers. It is most likely that these devices intercept electronic communication: there is a loophole regarding stored communication, but it is likely that these devices pass the contemporaneity test. There is no requirement that manufacturers be prosecuted, but it is a possibility. One point that we can't determine (too compu-technical) is whether the devices are primarily manufactured for legal use by government and communication providers.