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Today's wireless network technology allows persons with a compatible wireless card to capture packets of data destined for another computer, due to the fact that radio waves are the media through which data sent wirelessly travels. Therefore, a police officer can theoretically attempt to gather digital evidence against a suspect by traveling to the immediate vicinity of the suspect, using his or her computer's wireless networking card to capture any packets in the area, then analyzing the packets to try to glean information that could be useful for an investigation.

In Kyllo v. United States, SCOTUS ruled that the Drug Enforcement Agency's warrantless use of thermal imaging unconstitutional, but they based their ruling on the unavailability of the device used to the general public.

As the police can always use software that is available to the general public - such as Wireshark - one could argue this satisfies the Kyllo test and is, therefore, Constitutional.

  • Are you asking only if it violates 4th amendment? Or also any statutory protections that go further? – user3851 Mar 19 '16 at 19:43
  • @Dawn: I'd like to know what the 4th Amendment says about this. – moonman239 Mar 22 '16 at 7:41
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Apart from 4th Amendment questions, there is specific statutory protection regarding wiretapping. At the federal level, chapter 119 of Title 18 is relevant. Section 2511 generally prohibits "wiretapping", via the concept of "intercepting", so whether there is a physical wire for transmitting the signal or the the message wafts across the air, it's the same. Subsection 2 lists a vast collection of situations where interception is allowed. If the agent is a party to the communication, or has the permission of one party to the communication, then it (warrantless interception) is legal, as long as the purpose of the interception is not law-breaking.

Subsection (e) allows a US agent "in the normal course of his official duty to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, as authorized by that Act". Subsection (i) allows interception in circumstances involving a computer trespasser, which does not seem applicable. Overall, a warrant is required for wire-tapping, and the existence of a physical wire is not required.

A potential escape hatch is subsection (g)(i) which says that "It shall not be unlawful under this chapter or chapter 121 of this title for any person 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 turns out that "readily accessible to the general public" is a technical term defined in 18 USC 2510 (16). Certain things make a signal not readily accessible, one being encryption. Many of these don't seem likely to be applicable, but one has potential, in subpart (e) that the communication is

transmitted on frequencies allocated under part 25, subpart D, E, or F of part 74, or part 94 of the Rules of the Federal Communications Commission, unless, in the case of a communication transmitted on a frequency allocated under part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio

I cannot hunt down a translation into plain English.

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