Innovatio IP Ventures, LLC ("Innovatio") filed patent infringement actions against various hotels, coffee shops, restaurants and supermarkets for the use of wireless Internet technology located throughout the United States. Innovatio filed a motion for entry of a protocol for collection of electronic evidence and a preliminary ruling on the admissibility of the collected evidence.

As explained by the district court, "Innovatio has been using commercially-available Wi-Fi network analyzers to collect information about the Wireless Network Users' allegedly infringing Wi-Fi networks. (Dkt. No. 329, at 2.) That process, which is known in the industry as 'sniffing,' requires Innovatio's technicians to enter the Wireless Network Users' premises during business hours with a laptop computer and a Riverbed AirPcap Nx packet capture adapter (or a similar device). (Id.) The packet capture adapter can intercept data packets that are traveling wirelessly between the Wi-Fi router provided by the Wireless Network Users and any devices that may be communicating with it, such as a customer's laptop, smartphone, or tablet computer. Innovatio then uses Wireshark network packet analyzer software to analyze the data packets, revealing information about the configuration of the network and the devices in the network. The data packets also include any substantive information that customers using the Wi-Fi network may have been transmitting during the interception of the data packets, including e-mails, pictures, videos, passwords, financial information, private documents, and anything else a customer could transmit to the internet. Innovatio contends that the information it collects will assist in proving its infringement claims."

Prior to going through the additional expense of collecting more evidence through "sniffing," Innovatio filed its motion and the district court then expressed concern as to whether the "sniffing" may implicate the privacy interests of customers using the WiFi networks under the federal Wiretap Act. As the district court discussed, "t]he Federal Wiretap Act provides that, with certain exceptions, any person who . . . intentionally intercepts . . . any wire, oral, or electronic communication shall be subject to criminal and civil liability. 18 U.S.C. § 2511(1)(a); see also 18 U .S.0 . § 2520(a). An 'electronic communication' includes any transfer of signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce. Neither party disputes that the allegedly infringing Wi-Fi networks transmit information using radio waves (which are a type of electromagnetic radiation), and thus transmit 'electronic communications.'"

In response, Innovatio asserted that the Wiretap Act did not apply: "Nonetheless, Innovatio contends that the Wiretap Act does not apply because it has altered the source code of the Wireshark software so that it no longer intercepts the contents of any third-party communication. The Wiretap Act provides that 'intercept' means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device. 18 U.S.C. § 2510(4). The 'contents' of a communication are any information concerning the substance, purport, or meaning of that communication. 18 U.S.C. § 2510(8). According to Innovatio, its modified Wireshark software 'overwrites the data payload (i.e. the 'substance' of the [Wi-Fi] communication) before the results are provided to the user,' while still collecting the header information that it needs to analyze the configuration of the wireless network (such as the source of the data packet, the destination of the packet, the packet length, and the checksum). (Dkt. No. 329, at 4.) Innovatio thus contends that it is not acquiring the contents of any communication, and that its sniffing does not violate the Wiretap Act."

The district court ultimately determined that the "intercept" exception did not apply: "The court need not, however, construe the term 'intercept' in this case, nor must it resolve the dispute between the parties' experts. The reason is that, even assuming that Innovatio's proposed protocol intercepts Wi-Fi communications, Innovatio's proposed protocol falls into the exception to the Wiretap Act allowing a 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. 18 U.S.C. § 2511(g)(i). Most of the Wireless Network Users' Wi-Fi networks are open and available to the general public, allowing any customer who so desires to access the internet through them. The question is not, however, whether the networks are 'readily available to the general public,' but instead whether the network is configured in such a way so that the electronic communications sent over the network are readily available."

The district court found it particularly significant that the communications were available to the general public even though the general public is not necessarily aware of how easy it is to access unencrypted Wi-Fi communications. "The public's lack of awareness of the ease with which unencrypted Wi-Fi communications can be intercepted by a third party is, however, irrelevant to a determination of whether those communications are 'readily available to the general public.' 18 U.S.C. § 2511(g)(i). The language of the exception does not, after all, refer to 'communications that the general public knows are readily available to the general public.' Therefore, the public's expectation of privacy in a particular communication is irrelevant to the application of the Wiretap Act as currently written. Because data packets sent over unencrypted Wi-Fi networks are readily available using the basic equipment described above, the Wiretap Act does not apply here. Accordingly, to the extent that Innovatio's proposed sniffing protocol accesses only communications sent over unencrypted Wi-Fi networks available to the general public, it is permissible under § 2511(g)(i)'s exception to the Wiretap Act."

Accordingly, the district court permitted the "sniffing" to proceed.

In re Innovatio IP Ventures, LLC Patent Litigation, MDL Docket No. 2303, Case No. 11 C 9308 (N.D. Ill. Aug. 22, 2012)