Innovatio IP Ventures, LLC, Patent Litigation

Filing 393

Memorandum Opinion and Order Addressing Protocol For Innovatio's Wi-Fi "Sniffing" (Pretrial Order No. 6)Signed by the Honorable James F. Holderman on 8/22/2012: Mailed notice (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
In re INNOVATIO IP VENTURES, LLC
PATENT LITIGATION
THIS ORDER APPLIES TO ALL CASES
Pretrial Order No. 6

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MDL Docket No. 2303
Case No. 11 C 9308

MEMORANDUM OPINION AND ORDER ADDRESSING PROTOCOL FOR
INNOVATIO’S WI-FI “SNIFFING”
JAMES F. HOLDERMAN, Chief Judge:
Plaintiff Innovatio IP Ventures, LLC (“Innovatio”) has sued various hotels, coffee shops,
restaurants, supermarkets, and other commercial users of wireless internet technology located
throughout the United States (collectively, the “Wireless Network Users”). (See Dkt. No. 198
(“Second Am. Compl.”).) Innovatio alleges that, by making wireless internet available to their
customers or using it to manage internal processes, the Wireless Network Users infringe various
claims of seventeen patents owned by Innovatio. (Id. ¶¶ 48-81.) In addition, several manufactures
of the products that the Wireless Network Users use to provide wireless internet (collectively, the
“Manufacturers”) have brought declaratory judgment actions against Innovatio seeking a declaration
that their products, and the networks or systems of which they are a part, do not infringe Innovatio’s
patents. See Compl. (Dkt. No. 1), Cisco Sys., Inc. v. Innovatio IP Ventures, No. 11-cv-9309 (N.D.
Ill. May 13, 2011). All claims and parties were consolidated before this court by the Judicial Panel
on Multidistrict Litigation. (Dkt. No. 1.) Pending before the court is Innovatio’s motion titled “Rule
16(c)(2) Motion for Entry of Protocol for Collection of Electronic Evidence and Preliminary Ruling
on Admissibility of Evidence Collected Therefrom.” (Dkt. No. 329.) For the reasons explained
below, that motion is granted.

BACKGROUND
The standard for the operation of wireless networks that access the internet is established by
the Institute of Electrical and Electronic Engineers (“IEEE”), and is known as IEEE 802.11, or “WiFi.” As discovery has proceeded in this case, 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.
Before continuing to incur the expense of additional sniffing, Innovatio sought permission
to obtain a preliminary ruling on the admissibility of the information that it gains in the sniffing
process. (Dkt. No. 290.) The court granted permission to Innovatio to seek an admissibility ruling
(Dkt. No. 323), but expressed some concern that Innovatio’s sniffing may implicate the privacy
interests of the customers using the Wi-Fi networks under the federal Wiretap Act. 18 U.S.C.

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§§ 2510-2522. Accordingly, the court ordered Innovatio’s motion to describe its proposed sniffing
protocol in detail and to address the applicability of the Wiretap Act. Innovatio has submitted a
proposed protocol under seal (Dkt. No. 329, Ex. A), and now requests that the court approve that
protocol and issue a preliminary ruling on the admissibility of any evidence Innovatio may gather
through the use of that protocol.
ANALYSIS
I.

The Federal Wiretap Act
The 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.C. § 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.”
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 thirdparty communication.1 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

1

At least some of Innovatio’s initial sniffing efforts proceeded with an unmodified version
of the software that did preserve the contents of the wireless communications.
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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 checksum2). (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.
In response, the defendants3 argue that the process of “overwriting” the data payload implies
that Innovatio initially captures the data payload before deleting it. According to the defendants’
expert, James Edward Hung, the mere act of initially recording the data payload is sufficient to
complete the acquisition of the data, regardless of whether the intercepted data is later overwritten
before it is used. (Dkt. No. 349, Ex. 5 (“Hung Decl. ¶ 12).) The defendants thus contend that
Innovatio’s proposed protocol intercepts the contents of the communication. In support of that
argument, the defendants note that § 2511(1)(d) of the Wiretap Act contains a separate provision
prohibiting the use of intercepted communications and that, to avoid redundancy with that section,
§ 2511(1)(a)’s prohibition on interception must not require the use of the communication as an
element of the offense. See Noel v. Hall, 568 F.3d 743, 749 (9th Cir. 2009) (“No new interception
occurs when a person listens to or copies the communication that has already been captured or

2

The checksum is the output of an algorithm that is run on a data packet both before and
after transmission to ensure that the data packet has not been corrupted. (Dkt. No. 384, at 5 n.4.) If
the algorithm produces the same output both before and after transmission, the data packet is
deemed valid; otherwise, it is discarded as corrupt. (Id.)
3

The court uses the term “defendants” to refer collectively to both the Wireless Internet
Users and the Manufacturers, who are technically declaratory judgment plaintiffs.
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redirected. Any subsequent use of the recorded conversation is governed not by the prohibition on
interception, but by the prohibition in § 2511(c) and (d) on the ‘use’ and ‘disclos[ure]’ of intercepted
wire communications.”).
Innovatio replies, however, that the defendants have misunderstood the relevant technology.
According to Innovatio’s expert, Ray Nettleton, all Wi-Fi devices necessarily store an entire
received data packet, including the packet’s substantive communications, while the device processes
the packet. (Dkt. No. 384, Ex. U (“Nettleton Decl.”) ¶ 40.) During processing, if the Wi-Fi device
determines that the data packet is not addressed to it or has been corrupted during transmission, the
packet is deleted. (Id. ¶¶ 42-46.) Prior to that point, the entire data packet is retained only in the WiFi device’s random access memory, and is not stored in a permanent medium. (Id. ¶ 47.) The entire
process is momentary, so deleted packets are retained in memory for no more than milliseconds. (Id.
¶ 48.) Innovatio proposes to automatically overwrite all substantive communications in the data
packets that it intercepts, making its protocol “intercept” substantive communications only to the
extent that a normal Wi-Fi device would intercept all communications on a Wi-Fi network to which
it is connected. (Id. ¶ 54.) If its proposal runs afoul of the Wiretap Act, Innovatio argues, then all
Wi-Fi devices necessarily violate the Act whenever they are connected to a Wi-Fi network that also
includes devices belonging to a another party, an absurd result.
In essence, Innovatio asks the court to conclude that a communication is not “intercepted”
until it has been recorded in a permanent medium. The court is hesitant to adopt that conclusion, first
because that requirement is nowhere found in the Wiretap Act. Moreover, an individual’s online
activity can be chilled merely by the knowledge that a third party has the power to acquire, however
briefly, the contents of his communications. See Amati v. City of Woodstock, 829 F. Supp. 998, 1008

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(N.D. Ill. 1993) (holding that the privacy interests of an individual whose conversations come under
the power of another are implicated “even if the individual was assured no one would listen to his
conversations, because the individual’s privacy interests are no longer autonomous”); see also
United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir. 1992) (acquisition occurs “when the contents
of a wire communication are captured or redirected in any way” (emphasis added)).
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).4 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

4

Innovatio also contends that the defendants and their customers have consented to
Innovatio’s sniffing efforts. Although the defendants agreed that “Innovatio may use
commercially-available network analyzers to collect information allegedly regarding the identity
(e.g., SSID, manufacturer and MAC address), configuration and use of the allegedly infringing
networks” (Dkt. No. 218 ¶ 9), however, they did not consent to allowing Innovatio to collect the
substantive communications sent over the Wi-Fi networks. As for the customers, Innovatio presents
evidence that several of the defendants require customers to agree to a waiver of privacy rights
before accessing the defendants’ Wi-Fi networks. (Dkt. No. 329, at 7; Dkt. No. 384, at 9-13.) There
is no evidence about how many of the defendants require such a waiver, however, nor does
Innovatio provide legal analysis of the language of each waiver to determine if it waives the
protections of the Wiretap Act against the sniffing of a third party. The court will not merely assume
that all defendants require customers to agree to language waiving the protections of the Wiretap
Act.
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available.
The only reported decision addressing that question is In re Google Inc. Street View
Electronic Communications Litigation, 794 F. Supp. 2d 1067, 1070 (N.D. Cal. 2011). In that case
before Chief Judge Ware, the plaintiffs sued Google under the Wiretap Act for the intentional
interception of data from their unencrypted home Wi-Fi networks during the collection of data for
the Google Street View feature of Google Maps. In denying Google’s motion to dismiss, the court
noted that the plaintiffs had alleged that the data packets transmitted over the Wi-Fi networks “were
not readable by the general public without the use of sophisticated packet sniffer technology.” Id.
at 1082. After accepting that allegation as true, the court held that the data packets were not readily
accessible to the general public:
[C]ommunications sent via Wi–Fi technology, as pleaded by Plaintiffs, are not
designed or intended to be public. Rather, as alleged, Wi–Fi technology shares a
common design with cellular phone technology, in that they both use radio waves to
transmit communications, however they are both designed to send communications
privately, as in solely to select recipients, and both types of technology are
architected in order to make intentional monitoring by third parties difficult.5
The court’s conclusion thus depended on the proposition that data packets sent through unencrypted
Wi-Fi networks are only readable with “sophisticated packet sniffer technology,” a proposition that
the court accepted as true under the standards applicable to a motion to dismiss.

5

Id. The court rejected the argument that “readily available to the general public” should be
defined according to the definition in 18 U.S.C. § 2510(16), which defines the phrase “with respect
to a radio communication.” Although Wi-Fi networks operate through the use of radio waves, the
court held that the definition applies to only “traditional radio services,” and not to Wi-Fi
technology. Id. at 1081. The defendants do not argue that the § 2510(16) definition should apply
here. The court thus assumes, without deciding, that § 2510(16) does not apply in this case, and that
the court should give the phrase “readily available to the general public” its ordinary meaning.
Hamilton v. Lanning, 130 S. Ct. 2464, 2471 (2010) (“‘When terms used in a statute are undefined,
we give them their ordinary meaning.’” (quoting Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187
(1995))).
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Here, by contrast, the court is not required to accept any such allegation. Moreover, upon
examination, the proposition that Wi-Fi communications are accessible only with sophisticated
technology breaks down. As mentioned above, Innovatio is intercepting Wi-Fi communications with
a Riverbed AirPcap Nx packet capture adapter, which is available to the public for purchase for
$698.00. See Riverbed Technology Product Catalog, http://www.cacetech.com/products/catalog/ (last
visited Aug. 21, 2012). A more basic packet capture adapter is available for only $198.00. Id. The
software necessary to analyze the data that the packet capture adapters collect is available for
download

for

free.

See

Wireshark

Frequently

Asked

Questions,

http://www.wireshark.org/faq.html#sec1 (last visited Aug. 21, 2012) (“Wireshark® is a network
protocol analyzer. . . . It is freely available as open source . . . .”). With a packet capture adapter and
the software, along with a basic laptop computer, any member of the general public within range of
an unencrypted Wi-Fi network can begin intercepting communications sent on that network. Many
Wi-Fi networks provided by commercial establishments (such as coffee shops and restaurants) are
unencrypted, and open to such interference from anyone with the right equipment. In light of the
ease of “sniffing” Wi-Fi networks, the court concludes that the communications sent on an
unencrypted Wi-Fi network are readily available to the general public.
To be sure, the majority of the public is likely unaware that communications on an
unencrypted Wi-Fi network are so easily intercepted by a third party. See Predrag Klasnja et al.,
“When I Am on Wi-Fi, I am Fearless:” Privacy Concerns & Practices in Everyday Wi-Fi Use, in
CHI ’09 PROC. 27TH INT’L CONF. (2009), available at http://appanalysis.org/jjung/jaeyeon-pub/
FormativeUserStudy4CHI.pdf (reporting the results of a study involving eleven participants and
concluding that “users from the general public . . . were largely unaware of . . . the visibility of

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unencrypted communications,” which “led them to a false sense of security that reduced how much
they thought about privacy and security while using Wi-Fi”); see also Press Release, Wi-Fi Alliance,
Wi-Fi Security Barometer Reveals Large Gap Between What Users Know and What They Do (Oct.
5, 2011) (reporting that only 18% of users take steps to protect their communications when
accessing a commercial Wi-Fi hotspot). The public still has a strong expectation of privacy in its
communications on an unencrypted Wi-Fi network, even if reality does not match that expectation.
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.6
Any tension between that conclusion and the public’s expectation of privacy is the product
of the law’s constant struggle to keep up with changing technology. Five or ten years ago, sniffing

6

The parties argue briefly in footnotes about whether Innovatio should be allowed to sniff
the defendants’ private networks that are not available to the public. (See Dkt No. 329, at 5-6 n.3;
Dkt. No. 349, at 8 n. 6.) The court declines to address that question at this time because the protocol
that Innovatio has moved the court to approve applies by its terms only to “Public-facing Networks.”
(Dkt. No. 329, Ex. A.) In approving that protocol, therefore, the court need not address the propriety
of sniffing private networks. If Innovatio desires to sniff private networks, the court encourages the
parties to confer and to attempt to agree on an appropriate protocol for that activity.
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technology might have been more difficult to obtain, and the court’s conclusion might have been
different. But it is not the court’s job to update the law to provide protection for consumers against
ever changing technology. Only Congress, after balancing any competing policy interests, can play
that role. Indeed, one United States Senator has already called for changes to the Wiretap Act in
light of the threat that unencrypted communications may be easily intercepted. See Elec. Privacy
Info. Ctr., On Google Spy-Fi, Senator Durbin Calls for Update to Wiretap Law, FCC Chair Agrees
Law

Should

Protect

Unencrypted

Communications

(May

11,

2012),

http://epic.org/2012/05/on-googlespy-fi-senator-durbi.html. Unless and until Congress chooses to amend the Wiretap Act, the
interception of communications sent over unencrypted Wi-Fi networks is permissible.
II.

The Pen Registers and Trap and Trace Devices Act
The defendants also briefly contend that Innovatio’s proposed protocol violates the Pen

Registers and Trap and Trace Devices Act. 18 U.S.C. §§ 3121-3127. That statute makes it a crime
to “install or use a pen register or a trap and trace device.” 18 U.S.C. § 3121(a). A pen register is “a
device or process which records or decodes dialing, routing, addressing, or signaling information
transmitted by an instrument or facility from which a wire or electronic communication is
transmitted, provided, however, that such information shall not include the contents of any
communication.” 18 U.S.C. § 3127(3). A trap and trace device is “a device or process which
captures the incoming electronic or other impulses which identify the originating number or other
dialing, routing, addressing, and signaling information reasonably likely to identify the source of a
wire or electronic communication, provided, however, that such information shall not include the
contents of any communication.” 18 U.S.C. § 3127(4).

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The defendants’ argument is a single paragraph, and it cites no cases applying the Pen
Registers and Trap and Trace Devices Act to Wi-Fi packet capture adapters. Because all Wi-Fi
devices on a network necessarily receive addressing information to determine if a data packet is
addressed to them, doing so would put any user of a Wi-Fi network on which a third party was also
operating in violation of the Act. Moreover, there is some doubt that the Pen Registers and Trap and
Trace Devices Act applies to any device that is also capable of collecting the contents of a
communication. In Matter of Application of U.S. For an Order Authorizing the Installation & Use
of a Pen Register & a Trap & Trace Device on E-Mail Account, 416 F. Supp. 2d 13, 18 (D.D.C.
2006) (“‘[P]en registers’ and ‘trap and trace devices’ are statutorily defined as processes or devices
that are prohibited from collecting ‘the contents of any communication.’ 18 U.S.C. § 3127(3)-(4).
Consequently, the argument could be made that any process or device that collects the content of
an electronic communication is not, in fact, a pen register or trap and trace device but, instead, is an
electronic intercepting device as defined in [the Wiretap Act].”). Operating as it is without adequate
briefing on the subject, the court declines to apply the Pen Registers and Trap and Trace Devices
Act to Wi-Fi packet capture adapters.
III.

The Admissibility of the Information Innovatio Collects
In light of the court’s conclusion that Innovatio’s proposed sniffing protocol does not violate

the Wiretap Act or the Pen Registers and Trap and Trace Devices Act, the evidence Innovatio
collects through the use of that protocol will not be inadmissible because of a violation of those
Acts. Accordingly, if Innovatio lays a proper foundation under the Federal Rules of Evidence at trial
for the information it collects through the sniffing protocol, that evidence will be admissible.
CONCLUSION

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Innovatio’s “Rule 16(c)(2) Motion for Entry of Protocol for Collection of Electronic
Evidence and Preliminary Ruling on Admissibility of Evidence Collected Therefrom” (Dkt. No.
329) is granted. Innovatio may collect information from the defendants’ public-facing Wi-Fi
networks according to its proposed protocol. (Dkt. No. 329, Ex. A.)

ENTER:

_______________________________
JAMES F. HOLDERMAN
Chief Judge, United States District Court
Date: August 22, 2012

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