Yesterday U.S. District Judge James Ware refused Google's motion to dismiss a class action suit alleging violation of the Federal Wiretap Act for sniffing open wireless networks as part of their "Street View" program.

Judge Ware based this decision in part on the plaintiffs assertion that the open wireless "networks were themselves configured to render the data packets, or electronic communications, unreadable and inaccessible without the use of rare packet sniffing software; technology allegedly outside the purview of the general public."

What is not stated, however, is that this "rare packet sniffing software" is built into every copy of the Microsoft Windows OS since the introduction of Windows Vista (using the Network Monitor tool), in every copy of Mac OS X since 10.6 "Snow Leopard" (using the airport utility), and nearly all versions of Linux. Most manufactures of wireless cards include support for monitor mode, which is specifically designed to capture wireless traffic. It will be interesting to see as the trial progresses if something built into every modern desktop operating system and most wireless cards can be considered outside the purview of the general public.

Although I don't agree with Google in their storing this network traffic, if they are found guilty of wiretapping this could cause issues for network and security professionals. Because wireless signals don't stop at property lines, when you start a wireless sniffer to listen on a channel you often inadvertantly capture other unencrypted wireless traffic as well.

It will be very interesting to see the outcome of this case.