In re Innovatio IP Ventures, LLC Patent Litigation
2012 WL 3594400
N.D. Ill.2012Background
- Innovatio IP Ventures sues Wireless Network Users nationwide over alleged patent infringement; related actions by manufacturers seek declaratory judgments; all matters consolidated in MDL in this court.
- Innovatio uses commercially available sniffing tools (Riverbed AirPcap Nx, Wireshark) to capture data on open Wi‑Fi networks for analysis.
- Court previously allowed Innovatio to seek admissibility ruling and required a detailed sniffing protocol due to potential Wiretap Act privacy concerns.
- Disputes focus on whether sniffing collects the contents of communications and whether the data captured falls within Wiretap Act exemptions; expert testimony debates whether payloads are initially intercepted.
- Court analyzes applicability of the Federal Wiretap Act and Pen Registers/Trap and Trace Act to sniffing; ultimately concludes the protocol is permissible under the Wiretap Act’s public-access exception for readily accessible electronic communications.
- Court grants Innovatio’s Rule 16(c)(2) motion, approving the sniffing protocol for public-facing networks and stating collected information may be admissible if properly Foundationed under the Federal Rules of Evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wiretap Act applies to Innovatio’s sniffing protocol. | Innovatio contends no interception of contents occurs due to overwriting payloads. | Defendants argue initial interception occurs when data payload is captured. | Wiretap Act does not bar admissibility under the public-access exception. |
| Does the network’s configuration make transmitted communications readily accessible to the general public? | Innovatio argues unencrypted networks are readily accessible. | Defendants disagree on accessibility standards and privacy implications. | Unencrypted Wi‑Fi communications are readily accessible to the general public under 2511(2)(g)(i). |
| Application of Pen Registers and Trap and Trace Devices Act to Wi‑Fi sniffing. | Court declines to apply the Act to Wi‑Fi packet capture devices. | ||
| Whether information collected via sniffing is admissible under the Federal Rules of Evidence. | Evidence obtained via protocol should be admissible if foundationally proper. | Admissibility depends on proper foundation; protocol approved for public-facing networks. |
Key Cases Cited
- Noel v. Hall, 568 F.3d 743 (9th Cir. 2009) (separation of interception vs. use of captured communications)
- United States v. Rodriguez, 968 F.2d 130 (2d Cir. 1992) (interception occurs when contents are captured or redirected)
- Hamilton v. Lanning, 130 S. Ct. 2464 (2010) (ordinary meaning governs undefined statutory terms)