People using the Firesheep add-on may be breaking federal wiretapping laws, legal experts said today.
Or maybe not.
"I honestly don't know the answer," said Phil Malone, a clinical professor of law at Harvard Law School as well as the director of the school's Cyberlaw Clinic at the Berkman Center for Internet & Society. Malone also served for more than 20 years as a federal prosecutor with the U.S. Department of Justice.
Firesheep , which was released just over a week ago and has been downloaded nearly half a million times since, is an add-on to Mozilla's Firefox browser that identifies users on an open network -- such as a coffee shop's public Wi-Fi hotspot -- who are visiting an insecure Web site. A double-click in Firesheep gives its handler instant access to the accounts of others accessing Twitter and Facebook , among numerous other popular Web destinations.
But while the tool itself is not illegal, using it may be a violation of federal wiretapping laws and an invasion of privacy, experts said.
"There are two schools of thought," said Jonathan Gordon, a partner in the Los Angeles office of law firm Aston + Bird. "The first is that there's no reasonable expectation of privacy in a public insecure Wi-Fi connection."
Gordon, who regularly counsels clients on their Internet business practices, cited the U.S. statute pertaining to wiretapping , which states that it's not a violation of the law "to intercept or access an electronic communication made through an electronic communication system that is configured to that such electronic communication is readily accessible to the general public."
"But the second [school of thought] is that when people are accessing their social network [account], they have an expectation that whatever they're doing is governed by the privacy settings in that network," Gordon said. In other words, the fact that accessing a site takes place in an insecure environment is beside the point.
Gordon acknowledged that the second position was held by a minority of legal experts.
Scott Christie, a partner with the New Jersey law firm of McCarter & English, is of that minority and said that using tools such as Firesheep -- dubbed "packet sniffers" -- is illegal.
"Do people have a reasonable expectation of privacy when they're at a public node? The answer is probably yes," said Christie. "They don't forfeit their expectation of privacy simply by using a public Wi-Fi spot. And wiretap laws in general make it illegal to intercept real-time communications and content."
But privacy laws were not crafted to cover scenarios where the owner of the data -- in the Firesheep example, people accessing their Facebook accounts at an insecure hotspot -- didn't take steps to protect their information.
That's one of the reasons why the legality of Firesheep, and other tools like it, remains up in the air.
"It's an unsettled legal issue, but it will be tested at some point," Christie said. "Like many other situations, this is one of those areas where the law was crafted prior to the Internet age, and the courts will have to catch up."
Gordon agreed. "It may be difficult [to clarify this], but it will happen," he said.
Another law may also apply to Firesheep use, said Malone. Although the Pen Register and Trap and Trace Devices Act, sometimes shortened to the Pen/Trap Act, was crafted with telephone line wiretapping in mind, it could be called on by prosecutors, Malone said.
A packet sniffer that snatches important information, such as the IP address or other sending and receiving, including addressing or routing data, is one case where the Pen/Trap Act might be applied.
"If something like Firesheep grabbed some pretty bad stuff, technically it may have violated [the Pen/Trap Act]," said Malone, adding that an aggressive prosecutor might decide to file charges based on that law.
Christie wasn't so sure. "If a tool like Firesheep captured IP addresses, the criminal component of it might apply, but I'm not sure anyone would use it."
The legal experts also noted similarities between the Firesheep situation and Google 's trouble with U.S. and foreign regulators over its Street View vehicles. Earlier this year, Google admitted that those vehicles had grabbed information from insecure wireless networks as they snapped photos and mapped hotspots.
Two weeks ago, Google admitted that in some cases the Street View sniffers had captured complete e-mail messages and user passwords.
Google claimed that the data collection had been unintentional, and argued that the practice did not violate federal laws because the wireless networks were not password-protected. However, that didn't stop several states' attorney generals from asking Google for more information as they tried to decide whether the company broke federal or state laws, including wiretapping and privacy statutes.
Last week, the U.S. Federal Trade Commission (FTC) closed an investigation into Google's Street View activities. However, the company faces numerous class-action lawsuits in the U.S. over the practice and may be fined by some European privacy agencies.
Malone said he suspected that before the law catches up to Firesheep and its ilk, Web sites will lock down their services, making the issue moot. That's also the hope of Eric Butler, the Seattle-based Web application developer who said he released Firesheep to raise awareness of site insecurity.
"Maybe all the bad press [over Firesheep] will make people realize that there's a problem, and enough to shame sites into changing," Malone said. "Maybe this is the wake-up call we needed."
Gregg Keizer covers Microsoft, security issues, Apple, Web browsers and general technology breaking news for Computerworld. Follow Gregg on Twitter at @gkeizer or subscribe to Gregg's RSS feed . His e-mail address is email@example.com .
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