But most unencrypted wifi exists because of tech illiteracy/laziness on the part of users. Its not a conscious choice they made. Commercial collection is exploiting this. Finally your last sentence is unnecessarily hyperbolic.
The ISM band exists within strict FCC control. There is no "don't sniff" provision and if there was, it would make promiscuous mode or applications like inssider illegal.
I dare say that every day you are protected by the state from those who would take advantage of your ignorance in many, many aspects of the world. The system works well enough that you don't even notice what you're ignorant of!
Edit: so I suppose the distinction's that that the first implies self-contradiction, and the other doesn't. Or perhaps the line is drawn when policy like that interferes with official judgment. Who knows.
The exact role of the state in protecting it's citizens requires nuanced debate. Saying "it's not the state's job" doesn't cut it.
Perhaps you're upset by the language? "Paternalist", to my eye, is a descriptive term that closely matches the circumstances under discussion. If you find that adjective has unfortunate connotations, by all means suggest another that has approximately the same definition.
If someone enters your house without your permission and refuses to leave you may call the police. If there are any immediate threats to person or property the police response will usually be swift (though, of course, this depends on your local P.D.).
I'll stipulate that this isn't what we were taught in junior high civics, but it is the experience of many communities in the USA that security problems are best handled without the intervention of police.
Just because a paternalistic state is usually bad doesn't mean that government shouldn't intervene in anything.
While I think it's sleazy to spy on people's open WiFi, I don't think it should be illegal.
Making it illegal is a complete waste of resources because it doesn't solve the problem. Google is a giant company and they only got found out more or less by accident. In every other case it's almost trivial to spy on unencrypted WiFi without anybody knowing, which means it would be nearly impossible to enforce a law against it.
How does an unsecured Wi-Fi network, emanating signal out into the street, deserve some sort of "expectation of privacy"? You deserve no expectation of privacy if your blinds are pulled-up and your windows are open. Why should Wi-Fi be any different, just because users can't be bothered to learn to protect their assets?
How many people do you know who, say, do their own water softener maintenance? Is that plumbing illiteracy/laziness, or is it a sign that people are willing to pay for service that frees their time and attention for more productive things?
If these politicians and prosecutors cared one bit about helping people, they'd regulate the aftermarket wireless router industry to have passwords by default. Or have the FCC change the rules on usage of the ISM band. Instead, they're just posturing for career advancement and media attention.