I know its illegal to connect to any givin network without proper consent but im wondering about this scenario.

Say someone is just sitting monitoring a network and there using wep or wpa. They monitor it long enough to either gain enough IV's or capture the handshake making sure not to transmit anything.

Does it become illegal if they break the wep key or brutforce the password and if so at what point, only after they have found the key or as there attempting to get it?