Published on March 1st, 2009 | by Babar Bhatti6
Using Someone's WiFi
Unsecured, free wireless Internet access (WiFi) is something for which the demand keeps increasing. Many of us love to be connected through WiFi (for laptop, netbook or smart phone) while travelling or in a cafe somewhere. Some habitually take a free ride on their neighbor’s wireless access point. Whatever the case may be, is this something which is against ethics or law? After all, if the open access is there, it may not be a big deal in many ordinary scenarios. Robert Cannonof Cybertelecom writes in a paper:
How can something be stolen when it is offered to the public openly for free? If I use some of the wireless access, and it does not interfere with the owner’s use of the access, how can this be a problem? Can there be a criminal violation where neither the perpetrator, nor the network owner, nor the police officer, were aware that anything wrong was transpiring? If something wrong is transpiring, what rules apply: theft of service, unauthorized access to a computer network, loitering? Can one steal unlicensed Part 15 spectrum?
Reacting against what appears to be an absurd scenario, many in the public and the legal community grapple with the appropriate metaphor for open WiFi. Generally these metaphors follow a spill-over paradigm that goes as follows: the network owner is provisioning something on the owner’s real property, the excess of that thing spills outside the property, and an individual outside takes advantage of this excess. For example, a property owner provisions a light at night, the light spills outside of the owner’s property, and an individual passing by uses the light in order to read a map; can it be said that the individual has “stolen” the light. Likewise, a property owner waters a yard, some of the water spills outside the property onto the neighbor’s roses, and the neighbor uses that water to help care for the roses; has the neighbor stolen the water?
Arguments by metaphor, while well loved by the legal profession, are indirect and always contain some limitation that permits distinction. A direct argument that argues, not that WiFi is “like something else,” but rather that WiFi cannot be stolen because of the regulatory classification of WiFi, is (hopefully) more compelling.
Previous attempts to contemplate the conundrum of open wireless access have approached the question from a criminal law point of view: is access to a computer network “unauthorized” and therefore criminal. The assumption is that this network is just like every other network, and therefore cybercrime precedent informs outcome. Communications policy, however, informs that this network is not like every other network. This network is unlicensed. This network is not owned. This network does not permit exclusion of, or interference with, others. It is a “commons.” Because communications policy informs that the thing accessed cannot be owned, the cybercrime analysis of unauthorized access flounders.