more on Wi-Fi Liability: Potential Legal Risks in Accessing and Operating Wireless Internet

[David Farber <dave () farber net>]

Begin forwarded message:

From: Patrick Ross <Pross () pff org>
Date: June 14, 2005 3:54:47 PM EDT
To: dave () farber net
Subject: FW: [IP] Wi-Fi Liability: Potential Legal Risks in Accessing  
and Operating Wireless Internet


Dave,

A colleague of mine, Kent Lassman, just wrote a short piece on this
paper. It's at http://blog.pff.org/archives/2005/06/assessing_liabi.html
and I've pasted it below.

Best,

Patrick Ross
The Progress & Freedom Foundation

-----------

Assessing Liability? Trespass on (Municipal) Wi-Fi Networks

The wireless network in my home is not connecting properly right now.
The signal is going out and being received, but my wife's computer in a
different part of the house is unable to connect to the Internet. I
suspect that when Vonage recently sent me a replacement router, the new
setup between the DSL, the wireless router, my computer and the
telephone and fax lines got fouled. Surely once I spend the time to dig
through all of the settings and endure a call to the helpdesk, we'll be
up and running again in no time.

But conspiracy took over and I got to thinking: Maybe there is something
sinister afoot. Several neighbors also have a wireless home network. In
fact, we can pick up a strong signal for a network named after Cosmo, my
neighbor's dog. In fact, we're probably smack dab in the middle of a
target rich environment for malicious war drivers. What if someone is
hijacking our Internet connections to spam the world or download and
distribute illegal content?

In this post, I ask if municipalities have anticipated the liability and
commons problems Wi-Fi networks are sure to create. My hunch is that bad
guys will flock to the easiest networks to use (sorry Cosmo) and then to
the networks that have the murkiest liability and enforcement regimes.
In this paperby Robert V. Hale II, published in the Santa Clara Computer
& High Tech Law Journal, some of the liability implications under
current federal law are examined for Wi-Fi technologies.

At least one court has interpreted the Computer Fraud and Abuse Act
(CFAA) to say that the default rule is an "implicit lack of
authorization" for access to wireless hotspots, even for hotspots that
are not affirmatively protected by passwords or encryption. The court
rejected the view that there exists a presumption of open access on the
Internet and absent some sort of agreement to use a node, access is
probably illegal under the CFAA. If interlopers simply use the node to
check email or browse the news and if a case were brought, Hale believes
it would be a misdemeanor violation of section 1030(a)(2) of CFAA. Once
the infraction involves commercial advantage or private financial gain,
it is criminal. The statute also has a provision to address a network
invasion that "recklessly causes damage" such as frequent, large file
transfers that degrade the quality or speed of my wireless network.

Hale also tackles the Wiretap Law (Electronic Communications Privacy
Act) which attaches civil and criminal penalties to anyone who
"intentionally intercepts, endeavors to intercept, or procures any other
person to intercept or endeavor to intercept, any wire, oral, or
electronic communication." What to do about all of this? Hale's article
discusses the applicability of the common law doctrine trespass to
chattels and despite the legal language, makes for a good read on the
subject.

How does it relate to municipal Wi-Fi networks? For one thing, all fifty
states have laws complementary to the federal wiretap law. It is not
hard to imagine a situation where unauthorized use of a municipal
network - virtually any use that is not agreed to with the provider -
facilitates the use of a VoIP client to commit a crime "in" more than
one state. Who prosecutes? Does the municipality have contributory
liability? Hale seems to suggest that a line of reason could be extended
from United States v. Salcedo to implicate municipalities. Salcedo is a
2003 case successfully prosecuted in the Western District of North
Carolina when the war driving defendant and his accomplice used an
unsecured network from the parking lot of a Lowe's home improvement
store with the intent of stealing credit card information.

And finally, consider this from Hale:

"Wireless access operators could also incur liability to the extent that
they make access available, and in doing so, facilitate activities that
damage others. Continuing the earlier hypothetical, if someone downloads
unauthorized copies of music files using another's WLAN, and thereby
commits copyright infringement, vicarious liability for the infringement
may attach to the WAP [wireless access point] operator. As demonstrated
in the A&M Records, Inc. v. Napster, Inc. decision, which involved
vicarious copyright infringement liability of a peer-to-peer network
provider, courts limit such liability to cases where the peer-to-peer
network has "the right and ability to supervise the infringing activity
and also has a direct financial interest in such activities."

The latter component of the liability test, a direct financial interest,
would not likely apply to municipalities. Cities don't usually make
money from pirates. But one must wonder, will the test hold? Should
public entities offering network access be held to higher standards than
private entities for the protection of commerce? If I were an advocate
for municipal Wi-Fi networks, one concern would be the risk of changing
liability standards.

All in all, it makes me more convinced that the risks associated with
uncertainty - in this particular case, legal uncertainty - are best when
shouldered by private actors and not public entities.


posted by Kent Lassman @ 11:09 AM

http://blog.pff.org/archives/2005/06/assessing_liabi.html


-----Original Message-----
From: owner-ip () v2 listbox com [mailto:owner-ip () v2 listbox com] On Behalf
Of David Farber
Sent: Tuesday, June 14, 2005 3:02 PM
To: Ip ip
Subject: [IP] Wi-Fi Liability: Potential Legal Risks in Accessing and
Operating Wireless Internet



Begin forwarded message:

From: Monty Solomon <monty () roscom com>
Date: June 14, 2005 9:17:30 AM EDT
To: undisclosed-recipient:;
Subject: Wi-Fi Liability: Potential Legal Risks in Accessing and
Operating Wireless Internet



http://papers.ssrn.com/sol3/papers.cfm?abstract_id=692881


Wi-Fi Liability: Potential Legal Risks in Accessing and Operating
Wireless Internet

ROBERT V. HALE II
Independent

Santa Clara Computer and High Technology Law Journal, Vol. 21, p. 543


Abstract:
Suppose you turn on your laptop while sitting at the kitchen table at
home and respond OK to a prompt about accessing a nearby wireless
Internet access point owned and operated by a neighbor. What
potential liability may ensue from accessing someone else's wireless
access point? How about intercepting wireless connection signals?
What about setting up an open or unsecured wireless access point in
your house or business? Attorneys can expect to grapple with these
issues and other related questions as the popularity of wireless
technology continues to increase.

This paper explores several theories of liability involving both the
accessing and operating of wireless Internet, including the Computer
Fraud and Abuse Act, wiretap laws, as well as trespass to chattels
and other areas of common law. The paper concludes with a brief
discussion of key policy considerations.


Keywords: Wi-Fi, WLAN, WAP, wireless, IEEE, 802.11b, 802.11a,
802.11g, CFAA, HotSpot, VOIP, Sablan, Verio, AOL, Security,
encryption, internet, ISP, wardriving, warchaulking


http://papers.ssrn.com/sol3/papers.cfm?abstract_id=692881



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