Open networks, open liability?

Wi-Fi networks are ubiquitous. When was the last time you accessed one? Perhaps you were waiting on a delayed flight, or maybe sipping a latte at a coffee shop. Wherever you may have been, some networks are secure, but others are left wide open.

Using a random, open network at an airport or coffee shop is convenient, but what are the legal ramifications of doing so? What about offering one? As new technologies develop, their proliferation often outpaces the law concerning their use. Such is the case with Wi-Fi Internet access.

Open Wi-Fi networks allow people to access data traveling over that system. A person could delete, copy, read, modify or intercept a variety of data through the open network. A person could use your Wi-Fi network to access the Internet and engage in nefarious behavior.

Under current U.S. federal law, those who provide access to the Internet to third parties are not liable for the acts of these third parties. Further, the Digital Millennium Copyright Act and the Communications Decency Act both include safe harbors that state that Internet service providers are not liable for content transmitted through their services. For clients who offer Wi-Fi as an amenity for their small business, such as a coffee shop or a hotel, this is good news.

Nonetheless, legal experts urge businesses hosting Wi-Fi networks to post a terms-of-service or a terms-of-use notice that outlines the behavior expectations of customers who access their network.

But what about your own home network? Wi-Fi networks are now found in residential neighborhoods around the country. Conventional wisdom dictates that you ask your neighbor before borrowing their lawnmower, but what about an open Wi-Fi network?

The law is currently unclear as to whether this practice is illegal. No federal law clearly applies, and other applicable laws vary from state to state. An open network, by virtue of being open, does not provide any indication that its usage is unauthorized. Given the ease in which networks can be secured, many believe it is reasonable to assume that if a Wi-Fi network is open, its use is not prohibited.

The law is still developing. Community networks that promote open network sharing, such as NYCWireless, have recently caused some controversy. A group of individuals in New York City has agreed to open their wireless networks, in exchange for access to others’ networks. Movements like this one have cropped up across the globe from San Francisco to parts of Rhode Island, and even far away places such as Singapore.

In 2002 Time Warner Cable sent cease and desist letters to a number of their subscribers who listed themselves in the NYCWireless database. Although restrictions on sharing a connection are difficult to enforce, service providers like Time Warner Cable are within their rights to impose restrictions on subscribers.

This potential liability is a major reason for the discouragement of open Wi-Fi access. But it is important to note that the restriction to free and open Wi-Fi use could impact future innovation and growth of wireless technologies.

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