I’ve just written an article on whether using an open wireless access point is criminal.
As someone who does occasionally use any open 802.11 network within my immediate area to pick up email I have a substantial vested interest in this. If prosecuted I could be debarred and yet it seems an entirely harmless thing to do. Many people don’t mind as long as you don’t use it to send spam or kiddy porn. The remedy if you do is very simple: secure your network.
Prosecuting people for doing this seems to me to be like prosecuting people for reading books using the light emerging from their neighbours window, rather than arranging their own electricity account.
As I...
I’m fascinated by this case. My understanding is that most ISP’s stipulate that the service they provide is for their customers own use. Does this mean that if I have an ‘open’ WiFi system I am somehow negligent if it is not secured against wider public access?. and that the person who had the open connection in the above case is somehow been negligent?
Also how am I meant to know wether I can go onto a network or not? My computer insists on logging me on to the stongest connection. Is Microsoft’s software at fault in aiding and abetting me to break some law.
On the latter point this will be a jury question: can you prove to them, e.g. with expert evidence, that this is how your operating system behaves? Can you prove to them that you were trying to access a network to which you had a right of access, e.g. was it being done near your office or home, and you can show you normally did this or had done so before? If you can do this then they ought reasonably to say you had acted with innocent intent and acquit you.
The customer only clause is one that often irritates me as it doesn’t seem to serve a legitimate purpose for the ISP while at the same time denying customers the right to use something they paid for in the way they wish. For example contributors to consume.net should have the right to allow strangers to pick up email from their network if they wish. If the ISP is hoping for more business here is no guarantee the stranger will sign up with them or anyone else and if the customers bandwidth is overused by strangers then the ISP is entitled to complain about that usage (if it is a bandwidth capped account) to the customer and take any contractual remedies against him. I would think there is at least an arguable case that the terms is unfair under the Unfair Contract Terms Act 1977 and possibly even under the Human Rights Act as an interference with the customers private life: everyone is entitled to interact with strangers without the consent of an ISP.
I do also think that running an open network may leave someone liable in negligence in certain circumstances. If for example you have an unsecured network and the people misuse it you may well be negligent either contractually, in a civil action, or in extreme cases perhaps criminally, though I suspect that would be very rare. Then again I didn’t expect to see a case like this either.