Providing free WiFi from closed networks
Via Boing Boing, the WiFi Liberator is:
…an open-source toolkit for a laptop computer that enables its user to “liberate” pay-per-use wireless networks and create a free, open node that anyone can connect to for Internet access. [Link].
The idea is that one person pays for use, and then shares that connection with others.
This is an area that I am currently researching for a paper on mesh networks, an early version of which is available on my SSRN page.
As a lawyer, one of the first questions that I think of when seeing something like this, is whether or not sharing WiFi like this violates the law. The next question is, even if it violates the law, how you could actually enforce the law.
As to the first question, there is the issue of the Terms of Service. If the contract that users agree to when they pay for the service states that they are not to share the connection, then using this product would be a breach of contract (assuming contract validity). As to enforcement, I don’t think that there is any good way to police this issue, and so the point may be moot in the specific fact situation of a laptop users at an airport lounge. ToS can be (and has been) used by ISPs to prevent their clients from sharing their connections — more on this related issue in my article.
What about criminal liability? The Texas Penal Code provides that ‘Theft of Service’ is:
Sec. 31.04. THEFT OF SERVICE. (a) A person commits theft of
service if, with intent to avoid payment for service that he knows
is provided only for compensation:***(2) having control over the disposition of services of another to which he is not entitled, he intentionally or knowingly diverts the other’s services to another not entitled to them; ***
Could there be an argument that use of this device to share a pay-per-use WiFi connection is theft of services? These elements of the crime would probably be relatively straightforward:
- knowledge that the service is ‘provided only for compensation’.
- intentional or knowing diversion of the service to others not entitled to it.
- having control over the disposition of services of another (the provider’s internet connection).
What about the requirement that the second part of this last element, ‘to which he is not entitled’ [in (a)(2)]? This is where the ToS may be important. If the ToS states that the user of the services is not allowed to share them, and they subsequently share them, they have broken the agreement and thus become not entitled to the service.
This leaves the final element: ‘with intent to avoid payment for service…’
This one is a bit trickier than the rest, but I could potentially see an argument based around the service that the accused intended to avoid is the provision of services to multiple users. In this regard, I’m thinking specifically of the parallel situation with computer software licences — you pay for a number of users. In the case of the original (paid for) connection, you could (perhaps) regard this as a one-user contract, with a two-user contract conceivably at a different price point. Thus one could argue that the payment being intentionally avoided is the difference in price between one and two users.
There is a US Federal statute in the area that might be relevant, and I would be interested to know if there are laws in other jurisdictions that could be used in a similar manner. But I’ll leave those discussions for another post.
