Here’s what a law firm has to say on the matter:
and
Any questions?
So are we all agreed now that it is legal as long as you don’t perform illegal acts whilst connected?
The real criminals in all this are people like this guy (taken from my earlier cite
He charges a starting fee of $75 to tell people how to protect their connections. Some people are always willing to profit from the ignorance of others it seems.
Anyway back on subject all the posts so far seem to add up to something along the lines of:
“It probably should be illegal but at present there are no specific laws relating to it and no attempt has ever been made to prosecute someone accessing a wireless connection without expressed permission.”
At least that’s how I see it 
I would have to say it is as immoral as tilting a bottle, without opening it, to see if you won a prize, and as illegal as running a lemonade stand, without giving even the least share of the profits to the IRS, unless the person doing so files trades to excess. Note I said, “To excess”, and not file trading, period. That is just my opinion, how ever, and does not represent the views of The Chicago Reader™ in any way, shape or form.
I certainly don’t think it should be illegal. If the intent is to stop people from using other’s bandwidth without explicit permission then this is better achieved, presumably in Windows, by ticking a couple of boxes and supplying a non-obvious alphanumeric password. Such a law would help only those who are too lazy or ignorant to do even that whilst criminalising many people who use open networks everyday in the course of their work.
For me, the whole point of it is that this is so easy to do that I now regard an open network as someone’s consent to use its bandwidth.
How do you balance my willingness to share vs. my neighbor’s unwillingness to do so when we both have exposed networks? By default if a service is present and unidentifiable, the logical assumption is that there is a wireless network available for public use. If the network name were “I’m Brecker Stingy Bastard Leave My Bandwidth Alone” then I might assume that the network isn’t supposed to be publicly available. But then I’d just laugh at this stupidness for having changed the network name without just hiding the network or securing the network in the first place.
In the way of cites, I’ll point out that Toronto is mentioned above, but that Toronto isn’t in the United States yet.
Just like driving and breathalyzers – “implied consent.”
Actually, I’d say it is illegal, and has been prosecuted in the past, but it is unlikely to be enforced unless there are more serious crimes afoot. In the linked thread, the case cited (which might not link properly anymore) involved a prosecution where the defendant did nothing but check email over an open network.
What is your authority for the proposition that leaving your wireless connection unlocked grants “ipso facto” authority?
In other words, if you commit this act, and I, the prosecutor, go to a magistrate and obtain a warrant for your arrest, and we go to trial, I’ll produce my evidence that shows that you (1) willfully, (2) used a computer network, (3) with intent to obtain computer services (4) without authority.
To establish element 4, the owner of the wireless connection will testify that he doesn’t know you, and never gave you permission to use his network.
Now it’s your turn. What authority will you point to to convince the court that you had authority?
No, I’m not. I’ve just given you the law in question. If you believe it doesn’t apply to a network without enryption, upon what legal authority are you relying for that belief?
Implied consent is created by law. The law specifically creates implaied consent for breathalyzers for drivers.
What law creates implied consent in this instance?
That is correct. There is no law against INTERCEPTING a WiFi signal. If I wanted to eavesdrop on your surfing habits, read your e-mail as you do, or see what kind of kinky porn you are streaming from your server to your laptop, I can legally do so.
That’s not the subject under discussion. The subject is using the WiFi signal to connect to the network – two-way communication. THAT is illegal.
He goes on to say:
He is talking about the privacy or ownership of the information transmitted… not the use of the network by an unauthorized person. As you as you are passively receiving the WiFi signal, you’re legal. The moment you CONNECT to the router and pur data from your side on the foreign network, your conduct becomes illegal.
It seems clear that is no statutory or case law on this matter, but I think one could argue that by leaving the SSID to the default, broadcasting the SSID and not establishing a WEP code, implied consent was granted.
To use another analogy, if I don’t fence off or post “No Trespassing” signs on my backwoods, you can assume the right to pass through. (Obviously, IANAL, etc.)
Yes. What about the past thread, where I opined this:
Is this law firm somehow unaware of the potential application of this clause? Or do they argue that it somehow does not apply?
That’s a very unusual thing to say. Do you have a cite for precedent of this?
Godwin is either a deliberate liar or an idiot because it is demonstrably false that use of any internet connection “would not affect the speed or strength of their Internet connection”. And many DSL contracts (such as mine) prohibit subleasing or sharing between houses, so Godwin appears to be advising people to violate the ToS of their ISP without being aware of the consequences. And, of course, he offers no evidence that it is legal.
Good grief, what forum are we in? And why is an opinion with no backing, precedent, evidence, or cites worth anything on a legal question posted to the GQ forum of the SDMB?
In 2003, two men were federally prosecuted: they used an open connection owned by a Lowe’s store to check their own e-mail. No illegal activities, just checking his own e-mail through the Lowe’s network. Lowe’s became aware of the breach and contacted the FBI, who prosecuted the men for unauthorized computer access. Story.
IT IS ILLEGAL. 18 USC § 1030 * et seq* Federal law, and in Virginia, Va. Code § 18.2-152.6. There are LAWS AGAINST IT. IT’S ILLEGAL. THERE HAVE BENE PEOPLE ARRESTED AND CHARGED WITH IT.
No amount of wishing, hoping, offering poorly constructed analogies, or just being blind to the facts will change this.
Trouble is (and despite my posts above regarding the two-way nature of the whole thing), I’m pretty sure the only way for the guy on the street to passively access a WiFi signal is with one of those key fob hotspot detector things that are incapable of transmission. By the time your laptop/phone/PDA has detected a wireless network, two-way communication will already have happened - even if it is just router solicitation packets etc.
Good luck with that. I cannot imagine any court making that finding, and, in fact, the federal court that convicted Mssrs. Timmins and Botbyl did not believe there was any implied consent on the part of Lowe’s hardware, even though they left their network SSID set to default.
Oddly enough, I AM A LAWYER. Your analogy is inapposite.
Correct you are. But if that’s the only thing that happens, you’re not guilty of a crime – because you fail to satisfy the “knowing and willful” element of the offense. You didn’t access the network on purpose – it just happened. But the moment you act in a knowing and willful manner, you’ve crossed the line into illegality.
This is GQ, and is an inappropriate place for you to share your unsubstantiated opinion. MPSIMS is available for this purpose, if you are truly driven to share an opinion unbuttressed by any citation to authority.
Dunno, I suppose someone could probably argue that using a device that solicits connections is ‘knowingly’ enough.
Criminal law aside, there’s also a matter of contract. I don’t think your neighbor can grant you permission to use their network, implied or otherwise. If your neighbor explicitly said “Yeah, go ahead and surf the web on my wireless network, I don’t care”, I suspect they are in violation of their contract with their ISP. They are providing residential broadband for the use of your neighbor and his immediate household and guests on the premises, not granting him the right to subcontract access to the rest of the neighborhood. If this gets to be a big problem, I suspect ISPs will explicitly say that any network you hook them to has to be secured. I wouldn’t be surprised if some of them already do so.
I appreciate your comments. Perhaps the custom should be that setting the SSID to “public” gives implied or even explicit consent, while the default SSID is never set to public. That way, it’s clear to all what was intended.