Huh, well I might be wrong, I definately will say that it wouldn’t be the first time.
Well, the best way to learn… and all that. 
Heh – easy thing for a software engineer to say. It’s easy to assume what is common sense when one is familiar with a topic. For example, I’m sure lots of farmers are full of common sense that us city folk have never heard of. Common sense is notoriously subjective, and irrelevant to the question at hand.
The open network is affirmative evidence. Hell, I should sue you for allowing my son to view pornography. You’re providing an attractive nuisance.
It’s true that a finder of fact could conclude that an open network meant consent.
But ehre’s the key fact: a finder of fact could also conclude, on the same record, that it did not imply consent. So on the facts presented, you could be found guilty.
Is stealing a loaf of bread to feed a starving nephew (since Scott_plaid likes the literary allusions) illegal? Of course it is – even though a finder of fact could find you not guilty. But it’s illegal – because on the facts, a finder of fact could find you guilty.
There is nothing in the law that would compel a finder of fact to agree that an open network is affirmative evidence.
Is there?
No, you’re right about this. I think, though, that no one has presented evidence that it’s legal or otherwise not legal. Nothing cited it substantially leaning one way or the other. What we really need is a test case, as you said. And despite your earlier example, copping out by pleading guilty does not lend that same weight as a court decision.
If I ever have the opportunity to be a test case, I will – if you can get anyone to arrest me. Until then, I’d err on the side of it being legal and ethical.
We’re not going to solve this here without a court.
For those that fear of breaking a law that doesn’t yet exist and may never, then you’ll want affirmative consent, so, well, you all have mine if you near my routers.
Consider:
An insecure wireless communications system, such as the old-style cordless telephones - would it be illegal for someone to access my telephone line and make calls without my consent? (lets assume I have a flat-rate billing plan, so I won’t notice, and their call may or may not tip me over my usage limit and cause me extra expense). I can’t see how it wouldn’t be anything other than illegal.
So what difference does it make if the system is capable of being secured? it’s like (uh-oh, analogy time!) saying it’s illegal to enter my house if my door isn’t lockable at all, but not illegal if it is equipped with a lock that I simply don’t use. How does that make any sense?
I haven’t read all the posts yet, but I want to clarify that we have no access to any of their computer files, or anything of their personal information. All I know that is illegal right now is my sister is file sharing with WinMX using their Internet connection, that they have left unsecured, unprotected, and available to use.
Also, this has become an extreme debate, which was not what I was looking for.
??lthisar]No, you’re right about this. I think, though, that no one has presented evidence that it’s legal or otherwise not legal. Nothing cited it substantially leaning one way or the other.
[/quote]
It seems to me you’re deliberately reading in an ambiguity that isn’t justified by the plain language of the statutes. If you think any court is going to look at this and say that they are not “substantially leaning one way or the other,” then you’re wearing blinders.
No, that’s not how it works. If the court thinks that the facts that the defendant is admitting to do not constitute a crime under the statute, then it’s not going to find culpability. The law doesn’t allow prosecutors to invent new crimes so long as a defendant can be persuaded to plead guilty.
[quote]
Until then, I’d err on the side of it being legal and ethical.
I wouldn’t; but that is, as they say, your lookout.
I don’t know where you fall in the chain of service, but it’s clear to me that the subscriber does not have the authority to give consent to a neighbour to access service provided by a service provider.
It seems to me you’re deliberately reading in an ambiguity that isn’t justified by the plain language of the statutes. If you think any court is going to look at this and say that they are not “substantially leaning one way or the other,” then you’re wearing blinders.
No, that’s not how it works. If the court thinks that the facts that the defendant is admitting to do not constitute a crime under the statute, then it’s not going to find culpability. The law doesn’t allow prosecutors to invent new crimes so long as a defendant can be persuaded to plead guilty.
I wouldn’t; but that is, as they say, your lookout.
I don’t know where you fall in the chain of service, but it’s clear to me that the subscriber does not have the authority to give consent to a neighbour to access service provided by a service provider.
If - despite the fact that the conduct is prohibited by the plain language of the statute - you believe the issue won’t be settled until there’s a conviction… excuse me: by a conviction, following a trial (no pleas!) and an appeal all the way to the state or US Supreme Court - then I suppose there’s nothing else I can say to convince you.
I shall, however, point out that this is a ridiculous standard.
[Mod hat on] This one, to my satisfaction, has been answered by Bricker(and possibly others).
It is illegal.
But, I don’t want to kill an interesting thread that touches on cutting edge questions, so I’m gonna move it to Great Debates rather than close the thread.
Thanks to all who answered the OP with facts rather than opinions and guesses. It’s getting harder and harder to find that in General Questions. 
Ok, it has been clarified that it is illegal, but yet it is not because no law has currently been made.
http://www.midwesttechjournal.com/modules.php?name=News&file=article&sid=384
I addressed, and debunked, this precise contention in post 70 of this thread.
Did you read post 70 of this thread, mr. meman?
Regarding point 4, put yourself in the defense attorney’s position. Given a log and explanation of the 802.11 packets showing an affirmative authorization packet sent from the access point to the accused’s computer, wouldn’t you have a pretty good chance of arguing that authority was granted? Authority can reasonably be assumed because a) the 802.11 protocol clearly defines the meaning of the authorization packet, and b) the AP represents itself as following that protocol, so we don’t even have to assume what the AP means by certain packets – it is well-defined.
In the defense attorney’s position, I might try that, but it would be a desperation move, designed to confuse the jurors and create doubt about what authorization means. The prosecutor, however, would explain that if you use a stolen or hacked WEP encyption key to hack into a protected network, the router would issue the same kind of 802.x affirmative authorization packet… that such a packet is “authorization” between computer devices, but not authorization as required by the statute. The prosecutor would prove element 4, as I said in the original post, by putting the owner of the network on the stand to testify that he doesn’t know you and never authorized you to access his router. As the defense attorney, I might make some hay about why he left his router unguarded, but I doubt it – if he says that he simply didn’t know any better, that will resonate with the jurors and they’ll buy it.
Ultimately, the judge will give instructions to the jury about what “authorization” means. And I guarantee you he won’t tell the jury that, as a matter of law, they can find authorization by means of the data packet contents passed between router and host.
I suspect that’s a bit greyer than it might seem (unless it is clearly defined in the contract) - if the service provider hasn’t forbidden it in the T&C, what’s the difference between sharing your internet connection and, say, granting permission for your neighbour (or a random stranger) to use your telephone?
Mangetout, I have not read up on the subject, but based on my experiences (post 107), and as I recall, that of others here, a wireless antenna hocked up to a high-speed internet connection can be shared between a large number of people, without loss, or it’s slowing down.
However, should you attempt to get a large number of people to use the phone line at the same time, via some sort of phone phreaking, you get a party line. Whooo! Remember back in the 80s how people would do that on 1-800-numbers? It was great. Wait, where was I? Oh yeah. Such a thing would get annoying quickly, and would make normal communications impossible.
So, once again, wifi, can be easily shared, normal telephone use can’t.
My mind totally skipped over those words. :smack: Since diffrent companies have diffrent ideas of how much controll they want to give user, I have no idea via this topic.