Preliminary Note: In posing this hypothetical situation I am in no way promoting, encouraging, advocating, suggesting, hinting, supporting or otherwise indicating that this behavior is something that any member of this message board should ever engage in. I am not promoting any illegal behaviors. The OP question cannot be asked without first posing the situation below.
You have a MiFi device. This allows you to share a WiFi signal with up to 5 users, yourself included, who are within a proximity that allows them to log in using a password you’ve created. Essentially, your MiFi is an anywhere hot spot that you own. The contract is in your name.
You are working. You share the password with three co-workers. A total of four of you are on the Internet at once, sharing the MiFi signal.
One of your co-workers sends an email threatening to kill someone. They do so while on you MiFi.
You are arrested for this, because the MiFi device and responsibility for the wireless access is yours.
Can one be held responsible for the actions of others who are using Internet access that you own, if the use of signal is not done as a part of a contract ( i.e., access for pay such as a Boingo account, use of a hotel WiFi, etc. ) ??
The TOS can not cause someone to assume criminal liability. The TOS is a business contract. Businesses can not write criminal law into a contract with you. You are not necessarily criminally liable for someone else sending threatening emails on your account, except in cases where criminal law (not the TOS of the ISP) says you are.
Those Terms of Service will mean somewhere between jack and shit in criminal court. The TOS pertains only to the relationship between ISP and customer.
But question raised in the the OP doesn’t confine itself to criminal liablity. It just asks “are you responsible?”. Sure, the example given, a death threat, does raise an issue of criminal liability, but it fairly obviously raises an issue of civil liability also.
In defamation law, all those involved in the distribution of a publication containing a defamatory statement can be sued, even if they haven’t read the publication and are unaware of the defamatory statement. (This position may be modified by statute in some jurisdictions.) If somebody makes a defamatory statement in electronic form, and you assisting in publishing it to a wide audience by providing some of the necessary infrastructure, can you be implicated in civil liablity? Why should distributing a statement made electronically be any different from distributing a statement made in print?
I don’t know the legal implications, but the answer here is that assisting in publishing means something completely different. In print media, you’re actually directly involved. Online, you would not be.
To make a direct analogy, the user would have to somehow print his stuff and distribute it without involving you. I’d see it more as him using your photocopier, and then your envelopes, as he works at your business. Would you still carry liability? (honest question, not snark)
A bigger question is what happens if the person was not authorized to use your equipment. The TOS make it sound like you would still have civil liability. If it were something like leaving your wireless signal unencrypted, I could see it, but if the person actually hacked in, you’d think they’d be responsible, not your.-
Well, sticking with the print media example, the newsagent who has the magazine on his shelf available for sale is part of the distribution chain, and can be sued in defamation. He may or may not know about the defamatory statement; it doesn’t matter. He is involved in “publishing” it, as in “conveying it from the person who orginated it to the person who receives it”. So, if a journalist defames me in a newspaper, I can sue everyone in the chain from jounalist to reader – the journalist, the newspaper publisher, the printer, the distributor, the newsagent. (In practice the newspaper publishers will usually indemnify all the other defendants, and take on the conduct of the case.) The justification for this, if I recall correctly, is that it is not the statement itself, but the publication of the statement, which injures me, and the more widely it is published the more I am injured, and all those involved in publication must accept responsibility for what they have published. They can;’t escape that responsibility by choosing not to read what they publish. If they make that choice it’s their problem, not mine.
You may or may not accept the force of the justification but, given that it underpins the law of defamation, how would it apply to electronic publication? Would not everyone in the publication chain be similarly exposed? If I afford you the facility to share your thoughts with the blogosphere, regardless of what those thoughts may be, why should I have any lesser liability if your thoughts happen to be defamatory than the newsagent who carries a magazine without reading its contents?
The OP, upon reflection, was about civil as well as criminal responsibility.
The TOS’ listed above are pretty clear on the matter of contract law. The criminal law, well that’s really what I had in mind when I wrote this. Between anti-terrorism laws and other laws ( child pornography laws, etc. ) what I do when on the Internet is tracked and I am legally responsible.
Am I legally liable for being the “provider” in this case?
As far as criminal law goes, it’s very unlikely that you would find yourself in trouble purely for being the owner of a wifi link used by someone else in the commission of a criminal act. Most criminal acts requires some degree of intention, or at least negligence, with respect to the elements of the activity which make it criminal.
It might be a different story if you knew what he was doing, of course. If you realised that he was using your infrastructure to, e.g., exchange kiddy porn and you decided that it wasn’t any of your business and you weren’t going to intervene or to withdraw the facility or mention the matter to the local plod, I think you could be in trouble. You’d be aiding and abetting the commission of an offence. The fact that you weren’t being paid for this, or that the primary offender didn’t know that you were knowingly facilitating him, wouldn’t put you in the clear.
Even if you were not ultimately charged with the crime your co-worker committed, there’s a pretty fair chance the authorities would drag you throuh some levels of legal hell.
The preliminary investigation will likely give the cops one name - yours. So the first thing you might know about it is a knock on your door by people with a search warrant in hand. They will search your home. They will sieze every computer you have. Depending on the seriousness of the crime, they may arrest you on the spot. You might have significant jail time while they look at your three co-workers to figure out who the actual perpetrator is.
And if your evil co-worker was smart enough to commit the crime using your computer, you may be seriously fucked.
Is there a specific cite for this often used statement? If I am camping for a week and during that time a substantial change to the law passes is it assumed that I will be aware immediately of that change? Do TPTB have any responsibility to promulgate changes?
No, but ignorance of the facts is. It is not a good defence to say that I had no idea that exchanging kiddy porn is a crime, but it is a good defence to show that I had no idea kiddy porn was being exchanged using my wifi connection.
IIRC, some of the TSA and Patriot Act laws are not for public knowledge. one pot-stirrer IIR tried to go to court to see the laws on which the need to show ID for air travel were based. He lost. Land of the free and all that…
The criminal law is simple though - if it says “a person may not do X…” then the prosecutor has to prove it was YOU who did X. (threats, kiddie porn, share music, whatever…)
If the law makes it a crime to assist someone doing X, then they have to show that you had good reason to know you were helping Fred do X. Why did you share the Wifi? Valid honest reason? Did you show any indication of suspecting you knew and ignoring it? Should a reasonable person have figured it out? The prosecutor won’t get very far with “he should have known”, but if someone complained about X and you ignored it then maybe you are culpable.
Best case you’ll go broke paying for a good lawyer to get off.
As for the contract and civil liability - not sure that’s been tested. I suspect the same rule will apply. If it was reasonable that you gave someone access to the signal, if there was a legitimate reason and no reason to suspect something wrong was happening, then why would you be liable? The contract also says “You agree to indemnify, defend and hold harmless Comcast and its affiliates, suppliers, and agents against all claims and expenses (including reasonable attorney fees) arising out of the use of the Services,” - well if you are liable even though you didn’t know, so should be Comcast or whoever. I can’t sign away a third party’s right to sue Comcast. They can come after me according to that clause if they lose a million-dollar lawsuit, but good luck collecting.
Probably the most interesting variant of this is the lawsuits for file (music) sharing. The usual process is for the RIAA to sue whoever owns the connection. When the person tries to defend themselves, they have to show preponderance of evidence they did not do it, usually by pointing the finger at someone else under oath; the RIAA then drops the suit and goes after that person instead with this stronger evidence.
IIRC there was a case like this involving a girl who was 15 at the time and her mother’s internet connection. last I heard it was still ongoing.
To focus back a bit, since I am not contracting with my colleagues/ friends when I provide them with my password to my MiFi, I cannot see how the TOS clauses from Comcast etc apply here. I am sharing, either openly or through password dissemination, the access I pay for to the Interwebs. I don’t have a reason to believe that any one person will be doing anything illegal but then I don’t have a reason to believe absolutely that they are NOT. Free will and all.
If illegal acts are performed while logged into my paid service, I do wonder if I am liable on some level. No argument- my life would be hell. Anything electronic would be taken away from me for an awfully long time and ripped to pieces. ( Then again, I detest my Blackberry® so much these days that if the Gummint needed to confiscate it, they can have at it ).
Which begs the next questions - can a child be subject to a judgement in a lawsuit? If so, can they decalre bankruptcy if they lose the lawsuit? If your kid uses your internet connection for something actionable, they’re the one liable.
The problem is you have to proven intent. If you intended to provide a means to threaten someone you are an accomplice to the act, before or after the fact, depending.
That’s one of the keys to a conviction. How does one prove intent, convince a jury. You can always be arrested and tried, getting it to stick is another matter. Sometimes it’s easy, sometimes not.
Parents are responsible for their children’s actions to a certain degree. You have to really check each state’s laws (in the USA) to find out what responsibility that is.
A child has nothing in theory so should be judgement proof. No parent with any sense, gives his child a college fund in his name which they exercise no control over.
These are set up as trusts and such. Furthermore a child’s education is key to his/her future. This is a societal interest and the courts take a dim view of anything that is going to make the child a burden on society in the future, rather than a productive member of it.
So a judge is not terribly likely to say “Sure take the kid’s college fund for damages”
That said, remember you can sue anyone for anything. Winning a lawsuit is different