EFF Reminds Us That Open WiFi Isn't A Bad Thing... And Should Actually Be Encouraged

from the help-out dept

We've had plenty of stories concerning open WiFi, and there seems to be a general opinion among some that open WiFi is "a bad thing." Some have even tried (and failed) to argue that having an open WiFi network makes you negligent. In some areas, law enforcement has even gone around telling people to lock up their WiFi. Those who argue against open WiFi are generally conflating different issues. It is true that if you use an open WiFi network without securing yourself you do open up yourself to snooping from others. Similarly, if others are using your open WiFi, it it could lead to at least an investigation if your access point is used for nefarious purposes. But combining those to claim that open WiFi itself is bad or illegal is a mistake. It is entirely possible to secure your own activities, and to set up an open WiFi network in a reasonable manner that minimizes any such threat.

The EFF and others have been trying to remind people that there are also tremendous benefits to open WiFi in increasing connectivity for everyone. As part of this, they've launched the Open Wireless Movement encouraging people to purposely leave their WiFi networks open (and to take appropriate security precautions). They're pointing out that especially in times of crisis, such open networks can be tremendously useful.

The Open Wireless Movement envisions a world where people readily have access to open wireless Internet connections—a world where sharing one's network in a way that ensures security yet preserves quality is the norm. Much of this vision is attainable now. In fact, many people have routers that already feature "guest networking" capabilities. To make this even easier, we are working with a coalition of volunteer engineers to build technologies that would make it simple for Internet subscribers to portion off their wireless networks for guests and the public while maintaining security, protecting privacy, and preserving quality of access. And we're working with advocates to help change the way people and businesses think about Internet service.

We're also teaching the world about the many benefits of open wireless in order to help society move away from closed networks and to a world in which open access is the default. We are working to debunk myths (and confront truths) about open wireless while creating technologies and legal precedent to ensure it is safe, private, and legal to open your network.

Hopefully we can finally get past the myth that open WiFi is automatically bad and get people moving towards a better understanding of how to use the internet safely while still offering up open access in a reasonable manner.

Filed Under: open wifi, security, wifi

Yet Another Court Says You're Not 'Negligent' If Someone Uses Your Open WiFi To Infringe

from the shutting-down-that-line-of-argument dept

Some of the folks filing mass copyright infringement lawsuits have tried to claim that merely having an open WiFi connection on which someone else infringes on copyright-covered works is a form of negligence. Basically, they're suing based solely on limited information -- an IP address -- and when those pursued point out that they have an open WiFi, the lawyers insist that this, alone, is a form of negligence. However, the courts aren't buying it. In July, we wrote about a district court in New York rejecting this argument quickly, noting that the position was "untenable."

And now a California district court has ruled similarly, completely rejecting the negligence theory on three different points. First up, there is no negligence because negligence requires a relationship and a duty to protect, but no such relationship exists between the copyright holder, AF Holdings, and the defendant in the case:

AF Holdings has not articulated any basis for imposing on Hatfield a legal duty to prevent the infringement of AF Holdings’ copyrighted works, and the court is aware of none. Hatfield is not alleged to have any special relationship with AF Holdings that would give rise to a duty to protect AF Holdings’ copyrights, and is also not alleged to have engaged in any misfeasance by which he created a risk of peril.

The allegations in the complaint are general assertions that in failing to take action to “secure” access to his Internet connection, Hatfield failed to protect AF Holdings from harm. Thus, the complaint plainly alleges that Hatfield’s supposed liability is based on his failure to take particular actions, and not on the taking of any affirmative actions. This allegation of non-feasance cannot support a claim of negligence in the absence of facts showing the existence of a special relationship.

Even ignoring that, the court is skeptical. Noting that even if there was a negligence claim it would be unavailable in this case, because of copyright "pre-emption" (basically, federal copyright law wipes out any state statutes that seek to do the same work).

AF Holdings is seeking to protect its “exclusive rights” from “copying and sharing.” Simply recharacterizing the claim as one of “negligence” does not add a legally cognizable additional element.... Thus, because AF Holdings alleges that Hatfield’s action or inaction constituted interference with its “exclusive rights in the copyrighted work,” the negligence claim is preempted by § 301 of the Copyright Act.

And then the court goes even further, and says that even if the first two theories don't kill the negligence claim, there's also Section 230 of the CDA, which we've discussed for years. While the Section 230 safe harbors (protecting a service provider from liability concerning the actions of their users) technically does not apply to intellectual property issues, the negligence claim is not an IP law issue, and thus gets wiped out thanks to Section 230 immunity.

Basically, the idea that you're negligent if you leave your WiFi open and someone else uses it to infringe seems dead in the water.

Filed Under: copyright, copyright trolls, negligence, open wifi, preemption, section 230, wifi
Companies: af holdings

Austin Police Planned... Then Postponed Wardriving Plans In An Attempt To Shutdown Open WiFi

from the um,-but-it's-legal dept

Jonathan Rumion alerted us to a plan by the Austin, Texas police department to conduct a massive war drive around the city, looking for open WiFi networks, with the plan to try to find the owners, and tell them to lock up their WiFi networks. We've heard of similar campaigns in the past. Rumion was reasonably concerned about this effort -- and whether it was because of him asking questions, or other reasons, it looks like the Austin police have postponed this effort for the time being.

Either way, it raises lots of questions. Having an open WiFi network is not against the law, so should the police really be going around telling people to lock up their WiFi? It's also not at all clear how they're figuring out who actually owns the open WiFi networks. Rumion was also concerned about what the police might do with the data they collect, though I don't think that should be an issue -- that data is public. Still, it does seem like a questionable effort against something that remains perfectly legal.

Filed Under: austin, open wifi, wifi, wireless

No, Having Open WiFi Does Not Make You 'Negligent' And Liable For $10,000

from the no-freaking-way dept

That Anonymous Coward was the first of a few of you to send over the news that one of the "John Does" sued by Corbin Fisher/Liberty Media has settled. Corbin Fisher is a porn company that has followed the footsteps of others down the mass infringement lawsuits path that many of us note feels a lot more like a shakedown process than a reasonable use of copyright law. Even more troubling, in our view, is that one of the theories presented by the company is that anyone who has an open WiFi network, and uses that as an explanation for what happened, is guilty of negligence. Given the vast number of good reasons to leave a WiFi network open, we found this quite troubling.

And so we're extremely worried about this particular settlement, which you can see embedded below. The full payout by the Doe is $10,401, but the breakdown is as follows:

• $200 for innocent infringement
• $200 for contributory infringement
• $1 to pay off the conspiracy charge... while not admitting to any conspiracy (another theory presented is that in using BitTorrent, you enter into a "conspiracy" -- a claim we won't debate this time around, but may revisit another time)
• $10,000 for the negligence of having an open router

While we have issues with a lot of this, it's that last part that is super troubling. While this is not a legal ruling, just the fact that it's in a settlement will allow Corbin Fisher and others to wave the document around, warning others that if they want to claim that their WiFi was open -- a potentially legitimate defense -- they now risk a massive fine for so-called "negligence." This is insulting, dangerous and ridiculous. There are all sorts of legitimate reasons to leave your WiFi network open and almost none of them amount to "negligence," by any stretch of the imagination.

As I've mentioned in the past, I'm also surprised by the fact that the lawyer representing Corbin Fisher/Liberty Media in this case is Marc Randazza, who has done some fantastic work in the past and present to defend free speech rights -- including taking on a variety of defendants against copyright troll Righthaven, despite its efforts bearing some striking similarities to what Corbin Fisher is doing here. In fact, Randazza has been at the forefront of many of the recent victories against Righthaven, and the various attempts to force Righthaven to pay up for its abuse of the court system to shake people down.

I like and respect Randazza and have sent a few interesting cases his way when people I know have needed legal help concerning attacks on their free speech rights. He's also helped us at times when we've been threatened with bogus lawsuits. But I still have trouble understanding his position on these Corbin Fisher cases, which strike me as being the same, or in some cases, worse than some of these other efforts. Given that, I emailed Marc, telling him I was going to write a post about this settlement and the fact that I think it's a horrible and dangerous result, that will be used to harass people who have open WiFi networks for perfectly legitimate reasons, and asking if he had any comment. He wrote back a lengthy response, which he also sent to TorrentFreak, who posted it as an article.

This is one time where I think Randazza is 100% wrong, and is actually doing significant harm to causes he claims to support. Thankfully, the folks at the EFF (who list Randazza as a lawyer to talk to if you're hit up for money by copyright trolls) have stepped up to debunk the legal basis of Randazza's argument, which is effectively based on a famous case on negligence involving tugboat radios. The EFF points out that such negligence claims for a service provider are clearly barred by Section 230:

Perhaps hoping to avoid this limitation, the essay suggests that operators can be held liable under a general tort theory of negligence (meaning, it's not a copyright claim, just a general injury claim). But that approach immediately crashes against another legal wall. Section 230 of the Communications Decency Act offers broad immunity from tort claims (including negligence) to providers of “interactive computer services” for claims arising from the activities of their users. The statute’s broad definition of interactive computer service includes “specifically a service or system that provides access to the Internet.” (emphasis added).

What I find even more troubling about Randazza's argument and especially this settlement is how it will be used (whether by Randazza or others) to falsely imply that having an open WiFi network -- which is perfectly legal -- is not a defense when sued. In fact, the really nefarious part of this is that not only does it imply you can't use that defense, it implies additional liability for mentioning this very legal use of WiFi as a part of your defense. Anything that effectively takes away a legal defense against a questionable legal claim, and implies that you may actually be hurting yourself just for bringing it up, is immensely troubling.

Randazza claims that negligence claims are really a way of saying "you should have seen this coming." But that's ridiculous. It implies that anyone leaving open WiFi must assume that people will use that open WiFi for illegal activity. That's a huge leap. There are security reasons as to why you might want to secure your own WiFi... but there are also alternative ways to secure your home surfing and home network, while still leaving an open WiFi network. Randazza's statements suggest that's not possible and that anyone opening up their home WiFi should know that it's likely to be used for illegal activity.

Like the EFF, I'm also troubled by the way that Randazza seems to ignore the basic concepts of properly applying liability. We have safe harbors in the DMCA and the CDA for a very specific reason: to have people properly apply liability to the actual actors, and not the third party service providers and intermediaries. We have a long tradition in US law, even outside of those explicit safe harbors, that liability should be applied to the actual actors, rather than 3rd party service providers. Randazza talks about how leaving your WiFi open leaves you open to having your house raided by police if someone uses your router to transmit child porn. But just because the police might raid your house improperly, that does not suddenly make it negligent to have an open router. Instead, it should raise questions about the investigation and the decision to raid the house.

In fact, we keep seeing that even when someone uses open WiFi to commit a crime, while law enforcement may investigate, they're still looking for the person who actually did the crime. The fact that Randazza ignores this and basically says that because you might get raided, it's negligence, is really troubling.

Furthermore, Randazza stretches liability to ridiculous levels with some guilt by association:

The kind of person who would steal your car is probably the kind of person who would commit other crimes (or just do something stupid). So if you leave your keys in your car, and someone takes it and drives it into someone’s fence, you’re at least partially responsible for the damage. If the car thief runs off, who should pay for the damage? The fence owner or you? It would seem that between those two parties, you would be more responsible than the fence owner. You wouldn’t say that the fence owner should have built a better fence, would you?

That’s what negligence is: It is the law saying “You really should have seen that coming.” When you do something careless, and that carelessness costs someone else money, you pay the ”carelessness tax” – Negligence.

And the kind of person who would steal wifi is more likely to steal something else, isn’t he? So if you invite wifi theft by leaving your home network open, you’re more likely than not also inviting more.

But that's incredibly misleading (beyond the false use of "stealing"). First of all, those who have open WiFi should not have "seen it coming," because there are lots of perfectly legitimate reasons to offer and use open WiFi. Nothing about doing so should make you liable for what people do on the network, and that's exactly what the law says. Leaving your network open is not "inviting theft." That's simply misleading.

Finally, there are tremendous benefits to the public for there to be more open WiFi available. Getting settlements like this and implying that having open WiFi is negligence and potentially costly, serves to hurt such connectivity and holds back perfectly legal and reasonable options for many people to connect to the internet. While Randazza believes there are ethical issues here, I tend to side with two different NYTimes ethicists, who both came down in favor of open WiFi being perfectly ethical. In many ways, it's beyond ethical, in that it's altruistic, providing the community around you with something useful. Efforts to suggest potential legal liability for such actions strikes me as really nasty and an affront to the belief that helping others connect to the internet is a good thing.

At the end of his response, Randazza notes that he respects the perspective of people who "don't like the negligence claim," and suggests that it's the law we're disagreeing with, rather than his application of it. But I disagree entirely. As the EFF noted, there is no case law that says an open WiFi is negligence, and Randazza's position here seems like a pretty big stretch of the law, especially in light of Section 230 safe harbors. Randazza told me over email that he completely understands and appreciates that folks like myself disagree with him on this, but I think he should revisit his overall approach here. He also mentions that he makes clear to his clients that he will not represent them if he believes it will harm the First Amendment, something (as mentioned earlier) he's famous for helping to protect. But I'd argue he fails on First Amendment grounds in bringing (and defending) these negligence claims.

Trying to get around the proper application of liability and blaming third parties for actions they did not commit, while pushing to shut down a channel of communication, seems very much an attack on basic First Amendment principles. It's an attempt to use legal pressure to stop a form of speech. Yes, some of that speech may be infringement, but the vast majority of speech via open WiFi is not infringement or child porn as Randazza suggests. So, as a staunch First Amendment defender, I hope that he will reconsider his position in bringing such a negligence claim -- and, I hope that he will reject the further use of this highly questionable settlement.

Filed Under: copyright, marc randazza, negligence, open wifi, wifi

Once Again, Basic Detective Work Tracks Down Criminal Activity Done On Open WiFi

from the not-so-difficult dept

One of the things we hear over and over again about the evils of "open WiFi" is that it allows criminals do horrible things on a network with no way to track them down. We've always pointed out how ridiculous this is. Just because someone does something on a network, it doesn't mean they don't necessarily leave other clues that can be uncovered through basic detective work. And, time and time and time and time and time again, we see stories of basic detective work being used to catch criminals on open WiFi networks.

Here's yet another example. In a case involving a disgruntled former IT worker logging into his former employer's computer systems and pretty much deleting everything important (including "the company’s e-mail and BlackBerry servers, as well as its order-tracking system and financial-management software"). These sorts of things happen every so often, and the responsible party almost always gets caught.

In this case, Jason Cornish used an open WiFi network at a McDonalds to do his dirty work. But there was enough evidence to link the crime to Cornish (beyond basic motives). For example, investigators discovered that he had made a purchase of some food at that McDonalds about five minutes before the deletion began. Honestly, it looks like he wasn't particularly careful in a variety of things that he did -- but that's kind of the point. The fear about how open WiFi will be regularly abused and there will be "no way" to track down those responsible is a huge exaggeration. Perhaps there are some users who are careful enough not to leave a trail, but those sorts of people will figure out a way to do what they want with or without open WiFi. The fear of untraceable hackers on open WiFi is way overblown.

Filed Under: crime, detective work, open wifi, wifi

Google Wants Another Court To Determine If Accessing Open WiFi Is Wiretapping

from the maybe-someone-who-understands-tech dept

After an apparently, technically clueless judge ruled last week that WiFi is not a radio communication, and thus suggested Google's collection of open WiFi data represents illegal wiretapping, Google has asked for an immediate appeal on that point, noting that "reasonable judges could disagree," and that fighting a whole trial on other points wouldn't make sense if another court says WiFi is, in fact, a radio communication and, thus, an open WiFi network is not subject to wiretap laws.

Filed Under: open wifi, packet sniffing, street view, wifi, wiretap
Companies: google

Judge Who Doesn't Understand Technology Says WiFi Is Not A Radio Communication

from the seriously? dept

Well, this is disappointing. As you probably know, about a year ago, Google admitted to accidentally collecting some data from open WiFi networks via its Google Street View cars. The cars were setup not just to photograph streets, but to do some location-based tracking by cataloging WiFi networks (a very common location setting technique). If you understand basic technology, you can understand what they were doing, and how it was almost certainly not to capture data from the network, but just to determine location info. Furthermore, the only data it collected was from open WiFi networks where people were transmitting unencrypted data in the open. This was data that was being broadcast.

But, lots of people don't understand technology and people around the world, including in governments, freaked out about this data collection. So, of course, people started filing highly questionable class action lawsuits. As more and more such lawsuits were filed, they were all consolidated into a single court. Earlier this year, we noted that the judge was trying to determine if Google's actions amounted to an illegal wiretap under ECPA (the Electronic Communications Privacy Act).

If you understand how wireless networks work, the idea that this is wiretapping is hilarious. And wrong. This is data that is broadcast in the open. Anyone can read it. You don't need special equipment or anything. You just need basic software to see what data is traveling across the network.

Tragically, the judge has gone the other way on this point (so far). Google had asked for the wiretapping/ECPA claim to be dismissed, as it claimed (quite reasonably) that it wasn't wiretapping. The judge put together an astoundingly confused ruling that decides otherwise. While the link here blames the wording of ECPA, which is certainly partly to blame, I think the judge's confusion over the technology is equally at fault. Basically, it's true that ECPA is somewhat vaguely worded, but it does say that:

It shall not be unlawful under this chapter or chapter 121 of this title for any person... to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public

Furthermore, the statue defines "readily accessible to the general public... with respect to a radio communication" by saying that it is the case if the communication is "not scrambled or encrypted."

So, this should be open and shut. An open WiFi network is clearly readily accessible to the general public by its nature. And the statute doubles down on that point by noting that the communication was not scrambled or encrypted, and thus is, by the definition in the statute, "readily accessible to the general public."

So we're done here. Right? Not unlawful. Except... no. The judge instead goes through some of the most convoluted reasoning imaginable to try to claim that data transmitted over WiFi is not radio communication. Say what now? It is true that ECPA was drafted before WiFi existed, but that doesn't mean it's not a radio communication. That's what all wireless communication is. It's a form of radio communication. That's just basic technology. But not to this judge. And, thus, Google doesn't get to dismiss the wiretapping charges. Hopefully they'll appeal and somewhere up the chain this will be corrected.

Filed Under: data, ecpa, open wifi, radio communication, street view, wifi, wireless, wiretapping
Companies: google