This recent piece on mobile phones that use VOIP through open access points has revived the debate on whether your use of an open access point constitutes “theft” of wifi or “tresspass” into my neighbor’s network.
I’d like to suggest that we flip this and ask a different question: is my noisy neighbor Mr. Lynksis, who blasts his access point into my home thus causing interference and potentially screwing up my own network settings, a public nuisance? And if so, what should I do about Mr. Lynksis, the noisy neighbor that I may not even be able to locate with certainty?
As I argue below, I think we should establish by law that any open access point detectable by standard hardware and software is available for public use (assuming I have a legal right to be in the physical location I’m in when I detect the network). Such a law will poduce positive social benefits, whereas a presumption that use of an open access point is “stealing wifi” produces social costs.
My analysis below . . . .
Many of my neighbors operate access points. I know, because I see them all whenever I fire up my laptop or desktop or my wife starts using her Palm. Most have names and passwords associated. But one of my neighbors, Mr. Lynksis keeps inviting me to come use his access point instead. He’s very insistent about it. In some places in my own house, he blasts a louder signal than I do for my network because I, like a considerate person, have actually reduced my power level to approximate the footprint of my home.
Every now and then, I have problems with my DSL connection. At those times, I take Mr. Lynksis up on his kind offer and use his internet access instead. Why not? He keeps on insisting.
I keep hearing about “stealing wifi” and how awful it is when “war drivers” come by and “steal wifi” from innocent home owners whose only sin is that they are BLASTING THEIR FREAKIN’ SIGNAL OUT AS LOUD AS POSSIBLE AND HAVE NEVER BOTHERED TO SECURE IT! But this thoughtless does not stop the occassional arrest for stealing wifi and general condemnation along the lines outlined in this clueless Doonesbury by Gary Trudeau. That somehow someone who is in a public space or even on their own property is engaged in stealing or freeloading because the other person should just naturally have the right to exclude you.
But consider. You, the owner of the hotspot, have chosen to attach a device to your network and — very rudely in my opinion — blast it at maximum volume to the world. You also decide to keep you system open, rather than closed, creating the impression that you actually want to have people use your hot spot. There are, in fact, plenty of people who would like to share their access (I work with many in the community wireless movement) and you, Mr. Lynksis, are making it much harder for them to willingly share with their neighbors by being a thoughtless git and then demanding that the law make it easier for you to be a thoughtless git. You are the annoying neighbor who stands on the front lawn in your bermudah shorts and t-shirts shouting drunkenly at the paper boy at 5 a.m. and then, when the neighbors open their windows to see what is happening, you shout “what are you lookin’ at!” and flip them off for good measure.
Simplistic analogies to “if I leave the door open to my house, I’m not inviting theft blah, blah, blah” don’t cut it, because this is not how this stuff works in the real world. There is no physical intrusion, and there are people who blast open networks at maximum volume to facilitate public sharing who do not appreciate your effort to create a presumption that every access point must be a closed, proprietary system.
To the extent there is an analogy to the physical world, it is more like your apple tree overhangs my property and the street. Feeling a mite peckish, I decide to pluck off the ripe apples on my property and eat them, as do folks in the public thoroughfare. Common law has long established that your intrusive apple tree is trespassing on my property and I can eat the apples. I am not an apple thief; my neighbor is a trespassing nuisance.
So rather than lament the “theft” of poor Mr. Lynksis’ wifi, I think we ought to start regarding Mr. Lynksis (assuming he is not genuinely trying to share) as a thoughtless nuisance. If anything, it is the hotspot operator who is trespassing into my apartment/house/public thoroughfare, and at a cost to me. My thoughtless neighbor “Mr. Lynksis” confuses my machines that do ad hoc networking by automatically grabbing the strongest open signal. So not only am I “trespassing” without my knowledge, but Mr. Lynksis is extruding into MY airspace and disrupting MY home network. I can adjust my network settings to ignore Mr. Lynksis, but why does Mr. Mr. Lynksis the thoughtless neighbor get the free ride presumption? Why don’t I get to assume that if Mr. Lynksis is blasting into my apartment or my street, he WANTS me to share. Because if he didn’t want me to share, he’d change the blasted default power settings or at least set a blinking password.
Mr. Lynksis and his thoughtless buddies also impose a cost for me in network response time. If he is intruding into “my” airspace, then my 802.11 device may experience slow downs due to congestion. I don’t usually let my neighbor blow his leaves into my yard with his leaf blower, and if he did, I think we would all agree I can use them however I want. So why should I protect Mr. Lyknsis’ network access when he chooses to blast his access point, keep it open, and in the process impose on me a measurable cost?
By contrast, consider the positive benefits of establishing the opposite presumption. Suppose the law establishes that anyone running an open network that can be received outside the hot spot operator’s private premises is explicitly inviting use by anyone able to receive the signal using a standard receiver (we will exclude the hot spot owner trying to maintain a proper power level but who “leaks” because I am actively using a sensitive receiver). This creates incentive for hot spot operators to manage their networks efficiently, creating positive externalities. My toughtless annoying neighbor, who is creating a public nuisance by his thoughtlessness, can actually provide me and my community some good. And if Mr. Lynksis decides for whatever reason he doesn’t like providing public access, then he can actually adjust his flippin’ settings. (Hint to Mr. Lynksis: The novel that came with your wireless router, the one about the guy named ‘Manual’? If you read it, you might get some helpful hints on how to do this.)
A presumption that a party that blasts an open network into a public place actually wants the public to use the signal also allows those in the community wireless movement who want to offer an open access point to do so. By contrast, the opposite presumption — that even networks that appear open are proprietary — makes it very difficult to do open access points for the benefit of the community. In the world where use of an open wireless signal is automatically “theft” or “trespass”, I have to find some way to inform a person that an open access point is present and that they have permission to use it. But in “Proprietary Access Point Only” world, no one looks for an open hot spot because you don’t dare use one. So the folks that want to build a better world no longer have teh freedom to share their signal willingly, because we decided it was much better for society to give Mr. Lynksis the incentive to stay fat, dumb, thoughtless and happy rather than require Mr. Lynksis to clean up his act.
There is no a priori reason why we can’t create laws that require responsible network management, and a number of reasons we should. The primary driver for establishing the “trespass” rather “public nuisance” presumption seems to flow from ignorant analogies to private property and a deliberate ignorance or cluelessness on the part of the Gary Trudeaus of the world. I see no reason to reward such ignorance, and every reason to give people incentive to behave themselves. Alas, as a fair number of judges and legislators fall into the clueless category, we end up with presumptions that reward ignorance and encourage inefficiency.
As always, while this signal can remain open,
Stay tuned . . . .